110 Lunch Meeting? The Best Foods to Choose for a Productive Day
ETHICS
122 MSBA Ethics Docket: Internet Advertising: Competitive Keyword Purchases
CAREER HIGHLIGHTS
70 Breaking into Law: Perneita Farrar
72 What I've Learned: Judge Charles E. Moylan, Jr.
74 Career Transitions: Judge Amy D. Lorenzini
76 Off the Beaten Path: Ryan Wilson
98 West Virginia v. US Environmental Protection Agency
101 Post-2022 State Constitutionalism
103 The Congressional Redistricting Process and Partisan Gerrymandering
Member Spotlights
29 Zide Siegal Tabor & Spigel | ZSTS
39 Johnine Clark
45 Lydia Lawless
50 Albert G. Allen, III
52 MSBA Animal Law Section
87 Jeff Waldstreicher
89 Jessica Quincosa
94 Mitchell Dolman
113 Michele Shipley
91 In Memoriam: Walter E. Laake, Jr.
60 Cannabis Law
Publication Date: Spring 2023
Published quarterly by the Maryland State Bar Association, Inc.
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Editorial Advisory Board
Natasha Nazareth, Esq., Chair
MSBA Officers (2022-2023)
President: David P. Shapiro
President Elect: Jason DeLoach
Secretary: Wm. Carl Isler
Treasurer: Marisa Trasatti
Photography: Profile photographs provided by Travis Marshall Photography
Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial Board or staff. Publishing an advertisement does not imply endorsement of any product or service offered.
EDITORIAL ADVISORY BOARD (2022-23 BAR YEAR)
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
Representing Spanish Speaking Clients and Undocumented Immigrants
Five Tips for Setting Boundaries with Clients
Buyer Beware: The Foreign Investment in Real Property Tax Act
Perspective on National Legal Trends
Do You Take Venmo?
Five Tips on Hiring Your First Employee
Cannabis Law After Legalization in Maryland: What Comes Next?
Leading Millennials in a Hybrid Legal World
Maximizing the Value of Captive Insurance 91 Careful Editing: The Key to Identifying and Avoiding Analytical Gaps in Legal Writing 108 U.S. Supreme Court Dismisses Case on Attorney-Client Privilege 115 Virtual Services: The New Legal Landscape 117 Digital Detoxing: A Lawyer's Best Friend
80 Access to Counsel in Evictions Task Force 85 How Legal Aid Salaries Impact Access to Justice
Commissioner Profile
Distinguished Leader
Happy Spring!
Springtime means we are twothirds through the Bar Year; I am excited by how much your MSBA has accomplished over the past 10 months . . . and there still is more to come.
MSBA ADVOCACY
Looking back, when the Maryland General Assembly convened in January, MSBA members were ready to analyze and assist with legislation on behalf of our members, the legal profession as a whole, and the clients and constituents who we serve. In a period of weeks, MSBA members reviewed more than 175 new legislative reports and prepared dozens of memoranda about the bills reviewed—some in support and some in opposition—in an effort to assist sponsoring legislators and the committees overseeing such matters.
Advocating for You, Connecting with You
At MSBA Day in January, Senator Will Smith, Chair of the Senate Judicial Proceedings Committee, expressed his appreciation for the General Assembly’s partnership with the MSBA, noting that MSBA members “have expertise in specific areas of the law that can help us develop really sound policy.”
As of this writing, the General Assembly still is in session and it’s too soon to report back on legislative outcomes. Look for updates in the eWeekly and at www.MSBA.org/advocacy.
LEGAL SUMMIT
Looking forward, as I have said many times over the past 10 months, one of the best things the MSBA does is connect people with one another—often through learning, networking, and social opportunities. The epitome of this benefit is the MSBA Legal Summit and Annual Meeting in Ocean City—this year from June 7–9, 2023.
I’m excited to share with you that registrations for this year’s Legal Summit and Annual Meeting have been very strong— already surpassing pre-pandemic levels for the same registration period. We expect this trend to continue and are excited that, so far, more than 20% of this year’s registrants are first-timers! So, if you haven’t registered yet, I would encourage you to do so while great rooms still are available. And, if you haven’t attended before, know that you will be in good company with seasoned Legal Summit attendees and first-time attendees. Plus, the MSBA is
“buddying up” first-timers with “Summit veterans” for guidance and easy connection throughout the event.
For me the Legal Summit will be bittersweet—bitter, as it will mark the end of my time serving as your MSBA President; sweet as we all reconnect and welcome Jason DeLoach as the new President of the MSBA. I am comforted, however, to know that we will be in Jason’s excellent hands. Jason has been an exceptional PresidentElect and is a terrific advocate for the Bar with a deep understanding of what is important for our continued growth and success. Please be certain to join me in formally welcoming Jason at the Annual Meeting on June 9th.
You owe it to yourself—give yourself a break to have fun, learn, and connect with other MSBA members under the Ocean City sun. I hope to see you there! Find out all about it and register at www.MSBA.org/ legalsummit.
Thank you for your support and friendship over this past Bar year. I look forward to reconnecting with you in Ocean City, if not sooner!
David Shapiro, President
Spark Series Capstone Event Ignites Debate and Reflection over Role of Attorneys in Justice System and Democracy
SERIES
The MSBA’s 125th Thought Leadership Initiative hosted its Spark Series Capstone Program on January 20, 2023, at the University of Maryland Carey School of Law. The event created space for intellectual stimulation and deep reflection and included thought-provoking keynote speakers and panels, with high-level professionals challenging us to think about emerging issues and the role of our profession in grappling with ethical and justice implications – that will serve to have a lasting impact on the MSBA and the profession as a whole.
After an address by keynote speaker Attorney General Anthony Brown, attendees engaged in panel discussions on the topics “Guardians of Justice,” “Reforming Justice,” and “Science, Technology & Justice.” The day concluded with a dean’s roundtable discussion between Dean Ronald Weich, University
of Baltimore School of Law; Renée McDonald Hutchins, University of Maryland Carey School of Law; Dean Roger A. Fairfax Jr. of American University Washington College of Law; and Dean Dayna Bowen Matthew of George Washington University School of Law.
GUARDIANS OF JUSTICE
Erica Newland, Counsel of Protect Democracy, and Lauren Stiller Rikleen, Interim Executive Director of Lawyers Defending American Democracy, discussed how their organizations facilitate attorneys making known their support for democracy and the rule of law. Both noted that bar associations have a role to play by taking leadership in protecting the rule of law. Newland also indicated that a bar association “might be especially well
positioned” to help organize support for attorneys who might take on professional risk by speaking out, for example as a whistleblower.
REFORMING JUSTICE
Alec Karakatsanis, Founder and Executive Director of Civil Rights Corps and Michael R. Bromwich of Steptoe & Johnson, spoke on the theme of reforming justice. Karakatsanis described the fundamental problems with such systems as money bail—where poor people sit in jail for such offenses as parking tickets, and the war on drugs, which has led to millions of people jailed but has not reduced the level of drug use, which is higher than ever.
Bromwich talked about how attorney failures played a role in the Baltimore City Police Department’s Gun Trace Task Force Scandal, noting that there was a lack of skepticism on the part of lawyers when officers were accused of misdoings; a failure on the part of defense attorneys to litigate when there
was a lack of probable cause for arrest; and even pro-government judges who accepted uncredible police testimony. Although Bromwich noted there were some exceptions to this, overall there were broad-scale failures and shortcomings in the entire universe of lawyers involved.
SCIENCE, TECHNOLOGY & JUSTICE
Amanda C. Pustilnik, Professor of Law, University of Maryland Carey Law and Lydia X. Z. Brown, Policy Counsel for Privacy and Data, Center for Democracy and Technology, discussed the role of science and technology in justice.
Professor Pustilnik discussed the core of her work, which is based on the idea that science and technology are fundamentally important to justice. She noted that we now have 25 years of good brain imaging science that has been used successfully in courtrooms and in settling cases showing that people who claim pain ought to be viewed differently.
Brown discussed the impact of algorithmic harm on disabled persons, explaining that there is a presumption of fraud built into social services/public benefits computer programs. As an example, she noted that, in the time of COVID and distance testing, virtual test proctoring companies attempt to control unauthorized activity. Brown said that this approach fails to recognize wider systemic issues, such as why do students cheat in schools; this is a system where students are being taught to earn high grades rather than synthesize knowledge.
(l to r) Erica Newland, Counsel of Protect Democracy, and Lauren Stiller Rikleen, Interim Executive Director of Lawyers Defending American Democracy
Right: Alec Karakatsanis, Founder and Executive Director of Civil Rights Corps Opposite page: (l to r) MSBA President David Shapiro, Maryland Attorney General Anthony Brown, Maryland Public Defender Natasha Dartigue, Donna Hill Staton, Reena Shah, and MSBA Past President Natalie McSherry Photographs courtesy of Maximilian Franz Photography
Attendee Pamela Crawford, Administrative Appeals Judge with Social Security Administration
Lawyers have a very real role to play in maintaining and supporting American democracy
DEAN’S ROUNDTABLE
Deans Weich, Hutchins, Fairfax and Matthew addressed the grand challenges they face as those leading the institutions raising tomorrow’s lawyers. Dean Hutchins noted that law school deans have come to understand that they are raising a generation of lawyers who will be called to uphold democracy. “Lawyers have a very real role to play in maintaining and supporting American democracy.” Dean Weich agreed but said the future lawyers will also have to work to improve American democracy and institutions.
Dean Fairfax agreed that law schools must instill values that will not only keep the profession strong but will renew and prop up democracy … stakes have never been higher.
Dean Matthew believes the charge of law schools now is that they must educate “a veritable army to save, to protect, to fight for democracy, the rule of law, justice … what we are doing is no less than, I think, educating an army for tomorrow.” Going further, she said it’s not only the job of law schools—“We are the last best hope.”
To
UPCOMING EVENTS
APRIL 4, 2023
Basics of Real Estate Transactions Series
APRIL 19-20, 2023
Best Interest Attorney Training
APRIL 17, 2023
Chief Judge Robert M. Bell Award Presentation
APRIL 21, 2023
Young Lawyers Section Charity Event
MAY 11, 2023
Hot Tips in Workers’ Compensation
JUNE 7-9, 2023
Legal Summit & Annual Meeting
JUNE 14, 2023
Hot Topics in Elder Law
Lydia X.Z. Brown, Policy Counsel for Privacy and Data, Center for Democracy and Technology
Third Time's a Charm: Professional Excursion 2023
San Juan, Puerto Rico
In 2020, then-MSBA President Hon. Mark Scurti selected San Juan, Puerto Rico, as the location for the winter 2021 Professional Excursion. Two years later, after two cancellations due to COVID, the excursion finally took place. Judge Scurti was joined by his successor, former MSBA President Natalie McSherry, and current MSBA President David Shapiro, for a week of networking, learning, and service.
RAVENS SVP & GENERAL COUNSEL BRANDON ETHERIDGE
On February 21, Brandon Etheridge joined McSherry for an informal discussion of his career and life experiences. During his time with the team, Etheridge said he has built a fair and efficient legal infrastructure to support the good working operations of a complex organization. Regarded as an authoritative counsel on legal matters, his role evolved to where he is now more directly involved in evaluating risk in business decisions, and in helping shape the Ravens’ corporate culture.
Etheridge said that he sets policy that expresses the kind of team the Ravens will be. “We refuse to get nasty, try to
Participants in the early morning run/walk to Castillo San Felipe del Morro
see reason, and approach adversarial issues with comity,” he said, “and it will never be acceptable to be callous to a current or former player, vendor, or suite holder.”
In 2017, when national attention focused on acts of police misconduct, Ravens players wanted a platform for their voices to be heard. That was an opportunity for him to gain greater facility with the powerful platform of a professional sports franchise. Etheridge drafted a public letter in support of the First Step Act,a bipartisan Criminal Justice Reform Act of Congress that became law in 2018, and nine Ravens players signed it along with top team management.
impacting young attorneys, and the future of standardized testing.
A discussion of standardized testing was a natural topic for the two academics. Despite recent calls for the elimination of the LSAT, the American Bar Association recently struck down the elimination for the second time in six years. Weich and Tobin recognized a broader trend away from standardized tests; in fact, UBLaw allows students to submit a GRE score rather than an LSAT score. Tobin said that the evidence just isn’t available yet to determine whether reducing testing harms rather than helps those who need it.
Weich and Tobin spent time discussing trends in legal education, societal changes impacting young attorneys, and the future of standardized testing.
Some members in attendance in San Juan had hoped to hear about contract talks and Quarterback Lamar Jackson. But the consensus was they learned something even more interesting about the role of a corporate counsel, and the positive effect a corporate counsel can have within and beyond the walls of an organization.
LAW SCHOOL DEANS ROUNDTABLE
Donald Tobin, professor and former Dean of the University of Maryland Carey School of Law (Maryland Carey Law), believes that “law is a way to change the world.” Tobin and Dean Ronald Weich of the University of Baltimore School of Law (UBLaw) discussed their hopes and plans for the future of law schools on February 21. Weich and Tobin spent time discussing trends in legal education, societal changes
In response to an audience member asking, “what do you think of getting rid of the bar exam,” Weich questioned whether there would be enough consumer protection if someone could become a lawyer without ever having to sit for a serious test, should the elimination of the LSAT and bar exam ever come to fruition. Tobin, though, shared his concerns about the bar exam, saying that it doesn’t show what makes a good lawyer.
To read more about Law Schools, Students, and Testing Now and in the Future, visit WWW.MSBA.ORG/LAW-SCHOOLSSTUDENTS-AND-TESTING-NOW-AND-INTHE-FUTURE-DEANS-PERSPECTIVE/
(l to r) Ronald Weich and Donald Tobin
(l to r) MSBA staff Beth Salsgiver Hunt and Angela Munro
Frosh explained that being AG is essentially being “the people’s lawyer” and is a position that can be effective in helping those citizens who aren’t in a position to defend or help themselves against predatory practices.
Regarding diversity in law schools, Tobin said one of his goals was to have students “dream big” and to provide a vehicle where they can “interact with people who may motivate them to understand the kinds of things you can do in law practice.”
ATTORNEYS GENERAL DISCUSS UNIQUE ROLE
Former Maryland and District of Columbia Attorneys General, Brian Frosh and Robert Spagnoletti, joined Professional Excursion attendees for a discussion about the wide-ranging issues faced by an Attorney General (AG), and the differences between their jurisdictions. Frosh served Maryland from 2015 to 2023, and Spagnoletti served the District of Columbia from 2003 to 2006.
To read more about The Unique Role and Responsibilities of the Attorneys General of Maryland and the District of Columbia visit
Both former AGs stressed that their staff attorneys handled an amazing variety of issues – everything from bond issues to zoning, to real estate, family law, consumer protection law, commercial law, and more. Frosh explained that being AG is essentially being “the people’s lawyer” and is a position that can be effective in helping those citizens who aren’t in a position to defend or help themselves against predatory practices.
A lively question and answer session included such issues as what an AG can do to reduce gun violence in Maryland, particularly in Baltimore City; and how the decision is made to hire outside counsel.
It was noted that the MSBA and the MD Attorney General’s office had a strong relationship that was solidified during the pandemic with the creation of the Access to Justice Task Force, and former AG Spagnoletti was asked if a similar bond existed in the District, where he now serves as executive director of the D.C. Bar. Spagnoletti emphasized that his Bar had a very strong relationship with the D.C. AG’s office and its focus on civil justice. As an example, he cited the fact that more than twenty thousand people in the District had received pro bono legal representation through his Bar’s membership, and mostly from D.C. and federal government attorney members. Frosh closed the hour-long conversation with a thank you to the Maryland bar for its partnership and support in helping the citizens of Maryland access the critical civil legal assistance they needed during his tenure.
PUERTO RICO: TAX HAVEN OR TAX CONTROVERSY?
