Debtors' Prisons: New Law Will Prevent Debt-Related Incarceration
2023 Legislative Roundup
Artificial Intelligence: How Will It Affect the Law and Legal Education?
Market Forces and the Law
Director's Message:
Home for Every Member of
51 Using Alcohol to Cope and Numb
28 Legislative Roundup After Sine Die
80 Breaking into Law: Mary O'Byrne
82 Career Transitions: Carrie Williams
84 What I've Learned: Judge Steven I. Platt
86 Book Excerpt: Lessons Lived and Learned by Judge Steven I. Platt
92 Beyond Maryland: Lauren Rikleen
60 Don't Press Send on That Email Until You Read This!
Justice in a Recession 67 Becoming a Law Professor 70 Making the Case—Eastland Food: A Needed Course Correction
103 ChatGPT Goes to Law School: Now What?
Debtors' Prisons
Publication Date: Summer 2023
Published quarterly by the Maryland State Bar Association, Inc.
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Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial Board or staff. Publishing an advertisement does not imply endorsement of any product or service offered.
EDITORIAL ADVISORY BOARD (2022-23 BAR YEAR)
Natasha Nazareth, Chair
IN-HOUSE EDITORIAL COMMITTEE
Eric Steiner
David Sidhu
Corinne M. Pouliquen
Jasmine N. Pope
Anna Sholl
Reena Shah
Andrea Terry
Andrea Solan
Travys Harvey
Julie Hopkins Lynette Kleiza
Hillary Evans
Colleen Aracri
Marc Dimenna
Maryland Corporation Law
by James J. Hanks, Jr., Senior Counsel, Venable LLP
Celebrating 33 Years of Publication!
Maryland Corporation Law, including 2021 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 Supplement 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 Supreme Court of Maryland decision!”
Max Stul Oppenheimer
Professor of Law, University of Baltimore School of Law
To order call 800-234-1660 or visit WoltersKluwerLR.com/store
ARTIFICIAL INTELLIGENCE: HOW WILL IT AFFECT THE LAW AND LEGAL EDUCATION?
100 AI'S Impact On the Future of Law: Will Lawyers Survive?
103 ChatGPT Goes to Law School: Now What?
108 AI Chat Bot: Why Students Should Be Wary
110 Is Skynet Near?
FOR YOUR PRACTICE
20 How Maryland Courts Are Adjudicating COVID-Related Claims
74 Why Your Practice Needs an eNewsletter (+ Tips to Start One)
89 Lessons from the Posthumous Bar Admission of Edward Garrison Draper
116 Plain English: Why Lawyers Should Give It A Shot
118 Purging Perjury
WHAT ARE YOU READING?
94 Her Honor by Lauren Stiller Rikleen
ETHICS
120 MSBA Ethics Docket: What Are Former Counsel’s Obligations Concerning Disposition of Crowdfunded Donations Raised to Support the Former Representation?
ACCESS TO JUSTICE
34 Affordable Law Task Force Report and Recommendations
38 Commissioner Profile
40 Debtor's Prisons
My Five Goals for the MSBA
If you don’t know me, I am with Alexander & Cleaver in Prince George’s County, where I represent eight municipalities and have a litigation practice. I am also an Orphans' Court Judge and the immediate past president of the Prince George’s County Bar Association. My wife and twin children mean everything to me, and it is my great honor to be the president of your Maryland State Bar Association.
If you don’t know me, I hope to meet you at one of MSBA’s dozens of events before the end of my term. During my term, I will work hard for you in accomplishing five goals.
My first goal is to counter the effect of the media’s hyper-focus on certain lawyers’ bad behavior. For example, a lawyer, himself convicted on tax charges in connection with his client, is famously prepared to testify against his client, a former President of the United States, just because he didn’t like how his client treated him after his own legal troubles. People who don’t know lawyers will see that behavior and think that’s our norm. Even if they are truly suffering they may not seek our assistance. That is unacceptable. My first goal is to use my position and the resources I can bring to bear to educate Marylanders on what our noble legal profession is truly all about.
My second goal is to increase MSBA membership among young lawyers. At a recent Young Lawyers Section event I saw that any one of the diverse, intelligent, and energetic people around me
might one day be the MSBA President. They are the future of the MSBA and the legal profession. Continuing to attract them to the MSBA, giving them visibility, and making sure they understand how their talents are indispensable to this bar association and will contribute to their long-term success.
My third goal is to retain members who are beyond their early years. They have a wealth of knowledge, experience, and savvy to offer in such areas as legislative advocacy, organizational leadership, and continuing legal education. Acknowledging their vital contributions and their essential value will encourage their continued engagement in these crucial areas.
While MSBA has made significant progress in promoting diversity, equity, inclusion, and accessibility (DEIA), my fourth goal is to prevent complacency in this area. I aim to keep ongoing efforts to foster an inclusive legal community at the forefront of the MSBA's agenda. By prioritizing DEIA initiatives, we create a more representative and just legal profession, reflecting the diverse society we serve.
To amplify our impact, my fifth goal is to nurture our strong relationships with our organizational partners: the Maryland Bar Foundation, the Maryland Access to Justice Commission, the MSBA Leadership Academy, and the Pro Bono Resource Center. Keeping these relationships strong is essential because these partners, important in their own right, share goals with the MSBA.
Thank you for reading my message to you. I hope that now you know me a little better. I look forward to meeting you at one of MSBA’s dozens of events before the end of my term.
Jason DeLoach, President
LEGAL EXCELLENCE WEEK
Deepen your skill & expertise
November 13 – 15, 2023
Maryland Live! Casino & Hotel, Hanover, MD
Access our most in-depth CLE while experiencing the professional community and connection that only MSBA and our expert faculty can provide.
EVENTS & PROGRAMS
• Advanced Real Property Institute
• Succession Planning Workshop MON
TUES
WED
• Criminal Practice Update
• Civil Pre-Trial Practice & Preparing a Trial Notebook Workshop
Registe R now
MSBA.org/LEW
• Business Law & Technology: What Transactional Lawyers Need to Know About AI and Cybersecurity
• Hot Tips in Family Law
Legal Summit 2023 Draws
Hundreds to the Beach
As we enter a new era of post-COVID, the bar is getting clear about what it means to belong. From the 2023 Legal Summit, to Section and Connection events around the state, MSBA is your professional home. No matter where you are.
HUNDREDS OF MSBA MEMBERS from across the state enjoyed three days of high-quality continuing education, thought-provoking keynote speakers, top-notch social events at a variety of locales, and the most priceless experience: networking with their colleagues in a casual setting.
For the second year in a row, the MSBA Legal Summit was held at the Roland Powell Convention Center in Ocean City, Maryland. The Legal Summit kicked off Wednesday, June 7 and concluded Friday, June 9.
DAY ONE
Attendees had an abundance of continuing legal education sessions from which to choose along eight tracks: Technology, Litigation & Trial Skills, Ethics, Justice, Corporate Law, Practice Update, Leadership & Practice Management, Mediation and ADR, as well as sessions of interest to all attorneys.
Michael Steele, former Maryland Lieutenant Governor, former RNC Chairman, and current political analyst for MSNBC, gave the week’s first keynote address on Wednesday. In a presentation that touched on the problems of the current political climate, Steele urged audience members, “Don’t get lost between your ambitions and your ideals.”
After-hours events included the Young Lawyers Section happy hour at 45th Street Taphouse, the Welcome Reception at the Convention Center, the Leadership Academy Fellows Graduation, and the A2JC Welcome Dinner & Fundraiser at Dry Dock 28. Those who wanted more networking moved on to the Barristers’ Bar Nights at the Doubletree Hotel penthouse.
DAY TWO
The smoke from Canadian wildfires didn’t stop some of the hardiest MSBA members from joining Singleton Mathews for Boot Camp on the Beach just after sunrise Thursday.
Later Thursday morning, Maryland legislators--Delegates J. Sandy Bartlett and Luke H. Clippinger, along with Senators Will Smith and Chris West—took part in a panel discussion analyzing the key legislation of interest to Maryland lawyers that was passed by the General Assembly in 2032.
Thursday also included a full slate of continuing legal education sessions, many of which were standing room only, and a redux of the Are You Smarter Than a Law Clerk? game.
Attendees had a variety of social, celebratory, and networking events beginning Thursday afternoon, including An Afternoon at Seacrets, the Maryland Bar Foundation Annual Meeting & Induction of the 2023 Fellows, the Maryland Law School Alumni Happy Hours, and the ultimate social event: the Presidents’ Reception, held in the convention center ballroom overlooking Assawoman Bay. Another night of Barristers’ Bar Nights concluded the evening.
DAY THREE
Friday morning began with Yoga on the Beach with MSBA’s Shaoli Katana, followed by two sessions of continuing legal education. New judges from across the state were welcomed and celebrated at the New Judges’ Reception.
The Legal Summit welcomed two more keynote speakers on Friday. Aarash Darroodi, General Counsel and Executive Vice President for Fender Musical Instruments Corporation sat down with MSBA President David Shapiro to discuss his unconventional career path and his thoughts on attracting and retaining the next generation of lawyers.
U.S. Representative Jamie Raskin was the final keynote speaker, joining David Shapiro for a fireside chat discussing a variety of topics ranging from his role leading the January 6 Committee to his future plans, which may include running for the U.S. Senate seat that will be vacated upon the conclusion of Senator Ben Cardin’s final term.
The summit concluded with the 2023 Annual Business Meeting. Following a vote approving the adoption of new association bylaws, Jason DeLoach was sworn in as the 2023-2024 MSBA President, joined by new President-Elect Raphael J. Santini, Treasurer Marisa Trassati, Secretary Wm. Carl Isler, and Parliamentarian Carl S. Silverman.
Photos courtesy of Maximilian Franz Photography
Chief Judge Robert M. Bell Awards
Judge Bell Awards
Erricka Bridgeford was the 2023 recipient of the Chief Judge Robert M. Bell Award for Outstanding Contribution to Alternative Dispute Resolution in Maryland. Bridgeford, the Executive Director of the Baltimore Community Mediation Center, was recognized for her extraordinary work in mediation and peacemaking. She accepted her award at a celebration April 17 at the University of Maryland Francis King Carey School of Law. The Award honors the vision and accomplishments of Chief Judge Robert M. Bell for his work in promoting the use of ADR in the Maryland judiciary, schools, government, and communities.
Left from top: Toby Guerin, Erricka Bridgeford, and Chief Judge Robert M. Bell
Chief Justice Matthew Fader
MSBA President David Shapiro, Erricka Bridgeford, and MSBA Executive Director Anna Sholl
Berman | Sobin | Gross LLP
Shapiro Sher Guinot & Sandler, P.A.
The Law Offices of Frank F. Daily, P.A.
Furey, Doolan & Abell, LLP
Ayres, Jenkins, Gordy & Almand, P.A.
MSBA LAW FIRMS
Last Bar Year, MSBA visited ten 100% Law Firms with food and gratitude for their commitment to MSBA’s leadership in the legal profession, advocacy in Annapolis, and access to justice. Luckily we were able to take photos of some of the wonderful people who work at these fantastic firms.
All 100% Law Firms are Maryland law firms or branch offices with a 100% MSBA renewal rate among the lawyers. To find out more, please contact membership@msba.org.
We look forward to visiting more 100% Law Firms this Bar Year — July 1, 2023 - June 30, 2024.
Thomas & Libowitz, P.A.
Royston, Mueller, McLean & Reid, LLP
Frost Law
Joseph Greenwald & Laake, P.A.
Coon & Cole, LLC
Section & Networking Events
MSBA sections celebrated their successes, recognized their peers, and took some time to have fun throughout the spring.
Whether it was to commemorate a noteworthy career, network with colleagues, or play games, your MSBA was honored to spend time with its members around the state.
DECEMBER 5-7, 2023
Young Lawyers Raise $13,500 for Athletes Serving Athletes
BY KERRI SMITH, ESQ. FORMER CHAIR, YOUNG LAWYERS' SECTION
ON APRIL 21, 2023, THE YOUNG LAWYERS’ SECTION hosted its 32nd Annual Charity Event at Gertrude’s at the Baltimore Museum of Art. This year’s charity beneficiary was Athletes Serving Athletes, an organization dedicated to promoting inclusion and breaking down barriers for individuals with disabilities. As Chair of the Young Lawyers’ Section, I selected Athletes Serving Athletes as this year’s charity partner because of its commitment to building community and empowering others to lead a healthy and active lifestyle. We were honored to be joined at the event by David Slomkowski, founder of Athletes Serving Athletes.
The event took place on a beautiful evening in Gertrude’s outdoor garden, and featured a live band, excellent food and drink, a silent auction, and the wonderful opportunity to mingle with old and new faces. The planning committee led by co-Chairs Ashley Fellona, Megan Micco and Rachel Samakow worked extremely hard to make this event a huge success. I am also very thankful for the generous support of several law firms, corporate, and individual sponsors and donors.
The Young Lawyers’ Section set a fundraising goal of $10,000 for Athletes Serving Athletes, and I am very excited to announce that we exceeded our goal and raised a total of $13,500!
Athletes Serving Athletes is committed to building community and empowering others to lead a healthy and active lifestyle.
PLATINUM SPONSOR
GOLD SPONSOR
SILVER SPONSORS
SHOLL, ESQ., MSBA EXECUTIVE DIRECTOR
BRONZE SPONSORS
DOPKIN, P.A.
BRIAN HOCHHEIMER & MARJORIE WAX
ANNA
FRIENDS
DEBORAH C.
LIABILITY AND LOSS IN THE TIME OF COVID:
How Maryland Courts Are Adjudicating COVID-Related Claims
BY JASON D. MEDINGER, ESQ.
IN MARCH 2020, THE WORLD CHANGED. A novel coronavirus—SARS-CoV-2 (“COVID-19”)— spread across the globe. Numerous people became seriously ill, and many died. As a result, businesses and schools were shuttered by government emergency orders, and catastrophic business losses followed.
In the wake of these pandemic-related closures, many businesses sought relief under commercial insurance policies. These claims have now made their way through Maryland courts, and one theme has emerged: COVID-19 losses are not generally covered under normal commercial insurance policies.
In May 2022, the then-Maryland Court of Special Appeals (now the Appellate Court of Maryland) decided GPL Enter., LLC v. Certain Underwriters at Lloyd's, 276 A.3d 75 (Md. App. 2022), and held that a restaurant could not recoup its losses after a government-ordered shutdown. The plaintiff operated The Anchor Bar, a restaurant in Frederick, Maryland. The restaurant was forced to close down to in-person dining in March 2020 pursuant to the Governor’s COVID-19-related emergency orders. The restaurant filed insurance claims for its losses. The policy provided coverage for “direct physical loss of or damage to Covered Property." The restaurant even had business-interruption coverage, but such coverage was limited to expenses due to the suspension of business operations “caused by direct physical loss of or damage to property at” the restaurant. The Court held that COVID-19 and the government shutdown orders were not like a fire or an earthquake in that they did not cause tangible, physical damage to any of the restaurant’s property. Id. at 85. The Court further reasoned that the government shutdown order resulted in a temporary loss of beneficial use, and not the kind of physical damage contemplated by the property loss or damage policy. Id. at 86. And while the restaurant argued the COVID-related losses must be included because, in contrast to its policy, many other commercial coverage policies have express exclusions for virus related losses, the Court rejected this argument, holding that “the absence of an exclusion does not imply the existence of coverage.” Id. at 89. As such, the Court held that the restaurant’s losses were not covered by the general insurance policy covering “physical loss or damage” to property. Id.1
The Supreme Court of Maryland reached a similar result in December 2022 when it decided Tapestry, Inc. v. Factory
Mut. Ins. Co., 286 A.3d 1044(Md. 2022), and held that an insurer was not liable for COVID-19-related loss. The Court recognized that “many businesses sustained substantial financial losses when they were compelled to close temporarily or alter their operations due to the pandemic and associated governmental orders.” Id. at 1048. The plaintiff, Tapestry, Inc., was one such business that had to close for a time, and filed claims for $700 million under an insurance policy that guaranteed them against “all risks physical loss or damage." Tapestry claimed that loss of use occasioned by the presence of COVID-19 particulates on covered property triggered the policy’s coverage. The Court held that because COVID-19 “causes neither tangible, concrete, and material harm to the property nor deprivation of possession of the property,” the insurer was not liable. Id. In doing so, the Court rejected Tapestry’s claim that “physical loss or damage” extended to a “temporary, functional loss of use of the property.” Id. at 1058.
These decisions track those reached by federal and state courts across the country. See Verveine Corp. v. Strathmore Ins. Co., 184 N.E.3d 1266, 1275 (Mass. 2022) (collecting cases from the Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits and state courts in California, Illinois, Michigan, and Ohio which hold that “direct physical loss of or damage to” property requires some “distinct, demonstrable, physical alteration of the property” and therefore is not triggered by COVID-19 exposure).
COVID-19 up-ended large swaths of society and resulted in real losses, both personal and commercial. But where COVID-related insurance claims come into play, ancient and axiomatic contract principles generally rule: unless expressly contemplated by the parties and reduced to writing, a novel sequence of events which does not cause actual physical damage to property will not trigger insurance coverage.
Jason D. Medinger is currently serving as the Chief of the Criminal Division of the U.S. Attorney's Office for the District of Maryland. A native of Towson, Jason has been a member of the Maryland Bar since 2008.
1 The Supreme Court of Maryland later denied a writ of certiorari in this case. See 2023 WL 1823312.
HIS OWN KIND OF REPUBLICAN MICHAEL STEELE
Former Chair, RNC
Former Maryland Lt. Governor
MARYLAND NATIVE MICHAEL STEELE made history as the first African American elected to statewide office in Maryland, serving as the lieutenant governor of Maryland from 2003 to 2007. He also bears the distinction of being the first African American chair of the Republican National Committee (RNC), a position he held from 2009 to 2011.
Steele joined the Maryland State Bar Association at its 2023 Legal Summit in Ocean City, where he gave a keynote address to MSBA members, offering insights on the duties of attorneys and the state of American politics. Steele, who is an attorney, noted the upsides and downsides of the profession, stating “Lawyers . . . occupy a place of ambivalence in public life. Their work makes them indispensable to many. What they do at work makes them loathed by many others. We are a challenged species.”
Steele, who is an attorney, currently works as a political analyst for MSNBC and has been a commentator on shows such as Meet the Press and Face the Nation. He believes that all attorneys, regardless of their practice area, have an obligation to defend our civil liberties, ensure the freedoms granted by the Constitution, protect our rights, and enforce the rule of law. He stressed that an independent judiciary system is crucial. “Our nation was founded on the ideals of liberty and justice. And to this point, James Madison once noted, there can be no liberty where the legislative and executive powers are united in the same person.” To Steele, attorneys are at the crux of maintaining independent branches of the government, as demonstrated in the months following the terrorist attacks of September 11th, 2001, and the January 6th attack on the U.S. Capitol following the 2020 presidential election. He noted, “[i]n each of these historic moments, again, lawyers, our legal system have been called upon indeed required to put no man, including a president, above the rule of law and the constitution.”
Steele clarified his stance on January 6th, stating that it was not political discourse but was an insurrection against the government. He still believes, though, that the power rests with the people, and “[i]t does matter that we stay connected, not just to the work that we do as lawyers, but the work we must do as citizens.” Steele, a Republican, believes that recent events have devalued the party. He resists being pigeonholed, though, stating that others do not get to define what kind of a Republican he is, as “we all wear the hat differently.”
Overall, Steele believes that a strong ethical compass is the key to protecting the rule of law and achieving success as an attorney. “How you conduct your life and assert the principles that guide your actions will speak volumes about you as a person. How you practice the law, uphold the constitution, and represent your clients will speak volumes about you as a lawyer.”
In response to a question about the role attorneys play in getting the country back on track regarding the values of democracy, Steele urged them to “use the knowledge and the wisdom you have from the learning that you've gained and the experience that you've gained in the practice of law, the study of law to inform the general population about things they don't know” including issues like how the president is elected. He also discussed gerrymandering and noted he supports a national popular vote for the election of the presidency.
How you conduct your life and assert the principles that guide your actions will speak volumes about you as a person. How you practice the law, uphold the constitution, and represent your clients will speak volumes about you as a lawyer.
Read more about Michael Steele's Legal Summit keynote speech at HTTPS://WWW.MSBA.ORG/
Photo courtesy of Maximilian Franz Photography
A LAW FIRM ON THE EASTERN SHORE AND BEYOND
AYRES, JENKINS, GORDY & ALMAND, P.A.
AYRES, JENKINS, GORDY & ALMAND, P.A. is an Eastern Shore law firm located in Ocean City, Maryland, but has a large client base and connectivity to Baltimore and Washington, D.C. based businesses practicing in all areas of the law except for Bankruptcy. The firm, which celebrated its 50th anniversary on June 1, 2023, has built a reputation of being the “go to law firm” on the Eastern Shore.
The firm was founded in 1973 by Guy R. Ayres, III, M. Dean Jenkins, and Harold B. (“Chip”) Gordy as a general practice firm, focusing on real estate, business matters, criminal defense, and civil litigation. In 1977, James W. Almand, formerly a University of Maryland School of Law assistant dean, moved to Ocean City and joined the firm. A few years later, Almand became a partner, at which time the firm became “Ayres, Jenkins, Gordy & Almand, P.A.” Municipal law, therefore, has been a key practice area for over 40 years. In 1982, Ayres began his long tenure (until his death in 2019) as the Town of Ocean City Solicitor. The firm has
Top row, L to R: Bradford F. Kirby, Mark Spencer Cropper, Ryan D. Bodley, James W. Almand, Harold B. “Chip” Gordy, M. Dean Jenkins, Victoria L. O’Neill, Spencer Ayres Cropper
Seated, L to R: Heather E. Stansbury, William E. Esham, III, Bruce F. Bright, Maureen F. L. Howarth
continued to represent the Town of Ocean City as its (outside) general counsel, and the Town is one of the firm’s most important client relationships throughout the history of the firm. The firm has also represented the Town of Snow Hill for a number of years. As condominiums and homeowners associations proliferated in and around Ocean City, condominium and community association law became a large and important practice area within the firm, with Gordy
defense practice. The firm’s associate attorneys presently include Victoria O’Neill, Spencer Cropper, and Bradford F. Kirby.
The firm continues to target growth in key areas, including litigation, real estate, and criminal law. With an experienced and skilled staff, the firm is well positioned to serve the broad legal needs of a geographic area that will continue to grow and expand.
The firm’s focus on ensuring the client’s demands are met and done well as opposed to a rigid billable hours schedule, have created a great work/life balance for their lawyers.
being at the forefront of large-scale condominium development in Ocean City. Almand would eventually become one of the preeminent family law attorneys in Maryland. Jenkins developed a state-wide reputation as one of the foremost criminal defense attorneys, especially in the area of DWI/DUI law. The firm also practices extensively in the areas of business and transactional law, business litigation, tort litigation, employment law, estates and trusts, and construction law.
Will E. Esham, III, who joined the firm in 1991, has grown the real estate settlement practice into one of the most productive on the lower Eastern Shore. Mark S. Cropper, who also joined in 1991, quickly became (and continues to be) a “go to” lawyer on the Eastern Shore for land use, zoning, and other administrative law matters. Bruce F. Bright joined the firm in 2001, having practiced in Washington, D.C., and Annapolis, and has worked over the years to expand the firm’s general civil litigation practice area. Heather E. Stansbury, who joined the firm in 2005, has expanded the firm’s family law practice and, since Ayres’s death in 2019, has had primary responsibility within the firm for representing the Town of Ocean City. Heather is also the attorney for the Worcester County Board of Education, having succeeded Almand in that position after his 25-year tenure. Maureen F. L. Howarth joined the firm as a partner in 2020, having previously served as the Worcester County Attorney and Deputy Wicomico County Attorney. Maureen works extensively for the Town of Ocean City and the firm’s community association clients. Ryan D. Bodley, a former Worcester County Assistant State’s Attorney and second-generation Worcester County bar member, became a partner in 2021 and carries on the firm’s successful criminal
Firm members consider the culture to be very collegial and collaborative. The more experienced lawyers actively strive to develop the talents of younger lawyers, and to include them on all aspects of client matters. The attorneys work very closely with our staff of assistants and paralegals, who are critical to meeting clients’ needs. Many of AJGA’s staff members have been with the firm for decades, and others have retired from the firm after decades of working at the firm. They value a true team approach to legal work. Bright, a partner at the firm for 20 years, says the firm’s focus on ensuring the client’s demands are met and done well as opposed to a rigid billable hours schedule, have created a great work/life balance for their lawyers.
Who is your target client?
AJGA is a general practice firm that has no particular “target” client. We serve the Town of Ocean City, individuals, businesses, property owners, developers, community associations, and other organizations, both locally and throughout the region, in large and complex matters, as well as smaller, less complex matters, and everything in between. The attorneys of AJGA take pride in their ability to nimbly meet the varying needs of a broad and diverse client base.
What sets Ayres, Jenkins, Gordy & Almand, P.A. apart from other firms?
AJGA believes the firm in many respects has the sophistication of larger firms on “the other side” of the Bay Bridge, but the close client connectivity of a smaller firm. Some of the firm’s partners and associates were born and raised on the Lower Eastern Shore, others moved here from other areas. The attorneys include a
former prosecutor, a former county attorney, former judicial law clerks (both trial and appellate), a former law school dean, and former “Big Firm” attorneys. This provides for a collective firm perspective that is quite broad. Although the firm is well-steeped in local institutional experience and awareness, it is also well known and has many clients beyond the Delmarva Peninsula.
Diversity is a challenge these days in the legal profession. Where is the firm on diversity, and where do you want to be?
From a recruitment standpoint, some challenges come with being located on the lower Eastern Shore. Most often, the attorneys and staff members that are part of the firm have either been born in the area or have a specific tie to the area. The firm is looking to expand and remains open to any qualified candidate regardless of gender, race, religion, or sexuality.
What does community involvement look like now for the firm, and where would you
expect it to be in the years ahead?
The firm has remained committed to community involvement since its inception; members of the firm serve on a variety of boards and foundations and have done so for decades. The firm has always supported numerous local nonprofits and local schools’ fundraisers. Moving forward, the firm remains committed to the community, and their dedication of time and resources will continue.
What do you see as the legal challenges Maryland will face in the next few years?
There are numerous legal changes on the horizon. Subject matters such as the legalization of marijuana and any subsequent bill passed as a result, matters pertaining to the use of force and police reform, as well as the many child-related initiatives, working their way through the Maryland Legislature this session alone, could have significant impact on the law and therefore legal challenges within the State.
AJGA believes the firm in many respects has the sophistication of larger firms on “the other side” of the Bay Bridge, but the close client connectivity of a smaller firm.
2023 MSBA Advocacy at Work Legislative Roundup After Sine Die—Key Successes on Behalf of the Profession
The MSBA was proud to put forward legislation and support bills during the 2023 Legislative Session that protect the legal profession, preserve the integrity of the judicial system, and ensure access to justice for Marylanders. Through the diligent work of practice-based Sections and the Laws Committee, the MSBA advances legislative priorities as we convene attorneys with diverse perspectives and expertise to inform our representatives.
The MSBA’s 2023 legislative successes that impact the legal profession include:
• Improving the probation before judgment process in criminal cases to no longer negatively impact a Marylander's immigration matters or professional opportunities and licenses;
• Securing an additional $42 million in civil legal aid funding to implement Maryland’s Access to Counsel in Evictions program, a beneficial, cost-effective access to justice solution;
• Making Maryland a no-fault divorce state through new grounds of “irreconcilable differences,” thereby offering a simpler path to divorce and lowering the financial burden on parties;
• Creating a Task Force to Study Crime Classifications to include two MSBA representatives, and provide recommendations to
legislators, advocates, and stakeholders for comprehensive reform in important areas such as expungements;
• Updating Maryland corporation code to better support and retain Maryland business entities, clients, and lawyers;
• Modernizing estates and trusts law through the Trust Decanting Act, permitting e-filing of documents with the Register of wills, and updating intestacy law to secure rights for surviving domestic partners;
• Increasing access to justice for victims of hate crimes through civil remedies;
• Closing the spousal defense loophole in criminal law which prohibited prosecution of a spouse for charges of rape and sexual offense.
• The MSBA thanks our members, Section and Committee leaders, legislators and their staff for a successful 2023 session. You can view the full list of the bills passed in the 2023 Legislative Session here. Below are a few priority bills that MSBA has been tracking.
Through the diligent work of practicebased Sections and the Laws Committee, the MSBA advances legislative priorities as we convene attorneys with diverse perspectives and expertise to inform our representatives.
Family Law - Grounds for Divorce: PASSED (HB14/SB36)
The MSBA’s Family Law Section led a significant effort to allow for divorces based on no-fault grounds, noting that the bill “will streamline Maryland’s current divorce law and allow our citizens to file and obtain divorces with less waiting time, less expense and less acrimony.”
Criminal Law - Probation Before Judgment - Probation Agreements: PASSED (HB193/SB211)
The bill amends the probation before judgment statute to remove negative, unintended consequences, including immigration deportation and detention and the loss of professional opportunities and licenses.
Criminal Law - Sexual Crimes - Repeal of Spousal Defense: PASSED (HB4/SB129)
Legislators finally closed the loophole of "spousal defense" which prohibits prosecution of a spouse for charges of rape and sexual offenses.
Task Force to Study Crime Classification and Penalties: PASSED (SB209)
A Task Force to Study Crime Classifications and Penalties will engage in a broad study and provide recommendations to guide comprehensive reform in important areas such as expungements.
The MSBA will provide guidance through two MSBA practitioners with expertise in criminal law and victims’ rights on the Task Force.
Corporations and Associations – Revisions: PASSED (HB209)
This bill, sponsored by the Committee on Corporation Law of the MSBA’s Business Law Section, is a combination of fixes to highly technical corporate laws, including: 1) authorizing that a corporation’s charter or bylaws may provide for ex officio directors, 2) clarifying that stock certificates may not be issued in bearer form, 3) clarifying annual meeting requirements for investment companies, and 4) establishing a Notice of Termination requirement with SDAT for termination of real estate investment trusts.