It might sound like a pipe dream, but U.S. workers can live and work in Puerto Rico, subject to a variety of rules and regulations. Attorneys had the opportunity to earn CLE credit from Puerto Rico, with a presentation by Frost Law and Jae Law on the topic Puerto Rico: Tax Haven or Tax Controversy? Transfer Pricing and Act 60 – Special Incentives, on Thursday, February 23.
(l to r) Brian Frosh and Robert Spagnoletti
Frost Law tax professionals William Inchoco, JD ITP MPA, and Michael March, Esq., alongside Jeanelle Alemar-Escabí, CPA of JEA Law, discussed the tax incentives in Puerto Rico, including Act 60 and its requirements. They also addressed what income is subject to Puerto Rico's tax regime versus the United States' tax regime, and highlighted the potential civil and criminal tax consequences for noncompliance with the Act 60 requirements.
NETWORKING AND EXCURSIONS
Anyone who’s ever attended an MSBA event knows the great value in mingling with and getting to know your professional colleagues. This was in great abundance in Puerto Rico, where attendees shared dinners, cocktail hours, daily breakfasts, and the opportunity for off-site excursions. Attendees spent their free time enjoying sights around the island, including a sunset cruise, kayaking in Condado Lagoon, and a five-mile run/walk to Castillo San Cristóbal, an ancient Spanish fort built to protect San Juan against land attacks and now part of the San Juan National Historic Site.
SERVICE TO OTHERS
When Judge Scurti planned the professional excursion to San Juan back in 2020, it was important to him to provide service to residents of the island. Judge Scurti and other attendees donated food and their time to the Banco de Alimentos, https://alimentospr.org/en/.
Interested in learning about the tax issues of living in Puerto Rico? Visit HTTPS://INFO. APPROACHABLE.SYSTEMS/MSBA
Clockwise from top: David Shapiro and Raphael Santini donate their time at Banco de Alimentos; Professional Excursion attendees at the Banco de Alimentos service project; Farewell Dinner; presenters William Inchoco, Jeanelle Alemar-Escabi, Michael March
WEB EXTRA
Representing Spanish Speaking Clients and Undocumented Immigrants
BY BOB BERSHAD, ESQ.
A Spanish speaking client, or a client who is an undocumented immigrant, may bring with them issues that might surprise you. Knowing what to look out for will help you provide effective representation.
Raphael Santini and Emmanuel Fishelman shared their vast experience representing these types of clients with fellow Maryland State Bar Association members at the Professional Excursion to San Juan on February 20, 2023. Santini and Fishelman focused their presentation on personal injury and workers’ compensation cases, but their lessons apply to other practice areas as well.
The Fear Factor
The fear factor can arise when a client is in the United States as an undocumented immigrant. To get to the United States, particularly via the southern border, an undocumented immigrant might have hired a person, called a “coyote,” to navigate the cross-border journey. It is a rough trek, and people they encounter along the way, including the coyote, may be unscrupulous, even dangerous. This experience can impress the client with a generalized fear of being duped or abused in the United States.
Due to their undocumented status, the client may also be fearful of the U.S. legal system itself and the people who work within the system, including even the lawyer—who only wants to help. They may have heard stories, unfortunately sometimes true, of lawyers taking advantage of such vulnerable clients. In Santini’s and Fishelman’s experience, an undocumented immigrant may be agreeable just to get along, even when they don’t understand or agree with what the lawyer is saying. Part of that tendency may be rooted in that generalized fear of the U.S. legal system.
An undocumented immigrant may also harbor fears that relate directly to their legal claim. For example, is it safe for them to pursue a worker’s compensation claim? They may believe such a claim would cause them to lose their job. They may fear appearing in court or even asserting a legal claim to begin with, believing that they are not entitled to the protection U.S. laws offer. These fears can be especially heightened if an immigrant owes a coyote’s fee, which can be exorbitant. An injury on the job or a car accident could have catastrophic consequences. For example, if the client obtained the money from a loan on their parents’ house back home, the parents may lose the house.
The Language Ambiguity Factor
Language ambiguities arise from the fact that there are many Spanish dialects traceable to a client’s country of origin, or a region within that country. Some Spanish dialects have very little in common with the Spanish used in the U.S. legal system. Moreover, the same word may have different meanings depending on the dialect. For example,
speaking paralegal or legal assistant can also be helpful. The client may be accompanied by an English speaking family member, possibly a child fluent in American English, who can be helpful as you develop your client’s trust representation.
It is important to establish trust so that the client will tell you the whole story. If the client is undocumented, then they may withhold information. To begin to gain a client’s trust, introduce yourself, explain your role, their role, and how the process works. Answer questions, answer your phone, and communicate in different forms (such as verbally and in writing), if needed.
When you establish trust, you will be able to ask about any immigration issues if you have reason to. If you suspect a client is holding back on immigration issues, ask if they were stopped when they entered the country and if so, did they go to court. If the answer to both questions is yes, then that means there is an immigration issue. You must be aware of all legal implications of your client’s immigration status.
From the first contact, probe the client’s statements to flesh out exactly what the client says and means. Language ambiguity may distort intended meaning. Consider that the client may have an underlying fear, as detailed above, which affects what they choose to say. Make sure the client gives the whole story before the client talks to the insurance company. It is important to identify and cure the usage of words or phrases that are ambiguous. The insurance company may construe them negatively against
To begin to gain a client’s trust, introduce yourself, explain your role, their role, and how the process works. Answer questions, answer your phone, and communicate in different forms.
the word “espalda” can mean “neck” in one dialect but “back” in another. Even a Spanish-speaking attorney, or an interpreter, may have difficulty understanding their client and they may not even realize it. This impacts the ability of the client and their attorney to fully communicate.
Managing the Fear and the Language Ambiguity
To overcome fear and any language ambiguities, Santini and Fishelman offered the following advice, which is partially specific to worker’s compensation and personal injury cases:
It is a fundamental ethical requirement that an attorney fully understands what a client says and means (and vice versa). If you are not fluent in Spanish, you should retain a Spanish speaking interpreter on behalf of the client. Communication in writing must be translated. A Spanish
your client. An even better alternative is to give the insurance company a written statement.
Ask the client if they received a check after they were injured, or signed a paper or electronic document. The client may have unknowingly released the tortfeasor from liability. Maryland law fortunately allows a recipient to rescind an accepted settlement offer within 30 days.
A new client may need hospital care immediately. Santini and Fishelman have found clients sometimes don’t want to go to the hospital for fear of large medical bills. But Maryland hospitals can write off the costs of services in certain situations and minors are always given free healthcare. Santini’s test for whether a client must go to a hospital is whether the client is able to exit a vehicle without assistance.
If you refer the client to a healthcare provider for an examination, send the client to one who speaks Spanish if possible for the same reason that it’s important for the client to see a Spanish speaking lawyer. Just like you did, the doctor should be able to fully communicate with the client in order to fully comprehend the nature and extent of the injury.
As you approach the demand stage, beware the client who says they’re fit to work. If they are undocumented, they may be driven by the pressure to work in order to pay back a coyote loan. Advise them to continue medical treatment, so that you can gain the full scope of damages.
If it takes a long time to reach the demand stage, the client may threaten to go to another lawyer who promises to advance the money. You can’t prevent that. All you can do is tell the client that that kind of financial arrangement is unethical and explain the process and why you are waiting.
In preparing for settlement, make sure there are no outstanding bills that the client doesn’t know about. The client may not have a fixed U.S. home and so may have seen physicians in scattered locations. Vet the client’s medical history thoroughly. To do that, ask the medical history questions repeatedly. It is important to do more than your English-language baseline inquiry. Reading medical records is helpful in this line of questioning.
If the case must go to court, note that venue is an important consideration. Potential jurors in different jurisdictions may have radically different cultural perspectives of Spanish-speaking plaintiffs.
When preparing a Spanish-speaking client to testify, advise the client to point out their body parts to ensure there is no ambiguity. Not only can the same word have different meanings as mentioned above, but Santini and Fishelman have seen a number of clients, often with lower levels of education, who use made-up words.
In court, you may encounter an interpreter who is translating inaccurately. If you don’t speak Spanish fluently, it is advisable to enlist the aid of a Spanish speaker who can flag an inaccurate court interpreter. You have an ethical obligation to notify the court of the problem and move for another interpreter. Judges can bring the matter to the Administrative Office of the Courts if need be. Interpreters have hard and taxing jobs. Both Santini and Fishelman have witnessed critical interpreter errors, such as translating that the client said he was turning “left” when in fact the client said “right.”
In court, you may encounter an interpreter who is translating inaccurately. You have an ethical obligation to notify the court of the problem and move for another interpreter.
Some interpreters who are inaccurate may not necessarily be incompetent. Rather, the interpreter may be inadvisably trying to be “helpful.” In such a scenario, ask the court to order the interpreter to focus only on what is in fact being said.
It is a good practice to prepare the Spanish speaking client to answer questions in no more than two sentences. Short responses will make it easier to ensure the interpreter is accurate.
The Maryland State Bar Association was grateful to Raphael Santini and Emmanuel Fishelman for sharing their wisdom and knowledge in this challenging aspect of legal practice. Their 90-minute presentation only scratched the surface of their expertise. Contact them with questions and advice at rjsantini@comcast.net and efishelman@zagfirm.com.
Raphael J. Santini, Esq., is a solo practitioner in Baltimore. In Jan. 2023, the MSBA Board of Governors named him as the Association’s President-Elect Nominee for the 2023–24 Bar Year. Emmanuel Fishelman, Esq. is with Zipin, Amster & Greenberg, LLC in Silver Spring.
MSBA Supports Schools in Court Program
BY COLLEEN ARACRI, ESQ.
Many Maryland lawyers will tell you that their desire to join the legal profession began when they were in high school; some can even pinpoint a class or event that piqued their interest. Not all school districts offer law-related courses, but a few go out of their way to provide students opportunities to learn more about the legal process. The Schools in Court program allows students to learn more about the legal system and law-related careers. The program was held at the District Court of Maryland for Prince George's County and hosted by the Honorable Lisa A. Hall Johnson, Administrative Judge, the Honorable Cheri Simpkins Gardner, Associate Judge, and courthouse staff.
THE MSBA WAS HAPPY to support the Schools in Court Program by providing MSBA branded items including pens and padfolios.
Prince George’s County high schools offer students a Homeland Security and Emergency Preparedness (HSEP) program, which is a Career and Technical Education program that helps students develop the skills needed to obtain certifications or college credits. The HSEP program has a Criminal Justice Pathway for students who are interested in studying the law and the criminal justice field, and when the District Court judges wanted students to participate in the Schools in Court program, the Criminal Justice Pathway students were those first group that came to mind.
During the Schools in Court program, four students who volunteered to be “law breakers” simulated sitting in a car. They were approached by a police officer who suspected that there were drugs in the vehicle; the officer searched for and found banned substances and the students were arrested, arraigned, and sat through mock bail hearings. The students did not know what was going to happen beforehand.
Throughout the day, the judges and courthouse staff had discussions with the students about appropriate ways to interact with police officers and protect their rights. David Duba, Bowie High School Social Studies teacher, found that the
The MSBA commends the Prince George’s County schools and courts for their efforts to educate students about Maryland’s legal system and potentially, foster an interest in the law.
Schools in Court program helped to solidify a lot of the lessons the students learn in the classroom. At the end of the day, at least one student reported that she was inspired to pursue becoming a lawyer.
The MSBA commends the Prince George’s County schools and courts for their efforts to educate students about Maryland’s legal system and potentially, foster an interest in the law. The association is hopeful that some of the participants will turn out to be Maryland lawyers and MSBA members in the future. The Prince George’s County School District featured the program on their website and YouTube page.
Five Tips for Setting Boundaries with Clients
BY REGINA A. DEMEO, ESQ.
Editor’s Note: The author wrote this article in conjunction with her interview on the same topic in the Opening Your Own Law Firm video series, which is available to MSBA Members.
MANAGING CLIENT RELATIONSHIPS
IS ESSENTIAL TO A SUCCESSFUL AND FULFILLING LEGAL CAREER. Unfortunately most law schools or firms never formally develop this skill with young lawyers. Key to managing client relationships is setting appropriate boundaries upfront. Doing that will benefit both your client and you—it helps ensure your client is satisfied with your services, and it minimizes the internal conflict you may feel between managing multiple cases while trying to enjoy your personal time.
Setting boundaries can be difficult at first, especially if you are wired to be a people-pleaser, but it is worth working on — over time, as I have done, you will appreciate how it minimizes stress, reduces conflict, and allows for a healthier work-life balance.
Setting boundaries can be difficult at first, especially if you are wired to be a people-pleaser, but it is worth working on.
HERE
ARE FIVE KEY TIPS FOR SETTING APPROPRIATE BOUNDARIES WITH YOUR CLIENT:
SET AN INITIAL CONTACT POLICY WITH BUILT-IN BOUNDARIES.
Since first impressions matter, your initial contact with a client is a golden opportunity to set the appropriate tone for your relationship. Be prepared and set a policy for how consults will be scheduled, when you want to be available for new clients, and whether you will charge for your time. A well-structured beginning to the relationship sets a professional tone for all that follows.
PRO TIP: Once you establish an initial contact policy, stick to it, especially with a client who tries to convince you to change your policy—this is never a good sign.
PUT BOUNDARIES IN THE ENGAGEMENT CONTRACT.
Your engagement contract should not only specify your hourly rate and initial retainer amount, but also your availability (i.e. normal hours of operation, and whether you accept calls/emails on weekends or while on vacation). It should clearly state the billing cycles and your expectation for prompt payment, including a reservation to withdraw if your client does not fulfill his/her responsibilities under the contract.
SET CREDIT LIMITS AND STICK TO THEM.
Each practice needs to decide the limits for extending credit to a client. For the limits to be effective, you must be willing to withdraw representation if your client reaches the limit and fails to make any effort to pay for the services rendered. In that circumstance, remind your client (and yourself) that there are plenty of lending options and that you did not go to law school to be in the lending industry. This will eliminate tension between the attorney and client, who deserves your best service for the agreed to compensation.
CHECK YOUR CLIENT’S EMOTIONS IF NECESSARY.
Clients are often in crisis, but that does not justify allowing a client to become abusive towards you. If your client starts yelling at you or becomes belligerent, you should immediately end the call and ask the client to call back when they are calmer. If you sense that your client is struggling emotionally, you can recommend that they engage a mental health professional. If you routinely find your client’s demands unreasonable, you may want to suggest that they change counsel.
MAKE SURE YOU AND YOUR CLIENT ARE ALIGNED IN APPROACH.
To truly be an effective advocate, you and your client need to be aligned in your strategy, objectives, and positions to be argued. If you are not in sync on these three critical points, and you believe that ultimately your reputation or ethics are at risk, you should really consider withdrawing unless you can reset your client’s expectations.
It definitely takes time to learn to set appropriate expectations about your availability, inform the client of the realistic costs for your services, educate him or her on the legal process, and stay true to your own standards of conduct. But for your own well-being it is well worth it to develop these skills as early as possible in your career. Enjoying the benefit of your particular expertise is a privilege, and your client needs to appreciate that he or she shares the responsibility for maintaining a healthy working relationship. You will not miss those that do not see this as a joint venture, and those that do will be your best referral sources for years to come.
Since 1998, Regina A. DeMeo has helped families in transition address their legal issues related to custody, child support, alimony, and property division either through negotiated settlements or litigation. The past 16 years, she has been offering alternate dispute resolution services, including weekend mediation and Collaborative Divorce. ReginaDeMeo.com
Buyer Beware: The Foreign Investment in Real Property Tax Act
BY ERIC D. OBERER, ESQ., CLTP
Liability for tax withholdings on a real property sale rests with the buyer under the Foreign Investment in Real Property Tax Act—and it’s not always immediately clear when the Act applies. Buyer beware!