Estates and Trusts – Registers of Wills – Electronic Filing and Signature: PASSED (HB255/SB253)
Updates current law to allow electronic filing for submission of documents to the Register of Wills, saving money and time for Marylanders.
The MSBA’s Estates and Trusts Section secured unanimous passage of this Act to provide more certainty and flexibility for trustees to modify the terms of an irrevocable trust to further a settlor’s objectives.
Access to Counsel in Evictions – Funding: PASSED (SB756)
Maryland’s Access to Counsel in Evictions program. The value of having one of Maryland’s 42,000 attorneys in court representing a tenant during an eviction proceeding will lead to fairer and more efficient outcomes.
Child Victims Act of 2023: PASSED (HB1/SB686)
The bill lifts all age and time limits for child sexual abuse survivors to file civil suits and caps liability for non-economic damages. The constitutionality of the bill may then be considered by the Maryland Supreme Court.
Cannabis Reform: PASSED (HB556/SB516)
Creates licensing regulations and tax rates to open a recreational marijuana market, following voter approval of a November 2022 constitutional amendment.
The ability to make a difference in Annapolis is just one of the many reasons we need all legal professionals to belong to the MSBA to ensure we remain a strong and vibrant association. Thank you for your support. Visit us at msba.org/advocacy.
A PROSECUTOR WITH STYLE
LETAM DUSON
Senior Assistant State Prosecutor at the Office of the State Prosecutor
As Senior Assistant State Prosecutor at the Office of the State Prosecutor, Letam Duson is responsible for investigating, charging, and litigating crimes related to corruption and other official misconduct matters throughout the State of Maryland. When she is not prosecuting cases, Duson is usually working on her personal styling business, Ley All Day. She is also active in the MSBA and dedicated to helping fight food insecurity in Maryland.
Why did you enter the legal profession?
I entered the legal profession because I wanted to be a prosecutor and public servant. Growing up, Law & Order was one of my favorite shows, and I idolized Jack McCoy. As a result, criminal law always seemed interesting to me. When I went to law school, I took courses geared toward criminal law and litigation. I really enjoyed those classes, which reinforced my desire to be a prosecutor. Upon graduation, I began my career with a judicial clerkship and saw various litigation matters, but the criminal matters were the most interesting to me. After completing my judicial clerkship, I reached my goal and became an Assistant State’s Attorney in Baltimore City.
Your reputation will speak for you in rooms you may never step foot in and with people you may never meet.
What does a day at work look like for you?
Honestly, no two days are the same. One day might be an office day where I am researching a unique issue. The next, I might be in Western Maryland interviewing witnesses. On other days, I might be on the Eastern Shore for a week for a trial.
What are some of the challenges you face in your current role?
Many issues we deal with are unique and may never have been litigated before. There is often very little or no legal research on certain topics and issues. Also, given the types of cases my office handles, even if we get a conviction, there are always people who are not pleased with the end result, thinking it was too lenient or too harsh. However, as long as I know I did all I could to get a just result and the victim(s) are satisfied, I count it as a win.
What is the best advice you have received from someone in the legal profession?
Your reputation is everything. I was told this in law school, and it is always at the forefront of my mind. Since there are only two law schools in Maryland, the Maryland legal community is very small, and reputation is key. Your reputation will speak for you in rooms you may never step foot in and with people you may never meet. Your referrals, invitations to speak at conferences or panels, recommendations for future employment, and so much more will be predicated on your reputation.
What makes you unique in your profession?
I have varied legal experience. I was a prosecutor for four years in Baltimore City. I then went into private practice because I realized that while I enjoyed criminal practice, there are so many different types of law, and I wanted to get experience in the civil side of things as well. Ultimately, I returned to prosecution, but I am glad I had civil experience.
How has the MSBA helped you in your legal career?
The MSBA has greatly helped me in my legal career. I clerked on the Eastern Shore, and when I returned to Baltimore after my clerkship, many friends from law school had left the area. I wanted to get involved with bar associations and meet fellow young lawyers, but I had no clue where to start. I mentioned this to a friend, who connected me with the incoming MSBA Young Lawyers Chair at the time, E. Regine Francois, Esq. Regine put me on the Young Lawyers Section as a Co-Chair of the Publications Committee. I eventually became the Chair of that Committee, and for four years, worked on the Young Lawyers Section quarterly Publication, The Advocate.
Currently, I am a Maryland Bar Foundation Fellow and the Chair of the MSBA Young Lawyers Social Media Committee. I have also served as Co-Chair of the Young Lawyer’s Section Education Committee, and as a member of the Young Lawyer’s Section Nominating Committee and the MSBA Board of Governors.
All of these MSBA roles have allowed me to meet so many attorneys from all over the state and have given me the opportunity to gain great friends. When I started my business, many of my MSBA colleagues were more than happy to help and offer advice regarding the logistics of running a business and were even some of my first clients. I am so grateful for their support of me in legal practice and outside of it.
How do you spend your free time?
I spend most of my free time on my business, Ley All Day. What started as an Instagram account and blog (Leyallday.com) has turned into a personal styling business promoting body positivity, self-love, and self-confidence. I never thought I was creative because I’m not a thespian or musician, but my business has taught me that is not true. How we present ourselves is a major form of our creative expression, and I enjoy helping people feel comfortable in their skin, which in turn lets them look and feel their best.
I LOVE to travel, so I do that as often as possible. In the past year, I’ve gone to Italy, Puerto Rico, California, Mexico, and New Orleans. I also love sports and try to go to as many O’s, Ravens, Terps, and Caps games as I can.
What causes are you passionate about?
I am passionate about trying to help fight food insecurity in Maryland. I have never gone hungry a day in my life. Unfortunately, that is not the case for many Marylanders. In June 2022, nearly one in two Maryland families (47%) said that their children were sometimes or often not eating enough because food was not affordable. Maryland families with children across all income groups experienced a significant increase in food insufficiency from 6.2% to 18.8% (April to June 2022). I was fortunate that a friend introduced me to the Lawyers’ Campaign Against Hunger in 2019. The Lawyers’ Campaign Against Hunger serves as the philanthropic pillar of the legal community—bringing dedicated Maryland attorneys together to combat food insecurity across the state by benefitting The Maryland Food Bank. We help raise money for the Maryland Food Bank and volunteer at The Maryland Food Bank Baltimore Warehouse. It’s rewarding to be a part of, and hopefully, one day, we will eradicate hunger in Maryland.
A HECTIC BUT EXHILIRATING CAREER
JEREMY ELDRIDGE
Eldridge, Nachtman & Crandell, LLC
Before starting ENLawyers, my law partners and I attended MSBA sponsored events aimed at helping potential attorneys start their careers in private practice. The advice and counseling I received at such events was unparalleled.
Photo courtesy of Travis Marshall Photography
JEREMY ELDRIDGE DESCRIBES HIS LIFE as a trial attorney as “hectic” and “exhilarating.” “The potential chaos and unpredictability that each day brings makes our corner of the legal world very challenging,” Eldridge said. “Most days are spent running between various court appearances, jail visits, client meetings, all the while trying to bring in new business.” But, before crossing into criminal defense, Eldridge got his start on the other side of the courtroom as an Assistant State's Attorney for Baltimore City. Since then, Eldridge, a founding partner at the Law Offices of Eldridge, Nachtman and Crandell, has gained notoriety as a legal expert appearing on media outlets like New Nation, CNN, and NBC News NOW. In addition to serving clients in court, Eldridge has also been an advocate for addressing the collateral effects of criminal convictions. For example, this past legislative session, Eldridge served as a strong proponent of new legislation that would alter the state’s probation before judgment (PBJ) statute to reduce its unintended consequences.
Eldridge noted that in some cases PBJ could lead to detention, deportation, and permanent banishment from the United States for non-citizens, including legal permanent residents, Dreamers, and other people with lawful immigration status —consequences that Eldridge and other advocates note are inconsistent with the law’s intent. Moreover, “individuals who receive [probation before judgment] may encounter difficulty obtaining federal employment, security clearances, and certain professional licenses [and] due to persistent institutional racism in the criminal justice and immigration systems, Black Marylanders often suffer the most disproportionate consequences,” Eldridge said. “this bill [offers] an equitable and simple solution.” Under the new PBJ statute, which is set to take effect in October 2023, courts can impose probation before judgment without a plea or finding of guilt.
Tell us about your background and your journey into the legal profession.
I was born in Washington, D.C. and raised in Prince George’s County. I graduated from Eleanor Roosevelt High School’s Science and Tech Program, and then earned a Bachelor of Arts in Government and Politics at University of Maryland in 2002, and in 2006 I graduated from the University of Baltimore School of Law with a Juris Doctorate. During this time period, I also worked at my mother's store, ‘L&L Gifts, Gourmet and Fine Chocolates,’ where I would assist in sales and teach customers how to properly eat a chocolate truffle.
Who has been the biggest influence in your legal career?
My grandfather Herb Hoffman, who (after graduating from NYU and NYU Law School) served in World War II. He worked in private practice and served in the U.S. Department of Justice for 31 years. He served as Counsel to the House Judiciary Committee during Watergate. He taught legislation at Georgetown and co-authored law school books. He directed the Washington Office of the American Bar Association, served as the Chief Administrator of the office investigating the Iran Contra Arms deal, worked with eight presidents
and 10 attorneys general, and played an important role in landmark legislation, including the Voting Rights Act and the Organized Crime Bill. I have two pens that LBJ used to sign such legislation hanging in my home office as a constant reminder of the work I have ahead.
How has the MSBA helped you in your legal career? Before starting ENLawyers, my law partners and I attended MSBA sponsored events aimed at helping potential attorneys start their careers in private practice. The advice and counseling I received at such events was unparalleled.
Describe a memorable MSBA event or experience. I have always enjoyed attending the MSBA summer conference. I enjoy how welcoming the attendees are, and how diverse the experience can be in education and socializing.
What’s an interesting fact about you that no one would guess?
One of my most high-profile cases involved a Baltimore City homicide detective, Sean Suiter. Detective Suiter was fatally shot the day before he was to appear in front of a federal grand jury investigating Baltimore City Police corruption. I represented Suiter’s family who sought the truth behind the killing. The case made national news and was the subject of an HBO documentary, The Slow Hustle. In the end, our public fight and production of evidence helped convince the Chief Medical Examiner in Maryland that Sean’s death was a homicide.
What are you happiest doing when you’re not working?
Losing every single argument to my amazingly witty 10-year-old daughter Elena Eldridge, playing tennis with my awesome wife Shonte’, and making my own hot sauce (“Hot Justice”) or slow smoking ribs.
Who is someone you admire, and why?
My father, Captain Lawrence Eldridge. He served the nation in the Army and U.S. Public Health Service for almost 50 years. He always does what is right and never seeks applause. He is my best friend, confidant, and role model. I would never be where I am today without my Yoda-dad.
MSBA and A2JC Deliver Affordable Law Task Force
Report and Recommendations
MANY ACCESS TO JUSTICE EFFORTS RIGHTFULLY FOCUS ON PROVIDING FREE CIVIL LEGAL SERVICES TO THE MOST VULNERABLE AMONG US, who are often described as persons and families whose household income falls below the Federal Poverty Line. Ten percent of Maryland households fall in this category, but an additional 28% are the working poor and fall into what the United Way calls the “ALICE threshold.” ALICE stands for Asset Limited Income Constrained Employed. ALICE households do not make enough money to survive and meet their family’s basic needs (e.g. food, shelter and childcare)–let alone hire legal help–despite being hard-working and employed.
10% OF MARYLAND HOUSEHOLDS
FALL BELOW THE FEDERAL POVERTY LINE but an additional 28% ARE THE WORKING POOR and fall into what the United Way calls the "ALICE threshold."
Modest means Marylanders or households fall into a unique access to justice predicament: they make too much money to qualify for free civil legal aid, yet they do not make enough to be able to pay market rate for a lawyer. The result is a modest-means access to justice gap, wherein this cohort does not have many viable options to receive any civil legal help. Not receiving timely civil legal help can have dire consequences and can result in further financial hardship. Thus, out of the box thinking and tailored access to justice solutions are required to ensure that all Marylanders can have a fair shake at civil justice, regardless of their income. The Affordable Law Task Force was tasked with confronting this problem and recommending solutions.
A partnership between the Maryland State Bar Association and the Maryland Access to Justice Commission, the Affordable Law Task Force is the first statewide coordinated initiative to confront the issue of providing legal services to modest means Marylanders. The Task Force undertook its work by conducting an audit of existing services in Maryland; surveying Maryland lawyers to learn of the efforts of the private bar; and researching and conducting in-depth interviews with representatives of organizations from across the United States who are serving modest means clients.
The Task Force found that there were only three non-profit legal services organizations providing services to modest means Marylanders and a handful of tools, but that the
An important finding is that attorneys are offering modest means legal services to clients out of a desire to help people, rather than for financial reasons. In response to the question “what made you decide or consider offering services to modest means clients,” the top two responses chosen by respondents with 59.5% and 51.4% respectively were associated with the sentiment that “they entered the law to help people” and “they wanted to help the large population of people who needed it.”
Maryland judiciary had invested substantially in Court Help Centers that provided brief advice in civil matters, without income limitations.
Additionally, and with some surprise, we also learned through the attorney survey that there were solo and small firm attorneys in the private bar who were providing or wanting to provide services to modest means Marylanders. They were doing so by reducing their hourly rates, charging flat fees or allowing for installment or payment plans; however, few were using legal technology, using paralegals or other allied paraprofessionals. Attorneys who were already providing services and those who wanted to, sought help through templates/ checklists and sample motions; pre-screening of cases; and CLEs for common modest means cases and training in limited scope representation. We also found that attorneys were taking these cases because of a desire to use their law degree to help people and they made it financially sustainable by accepting cases that were less complex; where they already had expertise; and limiting the percent of reduced cost cases they provided, indicating that while attorneys may be offering these services sometimes, most attorneys are not building their whole law firm around serving clients of modest means, because modest means clients may be harder to reach or not pay and it is difficult to turn a profit.
The Task Force also learned from other states and experts around the country understanding that Maryland already had many of the building blocks in place for legal services to modest means to thrive, including organizations with modest means panels; rules allowing for limited scope representation and some fee-shifting statutes; availability of employer-based legal insurance; and very modest uptake of legal technology and allied legal professionals. It did not have, however, any centralized hub for information or resources for attorneys offering these services or for clients seeking them. Further, Maryland was far behind on having discussions about regulatory reforms, let alone adopting them. States that were early adopters of regulatory reforms were at the forefront of innovation by certifying paralegals to provide legal services in certain areas; allowing non-lawyer ownership of law firms; and experimenting with a mix of legal technology, allied legal professionals and attorneys to build a multi-tiered legal system to meet the demand for legal services.
As the Task Force undertook the first full scale statewide exploration of how to serve Marylanders of modest means, the Task Force understood the need for more in-depth study to flesh out some of the interventions. It centered identifying interventions that were financially viable and sustainable; scalable and had an ability to have mass impact. There was a mixed desire among the Task Force to take a measured approach, but also a realization that in many ways Maryland is well behind many other states in trying to address this yawning gap in legal services for modest means individuals and needed to act with urgency.
After 18 months of study and analysis, the Task Force made these recommendations for the Maryland State Bar Association and the Access to Justice Commission:
• Serve as a thought-leader and the coordinating entity for providing legal services to modest means clients by convening and working in partnership with all relevant justice stakeholders, the judiciary and bar associations.
• Expand existing efforts to provide legal services to modest means clients.
• Conduct Additional Research that Can Help Inform Future Progress and Innovations to Serve Modest Means Clients.
• Normalize discourse related to regulatory reform of the legal profession.
• Partner with modest means nonprofits to establish a pilot project in either family law or estate planning.
• Form a group that will work to implement recommendations of this Task Force and to conduct
RESULTS & KEY TAKEAWAYS
AFFORDABLE LAW TASK FORCE ATTORNEY SURVEY
PEOPLE FILLED OUT THE SURVEY
242 were able to set their rates and PROVIDED REDUCED FEE LEGAL SERVICES to clients of modest means.
additional research that can help inform future progress and innovations to serve modest means Marylanders.
Most respondents (43.7% of 158) reported taking 1-5 reduced-cost cases in the past 12 months. 17.7% took 5-10 cases and 15.8% took 10-20 cases in the past 12 months, but 5% took more than 50 cases in the past year.
This tells us that most attorneys are trying to take a few affordable law cases a year and mixing these with full market rate cases, but about 5% of those who responded seem to have a practice built on providing affordable legal help.
One attorney captured this sentiment by saying, “I could take one of these clients at a time and only during a time I project having sufficient profits from other matters.”
Experience with Providing ReducedCost Services
Most respondents (193 responded to Question 6) reported reducing hourly rates (66.3%), charging a flat rate (59.1%), or allowing installment payments or payment plans (55.4%). In addition, almost half reported reducing the price of retainers (49.2%) or offering limited scope representation (48.2%). However, very few respondents were offering services through a legal insurance plan (11.9%); using legal technology (11.9%); enlisting the help of paralegals (13.98%); or enlisting the help of other non-attorneys (6.2%). The areas that were not being utilized - like legal insurance, using legal technology or using allied paraprofessionals - seemed like the areas of most opportunity for growth to help financially sustain and grow these efforts.
One attorney stated, “I have a very successful practice and believe I have a duty to provide representation to some low or pro bono clients.”
The types of cases most frequently offered as limited scope representation were family law (44.6%) or life planning documents (43.8%); 25.9% were in landlord/ tenant law and 24.1% in business law. In comparison, there were low percentages associated with small torts (11.6%), immigration (9.8%) and bankruptcy (8%).
When asked what types of cases attorneys are handling for a flat rate, the responses varied greatly, but the top responses were in these substantive areas: estate planning, family law, criminal law and bankruptcy.
When asked about criteria used to determine whether to offer services at a reduced rate, 87.3% of respondents reported adjusting cost based on the client’s ability to pay; 60.8% reported reducing cost based on the complexity of the case; and 45% respondents adjusted cost if the client was in dire straits; and 44.2% if the client is a friend of the family.
“Typically [I] don’t take on complex cases so I can afford the requisite attention without excessive time and burden,” an attorney explained in the ALTF Attorney Survey.
Challenges related to serving clients of modest means include: (1) 46.3% of respondents said communicating with the client and 42.6% said “reaching” a client were top challenges and (2) client’s technology literacy (38.3%).
Business Models for Providing Reduced-cost Services
When asked, how they offer legal services to clients of modest means in a financially sustainable way, respondents reported the following models most frequently: (1) 67.2% reported accepting cases where they already have expertise; (2) 52.8% said they accept cases with limited complexity;, and (3) 47.8% said they limit the percentage of reduced-cost cases.
When asked to identify challenges from the perspective of your business operation, attorneys identified the following business challenges: (1) 54.9% of respondents said that complex cases were too expensive; (2) 48.6% said they had difficulty recovering payment; and (3) 44.0% said they had an inability to make a profit. Some of the issues underlying the difficulty may be expressed in the responses with less percentage - 29.7% said they could not verify income; 24.6% said it was tough to administer payment plans; 21.7% found that they were unable to scale or grow a practice; and 20.6% said they were prevented due to ethical constraints with limited scope representation.
When asked to specify technology used in practice, attorneys responded with the following:
The survey results tell us that there is a need for a resource bank filled with information, templates, checklists, sample motions and forms. It also tells us that attorneys are struggling with pre-screening clients, with translation services and are requesting more training to help them build their affordable law practices.
Maryland State Bar Association Support Respondents who had offered reduced-cost services requested the following support when asked what support from the MSBA would be helpful in serving modest means clients: 57.5% requested templates for documents and checklists/ forms/ sample motions; 30.0% said pre-screening of cases; and 25.6% named affordable translation services.
Attorneys who were currently not offering services, but were interested were asked what services, if offered by the MSBA, would encourage them to offer legal services to modest means clients. Their answers were similar to those above. 35.7% requested pre-screening of cases; 21.4% requested checklists/ forms/ motions/ templates; and 21.4% requested training in limited scope representation.
The survey results tell us that there is a need for a resource bank filled with information, templates, checklists, sample motions and forms. It also tells us that attorneys are struggling with pre-screening clients, with translation services and are requesting more training to help them build their affordable law practices.
Michael Pinard
Intersectionality in the Civil & Criminal Justice Systems
MICHAEL PINARD IS A FRANCIS AND HARRIET IGLEHART PROFESSOR OF LAW at the University of Maryland. A nationally recognized expert in criminal justice, Pinard’s work focuses on the intersection of race, poverty, and the criminal justice system. His work has been widely published in leading law reviews and academic journals, and he is actively involved in efforts to reform the criminal justice system in Maryland.
As a Commissioner for the Maryland Access to Justice Commission, Pinard supports the Commission’s efforts on a range of reforms to improve access to justice, including increased funding for the state’s Access to Counsel in Evictions program, greater use of technology to improve efficiency and reduce costs, and increased support for pro bono legal services.
“The mandate of the Access to Justice Commission is to open up pathways for individuals and communities to be able to access our judicial systems,” Pinard said. “I serve on the advocacy committee [which] is focused on advocating for laws that both broaden access to justice [and] ease if not eliminate oppression.”
“
On the connection between housing insecurity and the criminal justice system, Pinard noted that “the threads of poverty run thickly between eviction and the criminal legal system.”
For Pinard, the interconnectedness of the civil and criminal justice systems is clear: criminal defendants often face challenges that have direct ties to concurrent civil legal issues. As an example, Pinard cites Matthew Desmon’s book Evicted, and points out that “mass eviction is a problem that particularly plagues Black women, while mass incarceration, particularly plagues Black men and Black women.”
Pinard emphasized the importance of making inroads with marginalized communities while broadening the level of support and representation available. Drawing on his experience as a public defender at the Neighborhood Defender Service of Harlem (NDS), Pinard recalled how the work required thinking more broadly about how best to assist and provide legal representation to criminal defendants who faced civil legal issues as well.
At NDS, he explained, “we practiced what's called holistic representation where we represented individuals who were charged with crimes, but we also had a civil team that represented the same client in any civil matters they were facing.”
Throughout his career, Pinard has focused on exposing the bridge between the civil and criminal justice systems. “I learned very early on that all these systems and institutions interact in certain ways . . . that is to say the criminal legal system often is the sum of all the failures of [several] other systems and institutions,” Pinar More recently, Pinard served on Attorney General Anthony Brown’s transition team. In his role as co-lead of the public safety team, Pinard’s work involved making recommendations about various
public safety-related issues. On the issue of public safety Pinard again emphasized the need to view legal issues with a broader lens. “I think people usually think of public safety in the narrow sense and some claim that incarcerating people is a way to ensure public safety, but the data shows that incarcerating more people does not correlate with improving public safety and actually makes it worse,” Pinard said. “If we truly want to promote public safety, we should look at what steps we need to take to holistically improve the lives of individuals and communities and rely less on punishment.” In addition to public safety, Pinard’s work has touched on a variety of legal issues that straddle the civil and criminal justice systems including issues like expungement, and a myriad of legal and non-legal issues facing formerly incarcerated individuals. “I think the work that I have been doing at Maryland Carey Law has really bridged the civil and criminal justice systems,” Pinard said.
Pinard also co-founded the one of the first reentry clinic’s in the United States with former Professor Sherrilyn Ifill. The clinic exposed law students to the various obstacles that individuals with criminal records encounter like ineligibility for public housing, ineligibility for various licenses and types of employment, ineligibility for various government benefits, and in some states ineligibility to vote. These are merely a few examples of the devastation that comes with a criminal record.” Pinard continued: “We created the clinic about 20 years ago because of urgency. Our students need to be exposed to the true enormity of the criminal legal system, and then work to narrow and shrink it.”
Debtors' Prisons
NEW MARYLAND LAW WILL TRANSFORM
DEBT COLLECTION PRACTICES AND PREVENT DEBT-RELATED INCARCERATION
Imprisoning people for their inability to pay debts has long been considered archaic and inhumane. Section 38 of the Maryland Constitution expressly protects people from such practices, stating “[n]o person shall be imprisoned for debt.” Regardless, Maryland law currently permits judges to issue body attachments that allow law enforcement agents to arrest alleged debtors at the request of creditors, ostensibly to assist with debt collection. In other words, despite Maryland’s constitutional ban on debt related incarceration, the use of body attachments has resulted in de facto debtors’ prisons.
Maryland recently made great strides towards abolishing debtors’ prisons and decriminalizing poverty with the passage of HB127 during the 2023 legislative session. HB127 prohibits Maryland district courts from ordering a person to appear in court or answer interrogatories, to aid in the enforcement or execution of a money judgment in small claims actions. Governor Wes Moore signed HB127 on May 16, 2023, and the law will go into effect on October 1, 2023. It will undoubtedly transform debt collection practices in Maryland, and hopefully, prevent further debt-related incarcerations.
How Debt Collection Practices Lead to Debtors’ Prisons in Maryland
Since the pandemic began, the cost of living has increased in Maryland, while wages have largely remained the same. The net result is an increase in poverty rates, consumer debts, and a greater number of Maryland residents struggling to make ends meet. When debts are not paid, creditors or debt collectors acting on their behalf will
Notably, many of the debts that result in civil legal action and ultimately, imprisonment for the failure to pay, are considered small claims, meaning that they amount to less than $5,000.
typically take legal action against the debtors. Notably, many of the debts that result in civil legal action and ultimately, imprisonment for the failure to pay, are considered small claims, meaning that they amount to less than $5,000. In 2019, there were over 164,000 small claims actions in Maryland.1
Debt collection is a multi-billion dollar industry that continues to grow each year. Most debt collectors are paid on a contingency basis, and to ensure they can recover the fees allegedly owed to their clients, will often employ problematic techniques, like using body attachments.
Specifically, Maryland law permits creditors to obtain subpoenas compelling debtors who owe $5,000 or less to attend a court hearing and testify or produce certain documents. If the debtor does not appear or offer an adequate excuse for their absence, the creditor can request that the court issue a body attachment. If the court grants their request, the debtor can be arrested and imprisoned.
Body Attachment Statistics
From 2010 to 2014, the district courts in Maryland issued an average of 134 body attachments per month in civil cases, amounting to a total of 1,615 over the four-year period.2
In Baltimore City and County alone, almost 400 body attachments were issued for debts less than $5,000 within six months.3 Prince George’s County filed for 41 body attachments between 2015 and 2017, in cases where defendants owed as little as $329.4
One Prince George’s County resident was arrested three times and jailed overnight, even though, by law, his income cannot be garnished.5 Finally, from January 2015 until December 2020 Maryland judges issued at least 765 body attachments to enforce civil judgments against debtors.6
Body attachment arrest for debts of $5,000 or less disproportionately impact Black Marylanders; only 19% of WHITE residents have a debt in collection compared to 43% of non-WHITE residents.7 These arrests are not anomalies or mistakes; they are part of a systemic problem that affects low-income Marylanders.
Debt collection is a multi-billion dollar industry that continues to grow each year. Most debt collectors are paid on a contingency basis, and will often employ problematic techniques, like using body attachments.
Debtors arrested on body attachments may be forced to pay a bond or bail, which typically ranges from $200 to $3,000.8 If they miss a second hearing after their arrest, their bail increases. In one case, bail was set at $5,000 for a $2,800 debt.9 In another case, bail was set at $10,000.10 If a defendant cannot pay their bail, they may be forced to remain in jail for days or weeks, until they can either pay the debt or bail.11
Fewer than a dozen debt collection lawyers request over 90% of body attachments, for debts averaging less than $4,400. Attorneys fees and interest, which are added to the debts in most cases, typically increase the original debt by 20%.
Maryland Must Put an End to Body Attachments and Debtors’ Prisons
Arrests arising out of unpaid debts can have devastating consequences, particularly for those who are already struggling financially. People who cannot afford to post bail remain incarcerated, while those who can afford it are able to avoid jail. This creates a two-tier system of justice, in which the poor are punished more harshly than those with greater means. Furthermore, people imprisoned for
the use of body attachments in Maryland. In 2021, thenAttorney General Brian Frosh’s COVID-19 Access to Justice Task Force, urged the General Assembly to outlaw the courts’ statutory authority to order the arrest and possible jailing of people who fail to comply with courtordered debt payments. Reena K. Shah, executive director of the Maryland Access to Justice Commission, served as Vice Chair of the Task Force. At the Attorney General’s request, bills were cross-filed in the House and Senate during the 2021 General Assembly session, seeking a prohibition of body attachments and debtors’ prisons, but they failed to pass. Delegate David Moon and Senator Will Smith introduced similar legislation during the 2022 Session; the bills passed but were ultimately vetoed by Governor
Ending the use of body attachments and debtors’ prisons in Maryland is not only a moral imperative, but it is also a practical one.
debt frequently lose their jobs, which makes it even more difficult for them to repay any debts they may owe.
The vast majority of defendants in debt collection cases valued at $5,000 or less are unrepresented, while nearly all plaintiffs have representation. In 2014, only 2% of people arrested on a body attachment for debt collection had legal representation in Baltimore City and County, compared to 98% of plaintiffs.12 This creates a significant power imbalance and further disadvantages low-income individuals who bear the brunt of Maryland’s increasing debt.
Ending the use of body attachments and debtors’ prisons in Maryland is not only a moral imperative, but it is also a practical one. Debtors’ prisons serve no legitimate purpose; they exist solely to punish people for being poor. People arrested on body attachments are not criminals; they do not pose a threat to society and are not violent. They are merely criminalized and incarcerated for civil legal issues. Additionally, imprisoning individuals for debt is a waste of resources that could be better spent on other priorities. It also perpetuates a cycle of poverty and debt that harms individuals, families, and communities.