SYNOPSIS
The Foreign Investment in Real Property Tax Act (27 U.S. C. 1445) (“FIRPTA”) requires withholding and submission to the I.R.S. of 15% (or 10%, as applicable) of the gross sales price from the seller’s proceeds for sale of real property by foreign persons. Legal liability for withholding the funds from the seller’s proceeds rests with the buyer, because a foreign seller will often be out of the long-arm reach of the U.S. government for recouping these funds. Buyer and settlement agent liability can be avoided by reasonable reliance on seller certification of non-foreign status, by property
withholding, or, if seller is a foreign person, by the application of the appropriate exception to FIRPTA withholding (e.g., a sale for less $300,000 or less where the buyer(s) will reside in the property as their principal residence). A foreign person is a person who is not a resident alien (i.e., a person without a Green Card or who does not meet the I.R.S. substantial presence test). Determination of foreign status can be complicated, particularly with entities, which is why this flow chart can be useful.
FIRPTA GENERALLY
• Real estate transfers by a foreign person are subject to income tax withholding.
• The buyer must confirm whether the seller is a foreign person.
• Failure to withhold creates tax liability for the buyer.
• FIRPTA applies in nearly all transactions — residential and commercial.
• The general analytical framework is to establish whether the seller is foreign and then, if so, look for exceptions.
Buyer and settlement agent liability can be avoided by reasonable reliance on seller certification of non-foreign status, by property withholding, or, if seller is a foreign person, by the application of the appropriate exception to FIRPTA withholding
FOREIGN PERSON
• A “foreign person” is a nonresident alien individual, foreign trust, or foreign estate.
• It does not include a resident alien individual.
• A resident alien is an individual with a Green Card; or who meets the Substantial Presence test.
SUBSTANTIAL PRESENCE TEST
The Substantial Presence test is a complex IRS formula. To pass the test, the seller was physically present in the U.S. on at least 21 days during the current calendar year, and 183 days during the current year and the two preceding years, counting all the days of physical presence in the current year, but only with 1/6 of the number of days of presence in the first preceding year, and only 1/6 the number of days in the second preceding years. Days present under temporary visas are not counted.
PRO TIP: Hire a legal or accounting specialist to make this determination.
LIABILITY
Liability to the IRS rests with the buyer. It can rest with the settlement agent if the agent accepts a seller certification of non-foreign status that the agent knew or reasonably should have known was false.
PRO TIP: Circulate an affidavit in which all parties swear they reasonably believe the seller is not subject to FIRPTA.
AMOUNT TO WITHHOLD
If the seller is indeed foreign, then the buyer must withhold a sum until the IRS claim on the seller is satisfied. The buyer must withhold 15% of the “amount realized,” meaning the gross amount, that is, the contract price.
EXCEPTIONS
PERSONAL RESIDENCE: The buyer will use the property as a residence and the sale price is $300,000 or less.
REDUCED RATE OF WITHHOLDING:
The buyer will use the property as a residence and the sale price is greater than $300,000 but less than $1,000,000. This exception allows the buyer to reduce the withholding to 10%. This exception arose from the Protecting Americans from Tax Hikes Act of 2015.
SELLER CERTIFICATION: The seller certifies they are not a foreign person. The certification must include the seller’s name, the U.S. tax identification number, and home address.
IRS WITHHOLDING CERTIFICATE: The buyer can obtain a withholding reduction or exemption from the IRS in certain scenarios upon application.
REPORTING AND PAYING THE TAX
• The buyer must use Forms 8288 and 8288-A to report any taxes withheld.
• Forms and funds must be received by the I.R.S. within twenty days of settlement.
• The buyer’s tax identification number is required; it cannot be merely applied-for.
CAUTION: IT’S NOT ALWAYS IMMEDIATELY CLEAR IF THE ACT APPLIES
It is not always immediately clear whether the seller is foreign, that is, whether the Act applies. The property may have multiple owners, one of whom is foreign. In that scenario, the withholding is prorated according to the foreigner’s ownership percentage. Or the seller is a single member LLC with a U.S. citizen as the single member, but the entity is foreign. In that scenario, FIRPTA applies.
The point here is that due diligence is required to ensure FIRPTA does not apply. Hiring a specialist in this area is advisable. The flowchart shown here is a helpful analytical tool. Part A aids in analyzing the seller’s status. Part B aids in analyzing which if any exceptions apply.
Eric Oberer is the Maryland State Counsel for First American Title and author of the award-winning book Courts of Law, Not Courts of Justice from Atmosphere Press (2023). Eric can provide you with IRS forms, transactions templates, and a copy of the flowchart to help you navigate FIRPTA. FirstAm.com.
PART B
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Maryland Perspective on National Legal Trends
BY MSBA STAFF
The information compiled overwhelmingly indicates that while the end of the pandemic is in sight, many of the changes brought about by the pandemic are here to stay.
THE MSBA’S FALL/WINTER 2022 TRENDS REPORT WAS THE MOST COMPREHENSIVE YET, INCLUDING DATA ON TRENDS IN THE LEGAL PROFESSION NATIONALLY AND IN MARYLAND, news impacting firms and lawyers throughout the state over the past six months, and insights into the future of the legal industry. The information compiled overwhelmingly indicates that while the end of the pandemic is in sight, many of the changes brought about by the pandemic are here to stay. Firms have largely embraced the hybrid and remote work models, with some firms using such models as an incentive when trying to recruit attorneys.
In turn, firms have become more reliant on technology and there are increased concerns about cybersecurity. Many firms have experienced difficulties hiring attorneys, and while Maryland has the second largest number of attorneys per capita, the overall number of lawyers has decreased slightly. While there is a struggle to increase or maintain diversity in the legal profession throughout the country, Maryland is ahead of the curve with regard to diversity in the courts, and diversity remains a priority throughout the state.
While there has been a slight decrease in the number of active attorneys in Maryland in the last six months, Maryland boasts the second highest number of attorneys per capita in the nation, bested only by New York. Like many industries, law firms have faced labor shortages in recent months. Some Maryland firms are attempting to attract staff and attorneys by offering them the options of working from
home and developing their own schedules within certain parameters.
Remote and hybrid work has become more mainstream in law firms across Maryland, rather than a novelty or byproduct of the pandemic, and many firms intend to maintain flexible work environments for the foreseeable future. There has also been a marked increase in Maryland firms conducting interviews,
(Source: Client Protection Fund of the Bar of Maryland as of 10/11/22) Average Lawyer Wage in Maryland is
Evelius & Jones LLP Gordon Feinblatt LLC Pessin Katz Law PA Franklin & Prokopik PC Goodell, DeVries, Leech & Dann LLP
Like many industries, law firms have faced labor shortages in recent months.
depositions, mediations, and other business via video and teleconferences. Such proceedings were typically conducted in person prior to the pandemic, but firms are continuing to hold virtual hearings and meetings even if they no longer harbor health concerns about meeting in person.
Among other things, the transition to remote and hybrid work inspired Maryland attorneys to seek increased guidance and education with regard to the intersection of technology and the practice of law. For example, the Maryland State Bar Association Committee on Ethics recently fielded the question of whether attorneys could accept cryptocurrency as a retainer, and if so, how it should handle it.
While most firms have embraced remote and hybrid work, some people in the legal industry have expressed concerns that the hybrid work models may adversely affect women and minority attorneys. Meredith J. Kahan, Esq., Chief Legal Talent Officer at Whiteford Taylor
The
Supreme Court of Maryland is one of the most diverse state supreme courts in the nation.
& Preston LLP, recently noted that, “with some attorneys in the office, employees who choose to work remotely may be disfavored,” in a blog post entitled Will Hybrid Work Models Hamper the Diversity Efforts at Legal Organizations? She elaborated, “because of proximity, habit, and the unconscious preference for the familiar, there may be a bias in favor of those who are working physically in the office every day.” This may negatively impact women and attorneys of color, as studies indicate they prefer to work from home.
There is evidence that the Maryland legal profession is continuing to make concerted efforts to increase and maintain diversity, however. International firm Hogan Lovells, which has a location in Baltimore, and national firm Steptoe & Johnson LLP, which has a location in Rockville, were named part of the Bloomberg Law Diversity, Equity, & Inclusion Framework, a listing of law firms that meet or exceed a rising standard for diversity, equity, and inclusion in their firm, measured by the benchmarks of: Leadership & Talent Pipelines, Recruitment & Retention, Business Innovation & Strategy, Bias & Harassment Training, and Diverse Brand.
After David Shapiro, a partner at Paley Rothman in Bethesda, took over the role of
MSBA president, he indicated that his top priorities included the expansion of diversity in the MSBA, with the aim of improving the legal profession in Maryland for attorneys and their clients. Additionally, the Maryland Carey Law Women, Leadership, and Equality (WLE) Program launched a new webinar series Maryland Carey Law Alumnae Leading the Way, that aims to offer a vehicle for passing important knowledge from one generation to the next.
Maryland courts demonstrate greater diversity as well. The Brennan Center for Justice’s State Supreme Court Diversity Update issued in May 2022 shows that the Supreme Court of Maryland is one of the most diverse state supreme courts in the nation. 43% of Maryland’s high court judges are people of color, and 57% of the judges are women, which is much higher than the national averages of 18% people of color and 41% women in the state supreme court judiciary.
The Diversity Report cited the appointment of Justice Angela Eaves to the Supreme Court of Maryland as a notable event. Eaves, who is Panamanian and Black, is Maryland’s first Hispanic justice.
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MERGED FIRMS SHARE VISION FOR FUTURE
Kelly Spigel, Partner
Josh Tabor, Partner
Marla Zide, Partner
Robert Siegel, Partner
Photos courtesy of Travis Marshall Photography
IN 2011, MARLA ZIDE STARTED HER OWN PRACTICE, THE LAW OFFICE OF MARLA ZIDE, an Anne Arundel firm specializing in family, criminal, and bankruptcy law. While Zide found owning her own firm to be rewarding, it presented certain challenges, like how to handle growth and navigate the future. Ultimately, Zide determined that it was important for her to emphasize what was good for the firm as a whole over what was best for her as the sole named partner, which led to her decision to merge with another firm.
Zide and her team members decided to look at solo practitioners who had successful practices of their own, but that would greatly benefit from having a team behind them to support their strong litigation skills. Kelley Spigel, of the Law Office of Kelley Spigel, a family law firm in Anne Arundel County, was the first person that came to mind.
Spigel started her firm in 2017, after working for a Glen Burnie family law firm for five years. Josh Tabor, then an associate attorney at the Law Office of Marla Zide, came into Spigel’s office one day and asked if she wanted to join their firm. At first, Spigel did not take the question seriously, but over time she began to contemplate a merger with Zide. While it was not an easy decision, Spigel ultimately decided to merge with Zide, “because I knew that the firm I was joining was made up of attorneys who care about their work, care about their clients, and care about practicing ethically.” Zide and Spigel eventually began discussing what combining practices would look like, and how best to structure the new firm, and merged to form ZSTS Law Group in August 2022.
Zide and Spigel had to address multiple issues that are common when merging firms, including identifying any actual or potential conflicts of interest and
determining the logistics of the merger. Both firms were already located in the same building; Zide’s firm was in an office that allowed them to expand. They were able to negotiate with the landlord to terminate Spigel’s lease in conjunction with enlarging Zide’s space.
They also discussed the rebranding and marketing of the new team, which required a new logo design, letterhead, and website. In order to maximize their exposure and maintain their internet presence, they currently maintain three websites: one for ZSTS Law Group and one for both of the prior firms that redirect people to the new site. While navigating the online marketing of the new firm presented a few challenges, Spigel and Zide are confident that the firm has a strong online presence, as ZSTS gets as many referrals through its new website as it does through the domains for their prior firms.
In addition to the business aspects of merging firms, Zide and Spigel had to determine how to blend firm cultures and make sure that all of the team members adopted the same values. It was important to make sure that team members felt valued. In an age where lawyers often jump from one firm to another, Zide felt it was crucial to create a team environment that inspired loyalty in the attorneys and staff members, so that they would be motivated to remain with the firm long term. To that end, Zide and Spigel both got buy-ins from their team members prior to the merger.
Zide noted that the merger required both her and Spigel to “separate their egos from what they want out of their careers.” Spigel agreed, explained that the prospect of a merger initially caused conflicting emotions; she needed help managing her caseload, but had built a successful firm with her name on it and did not want it to appear as if she failed. Spigel ultimately determined that the merger was something “neither of us needed, but it was smart for both of us.” Spigel had one stipulation, though;
she wanted her name on the firm. She recognized, however, that Zide built a successful firm and may not want to change the name. After some consideration, Zide agreed to the name change, noting that the merger “was about shifting the focus” of the firm away from her. The decision reflected her belief that it is important for attorneys to be malleable to achieve their goals, as some people have a rigid vision of how firms should look and operate which negatively impacts their ability to grow.
Zide suggests that attorneys considering a merger develop a very clear picture of their individual goals before making any moves. They should think about whether they want to sell their practice and join a bigger firm or grow their team by joining with another small firm, and assess where they want to be in five and ten years and the expectations of their current team members. Spigel would advise anyone considering a similar move to look beyond the business implications and make sure the firm or person they may merge with is someone they can trust.
Just over six months after the merger, Zide, Spigel, and other attorneys at the firm report that things are going well. Although they were concerned about melding personalities, they realized in retrospect that they should not have been. The environment is collegial, and members of the new firm are eager to assist each other.
Robert Siegel, a partner at ZSTS, thinks “the diverse backgrounds of each of our team members bring something to the table. We each have different strengths and weaknesses.” He attributes the firm’s success to the attorneys learning to use their strengths collaboratively to offset any weaknesses. Lisa Windsor, an associate working out of the firms’s Cambridge office, agreed, noting “we work collaboratively, which is not the norm in large or small firms in the area.” She describes the firm’s culture as collaborative, supportive, and experienced. Josh Tabor, now a partner at ZSTS, hopes that regardless of size, the members of the firm
Zide
and Spigel had to address multiple issues that are common when merging firms, including identifying any actual or potential conflicts of interest and determining the logistics of the merger.
continue to operate and treat each other like family, noting “we have an incredible group of attorneys and support staff .”
Siegel notes that the firm is very well respected by the Courts and by other attorneys. “This takes a long time of hard work and zealous advocacy. What I always tell new clients is that I am supported by a
great team of attorneys and staff and that they are the beneficiaries of that. They get the benefit of multiple legal minds to assist in solving their legal needs. Our attorneys routinely collaborate about cases to get different perspectives to solve problems.”
Going forward, Zide is confident that she and Spigel will maintain the high standards
they established in their firms, stating that ZSTS is “very client-focused and work product-focused. We want to not only get the best results for our clients but we want to do it in the most efficient cost-effective professional ethical way possible. That is a core value of our team.”
Marla Zide
Partner
MARLA ZIDE, A NEW ENGLAND NATIVE, came to Maryland in 1993 to attend Goucher College.
After graduating from Goucher with a BA majoring in psychology and minoring in Women's Studies, she received a law degree in 2001 from the University of Baltimore School of Law, where she concentrated in family law.
Zide has been named as one of Super Lawyers Top 50 Women since 2014 and listed in Super Lawyers Top 100 since 2015. She is an active member of the Maryland State Bar Association, a past member of the Women’s Law Center Board, President-elect for the Anne Arundel County Bar Association, and the 2022-2023 President of the Maryland Bar Foundation.
Zide says she felt compelled to be a lawyer since she was a young child. “My father was an attorney, very involved in public service prior to becoming a Judge,” she says. For a time she took a detour, deciding to pursue a career in psychology, but changed her mind late in college after realizing that her pull was to the courtroom and advocacy.
Zide has practiced solely in the area of family law, concentrating on divorce, custody, and adoption, for over 20 years. When she was 35 years old, her husband died suddenly of a heart attack. I had been practicing with a small firm for about 6.5 years when this happened. About one year later, she and the firm agreed to part ways, and she created her own firm “without a clear direction of which way I wanted to grow.” She found two amazing support staff and experimented with associates before creating a clear picture of what was needed. “I attest a bit of what I have created to luck. I have been fortunate to surround myself with smart, hard-working and kind people,” she says. When she’s not practicing law, Zide enjoys working out, especially on her Peloton. In the summer, she enjoys time out on the water on her boat, traveling, and finding new experiences and adventures.
Robert Siegel Partner
ROBERT SIEGEL ALWAYS WANTED TO BE A LAWYER AS A KID but, turned off by the amount of required reading, he attended the University of Maryland and obtained a B.S. in accounting. After passing the CPA exam in 1994, he worked for a Fortune 500 Company. “I worked as an entry level accountant and sat in a cubicle all day. That only lasted 11 months. I decided to pursue my original thought of becoming a lawyer and never turned back.” Siegel graduated from the University of Baltimore School of Law in 1998.
Siegel practices in the areas of criminal and traffic defense, bankruptcy, and family law. Although he originally went to law school thinking he would do something with my accounting background such as estate planning or tax law, a summer internship led him down a different path. “I did a summer internship with a large firm in Rockville. One of the partners of that Firm told me that those areas of practice were ‘boring’ so he set me up to work on a murder trial that took place over the entire summer. I found criminal law very interesting, and
I liked the idea of being in the courtroom as opposed to a cubicle.”
Asked about his professional goals, Siegel says “my professional goal has always been to not have a job but rather a career. I never dread going into the office or think of it as going into work. Law is what I do, and this is my routine. My Firm provides the foundation and the support to allow me to feel like the office is just a place that my family resides.”
Outside of the office, Siegel has been a University of Maryland Football season ticket holder for the last 25 years. He enjoys working out at the gym and traveling throughout the Caribbean.
Josh Tabor Partner
JOSH TABOR DIDN’T INTEND TO BECOME A LAWYER.
“Law school was very much a backup plan for me.” With a father who was an Anne Arundel County Police Officer for over 20 years and, later, second in command at the sheriff’s office, “my whole life, I wanted to be an officer.” Tabor applied to the police academy during his senior year of college. While waiting for that process to play out, he took the LSAT and applied for law school.
He received an offer from the police academy within 24 hours of receiving his acceptance to law school. “After much deliberation, I went to law school and the rest is history!”
Kelly Spigel Partner
AS AN ATTORNEY KELLEY SPIGEL LIKES that “I can help make what is often the most difficult time in a person’s life at least a little bit easier.” In fact, her desire to help people, particularly children, led her to decide she wanted to be a lawyer, a decision she made while she was still in middle school.
After attending Northeastern University in Boston, Spigel returned home to attend the University of Baltimore for law school. “I always wanted to be a lawyer to help kids in some capacity,” she says. To that end, during law school , she was an intern for the Juvenile Public Defender’s Office and a student attorney in the Family Law Clinic; she “pretty much stuck with family law after that.” Even after opening her own firm, wanting to help kids in a more direct way, she took on a part-time job representing children in Child in Need of Assistance cases. Spigel juggled both jobs until right before she had her first child. Although her volunteer work has been limited now that she has two young children (ages 4 and 1.5), “we are currently working on teaching our children about the importance of helping those less fortunate. As a family, we pack brown bag
lunches that we drop off at St. Casimir Church in Baltimore every Tuesday morning.”
Spigel says ZSTS differs from other firms in how much we truly care about our clients. No one is treated as ‘just a number.’ Our clients are able to build trusting relationships with not just their attorneys but also with the paralegals and other support staff.”
Spigel continues to demonstrate her care for those less fortunate; one way she does this is by supporting Maryland Volunteer Lawyers Service. Oftentimes, she notes, people are blindsided in their marriage and need a lawyer immediately but don’t have the funds. When she’s not working, Spigel likes to “hang with my kiddos and cheer on the Ravens!”
Tabor joined the Law Firm of Marla Zide in 2014 and made partner in 2021. He focuses his practice on family law matters and helps with criminal matters when needed. Tabor is “forever grateful” that Zide reached out to him during his judicial clerkship with the Honorable William C. Mulford, II, asking if he wanted to interview. “If you talk to Ms. Zide for even five minutes, you can tell that she cares about her team. I could sense that immediately during the interview and knew this was a place I wanted to be.” Tabor’s professional goals include continuing to grow ZSTS and, ultimately, opening offices in other parts of Maryland.
Tabor has served as co-chair of the new lawyers committee for many years in Anne Arundel County and volunteers for mock trial at the circuit court. He enjoys spending time with his wife and three-year-old son. He is an avid golfer and Ravens fan and loves a day on the course or at M&T Bank Stadium.
In an age where lawyers often jump from one firm to another, Zide felt it was crucial to create a team environment that inspired loyalty in the attorneys and staff members, so that they would be motivated to remain with the firm long term.
Do You Take Venmo?
A LOOK AT THE ETHICAL ISSUES RAISED BY ACCEPTING PAYMENT OF LEGAL FEES THROUGH PAYMENT APPS
BY PAMELA LANGHAM, ESQ.
METHODS OF PAYMENT in today’s world are constantly evolving. Many solo practitioners need to be nimble in the way clients pay their legal fees to make it simple for them to pay, including acceptance through payment apps.
This article will address whether a lawyer can accept legal fees through online payment apps, such as Venmo, PayPal, Zelle, LawPay, LawCharge, or Headnote, and the ethical issues surrounding the acceptance of payment through these apps. Guidance will be provided to help mitigate risks.
The American Bar Association has yet to issue guidance on accepting payment of legal fees through a payment app but has cautioned attorneys about using outside vendors and compliance with Model Rule 1.5 on record-keeping and safekeeping of property. The Florida and South
Carolina bar associations have issued advice on payment app adoptions. The Florida Bar Ethics Opinion stated a lawyer may ethically accept payments via a Web-based payment processing service as long as steps are taken to protect against disclosure of information and the funds are safeguarded and not commingled. The South Carolina opinion stated attorneys may accept payment through these apps so long as they don’t commingle client funds with their own and make timely transfer advances to an interest-bearing trust account. The Maryland Ethics Committee has yet to issue an opinion, but this article will focus on accepting payments through these payment apps based on the current version of the Maryland Attorneys’ Rules of Professional Responsibility (“Maryland Rules”) and opinions issued by the Maryland State Bar Association Ethics Committee (“Ethics Committee”).
Payment apps are popular among a large portion of the population and clientele for lawyers. Some of these payment apps are specifically designed for the legal profession, i.e., LawPay, LexCharge, or Headnote; others are not, i.e., Venmo, PayPal, and Zelle. These payment apps also operate in different ways. Regardless of which payment app a lawyer decides to use, they all create risk with an attorney’s obligation to protect all client funds and protect the confidentiality of client information.
Prohibition on Commingling of Funds
Venmo and PayPal hold funds in a “digital wallet” until they are transferred to a bank account. Indeed, they are not bank accounts at all, so they do not seem to qualify as the type of bank account contemplated by the trust accounting rules set forth in Rules 19-401 to 19-412, Maryland Rules.
In addition, Rule 19-404 of the Maryland Rules provides that advance payments (retainers) “shall be deposited in an attorney trust account in an approved financial institution.” Rule 19-408 of the Maryland Rules of Professional Responsibility, establishes an anti-commingling of funds rule that a lawyer must hold in trust and separate from all other funds.
To avoid impermissible commingling, it seems a lawyer may accept legal fees through a payment app into their operating account for earned fees. As of the writing of this article, Venmo and Paypal do not provide or allow a lawyer to designate a separate bank account to accept unearned fees. The issue is exacerbated because Venmo and Paypal charge service fees and they are equally unprepared to distinguish between an attorney’s operating versus trust account for payment of these service fees. Zelle actually transfers money directly between almost any eligible U.S. bank account, typically within minutes. Guidance on whether a lawyer can accept payment through Zelle depends largely on whether the Rule 19-411 approved MLSC bank utilizes Zelle and whether Zelle’s service agreement allows the lawyer to designate which funds should go into their operating versus their trust account and the appropriate account to withdraw service fees and chargebacks. Many banks do not allow you to link a trust account with a payment processing service such as Venmo, PayPal, or Zelle.
Payment apps that are specifically designed for lawyers, like LawPay, LexCharge and Headnote allow attorneys to accept online payments into both an operating and trust account while maintaining compliance with Rules 19-401 to 19-412, Maryland Rules. Strong consideration should be given to using their services.
In sum, to avoid commingling, the lawyer must arrange for separate accounts with the payment app; one for the lawyer’s operating account and a separate one for the lawyer’s trust account. As of the writing of this article, Venmo and Paypal are not set up to allow a lawyer to accept electronic payments into two separate accounts. A lawyer should exercise caution in accepting payment of legal fees through a payment app that is not designed specifically for lawyers and for maintaining compliance with the professional rules. Of course, if a lawyer decides to accept payments through one of these services, the lawyer is responsible for all fees and chargebacks unless the lawyer and client otherwise agree.
Confidentiality
The use of these payment apps creates enormous privacy risks. It is the lawyer who needs to take the responsibility of protecting the financial information.
Transactions on Venmo are published to a feed of each Venmo user. This risks disclosure of information pertaining to the representation of a client in violation of Rule 19-301.6 of the Maryland Rules. Rule 19-301.6 prohibits a lawyer from revealing information relating to the representation of a client unless the client gives informed consent. Venmo does allow users to adjust their privacy settings to control who sees particular transactions: Public, Friends Only, and Private. Lawyers accepting Venmo payments should choose the privacy setting and instruct their clients to use the privacy setting to mitigate against unwanted disclosure of information. PayPal and the other payment apps all have their own individual privacy settings, and the lawyer should become well acquainted with their settings prior to accepting payment for legal fees earned through their app. Payment apps specifically designed for lawyers are well-versed in a lawyer’s duty to maintain confidentiality and ensure that the confidentiality rules are satisfied for each transaction.
Guidance to Mitigate Risks
Accept Payment Through a Payment App Only for Earned Fees There is little risk of violating the prohibition of commingling funds if a lawyer accepts payments through a payment app for fees already earned to hold in a digital wallet until the lawyer transfers the money into their operating account. However, the opposite is true for the acceptance of a retainer fee (unearned fees) from one of the payment apps that are not specifically designed for legal services.
Use A Payment App Specifically Designed for Lawyers for Earned and Unearned Fees The Maryland Rules specifically mandate that all unearned fees must be placed into an attorney’s trust account. An attorney cannot accept payment of a retainer by first depositing the funds into the attorney’s operating account (via Venmo or PayPal) and then transferring it into their trust account. See Maryland Ethics Committee Docket 03-06. Using a legal-specific online payment app such as LawPay, LexCharge or Headnote will assist the attorney in maintaining their obligations to their trust account. These legal-specific services are designed to allow an attorney to accept online payments into both their operating and trust accounts while withdrawing the transactional fees and chargebacks from the operating account.
Transactions Fees and Chargebacks The lawyer must ensure that any transaction fees or chargebacks are paid by the lawyer unless the lawyer and client otherwise agree. The lawyer must ensure that any transaction fees or chargebacks are not withdrawn from the lawyer’s trust account.
Maintain Confidentiality of the Client’s Financial Transactions
The lawyer must ensure that the payment app maintains adequate encryption and other security features to protect the lawyer and client’s financial information and especially to preserve the confidentiality of any transactions. The lawyer must take steps to advise the client of any steps they should take to prevent unwanted disclosure of confidential information.
Communicate Use of a payment app that is not specifically designed for lawyers to comply with their trust account obligations may not be worth the time unless the lawyer restricts the use of the app for earned fees. Nevertheless, it is important for the lawyer to communicate to the client the lawyer’s obligations in regard to legal fee payments. It is also important to ensure the attorneyclient legal services agreement states whether the attorney or the client will be responsible for the payment of transactional fees and chargebacks.
LawPay is an endorsed vendor of the MSBA.
This is the second article of a five-part MSBA blog post series that discussed non-traditional payment of legal fees by credit card, payment apps, or third-party financing. This series was designed to assist you in becoming aware of the ethical consideration a lawyer must consider before accepting payment of legal fees through one of these methods, as well as providing guidance to mitigate risks.
MSBA LAW FIRMS
ONE HUNDRED PERCENT OF THE LAWYERS AT THESE MARYLAND LAW FIRMS AND BRANCH OFFICES RENEWED THEIR MSBA MEMBERSHIPS FOR THE 2022-23 BAR YEAR. The MSBA is grateful for their commitment to MSBA’s leadership in the legal profession, Annapolis advocacy, and increasing access to justice in Maryland and beyond.
Maryland firms or branch offices listed here have at least ten partners and associates (or analogous titles) barred in Maryland, all of whom have renewed their membership for the 2022-23 Bar year. The MSBA membership team is happy to work with law firms in reaching the 100% goal. Please contact membership@msba.org.
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The Law Offices of Frank F. Daily, P.A.
Maryland Divorce and Separation Law
Eleventh Edition
Updated for 2023 by Maryland atttorneys who are experts in the field, Maryland Divorce and Separation Law, Eleventh Edition, sets forth the legal principles and procedures for handling family law actions, including divorce, separation, child custody, child support, adoption, and paternity matters, from the initial contact with a potential client through appeal. The publication includes sample pleadings and forms, and practice pointers.
of the Tax Cuts & Jobs Act on tax exemptions
to Child Support Guidelines Changes in case law Changes to statutory shared custody formula Recent cases on property disposition
FAMILY LAW ATTORNEY, ADVISOR TO HUSBANDS
JOHNINE CLARK
Author of Five Things She’s Doing to Prepare for Divorce
JOHNINE N. CLARK IS THE PRINCIPAL AND MANAGING PARTNER OF THE LAW OFFICES OF JOHNINE CLARK, P.A. Clark is a family law and estate planning attorney, with 25 years of experience, handling a large number of family law matters with a specialization in representing men in divorce proceedings.
Photo courtesy of Travis Marshall Photography
Know the law. It seems so simple, but staying current on case law is so important.
She is the author of Five Things She’s Doing to Prepare for Divorce and the e-book How to Choose a Family Lawyer In addition, she publishes a free newsletter and blog on pending divorce topics and hosts free webinars on “Men in the Business of Divorce.”
Clark decided to write her book after she saw an increase in male clients about five years ago, and noticed that their issues were similar. Most of the problems stemmed from a misunderstanding about family law that affected the outcome of their cases. Five Things She’s Doing to Prepare for Divorce warns men not to get caught like a deer in headlights. In her experience, most men who are presented with divorce papers find themselves shocked and confused because they often miss the signs that the marriage is going downhill.
Clark’s book explains what every husband needs to know to protect his rights and preserve his relationship with his children when faced with a divorce.
Why did you enter the legal profession?
My goal initially when I entered the profession was to become an Assistant U.S. Attorney, after having practiced criminal defense law for several years. However, when I started my law office in 1997, I consistently started to receive a lot more family law cases, and as time went on, I began to focus more on family law and estate planning.
What is your fondest memory of your legal career so far?
One of my fondest memories is arguing in front of the Appellate Court of Maryland (formerly the Court of Special Appeals), having the decision reported, and seeing my name as Appellate Counsel in the decision.
What is the one piece of advice you would give someone in law school or considering a legal career?
Know the law. It seems so simple, but staying current on case law is so important and is appreciated by the magistrates or judges that you go before.
How are you involved with the MSBA?
I presently serve on the Solo and Small Firm Council and am Vice-Chair for the Fourth Circuit on the Executive Council for the Committee on the Resolution of Fee Disputes. The Council is made up of practitioners who work together to make sure that this segment of MSBA’s membership is represented by providing suggested programming and assistance with the implementation of any necessary changes to meet our unique needs.
I am also the Vice-Chair for the Fourth Circuit on the Executive Council for the Committee on the Resolution of Fee Disputes, and responsible for making sure that any fee disputes with respect to my colleagues in Prince George’s County are handled effectively, expeditiously, and fairly.