In recent years, Maryland civil legal aid groups have joined consumer advocacy groups to engage in efforts to abolish
Hogan, who stated that under the bills “the defendant has no incentive to pay the judgment or be cooperative because there are no repercussions.”13
During the 2023 General Assembly Session, legislators introduced HB0127 and SB0594, bills that would put an end to body attachments and debtors prisons. Numerous organizations led the charge and offered compelling testimony in support of HB127, including Economic Action Maryland, and Consumer Credit Counseling Service of Maryland and Delaware, Inc. The Office of Attorney General and Office of Public Defender testified in support of HB127 as well; Melissa Rothstein, Chief of External Affairs, OPD, noted that “Incarceration of debtors has a counterproductive domino effect of exacerbating economic instability and jeopardizing public safety…[t]he net cost is far greater than the maximum remedy sought in any small claims proceeding.” HB127 passed and was sent to Governor Moore; he signed it into law on May 16, 2023. It will be effective October 1, 2023.
As attorneys, we must hold Maryland accountable to its own constitution and advocate for policies that promote access to justice. Ending debtors’ prisons in Maryland is a necessary step in that direction.
Blades & Rosenfeld, P.A., takes pride in being Maryland’s oldest law firm that has retained the same name for over 100 years.
Back row l to r: Charles Palmer, Jerry Jones, Andrew Opiola, Jerome Geraghty, Charles Siegel
Front row l to r: Sanford Schreiber, Jennifer Jackson, Jay Oppenheim, Todd Hippe, Rayanne Beers
IN THE LEGAL WORLD, as in the business world, it is common for firms to merge and reinvent themselves. It is rare for a law firm to maintain its character and name as times change and the years pass. Only a select few manage to survive and thrive for a century or more, establishing themselves as esteemed institutions.
Blades & Rosenfeld, P.A. (Blades) is one firm that has withstood the test of time. Established in 1921, Blades takes pride in being Maryland’s oldest law firm that has retained the same name for over 100 years. The firm’s commitment to maintaining its name is just one sign of the firm’s dedication to the same principles that motivated its founders over 100 years ago.
Sanford “Sandy” Schreiber, co-managing director at Blades, joined the firm in 1971, meaning he has been there for over half its duration. He explained that the firm began with three attorneys working in different practice areas: business transactions and real estate, estates and trusts, and litigation. Today, most of Blades’ lawyers still work in the same three practice areas. Schreiber noted that the firm has remained relatively small, which is intentional. He explained, “We try to be very selective when we hire attorneys… and we really enjoy the small firm environment and culture.”
For Blades, “staying small, sticking to the practice areas we are good at, just works.” The attorneys Blades hires “have bought into the small firm culture and the tradition of providing great service for our clients.”
Currently, Schreiber focuses on estate planning but also handles business planning. He noted that this illustrates a unique feature of the firm in that, outside of the litigation department, attorneys largely follow the same continuum: young associates start out doing corporate work, and as they get older and get their own clients and work directly with some of the firm’s clients, they get more into estate planning.
Like Schreiber, many Blades attorneys have been there for most, if not all, of their careers. Jerry Geraghty, the firm’s other managing director, joined Blades in 1976, just out of law school, and has been with the firm ever since. Early in his career, Jerry earned an LLM in tax law from Georgetown University, working at Blades during the day and commuting to Washington D.C. in the evening. Jerry also personifies another important aspect of the firm – community service. As with many of the attorneys at Blades, Jerry has devoted a great deal of time over the years to charitable, educational, and religious organizations, including, in his case, the Associated Catholic Charities and Calvert Hall. Jerry enjoys a close personal relationship with his clients who rely on him for advice on a wide range of business, legal, and tax planning matters.
Charlie Palmer and Chuck Siegel—two other partners of the firm—have each served as attorneys at Blades for over 35 years. Charlie specializes in estate planning, a mainstay of the firm, and is knowledgeable in the fine points of estates and trust law. In this regard, Charlie is carrying on the tradition of such former Blades’ partners as Paul C. Wolman, Jr., Charles M. Cahn, Jr. and Eugene H. Schreiber, each of whom was influential and well regarded in the estate planning field. Chuck started with Blades as a law clerk during his second year of law school and has been with the firm on a continuous basis since then. Chuck started his career in corporate law and transactional law, and has branched out to estates and trusts, often working with second and third generation clients.
Todd Hippe, a partner at Blades focusing primarily on corporate and transactional work, began clerking for Blades in 2008 and joined the firm as an attorney in 2009 after graduating from law school. Hippe attributes the firm’s longevity to the tight-knit community his predecessors built, both within the firm and with their clients. He explained, “It’s certainly hard work to give our clients the best representation possible. . . . We all have families, we’re very conscious of that, and we’re supportive of each other.”
Looking towards the next 100 years, Hippe explained that Blades is focusing on developing a transition plan to ensure that the next generation of attorneys will continue to offer the same level of service to their long-standing clients and future generations to come.
Andrew Opiola, a partner in Blades’ business transactions department, also clerked at Blades during law school. It did not take him long to realize that Blades offered a different culture than most other firms in that it is a collaborative rather than a competitive environment, and its attorneys are all “working towards the common goal to serve [their] clients.” Blades’ collegial atmosphere inspired Opiola to join the firm as an attorney after graduating from law school in 2004. He focuses his practice on corporate and transactional work but also handles real estate sales, employment law, and estate planning matters. He appreciates that the firm’s size allows for flexibility, so attorneys can work in a variety of practice areas rather than focusing on one as they would at a larger firm.
To Opiola, the greatest thing that Blades does is spend a lot of time training and working with its newer attorneys.
Jennifer Jackson, the sole female partner, joined the firm in 1994. Jackson focuses on family law, which appeals to her because she gets to “help people through what might be the worst thing that ever happened to them, and promising them at the beginning that they’re going to come out the other side feeling better.”
Jackson believes that Blades’ approach sets it apart from other firms. She explained that they “treat our clients the same way we would want our family members to be treated, and the clients
feel it.” They typically retain clients for a long time, becoming trusted advisors.
Jackson noted that the firm’s attorneys are dedicated to Baltimore and to serving its citizens as well. They make a point to give back to the community and engage in philanthropic outreach; for example, some of the firm’s attorneys are active in Legal Aid and the Maryland Volunteer Lawyer Service.
Not all Blades attorneys began their career at the firm, but those who join as laterals
associates: Jay Oppenheim, an attorney focusing his practice on estate and trust work, and Jerry Jones, who works with Jennifer Jackson as part of the “litigation unit” focusing on family law and civil claims.
Oppenheim, who began his legal career in a boutique firm in New York City, wanted to join a firm that had the knowledge and the clientele to address all areas of trusts and estates, from the most basic to the most complex cases. Oppenheim noted that the environment at Blades is open and collabora
out and see what else is going on in the field to bring it back to our clients.” To Oppenheim, Blades is “part of the Baltimore fabric.”
Jones served as a prosecutor for over fifteen years before joining Blades. He excelled as a prosecutor, earning the State’s Attorney’s award for his courtroom litigation skills, but over time, he felt a need to focus on something other than criminal law. He enjoys that his practice allows him to “sit down and counsel people as to the best way that they could decide to move on and separate their lives and do it in a fair way” while allowing him to exercise his skills in the courtroom. Jones describes Blades as a “hometown firm” that offers the benefits of a big law firm without any of the downsides. Partners are involved in cases and accessible to clients, and many partners have lifelong relationships with their clients.
Currently, Jones reports, Blades is transitioning to the modern era, by which he means becoming a paperless firm and employing case management software that allows the firm to process paperwork more efficiently.
In a legal landscape characterized by constant change, Blades & Rosenfeld, P.A. has defied the odds. As they prepare for the next 100 years, they are committed to maintaining their ideals and continuing to provide exceptional service to their clients.
The firm was founded in 1921 by Webster S. Blades and Moses W. Rosenfeld.
A MARYLAND ATTORNEY
WITH AN INTERNATIONAL FOCUS
GEORGE HERMINA
Hermina Law Group
GEORGE HERMINA BECAME AN ATTORNEY at the urging of his younger brother, John Hermina.
“I had a Bachelor’s in Computer Science and an MBA in Finance, and during that time, I had to work closely with attorneys on contract negotiations. My younger brother and I are very close, and he encouraged me to become an attorney.” George took John’s advice, and after graduating law school, joined him to form Hermina Law Group. The firm, which specializes in international law, business law, and consumer protection, is now in its third decade.
Photo courtesy of Travis Marshall Photography
By joining the MBF, individuals can become part of a community of like-minded individuals who are committed to making a difference and upholding the values of the legal profession.
Outside of work, George takes time to help increase access to justice for underserved Marylanders, and has been a Maryland Bar Foundation (MBF) fellow since 2017. He is an active member of the legal community and his personal community, including serving as past president of the Howard County Bar Association, an advisor to the University of Baltimore President’s Council, and a certified volunteer soccer coach at Maryland Public Schools.
Tell us about your biggest passion project right now. My brother and partner, John Hermina, and I are currently providing legal support and oversight for the National Desert Storm Monument, which will be erected next to the Lincoln Monument in Washington, D.C. The project is primarily funded by the international coalition of countries that participated in the Desert Storm and Desert Shield Operations.
What is the best advice you have received from someone in the legal profession?
Not to take things personally.
What is your fondest memory of your legal career so far?
At the beginning of my legal career, my law firm took on several class action employment cases that involved discrimination based on age, race, and sex. It was fulfilling to see that our firm was able to change the discriminatory mindset of a large corporation and force them to become more diverse.
What advice would you give someone in law school or considering a legal career?
One piece of advice I would offer is to build relationships, volunteer, and get involved in the legal community.
What do you love about your work?
I love the people that I work with. Also, one of our firm’s areas of practice is representing plaintiffs in class actions. This gives us the opportunity to help people and make a positive impact by changing companies’ illegal practices. I also love the intellectual challenge of the work and the education that I receive on a variety of topics.
How are you involved with the MSBA?
I have been on the Board of Governors, and the Alternative Dispute Resolution Council, and I volunteer for the Resolution of Fee Disputes Committee.
How has the MSBA helped you in your legal career?
The MSBA has provided me with opportunities to network, build relationships, and gain knowledge about the legal profession.
What is your favorite memory from a past MBF event?
The annual meeting at Ocean City, Maryland.
Why is the work of the Maryland Bar Foundation important to you?
The Maryland Bar Foundation has been actively involved in promoting access to justice for underprivileged Maryland residents. This work is extremely important, and MBF plays a vital role in making these services accessible.
Why should others join the MBF?
There are several compelling reasons why individuals should consider joining the Maryland Bar Foundation:
Promoting Access to Justice: The Maryland Bar Foundation is actively involved in promoting access to justice for underprivileged Maryland residents. By joining the organization, individuals can contribute to this noble cause and help make a difference in the lives of those in need.
Upholding Ethics and Honor: The MBF is committed to upholding the honor and ethics of the legal profession. By joining the organization, members can help ensure that these values are upheld and that the profession maintains its integrity.
Supporting Local Non-Profits: The MBF provides significant financial assistance to various local non-profit organizations each year. By joining the organization, members can contribute to this important work and support the critical role these non-profits play in serving our communities.
Making a Difference: By becoming a member of the MBF, individuals can make a meaningful difference in the lives of others. Whether through contributing to access to justice, upholding ethics and honor, or supporting local non-profits, members can have a positive impact on their community and society as a whole.
Joining a Community: By joining the MBF, individuals can become part of a community of like-minded individuals who are committed to making a difference and upholding the values of the legal profession. This can provide a sense of belonging and fulfillment that goes beyond individual contributions.
What can’t we find on your resume?
The odd jobs that I took to support myself during high school and college, including driving a linen delivery truck and painting an entire trailer park.
What’s your favorite hobby?
Soccer is my favorite hobby. To unwind and destress, I enjoy watching sports.
What’s a cause or charity that you are passionate about? Human Trafficking Prevention.
A Vision of Decent Housing for All
St. Ambrose Housing Aid Center, Inc. (St. Ambrose) is a non-profit organization whose mission is to create and maintain equal housing opportunities for low- and moderate-income people, primarily in Baltimore City, and to encourage and support strong and diverse neighborhoods. Founded in 1968 to confront the pervasive redlining and blockbusting practices that discriminated against Black homebuyers, St. Ambrose continues today as a Black-led organization, powered by a Board and staff reflective of the Baltimore region. Over the past 55 years, the organization has strengthened and expanded a holistic, multi-pronged approach to affordable housing that is rooted in the pursuit of social, economic, and racial justice.
St. Ambrose’s serves over 2,000 families per year through the following programs; Legal Services, Housing Counseling, Real Estate Development, Rental Services, and Homesharing. The organization’s programs, which offer support to households on the spectrum from very low to moderate incomes, address the reality that even in a recovering economy
The Legal Services Department of St. Ambrose Housing Aid Center provides civil legal services to lower income residents to secure homeownership, preserve intergenerational wealth, and ensure economic justice.
there are still many families and individuals struggling to maintain decent, affordable housing. The organization is committed to its vision of communities where every person has decent, affordable housing opportunities;
access to information to make sound decisions about their housing needs and options; and neighborhoods where people of all races and incomes live.
St. Ambrose Housing Aid Center works toward a vision where everyone has a place they’re proud to call home. The Legal Services Department of St. Ambrose Housing Aid Center provides civil legal services to lower income residents to secure homeownership, preserve intergenerational wealth, and ensure economic justice.
Legal Services provides support to families in the Baltimore region facing foreclosure and eviction. As our community emerges from the pandemic and eviction and foreclosure moratoria are lifted, these services provide legal expertise needed to ensure housing stability for some of the most vulnerable members of the community.
Over the last several years, Legal Services has increasingly pursued the long-term goal of creating and preserving intergenerational wealth. Key to this goal is the preparation of wills and life estate deeds. Legal Services provides immediate document preparation on-site to community members, reducing barriers for clients and providing a service that is both accessible and efficient.
In the fall of 2021, Legal Services conducted a series of events at the Woodlawn Senior Center called "Wills Wednesdays." These were Legal Services’ first in-person events since the start of the pandemic, and they were very
successful. While the response and impact were great, lack of adequate technology was a significant hindrance. Despite technological limitations, staff were still able to do amazing work and lay the groundwork for an expanded version of this program at various locations over the next year.
Funding from the Maryland Bar Foundation supported the purchase of new laptops and mobile printers for community events in which attorneys prepare documents on-site. We have hosted 11 outreach events focused on document preparation since the start of 2022, and these events were far more seamless and efficient thanks to the technological upgrades. At these events a total of 49 documents were prepared on-site including 39 wills, seven advance directives, and three powers of attorney.
This work ensures that low-moderate income homeowners’ assets and intentions are honored after they pass away. Property is passed to another pursuant to the homeowners’ wishes, rather than fought over and contested by heirs. Proper estate planning stabilizes not only families, but entire communities, especially communities of color and low-income communities who are subject to higher levels of wealth extraction. In addition to this work, Legal Services provides other document preparation services specific
Thursday, September 29 7-8 PM | Virtual
Funding from the Maryland Bar Foundation supported the purchase of new laptops and mobile printers for community events in which attorneys prepare documents on-site.
to older adults, such as powers of attorney and advanced health care directives. Legal Services also advises about the estate process and prepares distribution deeds for heirs who have all the documents and filings in order.
This work helps sustain and transfer intergenerational wealth, which stabilizes housing and communities across generations.
St. Ambrose hosts one of St. Ambrose's many outreach events, Free Will Preparation.
Using Alcohol to Cope and Numb
A PERSONAL STORY BY A MARYLAND ATTORNEY
I USED ALCOHOL BECAUSE IT MADE ME FEEL “normal” or “like one of the guys.” I abused it because I found it numbed my feelings of inadequacy and uselessness. Whenever stress or the things I carried got to be too much, I’d binge. It was a pattern that I maintained for almost 35 years until I surrendered and asked for help. Living sober has been much tougher, but I prefer it to the alternative. I grew up privileged in a nuclear family, neither wanting or needing for anything. I got good grades when I tried and even when I didn’t. For whatever reason I was always disappointed in myself. Feelings and their expressions were dangerous. There were usually two options in my household: quiet or anger. Fear, despair, sadness, or grief only came out as anger or rage. Quiet was better. I learned much later for me at least that it was more nature than nurture.
When I discovered alcohol in my teens, it opened a new world for me. I was gregarious and felt good about myself after a few stiff drinks. If some was good, more was better, so whenever I drank, I drank to get drunk. I hit my stride in college. Alcohol was more readily available, and the binging pattern held. Like grade school, I did fine in college but did not distinguish myself academically. I let myself down by underachieving or being so hungover that I performed poorly when tested or simply did not show up. After graduation I spent several years doing seasonal work in natural resources fields. The drinking pattern remained. The self-loathing persisted. I ultimately married my long-term partner and decided to apply to law school with the hope of working to conserve and restore natural resources and the environment. Working during the day and attending law school in the evenings afforded little time other than the weekends for binge drinking. The first semester of my 1L year was a wakeup call. I was again disappointed in myself and could never quite dig my way out of the damage done to my GPA and class ranking. In spite of that, I landed a job as a law clerk in the field of law I wanted to pursue. The senior partner was demanding. I learned a lot from him and toughed it out, in part because I thought he saw right through me. I deserved the constant criticism for squandering the privilege and opportunities afforded me earlier in life. It made sense in a way. This is a resultsoriented profession. I have to be strong. I have to be perfect. I have to win, and anything less is a failure. What would be described now as emotional abuse fit my personal narrative. I got meaner, harder, and deeply sadder.
The economic downturn resulted in my taking a position at another firm in a completely different field of law. Shortly thereafter my first child was born. Even though I was blessed with a job that provided a decent salary and generous health insurance, I felt like a failure. I was soon diagnosed with major depressive disorder and received treatment. Regardless, the binging continued. My second child was
react, rather than letting things go or simply accept them as they are. Even though I worked hard and sometimes created opportunities for myself, I frequently feel undeserving of the grace and fortune that I continue to experience. Self-acceptance remains a challenge.
Lately I’ve gained insight and a sense of serenity working with the staff, volunteers, and other attorneys in recovery with the Lawyer
Impromptu happy hours occurred in the office. I thought I could handle it, but whenever I had a sip of beer, that old feeling would come back in my chest: a strange, fizzy mix of anticipation and dread.
born three years later. I tried to stop drinking on several occasions, but the longer I abstained, the more enthusiastic my reentry. Blackouts became routine. Once after a charity function featuring a variety of craft beers, I came home and drank several bottles of wine and passed out cold. My wife later said that when my young son found me unresponsive he thought I was dead. I promised to never drink again. I made it about a year.
While I worked at that firm I continued to do pro bono work in the field of law for which I went to school. In 2014 I landed what I considered to be my dream job. Impromptu happy hours occurred in the office. I thought I could handle it, but whenever I had a sip of beer, that old feeling would come back in my chest: a strange, fizzy mix of anticipation and dread. It was not long until I was abusing alcohol again. I very nearly lost that job but for the compassion of a few friends who saw the usefulness in me. They saw in me what I did not see in myself.
I’ve been sober for eight years now. Working the 12 steps has provided me with awareness of both my character defects and my more positive traits. Awareness is just the beginning, and like the law, sobriety is a practice. We practice one day at a time. And thank God sobriety is a practice of progress, rather than perfection. My marriage ended. I have worked very hard to help my children navigate this change and often fall short. I still have trouble asking for help and expressing feelings that reveal vulnerability. The instinct remains to try and “fix” everything or
Assistance Program. They demonstrate that gratitude, being of service to others, and not taking ourselves too seriously will always serve me in good stead. Hearing their stories of recovery reminds me there is great comfort in knowing that I am not alone in how I feel.
The Lawyer Assistance Program provides free, confidential assistance to all Maryland lawyers, judges, law school students, and support staff by offering assessment, referral, short-term counseling, and continued support to ensure long term success. If you are concerned about another lawyer you can make an anonymous referral to LAP. We offer financial assistance for Mental Health and Addiction Treatment.
Please feel free to reach out to our LAP Committee Members and Volunteers www.msba.org/health-and-wellness/
ACCOUNTABILITY WARRIOR, ADVOCATE AND PUBLIC SERVANT
KIRSTEN GETTYS DOWNS
Homeless Persons Representation Project
THE HOMELESS PERSONS REPRESENTATION PROJECT (HPRP) primarily serves individuals and families experiencing homelessness and housing instability in Maryland. Led by Executive Director Kirsten Gettys Downs, HPRP advocates help clients obtain basic human needs like stable housing and critical public benefits, food stamps, veterans' benefits, health care, and more. By providing free, quality legal representation and bold advocacy, HPRP has worked behind the scenes to create meaningful change in the lives of Marylanders and our civil justice system at large.
Photo courtesy of Travis Marshall Photography
As an executive director, I have to be creative and work on many areas at once, from coalition building to resource development, which is my biggest challenge.
Kirsten Gettys Downs has dedicated her career to defending the rights of the underserved and marginalized communities. Before stepping into the role of Executive Director for HPRP in May of 2022, Downs had amassed over a decade of experience in organizational management, strategic planning, and law, and was an advocate for social, gender, and racial justice. Downs prides herself on seeking out ways to engage and serve as an "accountability warrior.” The term "accountability warrior,” which Downs coined herself, serves as something of a personal motto for her and dates back to her time spent serving as a Federal Public Defender in the U.S. Virgin Islands and as Special Counsel for the U.S. Department of Justice. “Accountability warriors [are] those fighting to ensure individuals and systems live up to their promises of justice and fairness,” Downs said. “Whether it is litigating on behalf of clients in court or advocating in the legislature—legal services advocates are tasked with ensuring that the people and communities we serve have access to justice.”
Tell us about your path into the legal profession and your personal journey to your current role.
I went to law school at the University of California at Berkeley, having received a B.A. in Communications from the University of Pennsylvania’s Annenberg School. While in law school, I interned at the Youth Law Center and even tried a summer at Piper and Marbury’s Baltimore firm. During this time, I developed my desire for public interest law, focusing on advocating for women, children, and underserved communities. Before my current position, I served in several capacities and three counties at the Maryland Office of the Public Defender, eventually becoming the District Public Defender for Baltimore City.
What inspires you to lead a civil legal aid organization?
What is the biggest challenge you face?
The urgency of the work and the dedication of the HPRP team
inspires me. During the COVID and racial justice pandemic, I saw how connecting people to health care and economic opportunities changed their trajectory away from the criminal system. I have developed a holistic view of client service through my work with the criminal justice system and bring that experience and knowledge to my current role. As an executive director, I have to be creative and work on many areas at once, from coalition building to resource development, which is my biggest challenge. The work of HPRP is so important and involves safeguarding basic human needs: housing, access to food and health care, employment, and safety. HPRP must have the financial stability to sustain our initiatives and programs to continue to serve our community.
What do you think makes you a unique leader?
I am collaborative and inclusive, using a team approach to advocacy and continually creating professional development opportunities through "stretch assignments" and continuous learning. I value open and transparent communication and strive to create a work culture where accomplishments are acknowledged and celebrated, and expertise is valued and shared. Additionally, I enjoy new challenges. I am particularly interested in how my team will tackle the emerging trends and challenges of the COVID economy and the movement to view all advocacy work through an equity lens.
What's your favorite hobby?
I love baking and cooking for others. A complex recipe with unfamiliar ingredients and new flavors is a fun challenge. I also consider myself a mixologist and love developing new cocktails.
Our profession is stressful. What do you do to unwind and focus on health and wellness?
I find time outside in nature restorative. Spending time laughing and connecting with friends and family is also essential.
What's an interesting fact about you that no one would guess? I used to take drum (conga) lessons.
What's a cause or charity that you are passionate about?
I have enjoyed working with organizations that uplift and empower women and girls. In law school, I was the Director of the Graduate Women's Project and a member of the Women's Law Journal. I have served as a Board Member for the Southwest Baltimore Charter School, Board Secretary for Girls LEAD (a project serving girls in Baltimore City and Sierra Leone), a Board Member of the U.S. Virgin Islands Girl Scout Council, and on the Planning Committee for the Women's Conference for the National Association of Public Defense. Also, I have been a member of the Community Outreach Committee of the Alliance of Black Women Attorneys.
A BUSINESS-MINDED GENERAL COUNSEL
AARASH DARROODI
Executive Vice President and General Counsel of Fender Musical Instruments Corporation
AARASH DARROODI IS A MARYLAND NATIVE and Executive Vice President and General Counsel of Fender Musical Instruments Corporation. He grew up in the Frederick area and describes himself as “a Maryland guy at heart.” Darroodi is a member of the MSBA and was a keynote speaker at the 2023 Legal Summit. In this issue of the Bar Journal, Darroodi offers the first in what will be a regular column called How to Build a Rain Machine
To read more about about Darroodi's keynote presentation at the Legal Summit, click here.
In order to be successful in the in-house legal environment you have to understand that you are a business unit within a broader business just like marketing, sales, etc. You have to think like a lawyer, but also think like a business person.
Darroodi says his mission is to evolve the traditional notions of what it means to be a General Counsel. He believes that through business intelligence/acumen, in-house lawyers can completely change the trajectory of industry. He is dedicated to embracing the impending technological changes such as artificial intelligence and machine learning as a lawyer to ensure the relevance of the legal profession. In his own words, being a “Business Minded General Counsel” or a “Lawyer 3.0,” will not only help him and his peers be successful, but it will contribute to the legal profession.
Darroodi’s eventual career path was preceded by a key defining moment in his life, when he was a six-year-old in Iran during the Iran-Iraq war. His parents had left him with relatives and set off for the United States. Darroodi experienced the tremendous pain and suffering that came with war and isolation. He woke up in the middle of the night to see his playmate’s home three doors down completely destroyed by scud missiles; his playmate died in the explosion. Darroodi learned the art of survival while experiencing electrical and water outages and food shortages. He was determined to find his way to the United States, not only because his parents were there, but because he associated music and movies with the USA. The same drive he had to escape Iran and move to America drove him to success as a lawyer. Darroodi says nothing fazes him—he only sees solutions and paths to achieving a goal. In his own words, he sees a “north star and will find a way to get to it, period.”
A second defining event in his life that led to his current success was having to go to 19 countries to get a Visa back to the United States. He struggled to get a visa because the political atmosphere at the time was not very conducive to issuing visas to someone from Iran trying to get to the United States. Darroodi was exposed to a very heterogeneous world at a young age. His grandfather was an avid lover of history, and he credits his bedtime stories of influential historical figures to his deep respect for other cultures. He has been able to harness this as head of the legal office for Fender, a company that has a worldwide presence.
The final event in his life that led to his current role in a very direct way—by enabling him to attend law school—was when he realized there was not a single non-alcoholic relaxation beverage on the market. He developed a product and began stocking the shelves with it himself at Whole Foods. Darroodi eventually sold his beverage company to a businessman after Coca-Cola bought his major competitor, Honest Tea. With proceeds from the
company’s sale, Darroodi financed his law school education and supported several refugee families. The most valuable lesson he learned from this experience was that the employees at the bottom of the ladder ensure a company’s product presents well and is sold, not the C-Suite or upper management. This lesson was invaluable to him when he was a candidate for General Counsel because he treated everyone at all levels as equals. In turn, there was a wave of employee support for his candidacy.
Darroodi talked about some of his priorities as General Counsel. He sees himself as a protector of the Fender brand, a company that was founded 77 years ago. His other priority is to his team, to assist them in achieving their greatest potential while finding happiness. Last, he wants to assist in the evolution of the legal profession and help the profession adapt to the upcoming tsunami of technological developments.
Darroodi’s primary challenge is staying current on geopolitical developments across the globe, because Fender is a global brand and manufacturer. A small event in a remote part of the world could have significant implications for Fender’s business. He requires his legal staff to learn the cultural norms of doing business in countries around the globe so Fender can approach business dealings in a culturally competent manner.
His advice to lawyers dreaming of becoming general counsel is to really learn the art of business intelligence. He said in order to be successful in the in-house legal environment you have to understand that you are a business unit within a broader business just like marketing, sales, etc. You have to think like a lawyer, but also think like a business person. One of the main roles of an in-house lawyer is to assist in pushing the business forward at all times, while still protecting it legally.
Darroodi serves his community as the President of the Fender Play Foundation, which is a 501(c)(3) non-profit organization that provides free musical instruments and tuition-free music instruction to kids in K-12. Under his leadership, by the end of 2023, the organization will have provided up to 24,000 kids with instruments and instruction. He is deeply passionate about this work, and they are in the process of expanding its reach throughout multiple states.
Darroodi relaxes by traveling and considers spending time with his family visiting historical sites as a blessing. Music is also an outlet for him; perhaps unsurprisingly for the GC of Fender, he plays the guitar daily.
Market Forces AND THE LAW
IN A TIME OF HIGH INFLATION
and fears of an impending recession, attorneys may be thinking about market forces more than usual. From globalization to technological advancements, members of the legal profession must adapt and contend with these influences in their daily practice and career decisions. Whether it's the need to stay ahead of emerging legal trends, embrace innovative tools to bolster their own practices, or make strategic career choices, attorneys must navigate a delicate balance between meeting client demands, maintaining ethical standards, and securing their own professional longevity. Join us as we delve into strategies and considerations attorneys can use to thrive in an ever-demanding and competitive legal market.
HOW TO BUILD A RAIN MACHINE
Don't Press Send on That Email Until You Read This!
BY AARASH DARROODI, ESQ.
AARASH DARROODI is the general counsel, executive vice president and corporate secretary at Fender Musical Instruments Corporation. He is also the creator of the professional course “How to Build a Rain Machine” at RainstarAcademy.com.
A FEW MONTHS AGO, I WAS A FEATURED SPEAKER AT a large legal conference in Las Vegas. I particularly looked forward to this conference with much anticipation because it was the first in-person since the pandemic caused a mass diaspora of legal professionals. I spoke in front of a group of 100 of my general counsel peers on the modernization of the general counsel role. Afterwards, a lawyer who I didn’t recognize came up to me and introduced himself as a trademark attorney out of a law firm in Chicago. He expressed how much he enjoyed my presentation and politely asked for my email address so that he could contact me to share more about his trademark experience and services. Seeing that he took the initiative to connect with me on a human level, I gave him my email address.
If you don’t look at yourself as a businessperson operating within a business then you will simply find yourself floating aimlessly in the endless sea of mediocrity or, even worse, you may actually burn-out under the immense pressure of billable-hour mandates and leave the profession altogether.
Several weeks passed and I received an email from him. The email said something to this effect:
“Dear Aarash,
Such a pleasure meeting you in Vegas. Again, really enjoyed your presentation. Just to reiterate, I wanted to let you know that I have
15 years of experience in trademarks and would love to be able to help you with your trademark needs. If you ever needed anything, please let me know. Thank you.”
When you break down this interaction between us, you see that the lawyer really took the initiative to connect with me directly at the
conference, got my email address, and followed up with a nice email reiterating that he was ready, willing, and able to help my company and I with our trademark needs. He was successful in landing me as a client, right? Wrong.
He completely missed a tremendous opportunity to land our globally, renowned brand as a part of his client roster. Let’s take a look at why this lawyer missed and, more importantly, what he could have done differently.
My goal is to teach you how to become a “Rainstar.”
A Rainstar is a lawyer working within a law firm who possesses the skills and strategies to generate significant business for their firm. To become a Rainstar and be successful in business development is an art. Luckily, you have me as a sitting general counsel to teach you how to become a Rainstar
If you are of the mindset that you will simply graduate, pass the bar, get hired by a great firm, and then you’re set for life, then I have a bit of a wake-up call for you. That’s not the way today’s law firms work. As I always say, “the practice of law is a profession, but the running of law practice is a business.”
If you don’t look at yourself as a businessperson operating within a business then you will simply find yourself floating aimlessly in the endless sea of mediocrity or, even worse, you may actually burn-out under the immense pressure of billable-hour mandates and leave the profession altogether. That’s not what you want. And that’s certainly not what I want for you.
To be a Rainstar, you must first and foremost understand that you are not the only lawyer out there trying to solicit business from a particular client. I say this lovingly, it’s nothing personal, it’s just that I don’t know who you are. Unless you’ve got a reputation that precedes you whereby perhaps you’re on CNN as a regular legal correspondent, have done multiple cameos on top legal TV shows, and your name is associated with being the legal advisor to famous names like Bill Gates, Johnny Depp, or Elon Musk, then you are simply one of hundreds of thousands of other lawyers within law firms globally. A prospective client simply doesn’t know who you are, so the natural tendency is to revert to working with attorneys they are familiar with, whether they’re actually good or bad, so as to avoid the unfamiliar and potentially risky proposition of working with a brand new lawyer.
Now that you’ve accepted your rather humble position within the lawyer notoriety spectrum, let’s get tactical and employ strategies to rise above the rest of the competition.
It starts with “CIA Profiling” your potential client. This process involves getting a molecular understanding of the potential client’s products, plans, and philosophy. The first place to start is the company’s website. I can’t think of too many companies that don’t employ the internet as a way of increasing visibility for their organization, so take advantage of this free information. If they’re a public company, then get your hands on their last five annual reports and other SEC filings. If they’re a private company, then scour the internet to find any and all press releases, executive interviews, or news articles written about the company. If you really want to get tactical, find people on the inside of the company who will be willing to help you learn more about their company.
After going through this CIA Profiling exercise, what you will find is that you’ve actually begun piecing together a fairly thorough understanding of your potential client’s products, plans, and philosophy. You know what they sell and where. You know where they currently are as an organization and where they intend on going. And you know their company mission statement, which forms the philosophical basis of their organization. Now, you’re ready to craft that first email to that prospective client.
Before drafting that email, a Rainstar knows fully well that their prospective client operates in a very busy world. On any given day, in-house counsel are not only rendering legal advice and hedging against legal risk, but they are also navigating the complexities of corporations having dozens of various global business units. Add to this the fact that in-house counsel also have to manage their personal lives, many times involving kids, mortgage, health care, expenses, insurance payments, etc. They’re just very, very busy people to say the least.
As such, to cut through all this noise and ultimately get the attention of in-house counsel, your communication has to help the potential client to either “survive” or “thrive.” Two very basic innate needs of any in-house lawyer working for a company. With this in mind, before you click send on that email to a client prospect, ask yourself, “Will this email help the client prospect survive in their role?” or “Will this email help the client prospect thrive in their role?” If the answer is no, then STOP! Do not proceed. You are going to completely waste your time and the prospect’s time if the content of your email is not going to help them survive or thrive. If the answer is yes, then you will have completely out-strategized tens of thousands of lawyers striving to land that client.
Getting back to the Chicago trademark attorney I met in Vegas, had the gentleman followed the tactics and
To cut through all this noise and ultimately get the attention of in-house counsel, your communication has to help the potential client to either “survive” or “thrive.”
strategies that I’ve taught you here, he would have learned that my organization is growing rapidly in Asia, particularly China. This would have completely changed the content of his solicitation email to me, whereby it would have been far more effective if the email read something to this effect:
“Dear Aarash,
I love what you guys are doing with your latest branding and marketing campaigns. Now, I did notice that you are growing significantly in Asia, primarily China. Just wanted to let you know that China is in fact a “first to file” jurisdiction, which means that if you don’t file first it will be quite difficult to have a trademark squatter’s registration overturned.
After doing some in-depth research on your current product set on your website, I did identify just a few gaps in registrations. We typically charge $xxx for foreign trademark filings plus trademark office filing fees, but as getting your business and working with you personally is so valuable to myself and the firm, we’d like to offer you a xx% discount off these fees. Now, I know your company’s mission statement is that “Artists are angels and you give them wings to fly,” as such I want to make sure I support this by getting ahead of this potential issue. Your success is important to me and avoiding the recent uptick in trademark squatting in China is something to really keep an eye on. Please let me know how I can be of assistance. Thank you.”
Wow! What a difference. I would immediately hire him. Why? Well, first off, he took the time to learn about our company, including our mission statement. That shows care and attention to detail. Then he went a step further to scour the internet to read any press releases or interviews and he was able to identify Asia as a growing market for us. That shows initiative and diligence. And by saying that my success is important to him and that he can help me avoid the headache of dealing with trademark squatters, he’s appealed directly to my innate desire to survive and thrive in my role.
Now, that is a business-minded lawyer within a law firm executing business development the way it should be done. That is a Rainstar.
Our new address is 6404 Ivy Lane, Suite 820 Greenbelt, MD 20770
mhlawyers.com | (301) 441-2420
Justice in a Recession
How Tough Times Affect the Civil Legal Needs and Options of Low-Income Marylanders
BY MARGARET HENN, ESQ., DAVE PANTZER, ESQ. AND DEB SELTZER
The “COVID-19 Recession” of 2020 and its aftermath have generated new legal needs for (and highlighted the ongoing legal needs of) low-income Marylanders.
No examination of the effects of strange economic times on the legal profession would be complete without considering the needs and options of those who cannot afford civil legal counsel. Regardless of whether it caused an actual recession, the COVID-19 pandemic created deep and lasting economic disruption, which has affected the availability of services through the profession’s traditional safety net. Like the Great Recession of 2007-2009, the “COVID-19 Recession” of 2020 and its aftermath have generated new legal needs for (and highlighted the ongoing legal needs of) low-income Marylanders. They have also affected the ability of the legal community to respond to those needs. 1
Marylanders who cannot afford civil legal counsel traditionally rely on a safety net comprising these components:
Pro bono legal services: 1 A tradition dating earlier than the Constitution, pro bono includes representation or advice provided without cost by practicing lawyers. Now considered an ethical requirement of lawyers, the supply of this service does not approach the demand, even for those in greatest need.
Civil legal aid: A more recent endeavor, emerging after the Civil War and expanding nationally during the last century, civil legal aid refers to representation or advice provided by lawyers who are paid by nonprofits set up for this purpose. The nonprofits are largely funded by government grants and contracts, as well as private fundraising efforts.
While lawyers have fared relatively well in terms of pay and employment during COVID-19 and its aftermath, the sam eis not necessarily true for low-income Marylanders.
Lower-cost alternatives: Beyond the scope of this article, various models have emerged to lower client costs. Such models include “low bono,” or reduced fee, services and limited scope services (in which traditional representation is broken into separate tasks, with lawyers performing some tasks and clients performing others).
Self-help: When all else fails, the client must deal with legal problems on their own as best they can, perhaps provided with explanatory resources.2 Also beyond the scope of this article, this category includes legal reforms intended to make processes more accessible for the layperson, particularly in low-dollar cases.
The specifics of tough economic times can vary widely and can have distinct impacts on the models listed above.
The Great Recession vs. COVID: Effects on the Legal Profession
The aftermath of COVID-19 looks very different than the Great Recession for those in the legal profession. From 2007-2009, the unemployment rate in the United States rose from less than 5% to 11%,3 affecting all sectors of employment. According to the U.S. Bureau of Labor Statistics, “During and immediately after the recession, the unemployment rate increased markedly for people in all
age, gender, race, ethnicity, and education groups.”4
In contrast, the current employment outcomes for new law school graduates are at historically high levels. According to the National Association of Law Placement, “Almost 92% of law graduates found full-time, long-term employment, tied for the highest rate in more than 30 years,”5 and the median salary for new graduates working in law firms is $131,500.6 In the summer of 2022, the number of legal jobs in the economy hit a record high of 1,178,800, a number that had never before been recorded since the Bureau of Labor Statistics started tracking this statistic in 1990.7 In short, business is booming.
The Great Recession vs. COVID: Effects on Low-Income Marylanders
While lawyers have fared relatively well in terms of pay and employment during COVID-19 and its aftermath, the same is not necessarily true for low-income Marylanders. The state of Maryland’s recovery from the COVID-19 pandemic is often referred to as a “K-Shaped” recovery. While some sectors thrived, those at the bottom of the K shape are continuing to struggle. Rising inflation hit low-income Marylanders hardest because they spend 77% of their household
income on necessities like food and rent, while higher income households spend just 31% on necessities.8 Factors such as the expiration of the child tax credit and the recent cutback in Supplemental Nutrition Assistance Program (SNAP) benefits only exacerbates the situation. Moreover, low-income Marylanders may be experiencing higher rates of legal issues such as eviction, foreclosure, benefit denials and debt collection than they would be in good economic times.
These impacts were not felt equally by all Marylanders. Black and Hispanic Marylanders have been hit hardest. According to a study by the Urban Institute, Black and Hispanic households reported that their financial stability had worsened during the pandemic at a higher rate than white households.9 For low-income Marylanders, both the Great Recession and COVID-19 Recession brought similar levels of unemployment, housing instability, food instability and mental trauma. Black individuals were disproportionately harmed, as “[b]etween 2005 and 2009, the median net worth of Black households dropped by 53 percent, while white household net worth dropped by 17 percent.”10 A survey conducted a few months after the onset of the COVID-19 pandemic found that Black and multiracial Americans had both the highest prevalence of civil legal problems and the most severe legal problems as compared to other groups.11
Effects on the Legal Safety Net Pro Bono Legal Services
Since 2002, the Maryland Judiciary
2 Such resources include the network of court law libraries, as well as Maryland’s award-winning statewide legal information website, the People’s Law Library. See http://www.peoples-law. org.
3 Evan Cunningham, Great Recession, great recovery? Trends from the Current Population Survey, U.S. Bureau of Labor Statistics Monthly Labor Review (Apr. 2018), https://www.bls.gov/ opub/mlr/2018/article/great-recession-great-recovery.htm.
4 Id.
5 Aaron N. Taylor, Why the strong law graduate employment data should make us cautious, The National Jurist (Aug. 18, 2022, 1:54 pm), https://nationaljurist.com/national-jurist/news/whythe-strong-law-graduate-employment-data-should-make-us-cautious.
6 Id.
7 Sara Merken, Number of U.S. legal jobs now exceeds pre-Great Recession record high, Reuters (July 8, 2022, 6:24 pm), https://www.reuters.com/legal/legalindustry/number-us-legal-jobsnow-exceeds-pre-great-recession-record-high-2022-07-08/.
9 Michael Karpman, Stephen Zuckerman, and Genevieve M. Kenney, Uneven recovery leaves many Hispanic, Black, and low-income adults struggling, The Urban Institute (October 2020), https://www.urban.org/sites/default/files/publication/103105/uneven-recovery-leaves-many-hispanic-black-and-low-income-adults-struggling.pdf.
10 Christopher Famighetti and Darrick Hamilton, The Great Recession, education, race, and homeownership, Economic Policy Institute (May 15, 2019, 2:04 pm), https://www.epi.org/blog/ the-great-recession-education-race-and-homeownership/.
11 Justice Needs and Satisfaction in the United States of America, Hague Institute for Innovation of Law and Institute for the Advancement of the American Legal System (2021), https://iaals. du.edu/sites/default/files/documents/publications/justice-needs-and-satisfaction-us.pdf.
has collected self-reported pro bono service data annually from all Maryland lawyers. Because of recent changes in the data reported and the time lag before publication, the data may be more helpful in understanding the effects of the Great Recession than of the pandemic.
From 2002 to 2009, the percentage of Maryland lawyers providing some level of pro bono service held relatively constant between 47% and 48%.12 In 2010, the percentage dipped under 47% and started an unbroken downward slide through 2020 (39%). Total pro bono hours, on the other hand, suggest a different trend. From 2002 to 2007, annual self-reported pro bono hours ranged from under 1 million to 1.07 million. In 2008, during the Great Recession, total pro bono hours started a multi-year climb to a high of over 1.18 million hours in 2010, and the total remained relatively steady (averaging 1.16 million) through 2017. Thus, around the time of the Great Recession, the percentage of lawyers performing pro bono work fell, but the number of hours rose. However, during pandemic-influenced years of 2020 and 2021, pro bono hours fell again.
One significant contrast between the effects on pro bono of the Great Recession and the pandemic stemmed from the logistical and safety challenges of the pandemic. Precisely at the time that many Marylanders experienced increased legal needs, pro bono legal clinics located in courthouses and other community locations were forced to close for health reasons. Nearly all in-person pro bono service delivery ceased initially, and a series of emergency court closings brought entire categories of cases to a standstill.
Not only did in-person services cease, but pro bono programs could no longer gain access to clients through in-person community or courthouse outreach methods. While needs mounted, it became far more difficult to connect with those in need. Some pro bono programs and lawyers quickly used technology to reach out and to provide remote services, but others had no access, or struggled to adapt, to new tools.
Likewise, as courts started reopening, some lawyers and clients benefited from the convenience of new remote processes, but many volunteer recruitment and client communication challenges remained. And as of 2023, with courts fully reopened but some dockets still working through backlogs, lawyers report difficulty providing free or reduced fee services due to having to manage their own increased workloads.
Civil Legal Aid
Hiring Challenges and Salary Disparities: Despite the post-pandemic legal boom, the civil legal sector has had an unusual degree of difficulty recruiting and retaining talent, primarily due to lower salaries. Nonprofits have not been able to keep up with the salary growth rate in the general market. According to a 2022 survey by the Maryland Legal Services Corporation (MLSC), the state’s major funder of civil legal aid, the median salary at their nonprofit grantee organizations is $70,000 for an attorney, with starting salaries at $60,000,13 – far below private firm salaries, and falling further behind government salaries. While MLSC was recently able to provide some dedicated funding to its grantees to increase salaries, it was not enough to close the gap. Difficulty attracting talent at these organizations has only exacerbated the gap between the number of attorneys available to serve low-income Marylanders and the number of Marylanders in need of services.
During the Great Recession, hiring was much easier for public interest organizations. They were able to hire attorneys to provide representation to those in need. Many public interest attorneys who remain in the field launched their careers during this time period.
Government Responses:
Maryland’s government has a long history of supporting civil legal aid. The General Assembly created MLSC in 1982 to administer the country’s fourth Interest on Lawyer Trust Accounts (IOLTA) program and disburse funds to nonprofit organizations. When interest rates plummeted during the Great Recession, causing a corresponding drop in MLSC’s IOLTA income with no signs of quick recovery, the General Assembly increased filing fee surcharges directed to MLSC, offering a buffer to what would have been further, devastating grant cuts.
Several organs of government acted again in response to COVID-19. Attorney General Brian Frosh launched the COVID-19 Access to Justice Task Force in the summer of 2020, convening leaders and experts to explore the pandemic's effects and offer solutions through the civil justice system. The Task Force produced a report in January 2021,14 recommendations from which are still informing policymakers. One key focus area of the Task Force was civil legal aid funding. As this recession once
14 See www.marylandattorneygeneral.gov/A2JC%20Documents1/AG_COVID_A2J_TF_Report.pdf.
again drove interest rates to zero this time paired with the novel effect of severely curtailing court operations, filing fee surcharges dropped precipitously. Attorney General Frosh and Governor Larry Hogan partnered to provide $11.7 million in emergency funding to MLSC, again preventing the need for dire grant cuts. The Maryland General Assembly also addressed civil legal aid funding and other issues when it reconvened in 2021 after a pandemic-shortened 2020 session. In response to the extreme funding losses, they passed legislation increasing civil legal aid funding from the state’s Abandoned Property Fund, offering some stability to Maryland’s civil legal aid delivery system.
One of the most highlighted issues throughout the pandemic was the looming threat of eviction for thousands of Marylanders. While low-income people have always faced housing instability for a variety of reasons, the pandemic both exacerbated existing instability and created uncertainty for Marylanders who had never before found themselves facing eviction. In response, The General Assembly created the Access to Counsel in Evictions program, naming MLSC as the administrator. This move positioned Maryland as a leader in this arena as only the second state with a statewide eviction legal assistance program. While the program was unfunded in its first year, the program officially launched in 2022 and is gradually expanding across the state.
repeatedly report lack of time as being a primary barrier to pro bono.
Lawyers also recognized the hardship of their neighbors, particularly during the 2008 foreclosure crisis, and wanted to step in to lend a hand. Former Chief Judge Robert Bell put out a statewide call to action to lawyers to take on foreclosure cases, and there was an overwhelming response of more than 1,700 participating lawyers. Civil legal aid organizations also stepped up to the plate, building a massive statewide infrastructure to support those in foreclosure and those who wanted to volunteer. MLSC received restricted funding for this relief effort, which it was able to disperse among organizations across the state.
More than a mere obligation , pro bono can provide a stabilizing impact in society, as well as a sense of personal satisfaction.
Of course, even in good economic times the state must balance many competing priorities, including civil legal aid. Those pressures grow during recessions, and as federal funding that flowed to states during the pandemic begins to wane, there will be increased demands on the state budget and the attention of policymakers.
Lessons Learned: Justice for All, Even During Tough Times What have the Great Recession and COVID-19 Recession shown us about the effects of tough economic times on the legal needs and options of low-income Marylanders?
Low-income Marylanders are most likely to feel the impacts of any recession, and Black and Hispanic Marylanders are particularly at risk of the most negative impacts like loss of employment and housing. Those who are already most in need of pro bono legal services need them even more so during and after a recession. As Maryland comes out of the COVID-19 Recession, these Marylanders continue to struggle, and the temporary safety nets like rental assistance and increased SNAP benefits have gone away.
Market forces during different types of recessions can have very different impacts on the legal industry, affecting how lawyers engage with pro bono. During the Great Recession, lawyers reported wanting to build their skill sets and legal experience to report on their resumes. Many chose to do so in a way that also gave back to the community through pro bono. Those who had less business during the recession had more time to give. Lawyers
During the COVID-19 Recession, pro bono participation among lawyers dropped as discussed above. Some lawyers report having little time for pro bono due to high workloads. Such high workloads can also cause burnout, stress and mental health issues, which in turn can impact lawyers’ ability to take on pro bono clients. Because lawyers have high rates of employment and busy schedules, factors like seeking skill-building opportunities and having more time to give are not applicable in this recession.
Shortly after the Great Recession, federal funding for civil legal aid dried up. It is likely that the same will happen as COVID-19 relief comes to an end, further stressing the public interest sector that was already struggling to hire staff.
At a time when low-income Marylanders need attorneys the most, we have a professional responsibility to show up for them. More than a mere obligation, pro bono can provide a stabilizing impact in society, as well as a sense of personal satisfaction. If every barred attorney in Maryland took a single pro bono case this year, or spent one day serving in a legal clinic, tens of thousands of lowincome people could get the help they need. This year, make the commitment to participate!
To find pro bono opportunities that are of interest to you, visit www.mdcourts.gov/probono/opportunities.
Margaret Henn, Esq., is deputy director of Maryland Volunteer Lawyers Service, a statewide pro bono organization with a mission to remove barriers to justice through free civil legal help, community engagement, and advocacy for equitable laws. Dave Pantzer, Esq., is deputy director and Deb Seltzer is executive director of Maryland Legal Services Corporation, the state’s largest funder of civil legal aid.
Becoming a Law Professor
BY ELIZABETH KEYES PROFESSOR OF LAW, UNIVERSITY OF BALTIMORE SCHOOL OF LAW
HAVING LED THE FACULTY HIRING PROCESS at University of Baltimore School of Law for several years, I have had the challenge and the delight of identifying people whom we see as having great potential for educating the next generations of lawyers. In my role, many people have sought advice about how to become a law professor, and I am happy to share my insights here as well.
First, do you really want to be a law professor?
One necessary pre-step is considering why you want to be a law professor. Many of us, myself included, will say it is the best job in the world. As a law professor, you have a chance to shape and mentor future lawyers, to engage in vital community service, to share deep thinking with academics within and beyond my institution, and much more. When something interesting in criminal law happens in Maryland, chances are that NPR is asking my colleague David Jaros for insights. Gilda Daniels has become a nationally recognized leader on voting rights law and policy. While helping our law students put out issue after issue of the school’s Law Review, Bob Lande shaped the future of antitrust law nationally. Jaime Lee has made the human right to
Everything we do in the classroom must enhance the students’ analytical skills, which requires an ongoing commitment to the craft of teaching itself.
water in Baltimore a signature issue for her clinic, but also for her community service and scholarship. Who could fail to be inspired by all of them?
But there is more to all of them beyond these publicfacing roles. Law faculties, like all academic faculties, are self-governing, which means we do quite a lot of service institutionally (everything from admissions and hiring decisions, to curricular reform and strategic planning, to aforementioned supervision of the Law Review, and more). Service in the community is also strongly encouraged, and indeed, an aspect of the job that is hugely rewarding. We also engage in scholarship—our own, of course, and also reviewing scholarship for others, formally and informally, and mentoring new faculty as they develop their scholarship. And significantly, the teaching itself requires not just expertise in doctrinal areas, but expertise in pedagogy. No matter how expert I am in litigating immigration cases, for example, that expertise means nothing unless I have thought about how to reach my students effectively. As excellent law schools like ours focus on analysis, everything we do in the classroom must
than that, especially as an adjunct or fellow, you will know from that experience how to construct a syllabus and how to think about evaluation of student learning. You may not have all the answers to the common hiring question “how do you reach students who are at different levels of achievement,” but you will certainly have confronted it and experimented a bit.
Many schools also offer teaching fellowships. These are typically two-to-three year contract positions oriented toward either clinical law teaching, or legal writing and analysis. Depending on the school and the program, these can be excellent chances to learn the craft of teaching, develop your resume as a teacher, and begin engaging in both legal scholarship and the life of the law school. The UBalt clinical fellowship program, a three-year richly supervised program, has launched many, many thriving careers in legal academia, for example.2 If you have geographic limitations, though, be sure to check whether the school hires its own fellows or not, and what that process looks like.
There are usually excellent topics to be found in some of our largest frustrations.
enhance the students’ analytical skills, which requires an ongoing commitment to the craft of teaching itself. All of this is wonderful, and all of this also takes a lot of time.
Yes, this sounds wonderful—how do I pursue this career path?
When I was a law student, people told me that only graduates of Top Ten law schools who pursued federal circuit court (or Supreme Court) clerkships could become law professors. That was certainly not my own path, and indeed, there is a tremendous variety in our many paths into law teaching. If, like me, you followed a different path, focus instead on the advice below.
First, teach.1
Gain experience as an adjunct, as a teaching fellow, or even as a guest teacher. This demonstrates your interest in teaching, which hiring committees want to see. But more
Second, write.
A significant portion of a law faculty member’s job is legal scholarship. A publication is not required to be hired, especially if you have been a successful adjunct, but it is increasingly common—and many candidates have two or more publications. So having something, even an essay, gives you an important leg-up in a highly competitive process.
Wondering what to write about? Think about a case you have had that you thought was wrongly decided. Why did the law go in that direction? Or was there a procedural issue that speaks to a bigger problem? Have courts in other states (or nations) thought about these issues differently? There are usually excellent topics to be found in some of our largest frustrations. Is there a pending legal challenge in the world (climate change, artificial intelligence, etc.) where you see a specific unaddressed issue? As I turned to climate change, for example, I immediately spotted critical gaps in our immigration laws, and have been writing on
1 The American Association of Law Schools (AALS) has resources on every step of this process, available on their Becoming a Law Teacher website: https://teach.aals.org/ tenure-track/ .
2 For more information on this fellowship, see https://law.ubalt.edu/clinics/fellows/. Professor Jennifer Koh has written about immigration fellowships in particular, but her wisdom applies to many different doctrinal areas. Jennifer Koh, Breaking Into Clinical Teaching, Immigration Prof Blog (Aug. 24, 2016), at https://lawprofessors.typepad. com/immigration/2016/08/breaking-in-to-immigration-clinical-teaching.html.
that for several years now. Perhaps you see something unique in real estate law, or bankruptcy, or another area of law, where you wonder why people aren’t talking enough about an issue that intrigues you. Be the person who talks about the issue, and let your scholarship flow from that.3 Finally, apply.
This is the most routinized part of the process. The American Association of Law Schools operates a program for hiring nationally each summer, known as the Faculty Appointments Register (FAR).4 Law schools list available positions, individual applicants complete a form—usually in July each year—about their teaching interests and qualifications, and from there, the schools and applicants can find each other. Filling in the FAR form is an art; some of it is obvious and objective (e.g. degrees obtained, publications—if any), but some is not. Consider carefully what subjects you list as your top preferences. What in your resume suggests those would be a reasonable fit? At the same time, you should also include some required courses, as those are very much in-demand. Might your environmental law practice suit you to Torts? Could you
parlay your work as a Social Security administrative judge into Administrative Law? Have you served on your firm’s ethics committee, to list Professional Responsibility? And so forth. Schools’ hiring needs vary year-to-year, so cast as wide a curricular net as is plausible.
Once the hiring cycle begins in late summer, it certainly helps to write directly to any school where you have genuine interest (because of geography, for example, or particular colleagues you would have at the school, or something unique about the school’s mission).
After all this, If the school is interested in your candidacy, they will schedule a short screening interview (usually a 20–25 minute interview with the appointments committee). After that, a subset of candidates will be invited for a callback (usually a day on campus during the fall semester), and then the faculty will vote (typically in late fall, or very early in the spring semester). I am under-emphasizing that process in this piece, because there is much available about this on the internet5, and because the earlier stages—making yourself hirable—can feel more opaque. The path is not easy, but it is, indeed, worth the journey.
3 For more tips on the mechanics of law scholarship, see Robert Luther III, Practical Tips for Writing and Placing Your First Law Review Article, 50 U. Rich. L. Rev. 63 (2016), available at https://lawreview.richmond.edu/files/2016/02/LutherWeb501.pdf.
4 See AALS, FAR Information, at https://www.aals.org/recruitment/candidates/far-information/.
5 https://teach.aals.org/tenure-track/hiring/.
MAKING THE CASE— EASTLAND FOOD: A Needed Course Correction
BY SCOTT R. WILSON, ESQ., WILLIAM E. CARLSON, ESQ., AND JAMES J. HANKS, JR., ESQ.
ON MARCH 2, 2023, the Supreme Court of Maryland granted review of Mekhaya v. Eastland Food Corporation, 256 Md. App 497 (2022). The opinion of the Appellate Court of Maryland below fails to properly recognize and navigate the provisions of Section 2-405.1 of the Maryland General Corporation Law (MGCL), which has formed the foundation for director duties in Maryland for nearly 50 years. The opinion compounds this legal error by failing to acknowledge, much less apply, amendments to Section 2-405.1 unanimously adopted by the Maryland General Assembly in 2016 and by rejecting or misapplying the statutory business judgment presumption. The Appellate Court has forced on the Supreme Court of Maryland and, in turn, on Maryland corporation law a critical inflection point: Will the Supreme Court of Maryland reestablish the State as a leader on matters of state corporate law, or will Maryland corporate jurisprudence be allowed to decline?
Section 2-405.1(c) Is the “Sole Source” of All Legal Duties Owed by a Director of a Maryland Corporation to the Corporation and Its Stockholders.
Since 1976, when the General Assembly enacted Section 2-405.1 of the MGCL, a director of a Maryland corporation has been required to act in “good faith” in “a manner the director reasonably believes to be in the best interests of the corporation” and “with the care that an ordinarily prudent person in a like position would use under similar circumstances.” This Section matched the standard of conduct adopted by the American Bar Association in thenSection 8.30(a) of the Model Business Corporation Act. In adopting a “plain English” codified standard for director conduct, the General Assembly replaced the common law fiduciary duties that had historically governed directors of Maryland corporations, but had yielded multiple standards for directors (and their lawyers) to parse and attempt to apply to the wide range of actions that directors typically confront in the boardroom.1 In crafting the standard of conduct, the drafters of the Model Act intentionally omitted any reference to “fiduciary” duties “because that term could be confused with the unique attributes and obligations of a fiduciary imposed by the law of trusts, some of which are not appropriate for directors of a corporation.” Model Business Corp. Act Section
1 Among the pre-1976 miasma of competing and inconsistent (and, one may imagine, bewildering) standards for director conduct and liability were “strict and faithful discharge of duty”—Booth v. Robinson, 55 Md. 419, 436-37 (1881); “skill and reasonable care”, suggesting simple negligence—Fisher v. Parr, 92 Md. 245, 265 (1901); “gross or culpable negligence”—Carrington v. Basshor, 118 Md. 419, 442–43 (1912); non-conflicted “good faith”—Wight v. Heublein, 238 F. 321, 324 (4th Cir. 1916); “illegal, fraudulent, ultra vires or grossly negligent acts”—Matthews v. Headley Chocolate Co., 130 Md. 398, 404 (1931); “reasonable skill and care,” “ordinarily skillful and prudent men”— Pritchard v. Myers, 174 Md. 66, 77 (1938); “proof of fraud”—Williams v. Salisbury Ice Co., 176 Md. 13, 23 (1939); fraud, illegality, or ultra vires— , 189 Md. 476, 491 (1948); “gross or culpable negligence”—Parish v. Maryland & Va. Milk Producers Ass’n, 250 Md. 24, 74 (1968). See James J. Hanks, Jr., Maryland Corporation Law § 6.07C, note 244.