How has the MSBA helped you in your legal career?
MSBA has helped me maintain my knowledge base through the numerous educational opportunities and allowed me to expand my base of friends and colleagues within the profession. MSBA has also been a great support for any challenges I have faced over the course of my career.
What we can’t find on your resume:
I am a huge sports fan and a season ticket holder for the Washington Commanders!
What’s your favorite hobby?
Reading, when I have time!
What do you do to unwind/de-stress?
Anything health and exercise related. Hot Yoga, Walking, Cardio, etc.
How do you give back to your community?
I am very passionate about serving the community. My firm partners with the City of Greenbelt to provide free backpacks, holiday gift cards to needy families, and sponsorship of the “Chadwick Boseman Film Festival.” I sit on the Board of the Friends of the Greenbelt Museum, where we are spearheading a one-million-dollar renovation project, and I have participated in a panel discussion during the City’s Black History programming and provided free workshops to the seasoned citizen community.
The MSBA is now on Flipboard!
Flipboard is a convenient news tool that collects articles from various internet sources and offers them in Magazines. The MSBA magazine offers readers a convenient way to read recent Bar Journal stories dealing with matters like access to justice, the changing legal landscape, ethics, environmental law, and other important issues. Follow us here or on the Flipboard app.
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Five Tips on Hiring Your First Employee
BY SHELLY M. INGRAM, ESQ.
When you are ready to hire, it is important to consider what tasks you can delegate to your new employee.
Your plan for delegation will inform the hiring process and your final decision. Once you’ve made a good hire, you can dedicate office hours to the most profitable tasks and use extra time to focus on family, friends, and yourself.
Here are five tips on hiring your first employee (and those who come after):
Always be ready to hire.
If you wait until you need help, you won’t have time to balance your clients’ needs with your search for qualified candidates. To lay a fertile ground for finding good hires, stay dedicated to good lawyering and to your clients, and don’t be afraid to talk about your work with others in your legal community — perhaps at the courthouse if you’re a litigator. Informal networking is not only good for marketing your practice and relationship building, it can also generate buzz to attract potential hires.
For a more direct approach, career centers and professors at universities and community colleges may know a recent graduate or student looking for work. Depending on the position you wish to fill, they may even be able to provide you with a pool of targeted referrals.
In addition to thinking about what you need, consider what aspects of the position may entice prospective employees. Show some energy and creativity if it is your goal to attract people with energy and creativity.
Questions you can ask yourself while drafting the job description include:
• Why should a prospective candidate pick you?
• Why would the candidate be excited to work at your firm?
• Are you willing to train or provide continuing education?
• What type of work environment do you offer?
• Is there an opportunity for growth?
• Are there benefits associated with the position?
PRO TIP: At the bottom of your job post, include specific instructions on how you would like a candidate to submit their application. If the candidate can’t follow the instructions, it may be a good indicator that they do not have the attention to detail that legal work requires.
Once you’ve created the job description, post it often. Here are a few free and low-cost places to post and share:
• Your website. Dedicate a page to careers with your firm.
• Your firm’s LinkedIn profile and other social media. Let your firm’s personality shine.
• Colleges and university career development and exploration websites.
• Professional Association websites. For example, the National Association of Legal Assistants allows employers to post on a targeted job board.
• Word of mouth. Tell your colleagues and connections that you are looking to expand your staff, and be ready to act when the right person comes your way.
Prescreen your candidates.
It is easy for a candidate to put their best foot forward for a scheduled interview. Try to get a look “behind the curtain” because a candidate, once hired, will be an ambassador for you and your firm. To do that, show an interest in the candidate and make an effort to know who they are, both personally and professionally.
Call the candidate or set a Zoom appointment to schedule the in-person interview. A brief call or introductory Zoom pre-interview contact gives you a chance to see if your candidate takes you and your employment opportunity seriously. Likewise, this initial contact can give you a glimpse of a candidate’s other strengths and weaknesses. Does the candidate present themselves professionally? Are they properly dressed and groomed for the Zoom call? Do they have a clear speaking voice? What is their telephone demeanor? Is there a greeting on their voicemail and is it professional? Is their voicemail full?
What are their interests outside of work? If they have social media – check it. What types of pictures and posts are visible? If you can find them, your clients can too! Exchange emails with the prospective candidate —they may have a polished writing sample, but how is their grammar, punctuation, and spelling in a routine communication? How timely are their responses?
PRO TIP: If you have others schedule calls or interviews with candidates, you will miss a terrific opportunity to gather insights and intel that is easy to overlook in a traditional interview.
Lastly, and often overlooked: ask for references and check them.
Use a structured set of questions during the interview.
Ask each candidate the same structured set of questions. If you conduct conversational interviews, candidates may get off track. You are getting to know them. They are getting to know you. You may get off track, too! A set of structured interview questions makes it easier to get back on track. Just as importantly, structured questions will help you compare the responses of multiple candidates after-the-fact.
Determine if the candidate genuinely wants to work for your firm and with your clients. Your firm will always be your reputation and responsibility. Structured questions will help you find hires invested in the growth of your practice, who possess the skills that are needed to develop your brand and maintain a consistent level of service.
Representing Maryland divorce and family law clients for more than fifteen years, Shelly Maynard Ingram has litigated cases involving divorce, child custody, child support, property, domestic violence, and an array of post-judgment matters. She and her associates are based in Fulton, MD. ShellyIngramLaw.com
Hire a law clerk or a person with legal experience if you can.
Movies and television have taught people that the practice of law is sexier and more exciting than it really is. Prospective hires without legal experience may say that they have an interest in the law and a desire to help others. Unfortunately, that interest is not always enough, especially if they expect the kind of law firm life they’ve seen portrayed on screen.
Let candidates know the unglamorous realities of lawyering, such as your practice’s work pace, or that there may be times when additional hours are required, such as during trial preparation. If you’re in a high-conflict practice, like a family law practice can be for example, then explain that candidates will need patience and empathy to calm the nerves of often anxious clients.
Former law clerks or applicants with law firm experience make the best hires, in my opinion. Even if their experience is not in your specific practice area, it can be helpful that they have worked with clients in a comparable situation and also understand basic legal concepts.
Your hire reflects directly on you. Every written or spoken word of your employee represents you and your practice whether you like it or not. Someone whose professionalism, capabilities, and work product you respect will likely earn the respect of your clients and network as well. Take the time to make the right choice, and always be on the lookout for someone who is an asset, not a liability, for your practice.
Editor’s Note: The author wrote this article in conjunction with her interview on the same topic in the Opening Your Own Law Firm video series, which is available to MSBA Members.
MOVING ON
LYDIA LAWLESS Outgoing Bar Counsel for the Attorney Grievance Commission
SOME PEOPLE SEEM DESTINED TO DO CERTAIN JOBS; LYDIA E. LAWLESS, BAR COUNSEL FOR THE ATTORNEY GRIEVANCE COMMISSION IS ONE OF THOSE PEOPLE. Not only does her name fit her profession, both of her parents are also attorneys. Lawless joined the Commission as Assistant Bar Counsel in 2011 and became Bar Counsel in 2017. She was drawn to the Commission, in part, because she wanted to work in public service. On March 17, 2023, Lawless stepped down as Bar Counsel.
Photo courtesy of Travis Marshall Photography
The Commission’s mandate to protect Maryland citizens resonated with her as well. One of her main goals as Bar Counsel was to continue the work that her predecessors had done and to improve upon the quality and timeliness of the work that the Office does. She was also committed to being a part of the Bar, and present and available to the lawyers in Maryland.
Reflecting on her time as Bar Counsel, Lawless believes that, “the attorneys, investigators, and staff in the Office of Bar Counsel are “second to none” and “the privilege of working with them has, without question, been the highlight of my legal career.” She called attention to “their integrity and dedication to the Commission’s important mission of protecting the public” which “inspired me every day, particularly in these tumultuous times when the rule of law and our public institutions are under attack.”
Her work as Bar Counsel was not without its challenges, though, the biggest one being able to attract and keep skilled attorneys and staff, given the salary limitations the Commission and other public service organizations face. Despite those constraints, Lawless thinks they’ve done an extraordinary job of recruiting and retaining real talent. Further, the people that are drawn to work for the Commission regardless of the relatively low compensation are there because they're committed to public service.
During her tenure with the Commission, Lawless was an active member of the MSBA and regularly presented CLE programs. She has served on numerous committees and sections over the years, including the Litigation Section, where she served as a Council member. Lawless is currently a member of the Leadership Academy’s Executive Committee and is a Fellow of the Maryland Bar Foundation. She appreciates that the MSBA helps attorneys to find a sense of community within the legal profession,
provides opportunities to meet other professionals, offers legal education courses, and allows its members to find ways to give back to the legal community.
As the beneficiary of countless mentors, including professors, experienced members of the bar, and judges, Lawless tries to pay it forward and is committed to giving back to law students and lawyers. She teaches Legal Profession at the University of Maryland Francis King Carey School of Law, volunteers to serve on boards and committees, mentors younger members of the bar, and tries never to say no to any opportunity to speak.
Early in her career, one of Lawless’ mentors told her that no one ever regrets taking the high road. She finds that advice has proven to be true. For those considering a career in the law, Lawless offers that the practice of law can be incredibly rewarding. She cautioned, though, that “the law will consume all the space that you allow it to, so don’t forget to find time for yourself and those who love you.”
When she is not focusing on the law, Lawless spends time with her husband, their two children, (Max, 9, and Sylvie, 12), and their miniature schnauzer, Walter. She loves to garden and host friends and family for dinner, and is an avid consumer of novels and short stories.
As this issue goes to print, Lawless has announced that she will join Kramon & Graham, P.A., as a principal, where she will counsel lawyers and law firms in a wide range of matters, and defend lawyers, law firms, and other professionals in professional liability claims; she is very excited for the next chapter in her career.
“
As the beneficiary of countless mentors, including professors, experienced members of the bar, and judges, Lawless tries to pay it forward.
Veterans Treatment Court Serving Those Who Served Our Country
Pete, a 36-year-old Army veteran, lost his job when his workplace closed. Then he lost his home. Pete stayed with some friends for a while, but it was a temporary situation, and soon he was living in an abandoned home with no water or utilities and was eventually charged with vagrancy.
Many men and women who fought for our country face another fight when they return home. Their battles can include finding and keeping a job and a home, relationship and mental health issues, or substance use—which can lead to minor law offenses.
Supported by United Way of Central Maryland, the Veterans Treatment Court provides area veterans the help they need to get back on their feet and become selfsufficient, rather than serve jail time and
The Veterans Treatment Court provides area veterans the help they need to get back on their feet and become self-sufficient,
avoid a criminal record that could limit future housing and employment options.
The Veterans Treatment Court is a courtsupervised, comprehensive, and voluntary treatment-based program for justice-involved veterans charged with misdemeanors in the District Court. Veterans charged with these offenses, whether eligible for VA
benefits or not, can enter the program.
Participants work with mentors who are also veterans and who provide support and guidance for health, employment, legal, financial, counseling, and other services.
In recognition of the toll on veterans that accompanies military service, the Veterans Treatment Court serves the community and increases public safety through a coordinated treatment response with the goal of returning productive, law-abiding citizens to the community and thereby reducing recidivism and criminal justice costs.
When Pete entered the Veterans Treatment Court, he was partnered with a case manager who was also an Army veteran. Working with United Way community partners, his case manager was able to quickly get Pete into a new home—within two days. Pete also received food and household and personal care items, and the program covered the cost of a cell phone and provided him with a donated computer so that he could stay connected to his case manager and mental health professionals for support and to search for jobs.
“Having someone there to work through those obstacles with you and be supportive goes a long way with helping a person manage these difficulties and overcome the despair that comes with them,” said his case manager.
The Veterans Treatment Court operates through both the Glen Burnie and Eastside District Courthouses. To learn more about the Veterans Treatment Court or to donate, please contact Valeree Tolios at Valeree. Tolios@uwcm.org (Anne Arundel County) or Jamie Meyers at Jamie.Meyers@uwcm.org (Baltimore).
The Veterans Treatment Court is a collaboration of Judge Halee Weinstein and Judge Thomas V. Miller III, and the District Court of Maryland, the Homeless Persons Representation Project, the State’s Attorney’s Office, the Office of the Public Defender, U.S. Department of Veterans. Affairs, Maryland Department of Public Safety and Correctional Services, United Way of Central Maryland, and many other service providers. This project is supported by a grant from the Maryland Judiciary’s Office of Problem-Solving Courts.
ABOUT THE UNITED WAY OF CENTRAL MARYLAND
United Way of Central Maryland promotes equity, creates opportunity, and improves lives. Our nearly 100 years of service to the people of Greater Baltimore have taught us what it takes to change our region for the better. We’re proud to be a source of support, compassion, and hope for people who work hard but still can’t afford life’s essentials.
We strengthen individuals, families, and neighborhoods by taking on systemic challenges and increasing access to basic needs: housing, health, education, employment, and more.
We connect donors with causes they care about. We bring together trustworthy organizations to collaborate in solving our toughest challenges. We amplify the power and impact of local leaders to solve the issues they face in their own lives and neighborhoods.
From individual donations from people who believe in the promise of their neighbors to fundraising drives in workplaces that inspire a greater sense of civic engagement, United Way helps people make a tangible difference for their fellow Marylanders. We track our efforts and continually adjust our strategies to better address the needs of our neighbors and the neighborhoods they call home. Thanks to our extensive network of service providers, other nonprofits, public partners, supporters, and volunteers, United Way is equipped like no other organization to translate donations and support into meaningful, lasting impact. We have deep ties to and a true understanding of our region. When we combine this local knowledge with the strength of a respected worldwide brand, there’s little we can’t accomplish.
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!
Just one of print and digital treatises and coursebooks provided by MSBA. 130+
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. msba.org/product/udtiep-2023/
IN THE FAMILY BUSINESS
ALBERT G. ALLEN, III
An Eastern Shore lawyer serving his hometown community
ALBERT G. ALLEN, III, IS A THIRD-GENERATION LAWYER , past president of his local Rotary Club, and a passionate community service leader for at-risk youth and first-time low-income home purchasers. Allen describes his legal career as an “opportunity to work with a diverse client base in a variety of different areas of law.” He recently discussed his motivations and his experiences in the MSBA.
Photo courtesy of Travis Marshall Photography
In a small county like Wicomico, in one week, you can see cases varying from juvenile delinquency hearings, to felony jury trials, to civil summary judgment hearings.
What motivated you to pursue a career in law?
I come from a family of attorneys. My father is an attorney with whom I have practiced for the past eight years at our general practice firm, Allen & Allen, Chtd., in Salisbury. My grandfather practiced law in Arkansas for over 60 years, going into the office daily at 89 years of age until shortly before he passed away. He was actively involved in the Arkansas State Bar Association, including serving as President of the State Bar Association and President of the State Bar Foundation. As such, I was surrounded by members of the profession from an early age.
My father and grandfather practiced law in relatively rural areas. I learned at a young age from both of them the outsized impact an attorney can have in a rural area both in their clients’ lives as well as on their community’s well-being. Their examples drove me to pursue a career in law.
What led you to your current practice area?
I always wanted to come back to my hometown of Salisbury to practice law. I was incredibly fortunate to clerk in the Circuit Court for Wicomico County for Judge S. James Sarbanes. During my clerkship, I saw all types of different cases. In a small county like Wicomico, in one week, you can see cases varying from juvenile delinquency hearings, to felony jury trials, to civil summary judgment hearings. This experience translated well to joining my father in his general practice law firm, where my practice comprises litigation in a multitude of different areas.
What is your fondest memory or greatest career achievement so far?
It was incredibly rewarding and humbling to receive the 2022 Edward F. Shea, Jr. Professionalism Award from the Maryland Bar Foundation. Mr. Shea was an icon in our profession, and to be associated with him in this manner is an honor.