8.30, Official Comment (1996); see also Hanks, Maryland Corporation Law § 6.06B, note 129. For nearly 50 years, Maryland corporations, directors, counsel, and the courts have benefited from the common sense approach and plain language of Section 2-405.1
By 2009, in Shenker v. Laureate Education, Inc., 411 Md. 317 (2009), the Court of Appeals of Maryland appeared to have forgotten the lessons of the past—reopening the door to the uncertainty that plagued understanding director duties under Maryland law before the enactment of Section 2-405.1. Examining claims brought by stockholders following a cash-out merger, the Court of Appeals held that, among other things, Maryland law recognized certain undefined common law fiduciary duties that govern the actions of a director in addition to the Section 2-405.1 standard of conduct. The court further held that Section 2-405.1 applied to and governed “managerial” decisions, but that there were other, unspecified common law fiduciary duties owed directly to stockholders that “may be triggered by the occurrence of appropriate events.” Id. at 335. Questions understandably arose as to what other common law fiduciary duties might exist under the court’s formulation. Further, while the Court of Appeals recognized that common law fiduciary duties could be triggered by appropriate events, the court failed to explain what factual scenarios might trigger such duties. See Sutton v. Fedfirst Fin. Corp., 226 Md. App. 46, 85-86 (2015). In Sutton, in the absence of any standard, the Court of Special Appeals purported to adopt Delaware corporate law.
effort by the Business Law Section of the Maryland State Bar Association and its legislative sponsors to correct the problems caused by Shenker. House Bill 354 involved two major changes: (1) it added new subsection (i) to Section 2-405.1; and (2) it deleted old subsection (g), which had provided “[n]othing in this section creates a duty of any director of a corporation enforceable otherwise than by the corporation or in the right of the corporation.” House Bill 354 reflected compromise to preserve an implied objection to former Section 2-405.1(g) in Shenker, while reestablishing that Section 2-405.1 alone governs director conduct. New subsection (i) now states that Section 2-405.1 is the “sole source” of duties of a director to the corporation and the stockholders of the corporation, resolving one of the ambiguities created by Shenker and its progeny. Thus, the 2016 amendments to the statute eliminated the distinction, believed to be unique among the states, between managerial and non-managerial acts created by the Court of Appeals in Shenker, resolved the surrounding confusion, and clarified that Section 2-405.1 is the sole source of a director’s duties. See Bill Carlson and Scott R. Wilson, The Director Duties Bill: Amendments to Section 2-405.1 of the Maryland General Corporation Law, Md. Bus. Journal, Vol. 49, at 41 (September/October 2016) at 41.
Section 2-405.1(c) continues to provide, as former Section 2-405.1(a) did, that “[a] director of a corporation shall act: (1) In good faith; (2) In a manner the director reasonably believes to be in the best interests of the corporation; and (3) With the care that an ordinarily prudent person in a like
Will the Supreme Court of Maryland reestablish the State as a leader on matters of state corporate law, or will Maryland corporate jurisprudence be allowed to decline?
Confusingly, however, the Delaware standard articulated by the Court of Special Appeals did not deal with springing legal duties at all but, rather, the Delaware court’s standard of judicial review with regard to allegations that directors breached fiduciary duties owed directly to stockholders under Delaware common law in any circumstance. In short, the open-ended holding of Shenker and its progeny injected deep uncertainty into the business world of Maryland corporations and their boards of directors, as well as their counsel. The confusion wrought by Shenker was ultimately corrected by the Maryland General Assembly. In 2016, through House Bill 354 (then codified as Chapter 171 of the Laws of Maryland 2016), the General Assembly unanimously confirmed that the codified standard of conduct replaced all prior articulations of director duties, fiduciary or otherwise, under Maryland law and clarified the reach of Section 2-405.1(c) (formerly subsection (a)). House Bill 354 represented the culmination of a six-year
position would use under similar circumstances.”
New (as of 2016) Section 2-405.1(i) further provides that Section 2-405.1:
(1) Is the sole source of duties of a director to the corporation or the stockholders of the corporation, whether or not a decision has been made to enter into an acquisition or a potential acquisition of control of the corporation or enter into any other transaction involving the corporation; and
(2) Applies to any act of a director, including an act as a member of a committee of the board of directors.
(Emphasis added.) Consequently, there are no legal, fiduciary, or other duties owed by a director of a Maryland corporation to the corporation or its stockholders other than those statutory duties arising under the standard of conduct articulated in Section 2-405.1 and any claim against a director by a stockholder must accord with all
The Supreme Court of Maryland should explicitly recognize that any claim by a stockholder, whether director derivative, against a director for acts by that director relating to the corporation or its stockholders must be grounded in a breach of Section 2-405.1(c).
other subparts of 2-405.1 that underscore deference to the business judgment of directors (i.e., 2-405.1(d)–(h)).
Thus, a cause of action for “breach of fiduciary duty” against a director of a Maryland corporation does not exist under Maryland law. Since 1976 the cause of action for behavior that in Delaware and other common law jurisdictions would constitute a breach of fiduciary duty has been correctly styled as a breach of the standard of conduct. Indeed, whatever claims for a breach of common law fiduciary duties survived the adoption of 2-405.1 in 1976 and were recognized by Shenker in 2009, were extinguished on October 1, 2016—the effective date of the amendments to Section 2-405.1.2
Notwithstanding all of the foregoing, Eastland Food almost entirely ignores Section 2-405.1 of the MGCL. Despite considerable effort by the bar and the confirmation and correction by the General Assembly, the Eastland Food opinion not only ignores the impact and significance of the 2016 amendments, which obviate much of the court’s analysis, but also reduces the entire statute to a “see also” citation following the now significantly curtailed (if not superseded) Shenker opinion. 256 Md. App. at 527–29. In doing so, Eastland Food ignores the actions of the General Assembly in both 1976 and 2016. By ignoring Section 2-405.1 and the General Assembly’s unanimous 2016 amendments, the Maryland Appellate Court follows an entirely inapt framework to analyze the causes of action in the underlying complaint. At this moment of consequence, the Supreme Court of Maryland should explicitly recognize that any claim by a stockholder, whether direct or derivative, against a director for acts by that director relating to the corporation or its stockholders must be grounded in a breach of Section 2-405.1(c), subject to all of the presumptions and limitations of that statute.
Following such holding, the analysis of the both the first and second causes
of action in Eastland Food, viewed through proper application of Section 2-405.1(c) of the MGCL and sounding in a breach of the same, becomes much more straightforward: (i) if brought on behalf of the corporation, did the appellee-stockholder satisfy Maryland’s demand requirement; and (ii) if “yes” or if the cause of action is a direct cause of action, did the appellee-stockholder plead sufficient facts to defeat the presumption of Section 2-405.1(g) and, accepting all allegations as true, establish that acts by directors constitute a breach of the standard of conduct of Section 2-405.1(c)? The entire discussion of “de facto dividends,” which is itself unsound and deeply flawed (e.g. under Maryland law a “distribution” may only be authorized by the board of directors subject to the limitations in Section 2-311—conversely, salaries and other compensation are often set by officers and do not carry the same limitations or penalties), becomes irrelevant to this analysis and to the review of the trial court’s grant of the appellant’s motion to dismiss. We express no view as to whether the appellee-stockholder’s claims should survive this analysis, but further observe that the Maryland Appellate Court also failed to apply the presumption of Section 2-405.1(g).
See Hanks, Maryland Corporation Law §§ 606B notes 195-96, 6.09.
The Presumption of Section 2-405.1(g) Applies to All Stockholder Actions Against Directors
For generations, courts have deferred to the business judgment of directors of corporations formed in Maryland and elsewhere through an initial presumption and standard of review known at common law as the business judgment rule. Following national debate as to whether adoption of the Model Business Corporation Act standard of conduct unintentionally and adversely impacted application of the common law business judgment rule, Maryland adopted the statutory business judgment presumption. Hanks, Maryland Corporation Law § 6.09 (“The presumption of Section 2-405.1(g)
Maryland courts have from time to time gotten the details wrong, but were always correct on the “big” issues.
in favor of a director’s acts was added by the General Assembly in 1999” and “[a]ccordingly, it may now be said that the business judgment rule . . . has been codified by the Maryland legislature.”) Today, that statute provides as follows: “An act of a director of a corporation is presumed to be in accordance with subsection (c) of this section.” MGCL § 2-405.1(g).
In dicta in Shenker and again in Eastland Food, without citation to any binding precedent or persuasive legal authority, first writing for the then-Court of Appeals of Maryland and subsequently for the Appellate Court of Maryland, Judge Harrell concluded that “[i]f the plaintiff demonstrates that he or she has suffered the alleged injury directly … the business judgment rule does not apply.” Shenker, 411 Md. at 345; see also Eastland Food, 256 Md. App. at 529. This legal conclusion has no basis in fact or law.
As an initial matter, any novel rejection of the business judgment rule based upon whether a cause of action is direct or derivative misapprehends the role and decision-making process of a board of directors. When a board of directors acts, whether the impact of its act is felt by the corporation or the stockholders directly is rarely (if ever) a consideration; indeed, the mere question of whether alleged harm resulting from director action results in harm to the corporation (and stockholders only indirectly) or to stockholders directly produces vigorous debate and motions practice even after the fact. See Waller v. Waller, 187 Md. 185, 189–90 (1946). To afford deference to acts of a director where harm is alleged to have impacted the corporation, but not the same deference if it is established that purported harm directly impacted
3
stockholders, is unsound at best. This interpretation is not the law in the State of Maryland or in any other jurisdiction of which we are aware.
Pursuant to Section 2-405.1 of the MGCL, the business judgment of a board of directors of a Maryland corporation is entitled to deference whether an act results in harm to the corporation or its stockholders. Stated otherwise, whether a claim is direct or derivative has no bearing on the availability of the presumption of compliance with Section 2-405.1(c). This result is not a question for the common law, but a relatively straightforward question of statutory interpretation. As Section 2-405.1(c) is the “sole source” of the legal duties owed by a director of a Maryland corporation to “the corporation or to its stockholders,” there is no room to conclude that subsection (g) does not apply to direct claims, and, therefore, Section 2-405.1(g) of the MGCL applies to both direct and derivative claims.3
Eastland Food represents a moment for Maryland corporate law where a course correction is required. Maryland courts have from time to time gotten the details wrong (e.g., the MGCL uses the term “stockholder” to define an owner of stock in a Maryland corporation and opinions all too often employ the term “shareholder”), but (at least until Shenker) Maryland courts were always correct on the “big” issues. Indeed, the Court of Appeals of Maryland has grappled with difficult issues and developed sound and well-reasoned results that have helped to establish Maryland as one of the leading jurisdictions for formation of New York Stock Exchange-listed public companies. E.g., Werbowsky v. Collomb, 362 Md. 581 (2001); Parish v. Maryland & Virginia Milk
Producers Ass’n, 250 Md. 24 (1968) (predating the adoption of Section 2-405.1); Waller v. Waller, 187 Md. 185 (1946). The corporate bar, both within and without Maryland, is watching yet again. Our hope is that the Supreme Court of Maryland corrects the hazardous course improvidently charted by Eastland Food.
Opinions and conclusions in this article are solely those of the authors unless otherwise indicated. The information contained in this article is general in nature and is not offered and cannot be considered as legal advice for any particular situation.
Jim Hanks is senior counsel at Venable LLP and the author of Maryland Corporation Law (2d Ed. 2020, supp. 2022).
Scott R. Wilson is a principal in the Corporate and Securities Practice Group at Miles & Stockbridge. He regularly advises clients on Maryland corporate law, including the legal duties owed by officers, directors and trustees attendant to strategic transactions and other significant decisions.
William E. Carlson is the President of Shapiro Sher Guinot & Sandler, P.A. and the head of its Business Department. He has been Chair of the Committee on Corporation Law of the Section on Business Law of the Maryland State Bar Association since September 2015 and has lectured on Maryland’s statutory standard of conduct for directors of Maryland corporations.
BY LAURIE M. WASSERMAN, ESQ. AND VIRGINIA YEOMAN, ESQ.
AN ELECTRONIC
e NEWSLETTER, or “eNewsletter,” is a powerful tool for marketing your law practice. Regardless of your practice’s size, an eNewsletter is an inexpensive way to reach a wide audience.
With some time and creativity, you can create a recurring method to reach your contacts, promote your work, and keep you as their “top of mind” lawyer.
Here’s why your law practice needs a eNewsletter: eNewsletters establish trust and knowledge. An eNewsletter shows your audience that you are trustworthy and knowledgeable in your areas of practice. By providing relevant information to your readers, you are reminding them of what you do and ways you can help them. If you are not sure what to write, consider topics such as a CLE you recently attended, a client success story (make it so the client cannot be identified), or share a new appellate opinion in your practice area. I often find topics for my eNewsletter based on the questions new clients often ask or an interesting issue that happened at a recent trial. There are plenty of topics to interest your audience and demonstrate that you are up to date on your area of practice.
eNewsletters target your ideal audience. You should consider who your target audience is for your eNewsletter. Your audience could be current or former clients, referral sources, or colleagues. Once you decide who is getting the eNewsletter, you can determine if everyone should get the same version, or if you will need to prepare different versions for different audiences. While the latter may be more work, the benefits of directing content to a specific audience could be worth the time invested.
eNewsletters allow you to track ROI.
Oftentimes, lawyers will market without measuring the return on our investment. For an eNewsletter, there are programs (like Mailchimp) that measure how many people opened the eNewsletter, clicked the links in the eNewseletter, or unsubscribed. With this data, you can track what types of content get the most interest. It also allows you to see if any of your referral sources or clients are reading what you send them.
Tips to Starting an eNewsletter
Now that you know the reasons to have a eNewsletter, you may wonder what goes into creating one.
The hardest part of this process is deciding what you want your template to look like.
There are websites that can create a eNewsletter template for you for a nominal price.
If you are willing to invest a little more money, you can hire a marketing firm to create your template and even write your content.
Once you have a template for your eNewsletter, you can quickly and easily recreate the eNewsletters to send out on a recurring basis.
The frequency of distribution is up to you, but it is important to be consistent.
The content of your eNewsletter is extremely important. At a minimum, your eNewsletter should have:
your firm name, a greeting of some sort, a “teaser” of what information is in the eNewsletter (and an option to click on an article for more information),
photos, a link to your website, and your contact information.
Also, don’t be afraid to add some humor (everyone loves a good lawyer joke) or a recipe. Make your eNewsletter something that people enjoy reading.
With these tips in mind, we look forward to receiving many new eNewsletters our my inbox soon. If you have any questions about eNewsletters, we invite you to contact us at laurie@wassermanlawoffice.com or virginia@wassermanlawoffice.com.
L to R: Laurie M. Wasserman is the principal of Wasserman Family Law LLC in Baltimore County, Md. Laurie is a Fellow in the American Academy of Matrimonial Lawyers.
Virginia Yeoman is with Wasserman Family Law LLC in Baltimore County, Md. Virginia focuses on divorce, custody, child support, protective orders, and contempt matters. Virginia is also a certified mediator.
AN IMPORTANT SUPPORTING ROLE
ALISON
PACUSKA
Pacuska Professional Services
“ Paralegals can play a key role in Access to Justice because we can do a significant amount of substantive legal work— even though we cannot practice law.
Photos Courtesy of Travis Marshall Photography
FOR THOSE CONSIDERING JUMPING INTO a career in paralegal services, Alison Pacuska has two words: “Do it!”
“Don’t let a specific certification or degree stop you,” she said. “There are many ways to [enter] this career and so long as you are committed to the law, are diligent about learning the nuances of your preferred practice area, and are willing to put in the work and hours it’s incredibly rewarding.”
Even before the COVID-19 pandemic made virtual remote work a new norm, Pacuska recognized that virtual staffing solutions could be a major game changer for small legal firms and solo practitioners. As president and owner of Pacuska Professional Services, a boutique consulting firm that provides administrative and legal assistant services, Pacuska helps firms tackle workload challenges using virtual professional talent to manage administrative tasks and provide background support. With more than 27 years as a legal assistant and paralegal, Pacuska finds value in the variety of legal work included in the Intellectual Property space and the opportunity to help improve access to legal assistance for low income communities.
Outside of the usual work conducted for small firms, BigLaw, and global companies, Pacuska noted that paralegals have an important role to play in the access to justice movement. “I’d like paralegals to be enabled in Maryland to assist with the Access to Justice program and pro bono organizations,” Pacuska said. It’s no secret that attorneys and organizations that work in the civil legal aid sector also face rising workload and resource issues and many low-income individuals rely on pro bono and civil legal aid organizations for help with solving their civil legal problems. “Paralegals can play a key role in Access to Justice because we can do a significant amount of substantive legal work—even though we cannot practice law.”
In addition to her work in the paralegal and legal assistant space, Pacuska serves on the Maryland State Bar Association’s Paralegal Task Force, whose mission is to advance and advocate for the paralegal profession while also creating ongoing and continuing opportunities for communication, camaraderie, and cohesiveness between paralegals, attorneys, and the legal community at large. Pacusa became involved after attending the MSBA’s Solo Practice conference at Legal Week and noticing a distinct lack of paralegal inclusion.
“Although we are a significant part of the legal community, it seemed strange. I asked the Bar Association representatives at the meeting if we could create a paralegal section and promote the paralegal career path. When they reached out to invite me to participate in the Task Force, I jumped at the chance.”
The Task Force creates content for MSBA events, from brown bag sessions to a presentation at the Virtual Summit and Legal Week. Pacuska says “it’s been rewarding to assist in creating and presenting that content. I enjoy the Task Force’s evolution and representation of all the types of paralegals and legal assistants out there.”
What is your fondest memory of your paralegal career so far?
I was part of a great trial team during a patent trial in San Diego, and we had a client who really appreciated the work we were doing. Watching great litigators tell a great story to a judge and jury, and being able to support that, was phenomenal. Our team spanned four different offices, but we were seamless. But what I remember the most was the relationships I was able to build with the case managing secretary from San Diego and the case managing paralegal from New York City. We still talk nearly 20 years later.
What are your professional goals this year?
I want to gain more experience and knowledge of the new Universal Patent Court and explore IP practice in Europe.
What we can’t find on your resume…
My penchant for historical re-enactment. My group of friends does a lot of costumed events—everything from the Renaissance Festival, to Scottish Walk in Old Town, to Blackbeard’s Pirate Festival and Mardi Gras in New Orleans. One year, four members of our group won the costume contest at the Italian Embassy’s Carnivale event!
What’s your favorite hobby?
A: I think I’m torn between fiber arts and gaming (mostly board games but I do like a good round of D&D!).
Using & Drafting TRUSTS IN ESTATE PLANNING TREATISE
2023 REVISED EDITION
This treatise focuses on specific trusts, what they are used for, how they fit into an estate plan, and the specific conditions governing each.
Using & Drafting Trusts in Maryland Estate Planning, a valued resource since 1998, has once again been updated by Maryland attorneys, experienced estate planning practitioners recognized as experts in the field, who continue to build on foundations decades in the making
The book addressessignificant changes that have taken place in the field, including:
Maryland’s spousal elective share
Valuation of Assets Transferred into GRAT
The Setting Up for Retirement Enhancement Act of 2019 (SECURE Act)
Tax Act of 2017 Impact on generationSkipping Trusts
Charitable Split Interest Trusts and more!
Contains numerous useful forms, from sample clauses that provide the practitioner with options to consider when drafting discrete provisions to full renditions of different types of trusts.
Just one of print and digital treatises and coursebooks provided by MSBA. 130+
Career Highlights
Breaking into Law
Stories from lawyers who entered the legal field after other promising careers.
Career Transitions
What I’ve Learned
Leaders in the profession sharing their successes and advice with the next generation of attorneys.
To O’Byrne, it is a great compliment when her clients tell her, “You explain things so clearly— now we understand.”
Photo Courtesy of Travis Marshall Photography
A REWARDING CAREER CHANGE
A SEARCH FOR MORE SATISFYING WORK led Mary O’Byrne to leave an established career in health insurance and managed care to become an attorney. After earning a BA in history from Yale and an MBA from the University of North Carolina, O’Byrne began working in health insurance and managed care, where her roles were analytical and data driven. She found the work intellectually challenging, but it did not feed her desire to work with people. O’Byrne thought that as an attorney, she would have opportunities to apply her skills yet also connect with people.
When O’Byrne began law school, she hoped to combine her background in healthcare with her law degree and work in consulting. Then, a clinical program on Healthcare and Elder Law overseen by the late Joan O’Sullivan at the University of Maryland School of Law opened O’Byrne’s eyes to the kind of practice that was going to be the right fit for her: elder law and special needs and estate planning.
O’Byrne realized that these areas of practice would allow her to be actively involved with people in planning for some of the most important events in their lives and to be able to serve clients over time. She joined Frank, Frank & Scherr, LLC, a leading Maryland elder law firm, working there for 17 years before opening her own practice. Although she loved operating her own firm, after five years she wanted to focus on being a good attorney rather than running a business. She found the ideal match in Bowie & Jensen, LLC, and joined the firm as a partner in January 2023. Together, she and colleague Victoria Sulerzyski lead the estates and trusts group with the firm.
One of the things O’Byrne finds most gratifying about her practice is working with families with children with disabilities to help them understand the intersection of estate planning and benefits eligibility and what planning tools are available to ensure their children have lifelong care and support. To O’Byrne, it is a great compliment when her clients tell her, “You explain things so clearly—now we
understand.” She feels privileged to work with people throughout their lives; she has created trusts for parents when their children are young, who later come back when their children are entering adulthood to determine what kind of services and benefits are available to them.
On a typical day, O’Byrne might get a phone call from a former client she has not seen for some time, who reaches out because a new issue has arisen or she may meet with a new client. She fields her share of emergency queries as well. When someone's health suddenly declines, things might need to happen very quickly, particularly for clients who are in the public benefit system. She regularly receives calls from people who are concerned that an inheritance will disqualify a loved one from receiving financially tested benefits, and she is able to offer them guidance and assistance in such circumstances.
O’Byrne is involved with serving her communities. She is the immediate past president of the Special Needs Alliance, a national organization of attorneys who focus their practice on disability and special needs planning, and regularly speaks for other organizations that provide educational programming for families with people with disabilities. She has taught CLE programs for the MSBA. She is a long-time member of the National Academy of Elder Law Attorneys and the Maryland/DC Chapter. She served for many years on the boards of National Alliance for Mental Illness-Metro Baltimore
and Planned Parenthood of Maryland. She is also an active advocate at the state and national levels for the financial security of people with disabilities.
While O’Byrne finds her work deeply satisfying, she noted it is not without its challenges. Elder law and special needs planning are newer practice areas, which O’Byrne attributed in part to the introduction of the Medicaid program and other federal programs from the 1960s that protect the elderly and people with disabilities. Further, key legislation focusing on opportunities to help people with disabilities to plan for their financial future was not enacted until the early 90s and 2000s. As this is a young area of law, many of the people who built the educational and advocacy foundation for elder law and special needs planning still practice. A few key figures in this practice area recently passed away, though, and O’Byrne is eager to help develop the next generation of people to continue to work in this field. There are structural challenges in the public benefits arena as well; many financially tested benefit programs have resource limits that have not changed since the 1980s and efforts to increase these limits have failed in Congress.
O’Byrne has not shied away from making significant changes in her professional life. She would advise someone considering making similar moves that “it's essential to really know yourself and what you need and want in your work life.”
Carrie Williams
GOODELL, DEVRIES, LEECH & DANN
A MOVE INTO PRIVATE PRACTICE
CARRIE WILLIAMS BEGAN HER JOURNEY into the legal profession after working for the Women’s Resource Center to End Domestic Violence in Decatur, Georgia, a nonprofit that provides assistance to victims of intimate partner violence. Watching how difficult it was for women to navigate the legal system, Williams decided to go to law school and advocate for women and children. After brief stints as a prosecutor in the Domestic Violence Division of the Baltimore City State’s Attorney’s Office and private practice, Williams joined the Criminal Appeals Division of the Office of the Maryland Attorney General, where she served for 16 years under three administrations, arguing 50 cases before the Supreme Court of Maryland and hundreds in the Appellate Court.
Williams noted that one of her proudest moments included her work on the 2023 Attorney General’s Report on Child Sexual Abuse in the Archdiocese of Baltimore, which examined allegations of child sexual abuse by clergy, seminarians, deacons, and employees of the archdiocese. “I remember reading the report in its final form, seeing the pages and pages of survivors’ stories and just hoping that they would be heard,” Williams said. “I am [also] so thankful for Attorney General Frosh and Attorney General Brown and their tenacity in getting the report released to the public.”
In January 2023, Williams left the Attorney General’s Office and joined Goodell, DeVries, Leech & Dann. On deciding the right next step, Williams said that after speaking with Derek Stikeleather and several other partners at the firm, she was impressed with the firm’s commitment to appellate practice and written advocacy. As a member of the firm’s Appellate Group, Williams focuses on researching and writing dispositive motions and appellate briefs in various areas of litigation, including professional negligence, products liability and mass tort litigation, complex commercial cases, catastrophic injury cases, and high-value criminal appeals. Williams prides herself on her ability to relay complicated information in a straightforward and accessible way. “In law school, I fell in love with legal writing,” Williams said. “I believe that briefs and motions are stories with legal analysis. I enjoy the process of crafting a piece of legal writing until it is engaging and persuasive and walks the reader through difficult concepts to the desired conclusion.”
Now a distinguished and renowned attorney, Williams admits that, growing up, she didn’t know anyone who was a lawyer. “I am the first person in my family to graduate college . . . . That is why I am so passionate about mentoring first-generation lawyers, particularly those from underrepresented communities.” In 2022 Williams served on the organizing committee that worked to create the Cole-Davidson Appellate Inn of Court, the only Inn of Court in the country with the goal of improving diversity among the appellate bar.
What is the best piece of advice you have received from someone in the legal profession?
It doesn’t matter that you didn’t go to an Ivy League law school or clerk for a federal judge, you can still be an appellate attorney.
What are some accomplishments you've achieved during your career?
I was on the brief-writing team in two U.S. Supreme Court cases, Maryland v. King and Maryland v. Shatzer. I also helped advocate for legislation that requires retention and testing of Sexual Assault Evidence Kits.
What is your fondest memory of your legal career so far?
Reading SCOTUSBlog’s Live Blog with my colleagues as it reported the announcement of Maryland’s 5-4 win in Maryland v. King. This was before electronic filing, so we had no idea whether we won or lost the case until we saw it on the screen. Everyone in the room cheered. It was a career-defining moment.
“
I believe that briefs and motions are stories with legal analysis. I enjoy the process of crafting a piece of legal writing until it is engaging and persuasive and walks the reader through difficult concepts to the desired conclusion.”
What do you love about your current role?
My favorite part of the job is being able to research and write to the best of my ability and collaborate with other lawyers in areas of the law and science/medicine that are often new to me. Life-long learning is one of the best parts of being a lawyer.
Describe a memorable MSBA event or product that has had an impact on you personally or professionally.
I was lucky enough to work with an amazing group of criminal lawyers to revise and update Byron Warnken’s treatise, Warnken’s Maryland Criminal Procedure. We finished the revisions right before Professor Warnken passed away. I was hon ored to be able to contribute to the work of such an important figure in Maryland law.
How do you spend your free time?
During the pandemic I taught myself to crochet. It is a great way to relax after a long day.
What causes are you passionate about?
Gender equality and equality for the LGBTQ community, reproductive justice, and animal rescue.
Photo courtesy of Travis Marshall Photography
Judge Steven I. Platt
“
If Platt had lived during the 18th century, he would have written the Declaration of Independence instead of Thomas Jefferson.”
LESSONS LIVED AND LEARNED
WHAT CAN BE SAID ABOUT A LEGEND?
A dynamic and integral part of the Maryland legal scene for nearly a half century, Steven I. Platt has enjoyed a career so intricately woven with the fabric of history that he’s been dubbed “the Forrest Gump of politics.” From his days of campaigning for RFK to his long and storied career overseeing the court systems in one of Maryland’s largest counties, it’s a challenge knowing where to begin when attempting to convey an accurate depiction of his accomplishments and the lessons he’s learned along the way. Remarkable by any standards, Judge Platt’s accomplishments in his seven decades on this earth are even more impressive given today’s culture. In an era where people are famous for being infamous, many of his attributes, such as honor, veracity, compassion, and integrity, are considered “old fashioned.” Then again, fame is not something the judge has ever sought or placed much value on.
Balancing the solemn and weighty demeanor required of a man in his position is the judge’s delightful and frequently self-deprecating sense of humor. It is in this vein that he happily acknowledges the Forrest Gump moniker. After retiring from the bench in 2007, Judge Platt chronicled many of his fascinating experiences in a letter intended for younger generations within his family.
That letter to his grandchildren eventually morphed into his memoir, Lessons Lived and Learned: My Life On and Off the Bench, which is an engaging account of the judge’s life filled with both humorous and pensive recollections. In his memoir, Judge Platt shares not only very personal aspects of his life, but also priceless glimpses into the more private moments of some of history’s most notable players. Having worked on Robert F. Kennedy’s (RFK) campaign for president, he recalls it fondly as “working for stuff you believe in and having fun doing it.” Judge Platt’s memoir is not his first contribution to the literary world. A prolific and highly praised author, Judge Platt wrote a column for the Baltimorebased legal and business newspaper, The Daily Record, for 13 years. So popular were his observations and commentaries, he was persuaded to compile his musings into three separate volumes to be released simultaneously with his memoir.
Judge Platt’s gift for the written word was well-established even prior to his ascending to the bench. In fact, Judge C. Philip Nichols, Jr. once quipped, “If Platt had lived during the 18th century, he would have written the Declaration of Independence instead of Thomas Jefferson.”
Many of Judge Platt’s friends and colleagues refer to him as a “judge’s judge.” He is respected and admired by many of the folks who have had the pleasure, or displeasure, of appearing before him. His colleagues have also revered him for his courtroom composure and fairness shown to all parties. Rose Crunkleton, a practicing attorney and former law clerk to Judge Platt fondly remembers the myriad times attorneys would whisper to her, “‘You know he’s an excellent judge, right?’”
Another colleague, Robert Bonsib of MarcusBonsib LLC, said, “Win or lose, one always felt that they had benefited from a fair, compassionate, and caring jurist.”
It is worth noting that Judge Platt was instrumental in creating and implementing the Maryland Business Technology Case Management Program, which was cited as a model for the nation. He is also recognized as the architect of the Prince George’s County Circuit Court Drug Court and the driving force behind a total restructuring of the operations and staff of the Prince George’s County Circuit Court Family
Division. “I was assigned management responsibility at one time or another during my 16 years on the Circuit Court for every division of that court except Juvenile,” Judge Platt recalls.
Judge Platt served for 30 years on the bench and has been recalled to preside over cases several times since. He started his own ADR company, The Platt Group, and is a member of the National Academy of Distinguished Neutrals where he serves on the board of directors of the Maryland chapter. He also serves on the Judicial, Commercial, Employment, Large Complex Case, and Construction Panels of the American Arbitration Association, the International Institute for Conflict Prevention and Resolution, the International Mediation Institute (IMI), the Association for International Arbitration, and Resolute Systems.
A popular speaker, Judge Platt still travels extensively and serves on the faculty of the National Judicial College in Reno, NV.
“I have been very fortunate to have a career that I thoroughly enjoyed every moment of,”says Judge Platt. He attributes his success to his Jewish mother who decided early on that [he] was to be either a doctor, lawyer, or dentist.” He said he “can’t stand the sight of blood and am hopeless doing anything with [his] hands; so that left law—and what a great ride it’s been!”
Lessons Lived and Learned
by Steven I. Platt
Book Excerpt: Chapter 11
Serving on the District Court Bench
I, starring as the “judge,” held “court” on whether these individuals “stung” minutes ago would be incarcerated or allowed to go home with “conditions.”
THE STING
Sheriff Jimmy Aluisi had a “backlog” of unserved warrants that he wanted to clear out of his system to ensure that those warrants could not be used by anyone running against him. So, he set up a “sting.” His staff mailed out about 3,000 fake notices to individuals with arrest warrants, telling them that they had won $500 and could pick up their prize money by appearing on a certain date and time at a tent located at an address previously utilized exclusively by cows and horses.
Sheriff Aluisi did not communicate to the Prince George’s County Department of Corrections that the jail could potentially add an in-flux of 3,000 inmates to its already overcrowded facility. How “The Sting” was found out about is unclear; fortunately, Corrections became aware of it in time to “address” the onslaught of incoming residents.
The scene of “The Sting” was of picture-book quality! A large tent was set up in a cow pasture on Lottsford Road in Largo, Maryland. Women dressed in long gowns were stationed along the path to the tent to “welcome” the “prize winners” and escort them to the tent where they would be presented with their $500 check. As they were escorted into the tent, they were arrested and served with the out-standing warrant.
Adding to the color of this Saturday, a smaller tent was situated next to Sheriff Aluisi’s more elaborately decorated scenery. There, the district court, with the cooperation of
the State’s Attorney’s office and the Office of the Public Defender, installed a less than majestic facsimile of a courtroom using card tables.
I, starring as the “judge,” held “court” on whether these individuals “stung” minutes ago would be incarcerated or allowed to go home with “conditions.” My decisions that day would determine whether the jail’s population would violate the federal cap. Fortunately, most of the warrants were for failing to appear in court on comparatively minor charges. “The court,” operating in this cow pasture, was, therefore, able to provide justice or acceptable conditions of release sufficient to avoid a jail overpopulation crisis.
The Prince George’s County government, particularly the executive branch, was grateful. When I was contacted initially about this impending crisis by the Prince George’s County Department of Corrections director, I could have taken the position that the problem was not mine to solve. Instead, I immediately dove into “problemsolving mode.” I also insisted that the upper levels of the county government itself engage in short-term and long
Judge Platt's
term problem solving by supporting proposals that I had been presenting (and had fallen on deaf ears) until that time.
Those proposals included:
1. The creation of a criminal justice coordinating council that would institutionalize regular communications between county and state executive agencies and departments of government involved in the administration of the criminal justice system to avoid the kind of crisis management we had just experienced (not for the first time);
2. The establishment of a pre-trial release agency within the Prince George’s County Department of Corrections that could supervise inmates outside the Prince George’s County Detention Center, including their behavior and drug use as authorized by the courts;
3. Recognition that drug use had a relationship to criminal activity and a substantial enhancement of the county government’s ability to test those charged, as well as those on probation, for the purpose of limiting the risk of their continued presence in the community; and
4. The continued construction of a more modern detention center with state-of-the-art technology. To my delight, all these common-sense measures were approved and funded, thereby proving that leaders should, as Rahm Emanuel once advised, “Never let an opportunity created by a crisis pass.”
We took action; Prince George’s County was better for it. In return, I took personal responsibility as Administrative Judge of the district court on behalf of the court for monitoring and managing the population of the Prince George’s County Detention Center to ensure the inmate population never exceeded the federal court-ordered cap.
The Guide to Maryland Courts is your resource for any question about a specific court: technology available, key personnel, security protocols, differentiated case management plans, and more. Get the Guide: msba.org/maryland-guide
Over 1,000 pages of up-to-date Maryland criminal law content.
This updated version covers new case law from the last 7 years.
Now Available!
The two-volume treatise contains more than 10,000 cases, rules and statutes, yet easily breaks down specific topic areas. It’s the must-have, comprehensive treatise on criminal practice and procedure and the elements of every crime and relevant case law and statute.
professor Byron L. Warnken
The original Maryland Criminal Procedure was the culmination of more than four decades of teaching, writing, and practicing by preeminent criminal law expert and University of Baltimore School of Law Professor Byron L. Warnken.
Warnken’s Maryland Criminal Procedure, 2nd Edition was written by a team of some of Maryland’s most well-known criminal law attorneys and experts.
Just one of 130+ print and digital treatises and coursebooks provided by MSBA. msba.org/product/warnkens-marylandcriminal-procedure/
Get your copy today at
Lessons from the Posthumous Bar Admission of Edward Garrison Draper
BY HON. JOHN G. BROWNING
On October 26, 2023, in a special ceremony, the Supreme Court of Maryland will posthumously admit Mr. Draper to the Maryland bar, righting a historic wrong done in 1857.
AMONG THE MANY NAMES OF THOSE PASSING THE MARYLAND BAR EXAM and eager to be added to the rolls of practicing attorneys this year, one name stands out: Edward Garrison Draper. That’s because Mr. Draper’s admission takes place nearly 166 years after he was informed that he could not join the ranks of practicing Maryland attorneys—not because of his ability, but solely because of the color of his skin. In righting this historic wrong, the Supreme Court of Maryland will—for the first time in its history and only the seventh time in American legal history—admit Mr. Draper posthumously, sending a message that doing justice has no expiration date.
It all began back in 1855 in Baltimore. Draper had just graduated from prestigious Dartmouth.1 His parents, free Black tobacconist Garrison Draper and his wife Charlotte Draper, wanted the best for their only child, Edward. Both of them were among the approximately
1
2 Id. at 5.
21,000 literate of the 84,000 free Black people in antebellum Maryland. Due to the limitations of public education for Black children in Baltimore, they had sent Edward to receive his preparatory education at the public school for Black youth in Philadelphia.2 Well prepared for
John G. Browning, To Fight the Battle, First You Need Warriors: Edward Garrison Draper, Everett Waring, and the Quest for Maryland’s First Black Lawyer, 53 Univ. of Balt. L. Forum (Fall 2022).
Image of Edward Garrison Draper courtesy of Dartmouth Library.
Dartmouth, Edward graduated in 1855 with “a very respectable standing, socially, and his class.”3
But with his sights set on becoming a lawyer, Edward Garrison Draper was clearly an ambitious young man. Only four Black Americans had become lawyers by that point: Macon Bolling Allen was admitted in Maine in 1844 and then Massachusetts in 1845, followed by Robert Morris in Massachusetts in 1847, George Boyer Vachon in New York in 1848, and John Mercer Langston in Ohio in 1854.4 In addition, Maryland as a state was less tolerant than most. Its bar admission statute restricting anyone but a white male from becoming a lawyer dated back to 1832, and it wasn’t formally repealed until 1888—twenty years after the passage of the Fourteenth Amendment, and long after every other former slaveholding state had permitted Black Americans to become lawyers.
In reality, Draper’s Ivy League college degree also set him apart from other aspiring lawyers. College degrees were uncommon among lawyers, and law degrees were almost unheard of: as late as 1883, less than half of the students at the fledgling University of Maryland School of Law had bachelor’s degrees.5 Prior to the Civil War, there were only a handful of law schools in the United States, and none were in Maryland. To be a lawyer in 1857 Maryland, one had to be merely a free white male citizen of the state over twenty-one years of age who had been “a student of the law in any part of the United States” for at least two years previous to said application.6 Applicants could make their petition in open court, and the judge examining the attorney candidate would “examine the applicant upon the same day during the regular session [of the court], touching his qualifications for admission . . . and they shall also require and receive evidence of his probity and general character . . .”7 In 1876, Maryland’s examination process would change to a board of three examining attorneys, but it was not until 1898 that the state would initiate a formal written bar examination overseen by a State Board of Law Examiners.8
Armed with his Dartmouth degree, Draper embarked upon “reading the law” for two years, apprenticing under Baltimore attorney Charles Gilman. When Draper was not tucked away reading in Gilman’s office, he spent much of his time reading in the office of Dr. James Hall, general agent of the Maryland Colonization Society and editor of the Maryland Colonization Journal—both of which encouraged the emigration of free Black “colonists” to Liberia. Yet reading law books and tutelage by a lawyer would only take Draper so far. The color of his skin made it impossible to acquire first hand practical knowledge of the day-to-day realities of Baltimore law practice and the quirks of the bench and bar, so Draper spent several additional months studying in the Boston office of prominent abolitionist attorney Charles W. Storey. And since Storey also served as clerk of the Superior Criminal Court in Boston and register of insolvency for Suffolk County. Draper was well positioned to see real lawyers in action.9
On October 29, 1857, equipped with his legal education, Charles Gilman’s sponsorship, and months of practical observation in Boston courts, Edward Garrison Draper presented himself for
To be a lawyer in 1857 Maryland, one had to be merely a free white male citizen of the state over twenty-one years of age who had been “a student of the law in any part of the United States” for at least two years previous to said application.
examination before Baltimore Superior Court Judge Zacheus Collins Lee. Lee, who had served as U.S. Attorney for Baltimore from 1848 to 1855, was a first cousin to Robert E. Lee. Judge Lee was also a slave owner; while the exact number of human beings he held in bondage is unknown, he posted newspaper notices offering rewards for the capture and return of at least two enslaved persons, Martha and Samuel, who ran away.10 Judge Lee knew that, however impressive Draper might be as an aspiring lawyer, he was not a “free white citizen” and so would not be admitted. But Draper persuaded the judge of his intent to emigrate to Liberia and his desire to establish a practice there.
3 James Hall, A Lawyer for Liberia, 9 Md. Colonization J. (1857).
4 Browning, supra note 1, at 3.
5 Roscoe Pound, The Lawyer from Antiquity to Modern Times, 177–87 (1953).
6 Act of Mar. 10, 1832, ch. 268 (Md. Laws 1831).
7 Id. § 2.
8 Maryland General Assembly, ch. 139 (Laws of 1898).
9 William T. Davis, Professional and Industrial History of Suffolk County, Massachusetts, 413 (Vol. I 1894).
10 See Daily National Intelligencer, Aug. 8, 1842; Daily National Intelligencer, July 27, 1836.
What we do know is that, but for the color of his skin, this Dartmouth graduate met all the requirements for admission to the Maryland Bar.
So, Judge Lee issued Draper a certificate that stated as follows:
STATE OF MARYLAND
City of Baltimore
October 29, 1857
Upon the application of Charles Gilman, Esq. of the Baltimore Bar, I have examined Edward G. Draper, a young man of color, who has been reading law under the direction of Mr. Gilman, with the view of pursuing its practice in Liberia, Africa. And I have found him most intelligent and well informed in his answers to the question propounded by me, and qualified in all respects to be admitted to the Bar in Maryland, if he was a free white citizen of this State. Mr. Gilman, in whom I have the highest confidence, has also testified to his good moral character.
This Certificate is therefore furnished to him by me, and with a view to promote his establishment and success in Liberia at the Bar there.
Z. Collins Lee
Judge of the Superior Court, Baltimore, Maryland11
Holding this certificate, the newly married Draper and his wife, Rebecca Jordan, set sail from Baltimore to Liberia six days later aboard the M.C. Stevens. Sadly, however, Draper’s promise as an attorney went unfulfilled. In less than a year after arriving in Monrovia, Edward Garrison Draper died on December 18, 1858 of tuberculosis.12 Nothing is known of Draper’s all too brief legal career in Liberia. What we do know is that, but for the color of his skin, this Dartmouth graduate met all the requirements for admission to the Maryland bar—a fact acknowledged by the Baltimore judge who examined him. Maryland would go on to resist a series of legal challenges after the Civil War to its racially restrictive bar admission statute until 1885, when Everett J. Waring became Maryland’s first Black lawyer to be admitted to practice in state courts.13
In a more enlightened 21st century, the highest courts in several states had granted posthumous bar admissions as a means of belatedly undoing past racial injustice. Embracing that knowledge, I began researching Edward Garrison Draper’s life several years ago. In early 2023, I spoke at a symposium at the University of Baltimore School of Law, and—joined by Baltimore attorney Domonique Flowers and University of Baltimore law professor José Anderson, as well as a host of supporting organizations and individuals—I filed a petition with the Supreme Court of Maryland seeking Edward Garrison Draper’s posthumous admission. Thankfully, it was granted just days later. On October 26, 2023, in a special ceremony, the Supreme Court will posthumously admit Mr. Draper to the Maryland bar, righting a historic wrong done in 1857—the same year our U.S. Supreme Court in Dred Scott v. Sandford proclaimed Black Americans to be “beings of an inferior order.”
As Rev. Martin Luther King would say, it is “always the right time to do the right thing.”
John G. Browning has been handling civil litigation and appeals in state and federal courts for nearly 34 years. He is a former Justice on Texas’ Fifth Court of Appeals, and currently serves as Distinguished Jurist in Residence at Faulkner University’s Thomas Goode Jones School of Law. He is a graduate of Rutgers University and the University of Texas School of Law. He successfully argued the most recent previous case of a posthumous bar admission, in the Texas Supreme Court in 2020.
11 Z. Collins Lee, Certificate Attesting that Edward G. Draper is Fit to Practice Law (Oct. 29, 1857), in 9 Md. Colonization J., 89 (1857) (emphasis added).
John G. Browning,
AN ADVOCATE FOR DEMOCRACY
LAUREN RIKLEEN
Executive Director, Lawyers
Defending American Democracy
LAUREN RIKLEEN IS THE EXECUTIVE DIRECTOR of Lawyers Defending American Democracy, whose mission is to galvanize the legal profession to protect democracy and the rule of law. She recently published Her Honor: Stories of Challenges and Triumph from Women Judges.
What do you enjoy most about your career? What I have enjoyed most about my career path is the continued opportunity to work in areas that align with my core values and interests. Throughout my life, I have been driven by the responsibility we all share to respond to injustice in our schools, communities, workplaces, and government. I have tried to find opportunities in my work and in my professional and community volunteer roles where I can focus on a variety of societal challenges in the hope that, in some small way, I can help make a difference.
Tell us about your current role.
My current roles reflect a drive to work with (or help create) mission-driven organizations. At the height of the pandemic, I was asked to become involved in Lawyers Defending American Democracy, an organization created to galvanize the legal profession to do more to protect democracy and the rule of law. I have since agreed to assume the role of executive director to help broaden the organization’s reach and develop projects that can move lawyers to act in response to the grave dangers confronting our democratic institutions.
Photo courtesy of Marissa Fiorucci Photography
I also continue, on a more limited basis, to speak and train on issues relating to workplace culture and the importance of creating work environments that are respectful, diverse, equitable, and inclusive. I see both roles as interconnected, as workplace culture is critically important to one’s quality of life on a day-to-day basis. When people experience such negative behaviors as harassment, bullying, pay inequity, and bias in the workplace, it affects their health and well-being, negatively impacting their careers. Similarly, when our government fails to function fairly or denies or rescinds rights and liberties that took decades, if not centuries, to achieve, we are weakened as a society.
Our lives cannot be segmented.
What does a day at work look like for you?
When I am not traveling (which I do less frequently in the post-pandemic world), I work out of my home office and have my dogs hanging out with me while I am on the phone, on Zoom, or writing.
What are some of the challenges you face in your current role?
One of the biggest challenges is to help people understand that responding to attacks on democracy is not political or partisan work. The founders of Lawyers Defending American Democracy originally saw themselves filling a temporary need to respond to documented abuses of the rule of law in the last administration. Yet, after the 2020 election, we have seen a full-throated effort to undermine America’s electoral systems by fueling distrust and passing laws that have the effect of denying ballot access to targeted populations. We are also seeing a steep decline in trust in the nation’s courts, fueled, in part, by decisions that appear political and failures to adhere to basic ethical norms and expectations. We are seeing continued attacks on the media and dangerous efforts to undermine the reporting of facts. And we are now seeing a rise in laws that politicize our nation’s schools by banning books and by cruelly exploiting vulnerable children, directly impacting what they can
learn about American history and how kids can talk about their values and family structures. These threats to democracy are ongoing. Our challenge is to respond as best we can, which means increasing our resources to effectively do this work, both through volunteer and financial support.
Protecting the rule of law is apolitical work.
What causes are you passionate about?
It would be easier to ask what causes I am not passionate about! As I indicated in other responses, there are so many connections between the wrongs we see in society and the wrongs we experience in our own workplaces, schools, and communities. The best answer I can offer is that I am most passionate about engaging others during this difficult time in our nation’s history to ensure that decency, civility, and compassion prevail and that we never allow hate to win. It is incumbent on all of us to act.
How do you serve your community?
Over the years, I have been fortunate to serve in many leadership roles in my community, including helping to create two charitable organizations, serving on numerous nonprofit boards, and engaging in bar association activities. Two of my most meaningful bar roles have been my service as president of the Boston Bar Association and as chair of the American Bar Association’s Section of Civil Rights & Social Justice.
Is there any question you wish I asked, so I can share something with the readers about your professional or personal life that you would like to share?
How can interested persons get involved?
Local bar associations and other non-profits (like Lawyers Defending American Democracy) are always looking for committed volunteers and offer unparalleled opportunities for lawyers to do meaningful work. Pick something you are passionate about and volunteer. You will be making an important contribution and will be glad you did.
“ When our government fails to function fairly or denies or rescinds rights and liberties that took decades, if not centuries, to achieve, we are weakened as a society.
Her Honor
by Lauren Stiller Rikleen
IN HER HONOR , LAUREN STILLER RIKLEEN has selected 25 unique women judges from our state and federal courts and shared their stories. Her Honor is a collection of their challenges and triumphs while sitting on the bench. Ruth Marcus of the Washington Post said the stories in the book “are unique but also universal—tales of women who endured slights, barriers and outright humiliation unimaginable to later generations of female attorneys, but who persevered with grit, humor, and intelligence.”
The book promises to provide inspiration to the next generation of female lawyers and jurists. Their stories demonstrate their devotion to the rule of law and the correction of all injustices. The essays recount how each of these remarkable women judges “overcame great obstaclessexism and racism and antisemitism and homophobia and poverty and so much else to rise to the top of the legal profession and make a huge difference,” said Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Berkeley School of Law.
The book promises to provide inspiration to the next generation of female lawyers and jurists.
STRIVING TO HELP OTHERS BUILD GENERATIONAL WEALTH
ALICIA LYNN WILSON
Managing Director and Global Head of Philanthropy for the North America Region of JP Morgan Chase & Co.
ALICIA LYNN WILSON RECENTLY moved into the role of Managing Director and Global Head of Philanthropy for the North America Region of JP Morgan Chase & Co. She has been a leading commercial law attorney for 16 years practicing primarily in Baltimore.
Photo courtesy of Travis Marshall Photography
“
In your own words, please describe your recent career transition.
In early 2023, I transitioned into my current role as Managing Director, Global Head of Philanthropy for JP Morgan Chase and Company. Prior to joining JP Morgan Chase, I was the Vice President for Economic Development and Community Partnerships for Johns Hopkins University and Johns Hopkins Health System. At a high level, both of my roles have been centered on driving systemic positive impact and by leveraging transformational institutions to drive said outcomes. The change between the two organizations are the tools that can be utilized to drive impact and the breadth and depth of their respective geographic footprint. My legal training and background have prepared me to be solution-oriented and resultsdriven in my work.
colleagues have extended themselves to help guide and make sure I have had robust onboarding. The biggest challenge has been making such a large organization small to navigate and I have received so much support to make that happen.
How was your MSBA membership helpful to you during your career transition?
The MSBA has helped me tremendously during my career transition. The rich and dynamic relationships I have been able to forge over almost two decades have enabled me to approach career transitions with confidence and a wealth of knowledge and connections that have carried me throughout my career.
What advice do you have for other MSBA members who are seeking a career transition?
I would advise other MSBA members to draw upon their network as they prepare for and engage in career
I have always been blessed to be a part of organizations that are successful and who believe that success is not just their own, but should inure to the benefit of a larger community.
Describe why or what prompted you to explore a career transition?
I was drawn to the opportunity to lead JPMorgan Chase’s Global Philanthropy strategy for North America because of the tremendous opportunity to work on initiatives of significance across the United States and Canada. I have always been blessed to be a part of organizations that are successful and who believe that success is not just their own, but should inure to the benefit of a larger community. JP Morgan Chase reflects these values.
Please describe what challenges you may have faced during the transition.
I liken career transitions to transferring to a new school mid-year. There is always the question of how you will onboard to a new environment, how will you make friends, and how you will learn both the subject matter of the written text (and subtext). My onboarding at JPMorgan has been simply wonderful. Throughout the firm and at all levels of leadership, a wealth of
transitions. More than 80% of positions are filled within networks. The MSBA provides one of the most expansive and supportive networks to draw upon as you think about career transitions.
What do you do to unwind/de-stress?
I love to vacation and visit new places far away and close to home that can help to inspire me and help me recharge.
What’s an interesting fact about you that no one would guess?
I am an UNO champion.
What’s a cause or charity that you are passionate about?
I love working with young people. One of my favorite non-profits is the CollegeBound Foundation which is helping young people go to college and graduate.
What’s your favorite vacation spot?
I love the Caribbean.
ESCAPE | ENGAGE | EXPLORE
COSTA RICA
FEBRUARY 18-23, 2024
Attend the MSBA Professional Excursion in the Papagayo Gulf in Guanacaste, Costa Rica and receive a week of learning, connections, noteworthy speakers, and a service project. Reservations will be facilitated by our travel agents at World Meetings and Events.
The MSBA is taking a new approach to its annual Professional Excursion to provide flexibility and affordability. This year, attendees will have the option to join us for 3-days or 5-days.
BOOK YOUR STAY AT THE PLANET HOLLYWOOD COSTA RICA AN AUTOGRAPH COLLECTION ALL-INCLUSIVE RESORT
Network with industry leaders
Learn about our service project
Attend daily learning sessions
*Air and accommodations can be made directly with our travel company. Highly preferred rates with the Planet Hollywood have been negotiated
ARTIFICIAL INTELLIGENCE:
How
Will It Affect the Law and Legal Education?
AI'S IMPACT ON THE FUTURE OF LAW: Will Lawyers Survive?
BY SHARON D. NELSON, ESQ., JOHN W. SIMEK, AND MICHAEL C. MASCHKE
CATCHY TITLE, RIGHT? Well, we must ‘fess upOpenAI’s ChatGPT lent us a hand. We submitted this request: “Suggest several striking titles for an article about why lawyers are afraid of being replaced by AI.” We got 12 proposed titles in return, all of them credible as well as catchy.
ChatGPT takes the world by storm, including the cybersecurity world
We have been blown away by the number of articles about OpenAI’s ChatGPT since it was released in late November of 2022. We’ll start with the worries about cybersecurity.
Within two months of ChatGPT’s release, the Washington Post reported that there were already examples on the dark web of cybercriminals advertising “buggy, but functional malware, social engineering tutorials, scams and moneymaking schemes,” all enabled by ChatGPT.
The malware examined was significantly short of the caliber of malware that nation-backed hackers would use. At present. Make no doubt about it, the quality of the malware will improve as the AI improves and as cybercriminals learn how to get around safeguards from OpenAI meant to prevent the abuse of its AI.
It strikes us that history informs us that it is only a matter of time before the cybercriminals succeed.
On the good news front, the MIT Technology review has reported that a watermark for chatbots can spot text written by an AI. If true, this may have an impact on students who are cheating by using AI (a huge source of concern across the country) as well as cybercriminals.
The entire security world is watching the evolution of ChatGPT, no doubt about that.
ChatGPT Credibly Passes Law School and Other Exams
University of Minnesota law professors decided to find out if ChatGPT could pass their final exams. It did indeed pass, with a C+. Not stellar, but not bad either. It had a good grasp of basic legal rules, but trouble with math. Author Nelson could identify with that. And she still passed the bar.
The AI fared better at Wharton School of Business at the University of Pennsylvania, earning a B to B- grade. One of the professors said that it did “an amazing job” at answering basic operations
management and process-analysis questions but struggled with more advanced prompts and made “surprising mistakes” with basic math.
Is AI leading us to a dystopian future?
We asked that question and AI replied that it is possible that AI could lead to a dystopian future if it is not developed and used responsibly. It went on to say AI could be used for malicious purposes and that it could perpetuate and amplify societal biases.
It also said that AI could lead to a more prosperous and efficient future if it is addressed and used ethically. That’s the sticking point, isn’t it? Most readers will be familiar with the lessons of the movie “The Terminator”—and we all know how that turned out.
Is it possible that AI will one day replace some lawyers?
When asked this question, the AI waffled a bit and said, “it is possible that AI could eventually replace some aspects of a lawyer’s job, such as document review, legal research and contract analysis.” To make us feel better, it offered its opinion that “it is unlikely that AI will completely replace the role of lawyers as the legal profession requires a high degree of critical thinking, problem-solving and decision-making skills that are currently difficult for AI to replicate.” Note the word ‘currently.”
Ultimately, it opined that “it is more likely that AI will become a tool that lawyers use to augment their abilities, rather than a replacement for lawyers altogether.” Only partial comfort there . . .
On the other hand, Suffolk University Law School Dean Andrew Perlman says the AI is getting better and better—in fact, he was blown away after testing ChatGPT. He’d like to see how it has progressed in a few years. Which brings us to the next topic . . .
Why are lawyers afraid of being replaced by AI? ChatGPT had four thoughts:
Lawyers may be afraid of losing their jobs as AI can perform some tasks more quickly and efficiently than humans.
Automation can change the way legal services are provided and how they are perceived by the public, leading to a decline in the prestige and power of the legal profession.
Lawyers may worry that the increasing use of AI will lead to a loss of the human touch that is essential in the legal profession.
Some lawyers may also be resistant to change and may have concerns about the unknown aspect of AI and its potential to disrupt the legal field.
We thought the observations above were pretty darn good—and accurate.
We missed a chance to have AI “argue in court.”
Several years ago, Joshua Browder, the CEO of DoNotPay, devised a way for people contesting traffic tickets to use arguments in court generated by AI. He had planned to have his AI help a defendant fight a traffic ticket in a
California court with the person challenging a ticket wearing smart glasses that would record court proceedings and dictate responses into the defendant’s ear from a small speaker. The system uses both ChatGPT and DaVinci. State bar officials were appalled, and threatening letters began to roll in. According to Browder, “One even said a referral to the district attorney’s office and prosecution and prison time would be possible.” He said that one state bar official noted that the unauthorized practice of law is a misdemeanor. The case—and the threats— made headlines everywhere.
Do you want to play in the sandbox too? We’ve never seen so many lawyers eager to test AI. Doing so is very fast and easy. You simply go to https://chat.OpenAI.com and register for an account with your email address. Easy peasy. You may find it hard
to stop playing with the AI—we sure did. Do it soon. Shortly, it will reportedly cost you $42 a month to play in the sandbox.
Final words
Anything that Microsoft invests $10 billion in is something to keep an eye on. It is clear that Microsoft intends to be at the forefront of generative AI, which means generating test, images, social media posts and other media from short text reports.
We suspect that many things we once thought impossible will be made possible by AI. As Napoleon Bonaparte once said, “Impossible is a word to be found only in the dictionary of fools.”
Sharon D. Nelson is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association and the Fairfax Law Foundation. She is a co-author of 18 books published by the ABA. snelson@senseient.com
GUIDE TO CLOSING A LAW FIRM
John W. Simek is vice president of Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional (CISSP), Certified Ethical Hacker (CEH) and a nationally known expert in the area of digital forensics. He and Sharon provide legal technology, cybersecurity and digital forensics services from their Fairfax, Virginia firm. jsimek@senseient.com.