What is the best piece of advice you have received from someone in the legal profession?
The best advice I received was to spend a year clerking prior to entering private practice. My clerkship was one of the most rewarding years of my career to date. You learn a lot of theory in law school. Clerking,
especially in a trial court, is a much more practical learning experience and an invaluable experience for future litigators.
What do you love about your work?
My practice affords me the opportunity to work with a diverse client base in a variety of different areas of law. My days include run-ofthe-mill district court matters, as well as complex civil litigation in the Maryland appellate courts. One of the matters I most enjoyed working on was a case of first impression in which I argued before the Maryland Supreme Court (then the Court of Appeals). The case, C&B Construction, Inc. v. Dashiell, 460 Md. 272 (2018), concerned the applicability of the Maryland Construction Trust statute and has subsequently been cited by commentators and courts alike as to whether or when that statute applies.
How has the MSBA helped you in your legal career?
The MSBA is an incredible advocate and resource for all Maryland attorneys. I have been a member since being licensed and have found my membership in the MSBA very helpful throughout my career. In addition to the ample CLE and educational opportunities, I have found the MSBA to be an invaluable tool for networking with attorneys across the state and in different practice areas. I found this particularly true over the past year and half serving on the MSBA Board of Governors.
What is a cause or charity that you’re passionate about?
I have been fortunate to serve on numerous boards of charities in the Salisbury area. I have been most involved with Horizons Delmarva, for which I served as Chairman of the Board for two years. Horizons conducts an extensive six-week summer academic program for at-risk youth in Wicomico and Worcester County public schools. I have also served on the board of Salisbury Neighborhood Housing Service, Inc., for six years. SNHS provides low interest and closing cost loans to low income individuals purchasing their first home in the Salisbury area, and I regularly perform pro bono settlements for their clients. My work with both of these charities is particularly rewarding in that they not only directly assist individuals, but in doing so they also make our entire community a better place to live.
Tell us about what we won’t find on your resume….
I enjoy reading, traveling, and sailing. I have participated in several Governor’s Cup sailing races down the bay from Annapolis to St. Mary’s City. However, at heart, I am a golf nut. If I am not sneaking out to play nine holes during my daughters’ nap times, I am watching whatever PGA event is on that week.
How do you give back to your community?
In addition to serving on numerous non-profit boards, I have been very active in the Rotary Club of Wicomico County. Rotary is a very rewarding way of giving back to the community in that the club has so many different outlets for community service and invests funds and resources into an assortment of activities. We have built ramps at homes for handicapped residents, volunteered at the National Folk Festival held in Salisbury, and donated over $25,000 towards the construction of a playground and baseball diamond for children with disabilities.
ANIMAL LAWYERS IN BEAST MODE
BY BOB BERSHAD, ESQ.
You can’t use the law to protect animals if there are no animal protection laws. That’s not the MSBA Animal Law Section’s motto, but it may as well be. Led by its Chair, Fernando Guerra, its Treasurer, Kimberly Fullerton, and its Legislative Liaison, Maureen Quinn, the Section achieved unprecedented legislative success in Annapolis during the 2022 Session."
In addition to managing their practices, Guerra is the Legal Affairs Director of the American Wild Horse Campaign, and Fullerton will start this Fall teaching Animal Law as an Adjunct Professor with the University of Maryland School of Law's Environmental Program. Governor Moore recently appointed Quinn as the Chair of the Maryland Workers' Compensation Commission. She is the first woman ever to hold that position.
Their work, in tandem with fellow animal welfare advocates, resulted in what Maryland Matters called “‘A Legacy Year’ for Animal Welfare Laws in Annapolis.” The historic raft of animal protections the legislature passed included:
• Banning the practice of declawing cats
• Providing civil sanctions for leaving dogs unattended in extreme weather
• Banning the sale of parts and pieces of endangered or imperiled wildlife
• Providing ways to recover the costs of caring for cruelly or severely neglected animals that are seized from their tormentors
If the reader is surprised or even shocked that laws like these are new to the books, then the
(l to r) Kimberly Fullerton, Maureen Quinn, and Fernando Guerra
Photo courtesy of Travis Marshall Photography
reader should know there is more work to be done. Animal welfare law is nascent in Maryland and beyond. For example, Maryland is only the second state in the country to pass a cat declawing ban. In every state, animals are legally considered nothing more than the property of their owners.
According to Guerra and Fullerton, legislation that is still needed includes:
• Increasing or removing statutory limits on compensatory damages imposed on a person who tortiously injures or kills a pet (popularly called Buddy’s Law)
• Establishing noneconomic damages on a person who kills or injures a pet with gross negligence, intent, or malice, or in violation of Maryland’s Declaration of Rights
• Incentivizing nonanimal testing methods in biomedical research
we need to work closely with lobbyists who are on the ground every day because testifying alone isn’t enough,” he says. Testimony is important and essential, but there are other tactics to use, such as meeting with legislators one-on-one to educate them on the issues. “Obviously, legislators have a lot of things on their plates and a lot of times they're not coming from the situational context of the animals,” Guerra says.
Second, the Section chose in Quinn a legislative liaison with deep ties to Annapolis and professional experience being a lobbyist. Maureen Quinn has been a mentor to Guerra and Fullerton for the last three years, working with them to cultivate
Fullerton, Guerra, and Quinn met at an Animal Law Section meeting in 2018, where they “clicked” and agreed to work together. It’s been an incredibly productive and joy-filled partnership ever since. Fullerton and Guerra, and the animals for which they advocate, have benefitted immensely from Quinn’s wisdom and friendship. Quinn considers Fullerton and Guerra to be among the best and brightest of their generation and regards herself as their biggest fan.
• Expanding pet friendly housing options, particularly for military families during deployment
• Effective protection and management for America’s wild horses and burros
Many MSBA Sections lobby in Annapolis every year, which is an essential function of the MSBA. Here are three tips on how the Animal Law Section found such success.
First, the Section attributes its success to its decision to partner with professional lobbyists who have “boots on the ground” every day in Annapolis. “The Animal Law Section’s legislative advocacy efforts have been magnified by our partnerships with The Humane Society of the United States and Maryland Votes for Animals,” according to Quinn. “They have people on the ground in Annapolis full-time and help us while helping their own organizations.” Guerra agrees. “To be effective in Annapolis,
legislative strategies and alliances. Quinn gained her lobbying experience before joining the Workers’ Compensation Commission, and her husband is Delegate Kumar Barve, chair of the Maryland House Environment and Transportation Committee. Third, the friendship that evolved from the mentoring of two young MSBA members and training them to become effective advocates has brought energy and excitement to this public service work for which there is no monetary compensation. Guerra and Fullerton have found legislative advocacy to be a fascinating, challenging, and rewarding experience. The first time Fullerton testified before a committee of the General Assembly, the bill she advocated for didn’t pass that session. It took two more sessions. When it did finally pass, it was like the world moved, she recalls. After the Governor gave her the signing pen, it felt like she was wielding “the sword from the stone.”
When Fullerton and Guerra attended law school, there were very few avenues to advocate for animals. Nor were there classes on animal law or legislative advocacy. What they have learned from Quinn has enabled them to become even more effective advocates, using what they have learned in the legislative arena and applying it in all aspects of their professional lives. Of course, the ultimate beneficiaries of these activities are the animals themselves. Protecting animals is at the root of the passion that Fullerton, Guerra, and Quinn share. The friendship, knowledge, and experience they have gained in the effort are wonderful, but in the end, it’s about the animals. Guerra sagely observes that animals are the first victims when society goes bad. Perhaps that is so because there are still too few laws to protect them
Anyone interested in learning more can find Guerra, Fullerton, or Quinn’s contact information on the Animal Law Section’s website. To join the Animal Law Section, contact membership@msba.org.
Tips on how your MSBA Section can be even more effective in Annapolis, and the importance of cross-generational partnerships within the MSBA
MAKING THE VOICE OF THE LEGAL PROFESSION heard ADVOCACY AT WORK
“Our time is now to build a state that leaves no one behind. That means justice for all."
Sharon Krevor-Weisbaum
THE MARYLAND STATE BAR ASSOCIATION COMMEMORATED THE START OF THE 2023 LEGISLATIVE SESSION WITH ITS FOURTH ANNUAL MSBA DAY (previously known as “Lobby Day”) on January 24, 2023. The MSBA was delighted to welcome members to participate in MSBA Day in person for the first time since 2020.
The event offered valuable information on the MSBA’s legislative priorities and key initiatives that legislators will likely introduce to the General Assembly in the 2023 Legislative Session. The panel of guests who spoke to MSBA members about issues that impact the legal profession and Marylanders included Attorney General Anthony Brown, Senator Will Smith, Chair of the Senate Judicial Proceedings Committee, Delegate Luke Clippinger, Chair of the House Judiciary Committee, Senator Chris West, Maryland Public Defender Natasha Dartigue, and Executive Director of Maryland Legal Aid, Vicki Schultz. David Shapiro, President of the MSBA, welcomed participants and highlighted recent MSBA advocacy successes, including defeating proposed legislation to impose taxes on legal services in Maryland, obtaining vaccine priority for Maryland attorneys
to continue serving the public, and securing more than $40 million in civil legal aid funding for access to counsel in evictions.
Sharon Krevor-Weisbaum, Managing Partner of Brown Goldstein & Levy, Member of the Executive Board of the Maryland Access to Justice Commission (A2JC), and former Co-Chair and current Member of MSBA’s Managing Partners Group, kicked off the day by explaining the Commission’s mission is to ensure that the promise of justice becomes a reality for all Marylanders, rather than only for those who can afford it. During the 2023 Legislative Session, the Commission’s goals are to obtain annual budgetary allocations so that access to counsel in evictions is an established right for years to come and increase general civil legal aid funding.
Former State Senator Bobby Zirkin then moderated a discussion with Senator Will Smith and Delegate Luke Clippinger.
Delegate Clippinger reported that the
Legislature and Judiciary Committee had made great strides over the last few years in increasing police accountability and access to justice and providing assistance to those facing eviction. He anticipated the General Assembly would face challenging issues this year, including how to regulate concealed carry in Maryland, statutes of limitations in child sex abuse cases, and juvenile justice. Senator Smith touched on legislation to eliminate contested judicial elections, funding access to counsel for eviction proceedings, and expungement.
Senator Chris West then discussed the legislative process and bills on expungement,
“Our members partner closely with legislators to offer legal insights, practical advice, technical drafting assistance, and to provide knowledgeable and insightful testimony.” MSBA President David Shapiro
“The laws committee also works with the sections and …. we're really trying to draw in as many different voices as we can, in order to sift through everything and then decide whether to take a position and
if so what that position should be.” Kelly Hughes Iverson
contested judicial elections, and issues related to the legalization of recreational marijuana with Zirkin. Senator West also offered his perspective on juvenile justice reform and the statute of limitations for civil claims arising out of child sex abuse.
Reena Shah, Executive Director of the Maryland Access to Justice Commission, welcomed Maryland Public Defender Natasha Dartigue and the Executive Director of Maryland Legal Aid, Vicki Schultz. Dartigue and Shultz discussed what they see as the greatest challenges in the criminal and civil justice systems and their priorities for reform in the 2023 Legislative Session and in the years to come.
Co-Chairs of the MSBA Laws Committee Kelly Hughes Iverson, Partner at Goodell, DeVries, Leech & Dann, LLP, and David Cahn, Partner at Whiteford Taylor Preston LLP, then explained the Laws Committee’s structure and processes and informed members of the MSBA’s legislative priorities during the 2023 Legislative Session. MSBA members then met with members of the General Assembly and their staff, including Del. Elizabeth Embry, Del. David Moon, Del. Karen Simpson, Sen. Will Smith, Del. Kym Taylor, Sen. Jeff Waldstreicher, and Sen. Chris West.
The day wrapped up with keynote speaker Attorney General Anthony Brown addressing MSBA members during lunch at O'Brien's Oyster Bar & Seafood Tavern House. AG Brown began by thanking the MSBA for advocating for members of the legal profession so that attorneys can better serve their clients and discussed his top priorities as Attorney General. AG Brown noted he intends to invest in the people and the resources in the Office of Attorney General to better allow them to deliver government services, increase its capacity to investigate and prosecute organized crime and drug, gun, labor, and human trafficking offenses, and work to reduce recidivism rates throughout the State.
The MSBA looks forward to working with the Laws Committee and our Sections to seek impactful legislation for the remainder of the 2023 Legislative Session. For more detailed information regarding MSBA Day and the MSBA’s advocacy efforts, please visit our website.
Throughout the legislative session, the MSBA also provides bi-weekly bill reports by practice area that may be relevant to your work, available here.
MSBA members walk to legislative offices for meetings with delegates and senators.
Photographs courtesy of Eric Stocklin Photography
SHARON KREVOR-WEISBAUM
Executive Board Member of the Maryland Access to Justice Commission
MSBA Managing Partners Group Co-Chair
Managing Partner of Brown, Goldstein & Levy LLP in Baltimore City
One of the Commission’s priorities is to advocate for the right to counsel in civil cases where basic human rights are involved, such as housing stability. Krevor-Wesibaum said, “we have partially achieved that with the Access to Counsel in Evictions Law, but we need to fully fund it. As predicted, evictions are increasing. And as Governor Wes Moore said, housing insecurity is the main driver of poverty.”
“Our mission is to ensure that the promise of justice for all that we have recited countless times and our Pledge of Allegiance becomes a reality for all Marylanders, rather than only for those who can afford it.”
Sharon Krevor-Weisbaum
DELEGATE LUKE CLIPPINGER
Chair of the House Judiciary Committee
Delegate Clippinger expressed his appreciation for “all the resources that MSBA has made available to me to my committee and all the issues that have been raised along the way.” He believes the Legislature as a whole, and specifically the Judiciary Committee, has made great strides over the past four years, working hard on police reform, police accountability, access to justice, and providing assistance to people facing eviction.
SENATOR WILL SMITH
Chair of the Senate Judicial Proceedings Committee
Senator Smith addressed the MSBA’s legislative priorities: eliminating contested judicial elections, funding access to counsel for eviction proceedings, and expungement, and other “weighty and meaty issues facing our Committee.” He talked about the importance of the Committee’s partnership with the MSBA, noting that MSBA members “all have expertise in specific areas of the law that can help us develop really sound policy.”
(l to r) Maryland Attorney General Anthony Brown, Director of Maryland Legal Aid Vicki Schultz, and MSBA President David Shapiro
Member of the Senate Judicial Proceedings Committee
Senator West introduced a bill to conduct a study of all Maryland criminal statutes, to evaluate the criminal statutes and their penalties as a whole before addressing the issue of expungement. He also sponsored SB0195, which addresses
"MSBA members "all have expertise in specific areas of the law that can help us develop really sound policy." Senator Will Smith
VICKI SCHULTZ
Director of Maryland Legal Aid
The greatest challenge facing our legal system, whether criminal or civil, is racial and economic inequity. “As lawyers and as citizens, we all have to care that our legal system is fair and accessible to all . . . . We believe in a system that's fair, that takes all comers and, and allows for representation, but if you live in poverty, that representation is not a given.”
“I've been really appreciative of all the resources that MSBA has made available to me to my committee, and all the issues that have been raised along the way." Del. Luke Clippinger
NATASHA DARTIGUE
Maryland Public Defender
In her role as the leader of the public defender's office, Dartigue often speaks about equity in terms of the clients they serve and equity in terms of those who advocate on behalf of the clients. To her, it's “imperative that we not only do better as an agency, but we do better as a society.” She was encouraged to hear Governor Moore speak in terms of understanding that problems in our society stem from poverty.
“When we think about poverty, we think about broken social structures, we think about lack of economic opportunity, and essentially, that is where the fertile ground is for crime.”
ANTHONY BROWN
Maryland Attorney General
Brown said that the number one issue that Marylanders raised with him during his campaign was safety, bar none, and expressed gratitude that the Governor’s budget honored his request to double the number of lawyers focused on organized crime. But, he said, “we are not going to investigate and prosecute our way to safer neighborhoods,” and emphasized that there needs to be greater investment in juvenile diversionary programs to address “the underlying needs and concerns and challenges that they face, whether it's mental health, behavioral health, drug or alcohol, supporting families.”
Cannabis Law After Legalization in Maryland: What Comes Next?
BY BRIDGET HILL-ZAYAT, ESQ.
RECENTLY, MARYLAND’S GENERAL ASSEMBLY PASSED HB837 LEGALIZING ADULT-USE
CANNABIS IN THE STATE This does not mean that anyone 18 and over can run out and buy cannabis today. There is understandably confusion in the state regarding what is and what is not legal and when. So, what happened? When did it stop being marijuana? When is it going to be available in shops? Who will be able to buy it?
WHAT IS CANNABIS AND WHAT ISN’T CANNABIS?
Why Is Everyone Calling It Cannabis and Not Marijuana?
The word “marijuana” is actually newer to the United States lexicon than the word cannabis. Prior to the 1930s, the most commonly used term for the drug was cannabis. It was used primarily as medication and not as an intoxicant. In the 1910s Mexican immigration began to surge throughout the Southwest United States, motivated by the Mexican Revolution. Immigrants brought their traditional methods of intoxication, which included cannabis.1
1 Matt Thompson, The Mysterious History of ‘Marijuana,’ Code Switch (July 22, 2013), https://www.npr.org/sections/codeswitch/2013/07/14/201981025/the-mysterious-history-of-marijuana.
The use of the word “marijuana” did not become commonplace until political entrepreneurs, eager to scare the public into creating a new prohibition, branded the drug with the foreign-sounding name. In 1937, Harry Anslinger, as the new Commissioner of the Federal Bureau of Narcotics (FBN), the precursor to the modern-day Drug Enforcement Agency, realized that the end of Prohibition and the paltry number of arrests for heroin alone would not validate his department’s budget.2 He needed to create a larger villain to battle in order to validate the FBN’s existence, so he pivoted. Anslinger began to push the Uniform States Narcotic Act (later replaced by the Marijuana
So If Cannabis Is Marijuana, What Is Hemp?
Hemp is defined as any part of the Cannabis Sativa plant with no more than 0.3% tetrahydrocannabinol (THC). THC is the mind-altering substance in cannabis. The he 2018 Farm Bill, passed by the U.S. Congress in 2018, removed hemp from the federal Controlled Substances Act.4
What Is CBD?
The cannabis plant contains hundreds of chemical compounds, including cannabinoids and terpenes. THC is one cannabinoid. Another cannabinoid with non-psychoactive properties is cannabidiol (CBD). Currently, the only CBD product approved by the Food and Drug Administration is a prescription oil called Epidiolex, produced by GW Pharmaceuticals for epilepsy. While CBD is being studied as a treatment for many conditions, including Parkinson’s disease, schizophrenia, diabetes, multiple sclerosis, and anxiety, research supporting the drug’s benefits is limited.5 The 2018 Farm Bill indirectly legalized certain forms of CBD, provided it is derived from hemp.
The use of the word “marijuana” did not become commonplace until political entrepreneurs, eager to scare the public into creating a new prohibition, branded the drug with the foreign-sounding name.
Tax Act) at state-level legislatures, testifying that “marijuana” was causing people to lash out violently. While there was little evidence to support his assertion, Anslinger advocated the dangers of cannabis use nonetheless. He fueled the motivation to pass the Act with racially charged claims that minorities, specifically Black people and Latinos, were the primary users, making them primary targets for arrest. The use of the Spanish word for cannabis was likely purposeful. It ginned up racism and created the veil of otherness over a plant that was previously commonly used.3
WHEN DID CANNABIS BECOME LEGAL IN
MARYLAND?
The first move toward a legal cannabis market happened in 2011; Maryland’s General Assembly passed a law creating an affirmative defense of “medical necessity” if a patient was caught with cannabis and drug paraphernalia. The accused could assert that the drug was for medical purposes. Clearly, this did not meaningfully legalize cannabis but was a first step in the creation of a medical cannabis market.
2 Cydney Adams, The man behind the marijuana ban for all the wrong reasons, CBS News (Nov. 17, 2016, 5:45 pm), https://www.cbsnews.com/news/harry-anslinger-the-manbehind-the-marijuana-ban/.
3 Id.
4 CBD: What You Need to Know, Centers for Disease Control & Prevention, https://www.cdc.gov/marijuana/featured-topics/CBD.html (last visited Feb. 17, 2023).
5 What are the benefits of CBD—and is it safe to use?, Mayo Clinic, https://www.mayoclinic.org/healthy-lifestyle/consumer-health/expert-answers/is-cbd-safe-and-effective/ faq-20446700 (last visited Feb. 17, 2023).
After the public outcry generated by the failure of the MMCC to award licenses to minority owners, the state commissioned a “disparity study” confirming that minorities and women had been shut out of the industry by the high financial requirements.
The Creation of Maryland’s Medical Cannabis Market
In 2013, the General Assembly passed HB1101.6 State lawmakers spent years debating how to legalize medical cannabis in Maryland, and in 2013 passed a law that relied on academic centers growing, processing, and dispensing cannabis. The structure of the bill was awkward and impractical; it never got off the ground and was effectively scrapped. In 2014 the legislature rewrote the law to make the program accessible to private companies and charged the Maryland Medical Cannabis Commission (MMCC) with drafting regulations guiding production and sales. The process would be racked with controversy, lawsuits, and scandal, culminating in the first medical sales being delayed until 2017.
Controversy
When the General Assembly legalized medical cannabis in Maryland, the legislation required the MMCC to “actively seek to achieve racial, ethnic, and geographic diversity when licensing medical marijuana growers.” However, the Maryland Attorney General’s office advised the MMCC that, absent a study documenting racial disparities in the medical cannabis industry, creating racial and ethnic preferences was unconstitutional. As a result, the regulations the MMCC adopted made no mention of racial diversity.7 Predictably, few minority owners won licenses in any category.
After the public outcry generated by the failure of the MMCC to award licenses to minority owners, the state commissioned a “disparity study” confirming that minorities and women had been shut out of the industry by the high financial requirements. The analysis provided the evidence necessary to implement “race- and gender-based measures to remediate discrimination.” In response, the General Assembly passed HB2 in 2018 to expand the marijuana growing operations to try to give minorities an ownership role.8 State requirements regarding locations, security, and testing continue to burden licensees and especially HB2 license winners, most of whom are yet to open their doors five years later.
2022 Adult Use Passes—We Wait for Regulations
In November 2022, Maryland voters overwhelmingly approved recreational marijuana legalization by ballot referendum. The legislation, HB837, stopped short of articulating how the market will function and who will be allowed to sell. Specifically, the bill failed to preapprove existing medical licensees from entering the adult-use market for fear that the predominantly white-owned businesses will have an unfair head start before minority licensees could get a foothold.
The General Assembly and the MMCC, now part of the Alcohol Tobacco Commission (ATC), must move swiftly. As of January 1, 2023, possession of up to 1.5 ounces for adults 21 and over is decriminalized. Possession of cannabis is now a civil offense punishable by a fine of $100. On July 1, 2023, adult-use cannabis will be fully legal. Lawmakers must set up the market infrastructure if there is any hope of avoiding the explosion of the illicit market.9 Specifically, since the criminal code will decline to target possession of cannabis in small amounts, there will be very little stopping the illicit market from filling the void.
Additionally, discount pricing will continue to protect the illicit market. Illicit growers are unburdened by regulations ensuring contaminated product is kept from the market. No toxic herbicides are used on plants in the regulated market, and all product is tested before going to dispensaries. In effect, illicit growers can more easily keep plants alive and healthy by spraying herbicides or pesticides as mold, mildew, or pests emerge. Currently, licensed growers wear clean suits and use ascorbic acid (essentially lemon juice) and a very limited number of agents, in place of commonly used herbicides. The licensed market has costs associated with testing and other regulations; the illicit market does not, so the illicit market’s price per pound will be significantly less than the price per pound of product produced by licensed growers. It is worth mentioning
6 Erin Cox, Marijuana panel suggests $125,000 grower fee: License for growing medical marijuana could shut out small local businesses, The Baltimore Sun, Sept. 24, 2014, at A3.
7 Editorial, Md.’s geography of pot, The Baltimore Sun, Oct. 9, 2016, available at https://www.baltimoresun.com/opinion/editorial/bs-ed-marijuana-license-20161009-story.html.
8 Doug Donovan, Maryland medical cannabis regulators extend application period as error mar process aimed at diversification, The Baltimore Sun, June 10, 2019, available at https://www.baltimoresun.com/health/marijuana/bs-md-cannabis-applications-20190610-story.html.
that current medical licensees are not printing money; in fact, most are struggling. Current growers, processors, and dispensaries are cutting prices to compete with the illicit market. Regulatory burdens and unregulated competition are bleeding these companies dry.
COMPARISON WITH NEIGHBORING MARKETS
Despite the above-mentioned trouble, Maryland is (arguably) faring better than its neighbors. States like Delaware and Pennsylvania are mired in an expensive and, some say, poor-quality market. The greater competition is likely going to be the District of Columbia and Virginia.
District of Columbia
The District, notably, legalized adult-use cannabis in 2014. However, the congressional rider prevents the District from creating a tax or making any money from its sale. This created the gray market similar to what grew out of California’s legislation. Clearly, Maryland
Perhaps in anticipation of criticism, the bill ensures the first new round of licenses must be social equity owners. That is, the new licenses must have lived in or gone to school in areas disproportionately impacted by the war on drugs.
and other recently legalized states like Virginia will attempt to avoid a booming gray market situation. District sellers must work in a “gifting” economy, in which buyers do not buy cannabis, they buy a piece of art or a t-shirt, and the seller “gifts” the buyer with cannabis. The result is a regulatorily messy noman’s land dominated by quasi-legal producers and questionably safe product.
Virginia
In Virginia, recreational marijuana possession was rammed through a legislative session in 2021, but the commonwealth has not yet established a market. Virginia, unlike the District, successfully prohibited gifting.10
As the market stands now, in Virginia you can possess a total of one ounce of cannabis if you are over the age of 21. You may not sell that cannabis to others, but you may share that cannabis.11 Interestingly, people over 21 may grow a total of four plants per household for personal use. Criminal penalties are still in place for having more than four plants.
Like the District, Virginia’s General Assembly has not yet created the regulatory framework necessary for a functional adult-use market. Dispensaries are still limited to selling to licensed patients.
10 Colleen Grablick, Demand for Cannabis in Maryland? It’s High, dcist (Jan. 9, 2023, 12:09 PM), https://dcist.com/story/23/01/09/maryland-high-cannabis-demand/.
11 Rachel Kurzius, What You Need to Know About Legl Weed in Virginia, dcist (Apr. 23, 2021, 11:30 AM), https://dcist.com/story/21/04/23/legal-marijuana-virginia-july-how-much/.
WHAT’S NEXT FOR MARYLAND?
Delegates Charles Wilson and Vanessa E. Atterbeary introduced HB556 on February 3, 2023. The enabling legislation would tax cannabis sales at 6% for the fiscal year starting July 1, 2023, when possession of up to 1.5 ounces becomes legal. The rate would increase by 1% yearly, hitting a maximum of 10% in 2028. Medical cannabis patients would be excluded from paying the sales tax.
Somewhat controversially, the bill would preapprove current medical licensees to enter and begin selling to recreational purchasers as of July 1, 2023. So, the approximate 100 dispensaries, 20 growers, and 20 processors will have a sizable head start before new licensees are able to apply and win licenses and build out new facilities. Perhaps in anticipation of criticism, the bill ensures the first new round of licenses must be social equity owners. That is, the new licenses
must have lived in or gone to school in areas disproportionately impacted by the war on drugs.12
In essence, lawmakers are identifying their priorities with HB556. On the one hand, they clearly are attempting to undercut the illicit market by making sure medical licensees can sell as of July 1, 2023. Preapproving medical licenses closes the window of opportunity for the gray market to provide products without fear of law enforcement. Preapproval, however, works against the legislature’s other stated goal: to create an equitable marketplace with large companies helmed by women and minorities. Current medical licenses, while not entirely, are largely owned by white men.
In prior sessions, the General Assembly kicked around the idea of micro-licenses, an idea that limped its way back into the 2023 session. Legislators have carved out a category of smaller licensed facilities, more affordable than football field-sized grows currently in operation, to grow cannabis in
12 Hannah Gaskill & Sam Janesch, Maryland lawmakers draft bills to regulate sale, tax recreational-use cannabis, The Baltimore Sun (Feb. 2, 2023, 6:24 PM), https://www.baltimoresun.com/politics/bs-md-pol-regulatorycannabis-20230203-dx4mxqddyvbkllzmwkqphv4gjq-story.html.
smaller batches. This would do two things. First, it would create an avenue for minorities to participate in the market in a meaningful way, lowering the financial bar for funding. Second, it would allow current licensees, some of whom are minorities, to participate in the adult-use market, keeping them afloat in a stagnating market. However, the increasing tax on adult-use will, again, play in the favor of the illicit market, making their lower prices and arguably better-quality products more enticing.
To be clear, there is no silver bullet. The gray market will always be around so long as there is regulation governing how cannabis is produced and sold. How large that market will be is dependent on how legislators prioritize various factors. In the end, adult-use is coming. The details of that market are up in the air.
Bridget Hill-Zayat is a partner with Smart Counsel. She works in the Cannabis, Alcohol, and Energy fields, focusing on government relations, regulatory law, and compliance.
Follow the progress of HB556 HERE.
WEB EXTRA
Leading Millennials in a Hybrid Legal World
BY MEREDITH J. KAHAN, ESQ.
One of my favorite memes is a picture of four seated figures riding a subway. To the left of the subway pole are two gray-haired bespectacled men reading newspapers. To the right the of divide, two young women are wearing jeans and staring at mobile phones. Capital letters above the group loudly pronounce: “Generation Gap.” 1 While differences in outlook or opinion between generations is nothing new, over the past few years, this “gap” has widened both literally and figuratively. With hybrid and virtual work becoming ever more commonplace, one group of workers may be sitting in an office conference room and others working from homes, coffeeshops, or other locations that are miles away.
There are currently five generations in the workforce (Traditionalists, Baby Boomers, Generation X, Millennials, and Generation Z).2 Studies show that an overwhelmingly large segment—84% of Millennials—say that remote work is an “important” factor in evaluating a job (more than any other generation).3 This group is also the largest segment of the workforce at 35%.
Millennials’ formative years saw 9/11 and Columbine, tragic events that sent the message that spending your time at work or school is a risk; this generation doesn’t want to spend time at these places unless there is an inherent value to them. And that is why they aren’t afraid to leave a job if it doesn’t serve them. Therefore, it’s essential that leadership ensure that millennials feel that their time at work is worthwhile.
Moreover, Millennials—the Trophy Generation—grew up in the age where every sports team got a participation trophy and every kiddo competing in a gymnastics, karate, or dance competition got a medal just for showing up. As adults, this has manifested in a need to feel included and appreciated.
Therefore, leaders are facing what feels like a double bind—how do you manage a generation that wants to work remotely yet simultaneously feel included and connected—and if they don’t get this value, they will leave?
This problem is particularly acute for leaders at law firms—where a recent study shared that by the end of 2021 all law firms were close to losing almost a quarter of their associates.4 It’s time for leaders at all legal organizations to learn how to communicate with and manage the mostly-Millennial junior workforce. Understanding motivation for the talent you are overseeing in your workforce is not just good business—it’s a necessity.
Think broadly about communication.
It’s important to continue to think of how else to communicate outside of phone, video, and email.