Michael C. Maschke is the CEO/Director of Cybersecurity and Digital Forensics of Sensei Enterprises, Inc. He is an EnCase Certified Examiner, a Certified Computer Examiner (CCE #744) a Certified Ethical Hacker and an AccessData Certified Examiner. He is also a Certified Information Systems Security Professional. mmaschke@senseient.com.
MSBA strives to bring the latest AI-related issues to its members. For more on AI, read EEOC Issues Guidance on AI Use in Employment Decisions at HTTPS://WWW.MSBA.ORG/EEOCISSUES-GUIDANCE-ON-AI-USE-INEMPLOYMENT-DECISIONS/ , NY Lawyers and Law Firm Sanctioned for Citing Fake Cases Derived from AI, and Mental Impacts of Artificial Intelligence at HTTPS://WWW.MSBA.ORG/ MENTAL-IMPACTS-OF-ARTIFICIALINTELLIGENCE/
WEB EXTRA
ChatGPT Goes to Law School: Now What?
BY DEBORAH THOMPSON EISENBERG
How are law schools responding to ChatGPT and other artificial intelligence (AI)? The same way the legal profession responds to most disruptive technological innovations: slowly. . .and with little agreement about whether we should be alarmed and ban the use of AI or incorporate AI into our teaching.
Should we be concerned? Generative AI processes massive amounts of information with mind-blowing speed and spits out concise, fairly well-written answers. Ominous headlines portend doom for the legal profession.1 Indeed, ChatGPT-4 passed a simulated bar exam, scoring in the top 10%.2
If you have not tried to use AI, play around with it. I did and was both awed and reassured that this will not replace lawyers, at least not yet. To generate ideas for this essay, I asked ChatGPT: “How should law schools respond to ChatGPT and generative AI?”
Within seconds, it responded:
Another area of focus could be on the legal implications of AI, such as intellectual property rights, liability, and privacy. As AI becomes more integrated into legal practice, lawyers will need to be wellversed in these areas to effectively represent their clients.
Finally, law schools may want to explore partnerships and collaborations with tech companies and AI developers to stay up-todate on the latest developments and trends in the field. This could help to ensure that law students are prepared to navigate the evolving landscape of AI in the legal profession.
Overall, the increasing use of AI in the legal profession presents both opportunities and challenges for law schools. Adapting to these changes will require a proactive and collaborative approach from educators, students, and industry stakeholders.
Generative AI processes massive amounts of information with mind-blowing speed and spits out concise, fairly well-written answers.
As an AI language model, I am not in a position to provide an opinion or make recommendations. However, I can provide some information that might be helpful.3
Law schools may need to adjust their curriculum and teaching methodologies to reflect the increasing role of artificial intelligence in the legal profession. This could involve teaching students about the capabilities and limitations of AI, as well as how to work with AI tools and technologies in legal practice.
Law schools may also want to consider incorporating courses or modules on ethics and responsible use of AI. With the rise of AI-powered legal tools, there is a growing concern about issues such as bias, transparency, and accountability. Law schools can play a role in ensuring that future lawyers are aware of these issues and are equipped to address them.
Impressive. The response includes valid points, especially about the need for lawyers to address legal and ethical questions regarding AI. Of course, a smart lawyer would be skeptical of bias embedded here: an AI company is advocating that law schools not only use AI in our teaching but reform our curriculum and form partnerships with tech companies. Undoubtedly, we will see an increase in “AI and the Law” courses, and legal research classes will teach responsible use of AI. But ChatGPT’s answer fails to address one glaring question top of mind for academics: how to prevent students from cheating with AI?
Existing honor codes can easily address this issue. For example, the University of Maryland Carey Law Honor Code says students cannot use resource materials in an exam or on assignments unless specifically authorized by the professor. It is also a violation “to submit as one’s work the work of another in draft or final form.”
1 Steve Lohr, AI Is Coming for Lawyers, Again, N.Y. Times, Apr. 10, 2023; Jenna Greene, Will ChatGPT make lawyers obsolete (Hint: be afraid), Reuters, Dec. 9, 2022.
2 Stephanie Wilkins, How GPT-4 Mastered the Entire Bar Exam, and Why That Matters, LegalTech New, March 17, 2023.
3 The first-person response is a bit creepy, but I was impressed by the lawyerly disclaimer. Another general disclaimer at the bottom of the page warned that ChatGPT could get people, places, and facts wrong. The Open AI company apparently has good lawyers.
Whether students obtain the material from a classmate, book, or chatbot, passing off the work of another as one’s own constitutes cheating or plagiarism. While honor codes may be sufficient to address misuse of AI, law schools likely will develop AI policies.4 Although they may vary in specifics, they likely will prohibit the use of AI on exams and encourage professors to clarify in their syllabi acceptable and prohibited uses in various contexts. Some professors may rethink how they assess students, perhaps using closed-book exams or skillsbased presentations.
What’s all the fuss? Can AI really replicate a lawyer’s work? Curious, I asked ChatGPT: “What is the standard for determining employee status under the Fair Labor Standards Act?” In seconds, it provided a concise, accurate answer:
The Fair Labor Standards Act (FLSA) provides federal minimum wage and overtime protections for employees. The Act defines “employee” broadly as “any individual employed by an employer,” but it does not provide a specific definition of the term. Instead, courts and the Department of Labor (DOL) have developed a set of tests to determine whether an individual is an employee or an independent contractor for the purposes of the FLSA.
The primary test for determining employee status under the FLSA is the “economic reality” test. This test looks at the totality of the circumstances to determine whether the worker is economically dependent on the employer or in business for themselves. The factors that are considered include:
The extent to which the work performed is an integral part of the employer’s business;
The worker’s opportunity for profit or loss based on their managerial skill;
The degree of control exercised by the employer over the worker;
The worker’s investment in equipment or materials required for their work;
The degree of skill and independent judgment require-d to perform the work;
The permanency of the relationship between the worker and the employer.
No single factor is determinative, and the weight given to each factor may vary depending on the circumstances of the particular case. The ultimate question is whether the worker is economically
dependent on the employer or in business for themselves.
It’s important to note that state laws and court interpretations may have different tests for determining employee status. Additionally, some industries may have specific tests or exemptions under the FLSA, such as the exemption for certain categories of “white-collar” employees. As always, it’s best to consult with an attorney familiar with employment law to determine the proper classification of workers under the FLSA.
I was glad the answer cautioned that state law might be different and that FLSA exemptions may affect the analysis. ChatGPT wisely advised me to consult with an employment attorney. Smart machine.
But this is surface-level work, not much different from what could be found from a Google search. What about the lawyerly task of applying a legal standard to a set of facts to predict an outcome? I presented ChatGPT with a short hypothetical:
Worker Smith has a contract with Company Z to provide cleaning services at the company’s offices. The contract says that Worker Smith is an “independent contractor.” Smith provides his own tools and supplies for the job. Company Z sets the work hours and does not allow Worker Smith to work for other companies. Company Z provides standards that Worker Smith must adhere to when performing the job. Worker Smith is paid an hourly wage but does not receive overtime pay if he works over 40 hours. Is Company Z violating federal law?
In a few seconds, ChatGPT answered:
Based on the facts provided, it appears that Worker Smith may be misclassified as an independent contractor rather than an employee under the Fair Labor Standards Act (FLSA). The FLSA provides minimum wage and overtime protections to employees but does not extend those protections to independent contractors.
The determination of whether someone is an independent contractor or an employee depends on the specific facts of the working relationship, and courts typically use a multifactor test to make that determination. The “economic reality” test, which I discussed earlier, is one such test.
In this case, several factors suggest that Worker Smith may be an employee rather than an independent contractor.
4 See Karen Sloan, University of California Berkely Rolls Out AI Policy on Eve of Exams, Reuters, Apr. 20, 2023.
While honor codes may be sufficient to address misuse of AI, law schools likely will develop AI policies.
For example:
Company Z sets the work hours, which suggests that Worker Smith is not exercising control over the details of his work.
Company Z provides standards that Worker Smith must adhere to when performing the job, which suggests that Company Z is exercising control over how the work is performed.
Worker Smith is not allowed to work for other companies, which suggests that he is economically dependent on Company Z for his livelihood. Worker Smith is paid an hourly wage, which suggests that he is not assuming the risk of profit or loss associated with running his own business.
Worker Smith does not receive overtime pay if he works over 40 hours, which suggests that he is not being properly compensated under the FLSA.
Based on these factors, a court or the Department of Labor may conclude that Worker Smith is an employee rather than an independent contractor and that Company Z is therefore violating the FLSA by failing to pay him minimum wage and overtime.
It’s important to note that worker classification is a complex area of law, and misclassification can result in significant liability for employers. As such, it’s always best to consult with an experienced employment attorney to ensure that workers are properly classified and that employers are complying with all applicable wage and hour laws.
Wow. ChatGPT correctly flagged that there may be an FLSA misclassification issue here. I was relieved that it again reminded me to consult with an attorney. But the answer is shallow. Lawyers must analyze why and how the standard applies to the facts by citing controlling statutes, regulations, and case law.
Can ChatGPT deepen its analysis? I asked: “What is the case law that may be relevant to Worker Smith’s case? Company Z is located in Baltimore, Maryland.” Its response:
There is no single case that is directly on point with the specific facts of Worker Smith’s case, but there are several cases that may be relevant to the issue of whether Worker Smith is properly
classified as an independent contractor or an employee under the FLSA. Here are a few examples:
Donovan v. DialAmerica Marketing, Inc.: In this case, the Third Circuit Court of Appeals applied the economic reality test to determine that telephone sales representatives were employees, rather than independent contractors, under the FLSA. The court looked at factors such as the extent of the employer’s control over the workers, the workers’ investment in equipment or materials, and the workers’ opportunity for profit or loss.
Saleem v. Corporate Transportation Group, Ltd.: In this case, the Southern District of New York found that limousine drivers were employees under the FLSA, despite the fact that they had signed independent contractor agreements. The court looked at factors such as the degree of control exercised by the employer over the drivers, the fact that the drivers were economically dependent on the employer, and the fact that the drivers did not have the opportunity for profit or loss based on their managerial skills.
Keller v. Miri Microsystems LLC: In this case, the District of Maryland applied the economic reality test to determine that a software engineer was an employee, rather than an independent contractor, under the FLSA. The court looked at factors such as the degree of control exercised by the employer over the worker, the worker’s investment in equipment or materials, and the degree of skill required to perform the work.
While these cases are not directly on point with Worker Smith’s case, they provide examples of how courts have applied the economic reality test to determine employee status under the FLSA. Given that Worker Smith is located in Baltimore,
We should not panic.
When ChatGPT begins to answer legal queries with lawyerly responses such as “it depends,” replete with a nuanced analysis of controlling authority, we can worry more.
Maryland, the Fourth Circuit Court of Appeals and the District of Maryland would be the relevant jurisdictions for this case.
This is when I felt reassured that ChatGPT will not take my students’ future jobs. ChatGPT “hallucinated”—a fancy word in the A.I. field which means it got it wrong and made stuff up.5 The answer recognized that the Fourth Circuit would be the relevant jurisdiction. Yet it cites no cases from the Fourth Circuit or the U.S. Supreme Court. The three cases listed are problematic. The Donovan case is a 1985 case from a different jurisdiction, unlikely to persuade a Maryland judge. Likewise, the New York trial court would not be controlling authority. More concerning: ChatGPT got the Saleem holding wrong. The court held the opposite, finding the plaintiffs were independent contractors, not employees, and the Second Circuit affirmed. Finally, the Keller case was from the District of Michigan, not Maryland. It got that holding wrong, too: the court found plaintiff was an independent contractor and granted defendant’s motion for summary judgment. The Sixth Circuit reversed on civil procedure grounds, finding that plaintiffs had presented a genuine issue of fact to prevent summary judgment. An attorney who relied on such results would risk malpractice.
Given this experiment, I return to the question of what law schools should do in response to A.I. We should not panic. When ChatGPT begins to answer legal queries with lawyerly responses such as “it depends,” replete with a nuanced analysis of controlling authority, we can worry more. Until then, given the myriad legal and ethical questions presented by A.I., reports of the legal profession’s death-by-chatbot are greatly exaggerated.6 While A.I. will improve and unanticipated changes surely will come our way, the world will need more lawyers to sort out the fallout from A.I.’s meteoric rise.
At Maryland Carey Law, we’re preparing our students for the challenges that lie ahead by recommitting to our mission of educating excellent critical thinkers: lawyers who understand that our job is not simply to parrot legal standards to find “the answer” (because there is no such thing in law), but to ask the right questions. Lawyers who ask not only what the law is but what the law should be. Lawyers who have a strong moral compass and a healthy dose of skepticism, who know how to critically assess materials and evidence in the search for truth. Lawyers who understand that the law is a human service profession and are ready to navigate the messy interests, emotions, and flaws of their clients with skill, creativity, and compassion. Lawyers who know not only how to advocate zealously and communicate persuasively but also how to address complex problems, resolve conflicts, and improve the quality of justice.
If law schools do this, the next generation of lawyers will be ready, for whatever comes their way.
Deborah Thompson Eisenberg is Piper & Marbury Professor of Law, Associate Dean for Academic Affairs, and Director of the Dispute Resolution Program at the University of Maryland Francis King Carey School of Law.
6
5 Cade Metz, What Exactly are the Dangers Posed by A.I.? N.Y. Times, May 1, 2023.
Hat tip to Mark Twain, to whom the quote “Reports of my death are greatly exaggerated” is commonly attributed.
AI Chat Bot: WHY STUDENTS SHOULD BE WARY
BY: MITCHELL DOLMAN AND SARA BRANIECKI STUDENTS, UB LAW
“AI is the future” was a common phrase in the not-so-distant past. However, AI is here and making an impact. The big questions, or concerns for some, are how sophisticated will it become, and will it cause a drastic overhaul to the legal field, specifically legal education?
ChatGPT, a commonly discussed AI system today, has undergone several upgrades since its inception, and with each update, the system has improved its abilities. Legal professionals have been wary of ChatGPT’s capabilities. To understand its potential impact, they allowed ChatGPT to take law school exams and the Bar exam twice. ChatGPT 3.5 was the first to take the Bar exam, where it achieved a passing rate on two categories and failed the third, with the AI showing a general understanding of the legal domain. The latest version, ChatGPT 4, however, earned a score in the 90th percentile on the July 2022 Bar exam. While this shows ChatGPT’s strengths, it demonstrates possible issues for legal education.
ChatGPT’s disruption to legal education may largely occur outside of the testing space. Because law students would not have access to ChatGPT during exams, the AI system would be most useful to students for written work product, such as memoranda and briefs. The investigation should focus on how students using ChatGPT hinders proper legal research and writing skills and whether plagiarism could become a greater issue. ChatGPT works by linking whatever the user inputs in the message to every internet source it can reach within its own bandwidth; that bandwidth, with ChatGPT 4, is reportedly the entire internet. Therefore, when someone uses ChatGPT to write something regarding a specific topic, it pulls from every source on the internet to develop a coherent writing that aligns with the prompt. This results in young legal professionals who may lack foundational legal research and writing skills. First, research skills are fundamental to legal professionals. Adequate research skills are required to locate pertinent cases, statutes, and regulations to analyze for use in the legal writing. Finding the appropriate authority can often require patience and a sophisticated skillset, but law students who use ChatGPT will not properly develop those skills because ChatGPT could do it for them. For example, a student could input “show me and summarize the case law from the U.S. Court of Appeals for the Fourth Circuit that discusses supervisory liability,” and ChatGPT provides not only the four or five most prominent cases but also case summaries that students could use as part of their case explanations within their
analysis. Moreover, once the student is provided with the precedential cases, they can continue further and input “show me all the case law in the U.S. Court of Appeals for the Fourth Circuit that cited X case,” and ChatGPT will provide more case law that applies to the writing assignment. Students can use the same process for statutes and regulations.
If students regularly do this, they will not develop proficiency with legal-specific databases such as Westlaw, LexisNexis, or Bloomberg. Some may argue ChatGPT is a faster and more efficient way to research; however, ChatGPT makes mistakes, and if the student is not proficient enough to verify ChatGPT’s findings, the student could run into issues
of using made-up case law and incorrect court holdings in their assignments. Multiple reports, and personal experimentation, indicate that ChatGPT will sometimes create case law that does not exist or incorrectly identify the holdings. Moreover, there have even been extreme instances of made-up material, such as when ChatGPT fabricated a sexual harassment story, almost ruining a lawyer and law professor’s career. Experts have indicated that once ChatGPT has created information, it remains within its “knowledge,” and ChatGPT continues to rely on the information despite inaccuracies. Unless further ChatGPT adaptations remove this software flaw, the system will remain unreliable and, therefore, law students should rely on ChatGPT when developing fundamental legal research skills. A related aspect is the student’s written work product. Forming strong legal writing habits is paramount to any lawyer’s success, whether in a litigation or transactional context. However, with ChatGPT, students could have a nearly finished brief, memorandum, or contract written for them within seconds. After that, the student would only need to make minor edits to the work product to include cases and rules pulled and summarized by ChatGPT. This
creates several problems. First, the student is not developing any baseline legal writing skills, such as CREAC or IRAC. Second, because the student will lack a basic understanding of the structure of legal writing, redlines or edits from a professor or supervisor may be challenging to implement. Lastly, ChatGPT highlights the potential plagiarism issue. Technically, the student is not completing the work themselves. Most law school honor codes would likely consider that a violation. For example, a current student who uses a prior student’s draft assignment as a template would violate most honor codes. However, if lawyers are utilizing ChatGPT in practice, will that slow educational institutions from punishing students for doing the same? On one hand, some may argue that punishing students for something that occurs in practice is wrong. On the other hand, law students should be developing fundamental skills in law school, despite what may occur in practice. Ironically, when asking ChatGPT to write an article like this, it only discusses the upsides of its services. In response, ChatGPT stated, “ChatGPT is likely to have a significant impact on legal education. It can provide students with access to a wealth of legal knowledge and resources, help them develop their legal writing
skills, prepare them for legal examinations, teach them about legal ethics and professional responsibility, and develop their critical thinking and problem-solving skills.” While this may be true to some degree, students need to develop and rely on their own abilities, and tools like ChatGPT are just that, tools, and should be used as such.
AI technology has rapidly advanced, and its impact on various industries has been significant. The legal profession is no exception, and the emergence of AI language models such as ChatGPT will likely significantly impact legal education. What that impact will be is still unknown, but institutions must be prepared to create strong messages and policies to ensure legal education is not rendered obsolete.
The authors graduated from the University of Baltimore School of Law in May 2023. Mitchell Dolman will be clerking for Chief Judge Wells of the Appellate Court of Maryland. After his clerkship, Mitchell will be working as a government contracts associate for Miles & Stockbridge in their Washington D.C office. Sara Braniecki will be joining Hogan Lovells this fall.
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Is Skynet Near?
BY PAMELA LANGHAM, ESQ.
Corporations worldwide are already implementing AI to their business advantage and asking for guidance from their lawyers.
NEVER FEAR. OPEN AI’S CHATGPT WILL NOT BE TAKING OVER THE WORLD (YET!) OR THE PRACTICE OF LAW. It is science fiction come to life, though, and something that lawyers need to educate themselves on, embrace, and navigate to improve their performance for their clients. After all, Open AI’s ChatGPT knows that the “. . . best lawyer is one who can effectively represent their clients and achieve the best possible outcomes for them. This can vary depending on the specific legal matter at hand.” Id. But let’s look deeper into what it is and whether it is a game changer in the legal world.
At a minimum, lawyers should test Open AI’s ChatGPT (AI) and determine how and if they may want to use it in their daily practice. This is critical if you are counsel for a business entity because this tool has been hailed as a game changer for businesses. As I write this article, corporations worldwide are already implementing AI to their business advantage and asking for guidance from their lawyers. You can sign up and test AI now for free here. But hurry, Open AI is already offering a “pro” version at a subscription price, and no one knows how long the standard version will be free.
Let’s talk about why lawyers should embrace this technology, with caution. For one, it is here! Yep, that’s right, the cat is out of the bag. I have heard of stories of clients challenging a lawyer’s legal opinion because they read something on Google, and who hasn’t asked their physicians questions after reading Web-
MD? Make no mistake, AI is no Google and no WebMD. And there is the catch, AI has the ability to exponentially spread knowledge on a level never seen before.
Let’s start with the basics and ask, what is AI? How is it different than Google? I asked that question, and AI replied that Google is a powerful search engine scanning “billions of web pages and returns relevant results in a matter of seconds.” It noted that Google is “limited by its reliance on keywords and search queries.” ChatGPT, on the other hand, can “provide more personalized and context-specific responses” and “engage in a back-andforth conversation to clarify and refine a user’s question, leading to more accurate and relevant information.” Additionally, it says it “can provide information beyond what is available on the internet, such as opinions and insights based on its training data. . .” It appears that
AI thinks a lot about its own abilities! But, it was honest enough to add, AI’s “responses should be evaluated critically and not blindly accepted as fact, as with any source of information.” And that is the critical lesson!
Just as a lawyer would not blindly accept that a case cited by opposing counsel in a pleading represents a specific principle of law or supports opposing counsel’s argument, they should not blindly accept AI’s output. Likewise, a lawyer should not blindly accept that their search query on Fastcase®, Westlaw®, or Lexis® produces cases that are exactly on point. A researcher must read the cases that those popular search engines identify to determine whether the authorities are relevant to their case. This article is by no means suggesting that a lawyer could or should substitute AI in place of popular legal search engines; it is simply to make the point that there is still a need for a well-educated, trained lawyer to check and analyze all sources of information. Indeed, when asked to suggest search terms for a query on a legal search engine regarding a Maryland husband wanting custody of his kids, AI did not provide search terms. Instead, it produced a list of ideas that included, among others, “Hiring a child custody lawyer in Maryland,” “Maryland child custody mediation,” and “Maryland child custody hearings and court proceedings.” Off the mark, but good topics to read.
I asked AI to write a simple legal complaint for negligence in Maryland. It produced a negligence complaint template with a Circuit Court of Maryland heading that one can find in multiple law libraries, legal books, form books, and the internet. However, the form it produced could not be filed in court. It needs an educated and skilled professional to complete the legal requirements for a valid legal pleading and adjustment for any specific nuances of a
“AI is not a magic wand, it’s a tool that augments human ability.”
—Fei-Fei Li
AS QUOTED BY OPEN AI CHATGPT
Lawers
should not blindly accept AI’s output.
case. Critical thinking is necessary to complete the task. The same query on Google instead produced multiple links for me to click in order to find a legal complaint form, e.g., a link to Rocket Lawyer, a link to the Maryland Courts website for small claims, which had an additional link for me to click for a free legal complaint form and other websites that have the same basic form that AI produced. Thus, lawyers can use this feature to educate paralegals and law clerks on the first steps in drafting a complaint, but like with any form, the lawyer needs to finesse the pleading for filing with the court. AI can similarly be used to produce contracts and other legal documents. Of course, there are features in Microsoft Word and other legal software that can do the same.
AI is evolving, and specialization is inevitable. For informative purposes only, one new product bills itself as a virtual legal assistant using AI to assist a lawyer in researching legal issues, drafting emails and letters, summarizing documents, and brainstorming. If such AI software can actually perform competently to assist a lawyer in these functions, then it may become desirable and, perhaps,in time, indispensable.
AI is no substitute for a lawyer’s critical legal skills, interpretation, and application of legal principles.
Obviously, there are additional legal challenges and opportunities in AI. David Arato, a writer for Attorney at Law magazine, recently asked AI what mammal lays the largest eggs. The response he received follows.
The mammal that lays the largest eggs is the elephant. Elephant eggs are the largest of all land animals, with some reaching up to 9 inches in length and weighing up to 5 pounds. However, elephants are not the only mammals that lay eggs. Some species of monotremes, such as the platypus and the echidna, also lay eggs. These eggs are much smaller than elephant eggs, but they are still larger than the eggs of most other mammals.
ChatGPT and Legal Content Marketing, by David Arato, Attorney at Law Magazine January 9, 2023.
So while there are potential AI benefits to assist lawyers, we must understand AI can be drastically wrong. If asked specific questions of law based upon a given set of facts, it may produce inaccuracies. AI is drawing from billions of information sources on the internet, and answering all kinds of questions, but it is not yet proficient at adaptability or analysis. Good lawyering requires critical thinking skills applied to a specific set of facts. And while AI can reduce the time spent on legal research, investigating a claim, or collecting information for a case, it is no substitute for a lawyer’s critical legal skills, interpretation, and application of legal principles. In fact, it is not yet close. While AI has capability to access billions of data sources on the internet, and is designed to observe patterns in thinking, there remains a lot of room for improvement.
The ethics and legalities of using AI also remain unanswered. There is the potential of AI infringing on intellectual property rights by scanning billions of websites and producing a response without properly sourcing or citing the material. Furthermore, users may legally need a license to reproduce or use any of the material that AI produces. Another concern is data privacy and whether AI can collect private user data from the websites it scans and then reproduce the user’s data without a person’s consent.
Overall, AI in its current form is not competent for lawyering and analytical legal skills. It has a high rate of producing false facts and analysis. There are nonetheless various legal functions that could benefit from AI, such as the creation of legal templates for contracts or pleadings, assistance in drafting conversational emails, and review of documents for discovery purposes. It would be wise for lawyers representing business entities and corporations to become familiar with AI and its potential uses and limitations for their clients. Lawyers will need to be prepared for legal questions about AI. But, in AI’s own words, “it is important to keep in mind its limitations and use it as a tool alongside human judgment and expertise.”
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STATE BAR ASSOCIATION ANNOUNCES ITS 2022 CALL FOR CONTENT!
As Maryland’s top content provider for legal professionals, we want to make your content available to our members — and spotlight your professional expertise.
We invite you to submit proposals for substantive law articles, white papers, blog posts, checklists, practice tips, books, contributions to existing books, and webinars. We want to hear your ideas!
We welcome a wide variety of contributors and topics. Our sta can produce your written, audio or video content on multiple MSBA delivery platforms.
Your proposal related to one or more of the following topics will be given increased consideration:
Alternative Dispute Resolution/Mediation
Corporate/Transactional Law
Criminal
Cybersecurity/Technology
Energy/Environmental
Ethics
Government
Healthcare
Leadership & Practice
Real Property
Management
There is no submission deadline. Feel free to submit more than one proposal using our online content idea portal to
A BALANCING ACT LUCAS WEBSTER
Vice-Chair, Resolution of Fee Disputes Committee
LUCAS WEBSTER graduated college without a clear idea of what would come next. After a series of positions in the legal field, including working as a clerk, paralegal, and litigation support, he discovered his love for legal work and decided to attend law school.
Photo courtesy of Travis Marshall Photography
“
The contacts I have made in the legal community through both the Resolution of Fee Disputes Committee and the Construction Law Section have been invaluable.
“You cannot be an attorney just because you like the idea of it; you truthfully have to gain enjoyment from all aspects of it— even the grinding. If you find you are unhappy going to work, . . . not only will your own mental health suffer but your delivery of services to the client will as well.”
Lucas Webster leads the Litigation/Construction Law practice group at Davis, Agnor, Rapaport & Skalny, LLC, overseeing a number of attorneys and working closely with colleagues to find solutions for the firm’s clients. In addition to serving clients, He takes an active role in trainings aimed at developing the knowledge base, skillset, and confidence of younger attorneys in the group.
“I hope to be able to expand the knowledge and tools of my colleagues to make them more effective advocates for their clients,” Webster said. “[W]hat I find most personally rewarding about this job is helping the client, [i]f that goal can be achieved in an efficient and effective manner everyone benefits.”
Webster spends most days fielding requests for assistance and guidance and strategizing with clients about what to do with some emerging issue that has popped up. “Even though I do litigation, I spend most of my days in constant communication with clients, which means that time management can be a constant struggle.”
Webster describes this as “a balancing act because you want to meet client expectations and get them the information they need, while also not sacrificing your relationship with other clients whose non-emergency issues may keep getting put off. To put it simply, it requires a lot of long hours and a lot of support from associates and other professionals at the firm to make it work.”
Webster also serves as Vice-Chair of the Resolution of Fee Disputes Committee for the 5th Appellate Circuit. Currently, he is the designated Chair-Elect for the 2023–2024 year.
“As Vice-Chair, I oversee the Settlement Facilitators working on fee dispute matters in my circuit. I make sure they are advancing the cases and providing service to the parties to help them, hopefully, reach a resolution quickly and efficiently,” Webster said. “I enjoy being able to get matters resolved. I think the Settlement Facilitator role is a perfect one for these kinds of disputes. Whatever the cause, the client and attorney have been left with a bad taste in their mouth from their experience. I like to think our process helps to heal that wound somewhat and restore some measure of fairness to both of them.”
Outside of the office, Webster can be found supporting the Second Chance Wildlife Center, a nonprofit whose mission includes providing medical and rehabilitative care to injured wildlife. “Both my father and step-mother had dedicated the majority of their lives to assistance of wildlife and had been personally involved in the Second Chance Wildlife Center organization. I have been pleased to “carry on”— in a manner of speaking— their desires to support the organization and the exceptional work it provides to local wildlife.”
What is your fondest memory of your legal career so far?
When I was less than six months out of law school I had a jury trial in the Circuit Court for Montgomery County. Opposing counsel, the judge, the courtroom staff, my client, and even the opposing party—were professional, well-mannered, civil, and while passionate about their positions, were always respectful of the other side. It was a wonderful introduction to civil litigation. And yes, it helps that my client received a good outcome!
How has the MSBA helped you in your legal career?
The contacts I have made in the legal community through both the Resolution of Fee Disputes Committee and the Construction Law Section have been invaluable. I have a number of friends, colleagues, professional referral sources, and acquaintances that I would never have developed (or not developed as effectively) without my participation in the MSBA.
What we can’t find on your resume.
My son and daughter are both in college seeking degrees in the performing arts—television, film, stage, acting, singing. There is nothing like watching your kid performing on a stage.
What’s an interesting fact about you that no one would guess?
I attended high school in Homer, Alaska.
What’s your favorite vacation spot?
The rocky coast of Maine.
Plain English
WHY LAWYERS SHOULD GIVE
IT
A SHOT
BY HANNAH
KREHELY
STUDENT, UNIVERSITY OF BALTIMORE SCHOOL OF LAW
“Legalese” requires lawyerly expertise, which, when used, can result in difficulty communicating complex legal issues to non-lawyer audiences.
“[T]he beauty, the genius, is not to write a fivecent idea in a ten-dollar sentence. It’s to put a ten-dollar idea in a five-cent sentence.”1 Even though the law should be easily understood by the average person, the current scheme has rendered it inaccessible for many reasons, including lawyers’ fond use of lofty, complex, and often confusing language.2 Traditionally, the legal profession has used “legalese” in its writing. Merriam Webster’s Dictionary defines “legalese” as a specialized language of the legal profession.3 A few examples of “legalese” include words such as: aforementioned, whereas, and to wit. However, just as languages are taught and learned, “legalese” requires lawyerly expertise, which, when used, can result in difficulty communicating complex legal issues to nonlawyer audiences.4 Fortunately, in the last twenty years, there have been calls to move away from using legalese in legal writing and to embrace plain and clear English instead. Practitioners today should be mindful of this call.
When drafting legal memoranda, lawyers should consider that much of the language we use is specialized and can, fail to adequately convey information in a way that is understandable to others, which can render a document meaningless and confusing. Although this may seem like common sense, practitioners may have difficulties using this approach because their own
1 Conor Friedersdorf, Why Clarence Thomas Uses Simple Words in His Opinions, The Atlantic (Feb. 20, 2013), https://www.theatlantic.com/national/ archive/2013/02/why-clarence-thomas-usessimple-words-in-his-opinions/273326/.
2 See Rabeea Assy, Can the Law Speak Directly to its Subjects? The Limitation of Plain Language, 38 J. L. Soc’y 376, 377–79 (2011).
4 See generally Janet Arrowood, Plain Language: Because it’s ALL About the Audience, Thomson Reuters (Feb. 24, 2020), https:// www.thomsonreuters.com/en-us/ posts/legal/plain-language/.
legal writing education was burdened with historic jargon and archaic themes of subjectively -“good” legal writing. Whether to continue using traditional methods or to begin accepting more modern conventional standards is a common struggle and theme of the legal profession.
As a result of these competing views, there has been an a “Plain English Movement”5 in the last two decades, which focuses on debunking the antiquated structure of legal writing and concentrates on ensuring legal memoranda are drafted in a manner that is intelligible to “ordinary people.”6 For today’s law students, the legal writing curriculum emphasizes focusing on the clarity and accuracy of the text and challenges students’ assumptions of how legal writing should be presented
individual writer and urges practitioners to acknowledge simple methods for drafting that generate meaning and value.9 This departure from the use of legal formalities for the use of other mechanisms–e.g., “colloquialisms10”–could be instrumental in generating meaning to certain legal pieces. The current generation of lawyers –including junior attorneys and law students – are encountering major changes in the legal practice.11 With the development of new technology that provide “editorial oversight,” legal documents have the potential to be clearer and better, not only in grammatical composition but in their “social and intellectual contexts” as well.12
Although legal writing takes place within a complex institution, with its own conventions, the role that
Clear and logical reasoning, in which authors show their work, is a hallmark of a persuasive analysis. However, sometimes an otherwise detailed legal analysis is missing a step and skips a crucial link in the reasoning.
based on what they see in judicial opinions from history.7While the concept of plain English does involve using simple language and short phrasing, many scholars have noted that to excel in crafting this kind of legal writing, specialized skills beyond technical language are still necessary.
Some legal scholars have suggested that clearer legal writing is produced when there is a shift in focus toward the social perspective.8 This social perspective broadens the process of legal writing beyond the scope of the
lawyers play in society as advocates displays the importance of making content that is accessible.13 By striving to use plain English, practitioners will create more effective documents for the field. This “readerbased” approach works to convey shared meanings and value between the writer and the reader and works to form actual “good” legal writing.14 As lawyers navigate courtrooms, judges, and juries, and interact with clients in a variety of settings, they must learn and apply these principles to reach this multitude of audiences.
5 For hundreds of years, people have expressed disdain to the composition of legal documents, and have crafted their evolution toward clearer writing as the “Plain English Movement.” Christopher Balmford, Plain Language: Beyond a Movement, Plainlanguage.gov, https://www.plainlanguage.gov/resources/articles/beyond-amovement/ (last visited Feb 6, 2023). This movement of scholars, lawyers, and advocates has begun to develop in several ways, including using it in their own teaching, their own writing practices, or attempting to create legislation that makes it attorney responsibility. Id.
6 See Assy, supra note 2, at 377.
7 Id. at 50.
8 See generally J. Christoper Rideout & Jill J. Ramsfield, Legal Writing: A Revised View, 69 Wash. L. Rev. 35, 56–61 (1994) ( In describing the social perspective, a researcher states that “many of the choices that writers must make . . . are choices that can be meaningful only when the writer makes them within linguistically defined social contexts . . .” ). Id. Thus, the social perspective’s theme is to recognize the necessary link between the individual’s writing and the reader’s thinking.
9 Id. at 57.
10 Colloquialism is defined as a local or regional dialect expression, for example “y’all.” Colloquialism, Merriam-Webster, Dictionary, https://www.merriam-webster.com/ dictionary/legalese (last visited Feb. 6, 2023).
11 Id. at 37.
12 Id. at 39.
13 Id. at 57.
14 Id. at 52.
Purging Perjury
BY IRWIN KRAMER, ESQ.
Q. After testifying last month that she earned no income other than that reflected on the paystubs and tax returns we put into evidence, my client just told me that she makes extra money "under the table." What are my duties to the client, to the Court and to the IRS?
A.Having enlisted your unwitting assistance in lying to the Court, you cannot bury your head in the sand or cite your duties to the client as a reason to remain silent. Keeping the system honest trumps any duty to protect a client who worked to undermine it. Under Rule 3.3 of the Rules of Professional Conduct, "If an attorney has offered material evidence and comes to know of its falsity, the attorney shall take reasonable remedial measures."
Naturally, it is best if the client correct the record of her own volition. So, you should meet with the client in an attempt to convince her of the need to come clean and to bear the consequences that may follow.
If the client refuses to inform the court and the opposing party of the misrepresentation, you must explain your own ethical obligation to inform the court of the client's actions. If the client still refuses, you must inform the court and your opponent of the false testimony and evidence.
The apparent conflict between your duty of confidentiality and duty of candor toward the tribunal is resolved in the rule itself. Rule 3.3(b) says that the "duties stated in . . . this Rule continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected" by the duty of confidentiality.
The duty of candor toward the tribunal does not require reporting her misconduct to the Internal Revenue Service. Unless you unwittingly assisted in the preparation of false tax returns, your duty of confidentiality would not allow you to reveal her efforts to evade taxes. But you should nonetheless advise her to make appropriate
amends and to consult with a tax attorney to determine the best way to amend earlier returns.
Beyond your duties as a lawful officer of the Court, delicate scenarios like this one make it imperative that you protect yourself. Indeed, if the client was willing to lie to you and to the Court, she will not have any qualms in lying about you to the Court or to the ethics board. To prepare for trouble ahead, you should:
Memorialize all conversations with the client in detailed memos to her file, specifying the date and time on which she disclosed the truth for the first time and all subsequent statements; Recite these details in a letter to your client which reviews the nature of all perjured evidence and testimony, together with the means of rectifying it, the legal and criminal consequences of perjury and of any refusal to correct it, and your ethical obligations in the event that she does not. This letter should mirror the advice you will provide in person, but also review the consequences she will face either way; and
Absent extenuating circumstances, you should advise her of your need to terminate representation and you should follow court rules to do so once the matter has been rectified.
When a client uses you as an instrument of perjury, it would be unwise to maintain representation. As the adage goes, "Fool me once, shame on you; fool me twice, shame on me." Don't be a fool for a client who plays you like one.
Irwin Kramer has devoted a significant portion of his practice to the defense of his fellow attorneys in professional malpractice and disciplinary matters. Combined with significant trial and appellate experience in state and federal courts, Mr. Kramer’s law firm management experience gives him an appreciation for the pressures of law practice and the ethical issues confronting attorneys on a daily basis. This article originally appeared on Mr. Kramer’s blog, The Lawyer’s Lawyer, at https://attorneygrievances.com/. Used with permission.
Maryland State Bar Association, Inc. Committee on Ethics
MSBA ETHICS OPINION 2023-01
WHAT ARE FORMER COUNSEL’S OBLIGATIONS CONCERNING DISPOSITION OF CROWDFUNDED DONATIONS RAISED TO SUPPORT THE FORMER REPRESENTATION?
QUESTION PRESENTED
This opinion addresses issues associated with the former counsel’s custody of funds in his attorney trust account which were raised through crowdfunding for specific and limited purposes related to anticipated litigation.
CONCLUSION
If successor counsel refuses to take custody of the funds in their attorney trust account for the purpose they were donated, then you are advised against making decisions by yourself concerning disposition of the funds. You should promptly petition for a judicial determination as to the future disposition of the funds. In the meantime, we do not believe that you have a Maryland attorney lien on these funds.
BACKGROUND
You have requested the advice of the Committee on Ethics with regard to the handling of money donated through a crowdfunding website for the specific and exclusive use of funding the anticipated legal expenses of a case. You were retained by the surviving spouse (and personal representative) of a decedent who is pursuing civil claims arising from her death. You have a written contingency fee retainer agreement with the surviving spouse, who is also personal representative of his late wife’s estate. You have since terminated your representation, and the surviving spouse now has new counsel.
Because the decedent’s death was a matter of some public interest, with the cooperation of the surviving spouse, you initiated and directed a crowdfunding effort to support the substantial anticipated out-of-pocket expenses, which were the client’s responsibility under the retainer agreement. The notification to potential donors advised that the contributions would be used for engaging professionals and other consultants including those with medical, legal and other expertise.
You advised that, after contributions were made to the crowdfunding account, you placed a portion of the proceeds into your attorney trust account and
drew upon it for legal expenses of various experts, investigations and examinations, and other similar expenses. You further advised that you did not pay yourself any fee, and you later transferred the remainder of the funds to your attorney trust account where they remain today. You later terminated your representation. You indicate there is no claim or suggestion that the termination of representation is in any way cause-based, i.e., related to performance, misconduct, lack of legal justification, etc. Significantly, you assisted with the transfer of your client’s file and made yourself personally available to the client’s new counsel, providing representation under the umbrella of a 501(c) (3) organization. You have represented that the work you performed before your withdrawal was substantial and resulted in a large of amount of evidence gathered and/or analyzed, to your former client’s benefit. You have received no compensation to date for this substantial effort, nor did your contingent fee agreement provide for compensation until a recovery occurred.
donated to fund the legal action, and not as a donation to the surviving spouse personally or for any other purpose.
In your letter, you have requested the guidance of the Committee on the following three issues:
1. Are the donated funds the client’s property such that I must turn them over to the client?
2. If the 501(c)(3) organization chooses not to accept or use the funds and finances the litigation on its own, is it my ethical duty to refund the unspent funds in my attorney trust account to the donors?
3. If there is no resolution reached with the client about the fee, can I treat the funds as disputed and hold them until a court or other body determines the appropriate amount of my fee?
Crowdfunding is simply a new use of technology to support a well-recognized mechanism to assist with client legal fees and expenses.
You advised that, at this time, you continue to hold the crowdfunded money in trust. The client’s new and current counsel, the 501(c)(3) organization, has declined to accept the funds in its own attorney trust account or in the attorney trust account of the individual attorney now retained. The new attorney proposed that you instead transfer the funds to the client himself and that his organization would bill the client for such expenses to the extent of the amount transferred. You declined such proposal because there are no guarantees or protections that the donors’ intent would be realized or protected, and because the funds were
The Committee will attempt to address all three questions to the extent we can within our limited charter. Our role is to provide guidance on questions of ethics and professional responsibility, but otherwise not to opine on legal matters. Initially, we will observe that crowdfunding is simply a new use of technology to support a well-recognized mechanism to assist with client legal fees and expenses, often referred to as a legal defense fund. There is generally no prohibition on using crowdfunding to raise funds to support a client’s legal fees and expenses as long as the donor(s) do not have a stake in the litigation or impair the lawyer’s
independence (which does not seem to be an issue here). See, e.g., Model Rules of Prof’l Conduct R. 1.8(f), 5.4 (2018). See D.C. Legal Ethics Opinion 375 (2018) (Ethical Considerations of Crowdfunding); Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2015-6; N.Y. State Bar Ass’n Comm on Prof’l Ethics Formal Opinion 1062 (2015).
a. Disposition of Crowdfunded Donations
The issues associated with the ownership and control of these funds fall within a murky legal environment.
It is clear that the crowdfund donors here made the donations with the specific intent of paying expenses associated with this case. It would have been permissible to transfer these funds to the attorney trust account of new counsel consistent with the intent of the donors. But since this proposal was declined, this has now created an issue concerning the future disposition of these funds. You have advised us that a probate court in another state has addressed the issue, in part, in ruling that the funds are not property of the decedent’s estate, and that as a result, the probate court held it had no jurisdiction to order you to do anything with them.
As the former attorney and current custodian of the funds in escrow, you are, of course, subject to the provisions of Maryland Rule 19-301.15 – Safekeeping the Property of Others. But the obvious question is: who are the “Others”? Who, if anyone, can direct the disposition of these funds?
Although the Committee does not express opinions on legal issues, we can say this much: the issues associated with the ownership and control of these funds fall within a murky legal environment, so much so, in fact, that we believe you, as the former counsel and current custodian of the funds, should not seek to make this determination yourself. Rather, we believe the safest ethical approach is to seek judicial review and intervention. There are a wide variety of potential outcomes here. For example, courts in other states have ordered refunds to donors. See e.g., Adler v. SAVE, 432 N.J. Super. 101, 74 A.3d 41 (2013); Tenn Div. of the United Daughters of the Confederacy v. Vanderbilt Univ., 174 S.W.3d 98 (Tenn. 2005). But, Maryland law (with exceptions) holds that intervivos gifts are irrevocable, rejecting the “conditional gift” doctrine. Ver Brycke v. Ver Brycke, 379 Md. 669, 691, 843 A.2d 758, 771 (2004). The court could appoint a trustee to work with plaintiffs’ current counsel to help fund the litigation.
The court has the authority under the cy pres doctrine to order a new purpose of the gift to meet donors’ intent. Under some circumstances, the property could be considered abandoned. Md. Code Ann., Com. Law §17-301. It is, of course, unclear what the judicial outcome would be here.
Finally, we are not privy to the arguments of your former client as to why these funds should become property of the estate, an argument apparently rejected by the out-of-state probate court. Given the express nature of the solicitation, there are undoubtedly reasons a court might not allow conversion of these funds to the property of the estate or the surviving spouse, but this would require a judicial determination after exploration of all the applicable law and facts. We express no opinion on the outcome of such an action.
These are surely not an exhaustive list of potential outcomes here. We express no opinion concerning what is the likely or correct outcome. But, we do express the view that these legal issues are sufficiently unsettled that, as custodian of the funds, it would be ethically unwise to make that determination yourself. This obligation is particularly clear since your former client, the personal representative and surviving spouse, has apparently made an unsuccessful claim of the estate for these funds and presumably objects to alternative dispositions. At this point, we believe that it would not be advisable disburse the funds to anyone (other than successor counsel),
including the surviving spouse, either individually or in his capacity as personal representative, without judicial approval. As custodian subject to Md. Rule 19-301.15, we believe you should consider petitioning with reasonable promptness to obtain a judicial determination on these issues. We cannot provide advice as to the form of the petition, whether interpleader, declaratory judgment, or otherwise. The Committee believes it is ethically prudent to keep these funds in your attorney trust account pending judicial determination.1
b. Attorney Fee Liens or Claims on Crowdfunded Donations
Because of unusual history here, the attorney fee question is also complex. You were retained in this matter on a purely contingent fee basis, which, of course, means that there is no fee entitlement until there has been an actual recovery. Somuah v. Flachs, 352 Md. 241, 256, 721 A.2d 680, 687 (1998).2 However, “if the representation is terminated either by the client without cause or by the attorney with justification, the attorney is entitled to be compensated for the reasonable value of the legal services rendered prior to termination” Skeens v. Miller, 331 Md. 331 (1993).
If your representation concluded in this fashion, you are potentially entitled to a quantum meruit claim for the value of your attorneys’ fees once there has been a recovery. Soumah, at 258, 721 A.2d at 688. You can also assert a lien now on the pending cause of action for the value of your attorneys’ fees. Md. Code Ann., Business Occupations and Professions §10-501, Sommer v. Rhoads, 171 Md. App. 392, 407, 910 A.2d 514, 523 n.6 (2006). Whether you can successfully assert such a claim in this situation is ultimately a legal question on which this Committee cannot opine.
The former client can, of course, voluntarily agree to pay some compensation to you now, before any recovery, to compromise and release your potential quantum meruit fee claim, but that is solely within the client’s discretion. Based on the language of the crowdfunding solicitation,3 payment of attorneys’ fees would be permissible of the crowdfunded funds that
you currently hold in trust, but only if authorized by the client with the advice of independent counsel who can advise the client of all the relevant factors (e.g., value of service, risk of nonrecovery, need for the funds to prosecute the pending action, etc.).
(a) Subject to subsection (b) of this section, an attorney-at-law has a lien on:
(1) a cause of action or proceeding of a client of the attorney-at-law from the time the cause of action arises or the proceeding begins; and (2) a settlement, judgment, or
Payment of attorneys’ fees would be permissible of the crowdfunded funds that you currently hold in trust, but only if authorized by the client with the advice of independent counsel.
As for retaining these funds in your attorney trust account under an attorney fee lien pending completion of the litigation, we do not believe that such a course of action would be permissible or ethically advisable. In Maryland, attorney fee liens attach only to a cause of action or “a settlement, judgment, or award that a client receives as a result of legal services that the attorney-at-law performs.” See Md. Code Ann., Business Occupations and Professions § 10-501(a). Even then, such a lien attaches only to the extent the client owes money under a specific fee agreement. None of these elements are present here to the best of our understanding.
Maryland’s attorney fee lien statute is found in § 10-501 of the Business Occupations and Professions Article:
award that a client receives as a result of legal services that the attorney-at-law performs.
(b) A lien under this section attaches only if, and to the extent that, under a specific agreement between an attorney-at-law and a client, the client owes the attorney-at-law a fee or other compensation for legal services that produced the settlement, judgment, or award.
(c) A lien under this section is subordinate only to:
(1) a prior lien for wages due to an employee of the client for work related to the settlement, judgment, or award; or
2 “The Maryland Supreme Court (then-Court of Appeals) has held where termination without cause results in an immediate accrual of a cause of action: “Accordingly, we hold that, where an attorney has been discharged without cause, the attorney’s claim in quantum meruit accrues immediately upon discharge, notwithstanding the fact that the contingency has not occurred.” Skeens.at 344.
3 The solicitation states that donations will be used to “offset expenses related to engaging professionals and other consultants with expertise in use of force, police procedure, security and computer forensic analysis, medical professionals, and other legal and technical specialties.”
4 This opinion does not address a separate question, which is whether or not you may have an equitable lien on these funds, separate and apart from the Maryland attorney lien statute This would require judicial determination. It is a complex question which would involve consideration of the following: the statement on the crowdfunding site that funds were raised for legal expenses (see fn. 2); the fact you have a contingency fee agreement which provides for payment only upon recovery; the potential use (or not) for these current funds to be used for litigation; the question of whether the Maryland attorney lien statute would preempt any equitable attorney claims; the existence of any claims you may already have on the file; and, the cause of action itself based on the Maryland attorney lien statute. We do not opine on any of these issues except to say that this too would require judicial determination.
(2) a lien for taxes that the client owes the State.
(d) An attorney-at-law may retain property subject to a lien under this section and bring an action for execution under the lien only in accordance with rules that the Court of Appeals adopts.
See also Md. Rule 2-652 (“The notice shall claim the lien, state the attorney’s interest in the action, proceeding, settlement,
judgment, or award, and inform the client or other person to hold any money payable or property passing to the client relating to the action, proceeding, settlement, judgment, or award.”)
As far as we are able to tell, it does not appear that the funds in your attorney trust account would be subject to the Maryland attorney lien statute. If successor counsel continues to be unwilling to take custody of these funds in their attorney trust account for the purposes they were
donated, we believe you should seek a judicial determination as suggested earlier in this opinion, and retain the funds in your attorney trust account pending such a determination.4
We hope this response is helpful. Thank you for contacting the Committee on Ethics.
Very truly yours,
MSBA COMMITTEE ON ETHICS
REFERENCES:
Rules Cited:
Md. Rule 19-301.15
Md.
ETHICS OPINIONS CITED:
D.C. Legal Ethics Opinion 375 (2018) (Ethical Considerations of Crowdfunding)
Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2015-6 N.Y. State Bar Ass’n Comm on Prof’l Ethics Formal Opinion 1062 (2015)
DATE APPROVED BY COMMITTEE: February 20, 2023
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 Supreme Court of Maryland, 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.
PLEADING CAUSES OF ACTION IN MARYLAND
Just one of 130+ print and digital treatises and coursebooks provided by MSBA.
BY PAUL MARK SANDLER, JAMES K. ARCHIBALD, AND ELEANOR T. CHUNG
Pleading Causes of Action in Maryland, Seventh Edition is the starting point for drafting and analyzing virtually all pleadings in Maryland.
Sandler, Archibald, and Chung’s practical organization make this an exceptionally easy-to-use practitioner’s and judge’s tool.
The authors’ analysis and advice help the reader develop an acute awareness of the strengths and weaknesses of a case, making this an invaluable reference manual for all Maryland lawyers. Each chapter provides sample pleadings, as well as authoritative commentary of elements of a claim and issues to consider.
THIS EDITION FEATURES:
• More Than 100 New Cases
• New Causes of Action, including Breach of Fiduciary Duty and Intentional Interference with an Inheritance or Gift
• New Chapters
• Significant updates to forms
• Updates on MDEC Requirements
If I can make a member’s experience better with a simple hello and making them feel included, or remembering their kid’s milestones makes this job rewarding. “
Angela Munro SECTION MANAGER
Tell us a little about yourself.
I have lived in Bel Air the majority of my life, however I’m an avid traveler and always ready to jump on a plane for my next adventure. When I’m not attending MSBA events or spending time with my little humans, my nephews (Macallen and Maverick) you will find me exploring a new city. This summer I will be living in San Jose, Costa Rica for a month while working remotely. On the weekends, I will be traveling around the country with family and friends visiting.
Tell us a little about your career. Any highlights?
When I first started with the MSBA, I was an administrative assistant then moved up to Executive Assistant, Section and Committee Administrator to now the Section Manager. I have seen so many changes and improvements with the organization and it’s great to know I have helped move the MSBA into the modern organization it is. I am proud to be a member of Team MSBA!
What did you do before you joined the MSBA?
The MSBA has been my home for 15 years, after graduating from University of Baltimore with a Criminal Justice degree.
Tell us about your role at the MSBA.
I am currently the section manager for all 25 sections. I help organize monthly webinars, council meetings and annual section events. Along with sections, I also assist with the Resolution of Fee Dispute Committee which helps attorneys and their clients negotiate resolutions. I’m also a liaison to the Maryland Bar Foundation and assist with their grants, award events and fundraising efforts.
What's your favorite part of your job?
I enjoy connecting with people either virtually or in-person. If I can make a member’s experience better with a simple hello and making them feel included, or remembering their kid’s milestones makes this job rewarding. I have made numerous friendships with members over the years. The staff calls me the “wooer” of the group.
What is an interesting fact about you we wouldn’t find on your resume? I was born in Bogota, Colombia and was adopted when I was four years old. I’m planning to return to Colombia this summer with my parents and to run a half marathon.
What do you do to de-stress or unwind?
I enjoy running to de-stress, although training for marathons can be stressful! I’m currently running with a local organization, Athletes Serving Athletes—an organization devoted to elevating the quality of life for individuals with limited mobility by empowering them to train for and participate in mainstream running events. Pushing these athletes makes me realize how lucky I am that I can run and in return I run for those who can’t, even if I’m the slowest runner! When I’m out running alone or with the team, I forget about the email that needs to go out or the zoom meeting I need to facilitate. I’m also training for two marathons this fall, Marine Corps and NYC.
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A Home for Every Member of This Noble Profession
AS I WRITE THIS, JUST DAYS AFTER the conclusion of a successful 2023 Legal Summit in Ocean City, I can’t help but reflect on Bar Year 2022–2023.
The start to President David Shapiro’s year was likely more challenging than he expected, with the departure of Executive Director Victor Velazquez. The loss of any leader of an organization can be disruptive, and has the potential to have a negative effect on the organization. David, to his credit, recognized this, and held a call with Natalie McSherry
and myself after Vic announced his departure. During that call, I committed to David that regardless of the search committee process or the outcome of that process, I would ensure that the MSBA staff remained focused on our objectives and that the trains would continue to run on time.
Looking back on this year, I am pleased to report that the trains did indeed continue to run. The MSBA achieved 97% of our annual renewal goal. In addition to that, we exceeded our Passport membership renewal goal, and exceeded our CLE revenue goals. Our team has been working hard to balance our return to inperson events, while continuing to provide high quality, and accessible virtual programming for our members across the state and beyond.
Please indulge me for a moment as I showcase our small but mighty MSBA staff team, all of whom are pictured on the next page. I want to thank every one of our staff members for your hard work and support during this transition year. You demonstrated resilience and flexibility, and our membership should be proud to know that every member of the staff team is invested in the success of this organization.
I want to give a special shout out to Jesse Miller, our Director of Marketing, who joined just over a year ago, and to whom I’ve passed the baton (or more accurately the walkie talkie) as captain of the Legal Summit. She did a great job leading the event, and I believe our team delivered a stellar Legal Summit.
Beyond a strong staff team, our membership should be pleased to know that you have been represented well by our hard working President, Officers, Executive Committee, and Board of Governors. The leadership of this organization has engaged in vigorous discussion and debate, all aimed at making the MSBA a better, stronger organization.
David, thank you for your leadership. I’ve admired your thoughtful and deliberate approach and your dedication to seeking out and hearing from a wide range of voices and perspectives for the important decisions that have passed through the Board and the Executive Committee. The Association was served well by your leadership, and should consider itself lucky to count you among its past-Presidents.
To new MSBA President Jason DeLoach, congratulations. I look forward to working with you. I appreciate your dedication to attracting new and young members, by giving them opportunities to become leaders within the MSBA, as well as your focus on retaining longer-term members by continuing to offer what they appreciate from the association.
The MSBA staff team will be focused on delivering on several initiatives. We are working to revamp our marketing to take a more personalized approach to recruit new members and retain our existing members. We will continue to expand our library of course books and treatises and add more live and OnDemand CLE courses to our growing catalog. We will remain the best value in State Bar Association membership, by including digital CLE of 90 minutes or less with your membership as well as up to two complimentary sections.
Finally, and perhaps most importantly, we will be focused on making sure every member of this noble profession sees the MSBA as a resource that can provide learning, connections, and leadership opportunities. Because if you belong to the profession, you belong here at the MSBA.
Anna Sholl, Executive Director
STOCKLAND Chief Content Officer
K. SHAH , ESQ. Executive Director, Maryland Access to Justice Commission
ROBERT BERSHAD, ESQ. Director of Member Engagement
SOPHIA COLAS, ESQ. Legal Content Editor
LISA CAPLAN , LCSW- C Director, Lawyer Assistance Program
ARIANE COTTMAN Event & Project Coordinator
LEVIN CLE Operations Assistant & Member Services Specialist
BETH SALSGIVER-HUNT Member Service, Recruitment & Retention Specialist
SHAOLI S. KATANA , ESQ. Director of Advocacy & Government Relations
MICHAEL Executive Assistant & Governance Administrator
LANGHAM, ESQ. Legal Content Editor
Manager
ANDREA M. SOLAN , ESQ. Director of Publications & Content
CRISELLE ANDERSON Educational Program Assistant
COLLEEN ARACRI, ESQ. Legal Content Editor
ANDREA C. TERRY, ESQ. Director of Learning
PATRICIA
HEATHER KENTON Marketing Specialist
PAMELA
NATHAN
JESSICA YOUNG Video Streaming Coordinator
REENA
JESSIE MILLER Director of Marketing
THERESA
ANGELA MUNRO Section
AUTUMN SMITH Member Service Specialist
520 West Fayette Street Baltimore, Maryland
The McCammon Group
Hon. Robert A. Greenberg (Ret.)
Retired Administrative Judge, Montgomery County Circuit Court
The Honorable Robert A. Greenberg has joined The McCammon Group after fifteen years of dedicated judicial service on the Circuit Court for Montgomery County, including four years as Administrative Judge, and three years as a Business and Technology Judge. Early in his legal career, Judge Greenberg served as an Assistant State’s Attorney in Montgomery County. He subsequently enjoyed a successful career in private practice, specializing in civil and criminal litigation. Judge Greenberg is a 2022 Recipient of the Montgomery County Bar Association Jurist Award and the 2015 Recipient of the Maryland State Bar Association Anselm Sodaro Award for judicial civility. Among his many credentials, Judge Greenberg is currently an Emeritus Member of the Montgomery County Inns of Court and serves as the Chairman of the Operations Subcommittee of the Equal Justice Committee. He is the author of articles for several legal and academic publications and continues to teach courses for new trial judges and court management personnel. Judge Greenberg now brings this exemplary record of dedication and experience to The McCammon Group to serve the mediation and arbitration needs of lawyers and litigants in Maryland and beyond.