Millennials are the “text” generation. Instead of using the phone or email, consider what other methods of communication might work for your team. Although email is an electronic form of communication, it doesn’t foster the same connection as texting does because of the gap in time between responses—with immediacy comes bonding. You are more likely to share when you have less time to calculate your response. On the other hand, Teams chat, Skype chat, Slack, and other organizationally-approved internal “chat” functions can provide the back-and-forth volley that creates a natural connection (without the need to speak on the phone).
Furthermore, consider using chat even when you and others are in the office. It may feel counter-intuitive not to just walk down the hall, but creating a one-size-fits-all forum for everyone in
2 For more information on each generation see here: Generational Differences in the Workplace [Infographic] (purdueglobal.edu)
3 Millennials drive remote work push (axios.com)
4 Law firms came ‘dangerously close’ to losing almost a quarter of their associates in 2021, new report says (abajournal.com)
your group is essential. Using one modality for those who are in the office and another for those working virtually is likely to further fracture your team. Creating spaces for the whole group to share is essential to fostering a team, as discussed further below.
Make sure each employee feels like they are part of the team.
You don’t need to hand out trophies, but you do need to make sure that each and every attorney feels like they are part of the team. What does this look like? It means taking the time to share what the common goal is: what their research will be used for, why they are making a binder, or giving context about the type of work that the client does when they are copying and pasting bylaws or looking for typos in an agreement. It also means inviting the attorney to sit in on phone calls, observe arguments, and attend client pitches, even if they can’t bill for their time.
Another way to solidify the team dynamic, despite differing locations, is to encourage those working physically in the office to bring laptops into a conference room meeting. This allows virtual workers to see each person in the meeting up close instead of blurry faces around a large conference table, unable to attribute comments to one person or another, and ultimately, feeling disengaged.
Ultimately, this is about creating a team culture. Why do sports and dance teams feel so bonded? They help out each other during the stressful times, they feel the sense of victory together, and they rely on each other. These things can still happen even if you are not sitting in the same room. If you are working on a TRO or closing through the night, are you checking in with the other attorneys like you might if they were down the hall? Keep an open line of chat communication and don’t underestimate the value of sharing: “Arghhh, I’m so tired!” or asking: “How’s it going?”
Ensure everyone feels that they are valued.
As mentioned above, Millennials demand that their job is worth their time and it’s essential to make sure they feel valued. Spend time with someone one-on-one without a specific work-related agenda item driving the meeting. Creating and nurturing mentor relationships show that you are investing your time in someone because you see them as a worthwhile investment.
Another strategy is to ensure that you allocate opportunities fairly. If the same people are getting exciting assignments, attending interesting meetings, and assigned to well-respected committees, it sends messages to other employees that they are not as valued. Review the allocation process for each of these assignments and if there is not a procedure in place, create a fair and equitable one and make sure that the process is shared with employees so that they know how these decisions are made.
Finally, thank your employees. Yep—a good old “thank you” goes a long way. An even better thank you is one that is specific and genuine.
5
Provide ongoing and consistent feedback.
One of the defining characteristics of Millennials is their need for constant feedback. It is not sufficient to provide this during annual reviews— it must be immediate. It’s important to provide feedback about performance on each piece of a project—rather than waiting until the end of a project to give your thoughts about performance. Feedback about the quality of the research, the draft language in the motion, and other individual components of the process is more valuable than waiting a month to share your thoughts after the motion is finally filed. Moreover, this will also be more valuable for a supervisor—giving contemporaneous feedback is more likely to result in specifics that will elicit change and better work product down the road. Trying to recall the shortcomings in research two months later is unlikely to provide any real high-quality feedback.
As a corollary, it’s important that the attorney recognizes this as feedback. What a manager or supervisor may think is feedback, for example, saying “Thanks, that was just what I needed,” may not be what the attorney on the other end is seeking in terms of feedback. (That language may be helpful to make a junior attorney feel valued, but not to provide feedback.) Be clear about what is feedback and when you are providing it. “Attached is feedback— I put it in a redline of the document so you can see how I changed this.” Or, “let’s carve out the first five minutes of our call about the new research for the motion in limine so I can give you feedback about your work on the last project.”
Supervisors may find themselves wanting to push back against these suggestions, feeling as though it’s unnecessarily catering to a segment of the population and questioning whether any individual employee is “worth it.” But if you overlook how experiences fundamentally mold a generation and their needs, you will be losing out. In particular, organizations will find themselves constantly seeking to replenish their talent ranks—and at great cost. Rehiring a single attorney can cost up to four times their salary in lost revenue and out of pocket costs (for a starting salary of $120K, that’s easily $480K or more).5 And the person you rehire? Let’s not forget that they are likely to be a Millennial.
Rather than push back, it’s time to embrace these changes. Generational diversity is a type of cognitive diversity—naturally involving different types of thinking (experimental, creative, analytical, logical, etc.). Take this for what it actually is: an opportunity to strengthen your team and your legal services organization.
Meredith J. Kahan, Esq. is the Chief Legal Talent Officer at Whiteford Taylor
&
Preston LLP
where she oversees the firm’s attorney recruiting, development, and diversity efforts. She has more than 20 years of experience in the legal field and speaks and writes frequently on these and other topics.
June 7 - 9, 2023
Ocean City, MD
Career Highlights
Breaking into Law
Stories from lawyers who entered the legal field after other promising careers.
What I’ve Learned
Leaders in the profession sharing their successes and advice with the next generation of attorneys.
Career Transitions
Attorneys sharing their experience of moving between legal sectors or advancing into leadership positions.
Off the Beaten Path Professionals finding non-traditional ways to put their law degrees to work.
Perneita
Farrar JUDICIAL LAW CLERK, DISTRICT COURT FOR BALTIMORE CITY
“
Lawyering for me is not just about what I can accomplish in my personal career, but about leaving a legacy roadmap for the next generation of advocates who want to improve the legal system.
Photo Courtesy of Travis Marshall Photography
EMBARKING ON A LIMITLESS CAREER
PERNEITA FARRAR ENTERED THE LEGAL PROFESSION to fulfill her personal goal of learning how the law works. As a non-traditional law student (female, Black, disabled, over age 40), Farrar explains that her goal for law school “was two-fold: to advocate and to educate.”
Prior to law school, Farrar spent 15 years working as a health educator/ advocate and as a faculty instructor in higher education; her experience includes teaching adult education courses to adult inmates at a correctional facility. Farrar describes her experience as an educator as humbling, and says that it helped her gain a newfound appreciation for educational opportunities and contextualize the correlation between poverty, education, and access to justice. When asked if she identifies as an educator with a law degree or a lawyer with an education degree, Farrar proudly claims both titles. “Lawyering for me is not just about what I can accomplish in my personal career, but about leaving a legacy roadmap for the next generation of advocates who want to improve the legal system.”
Most would agree that navigating the legal profession is hard enough as a traditional student, but for non-traditional students, law school, and the legal profession as a whole, can seem daunting and impenetrable. “Early in my law school journey, I was told by a mentor that I should set ‘realistic’ goals for my career that did not include ‘big law’ as it was likely not attainable for ‘someone like me’. That stuck with me [and so I] set out a single-lane path to government work because it was safe.” Nonetheless, as her final semester at the University of Baltimore School of Law approached, Farrar decided to meet with Assistant Dean Alyssa Fieo. “Dean Fieo told me to trust that the merits of my hard work were what mattered and encouraged me to apply for a nationally recruited fellowship, a highly competitive internship at the Department of Justice, and a law clerk position.” As fate would and hard work would have it, Farrar was selected for all three positions, and to this day she is thankful for Dean Fieo's advice.
Since then, Farrar has curated an impressive career for herself. She’s worked on Civil Rights issues at the Department of Justice, analyzed employment discrimination issues at the Department of Navy, worked at a family law firm and the Public Defender’s Office, and has completed a health law fellowship on public policy issues for seniors. More recently, Farrar has been completing a judicial clerkship in Baltimore City. “As a law clerk I, along with two fellow law clerks, support all 28 district court judges in Baltimore City [and] . . . on a daily basis, I research legal questions . . . write memos that a judge may use when considering his/ her decision for a civil or criminal matter, I track the outcomes of high impact Supreme Court of Maryland appellate decisions, then draft a case brief that is distributed to each of the judges. . . [and] . . . I regularly observe court proceedings where I get to learn about courtroom and trial procedures as well as witness different lawyering styles and skills.”
When asked about advice she would like to share with young professionals and law students, Farrar raised the importance of networking, saying
“Grades are only good for law school, but the secret sauce of your career exists in networking. Do it early. Do it often. Do it afraid!”
How would you describe your career in three words?
Humbling, Exciting, Limitless
What are your goals for yourself in this role?
My goals as a law clerk are to improve my legal research and writing skills; become a skilled litigator (by observing hearings), learn the practical skills of advocacy by observing hearings and discussing judicial decisions/outcomes with the judges, and to create a network of mentors that will support me in the next phase of my career.
What are some of the challenges you face in your current role?
Working for all 28 judges of the district court of Baltimore City poses unique challenges. First, my courthouse assignment rotates weekly (between the four courthouses of the district court of Baltimore City), so I have no “home” office location. Second, each of the 28 judges have unique personalities, work styles and expectations for their law clerk. That can pose a challenge to make sure that my work product meets each of their expectations.
How has MSBA helped you in your legal career?
During my 2L year (2020) at University of Baltimore, I was selected as the MSBA Student Ambassador. In that role, I did outreach activities and helped to coordinate student events for both Maryland law schools. Despite the pandemic, I learned the art of networking through my experiences with MSBA and attended many of the MSBA Young Lawyers events and joined the Trusts & Estates and Business Sections, where I was introduced to practicing lawyers, some of whom became mentors, post-graduation. Also, The monthly workshop series offered the practical knowledge to jump start my future career as a litigator and estate planner.
Do you volunteer? If so, where?
Over the past two years, I have volunteered my time to support legal aid programs for low-income members of the community. These programs offered free legal services, such as expungements, family law issues, and estate planning for seniors. Additionally, I have given many workshops to family & friends, and local and church organizations about the importance of estate planning and generational wealth building. I hope to normalize these topics for families and households in the minority community.
Name three words that describe you.
Resourceful, Perseverant, Creative
Judge Charles E. Moylan, Jr.
SENIOR JUDGE, APPELLATE COURT OF MARYLAND
On advice for young scholars looking to journey into the legal profession, Judge Moylan said that committee work often serves as an important opportunity for young lawyers to gain exposure to lawyers and judges and other legal professionals from different areas of practice.
Photo Courtesy of Travis Marshall Photography
Watch the MSBA's 50th Jubilee held for Judge Moylan HERE.
WEB EXTRA
WRITING OPINIONS, BUILDING CATHEDRALS
JUDGE CHARLES E. MOYLAN, JR.’S LEGAL WRITINGS have been a hallmark in the Maryland legal community for generations of attorneys, and it’s been said that most members of the bar can recall at least one Judge Moylan case by name.
By using literary and creative prose to navigate complex legal facts and issues, Judge Moylan, who is currently in his 23rd year as a senior judge for the Appellate Court Maryland, provides color (and in some cases plain fun) to highly complex legal issues and facts. Take for example, the fan favorite case of Hricko v. State, 134 Md. App. 218 (2000), in which Judge Moylan invoked Shakespeare to lay out the facts of the case, which involved a “murder most foul, but this, most foul, strange, and unnatural”— (HAMLET act 1, sc. 5). The case was a “melodrama of an estranged wife, desperate to free herself from a marriage gone stale, leaving a trail of false clues and staging her husband’s death . . . . In the real-life drama, the husband died of poison within an hour of returning with his wife to their cottage.” In the court’s decision, Judge Moylan wrote that the “play within a play was called ‘The Bride Who Cried,’” while the “real-life drama may well be called ‘The Widow Who Lied.’”
On the art of opinion writing, Judge Moylan noted that learning and continuing to practice the skill is one of his proudest professional accomplishments. “Learning opinion writing is not just learning how to write an opinion, but learning, I suppose, why you're writing an opinion, and for what audience to write,” Judge Moylan said.
In describing his approach to opinion writing, Judge Moylan shared one of his favorite parables about a 12th century philosopher who, upon walking through a provincial French town, comes across “two men sitting on the ground, each in front of a big block of stone and each with a chisel in hand, as [the philosopher] approaches the first [man] he says ‘My good man, what are you doing?’ And he receives the expected reply, ‘I'm
chipping stone.’ He goes to the second man and says, ‘My good man, what are you doing?’ And to that he receives the classic reply, ‘I'm building a cathedral.’ And as appellate judges we must ask ourselves, when we're writing an opinion, are we chipping stone? Or are we building a cathedral? And I'd like to think that it's more the latter than the former,” Moylan said.
Judge Moylan has not only contributed to the development of Maryland’s criminal jurisprudence from the bench, but also as a mentor, teacher/ lecturer, and bar member. Recently he stepped down from the Criminal Law & Practice Section and the Criminal Pattern Jury Instructions (CPJI) Criminal Subcommittee. Judge Kathryn Grill Graeff of the Appellate Court of Maryland and chair of the Criminal Subcommittee, has known and worked with Judge Moylan for many years, including as an advocate appearing before him, as a colleague on the bench, and as members of the subcommittee.
“I have continued to be impressed with his depth of knowledge of the law and his ability to get to the crux of a legal issue. Judge Moylan’s wealth of knowledge was a big benefit to the Maryland Criminal Pattern Jury Instructions Committee, where he often provided a historical perspective of the evolution of the law in a certain area. We will miss having his insight and collegiality as we continue with our work to update the criminal pattern jury instructions.”
Recalling back to the earliest days of the CPJI committee, Judge Moylan fondly remembered one of the committee’s first meetings which took place almost 40 years ago. “The reason I can remember that it was a Tuesday on the Eastern Shore so well, is because it was also on a Tuesday in the spring of that year, when the Johns Hopkins lacrosse team played the Washington College lacrosse team down in Chestertown. In those days, I always went to the games along with my son, Danny. [Danny] was, at that time, in high school and he and I went down and enjoyed the game. Hopkins always won in those days, but I was very apologetic afterwards, because I knew that I had this meeting that I had to go to
before we could head across the bridge back to Baltimore.” Years later Danny would credit that meeting as one of the things that made him think about wanting to be a lawyer. “That [meeting] was at least 40 years ago and . . . [today] that young high schooler, who sat there patiently, and was a fly on the wall that night, is now a managing partner of the Venable law firm.”
On advice for young scholars looking to journey into the legal profession, Judge Moylan said that committee work often serves as an important opportunity for young lawyers to gain exposure to lawyers and judges and other legal professionals from different areas of practice. “I've always said that a legal committee meeting at a place like Kings Contrivance or Chiapparelli's in downtown Baltimore, are actually very important steps up the professional ladder,” said Moylan. When asked to share a little known fact about himself, Moylan shared a story from one of his only two jobs before being appointed to the bench. “In my time, by the time a young man would graduate from law school, his various exemptions for military service ran out, and so [the military] was my first job. I was very lucky because my two years in the army were spent in something called the Counter Intelligence Corps. It doesn't even exist by that name anymore, but [that job] took me, for a year and a half, to Stuttgart, Germany. The reason we were in Stuttgart is because in 1945, the American army, as it was invading Germany, had been able to capture . . . the entire Gestapo informational file that the Gestapo had put together . . . and our job was to investigate and write reports on every German who was thinking about permanently or temporarily coming to the United States. . . . Immediately after that, my second and only other job before going on the bench was in the State's Attorney's Office for Baltimore City . . . put together, those two years, burrowing through the Gestapo files and 12 years in the State's Attorney's Office, I suppose, inevitably, led to the characteristic that a number of defense attorneys may have gained [in having me] on the bench and that is someone with a discernible tilt toward the state.”
Judge Amy D. Lorenzini
ASSOCIATE JUDGE, ST. MARY'S COUNTY CIRCUIT COURT, 7 TH JUDICIAL CIRCUIT
“
At times, justice delayed can mean justice denied. If you are not prepared and a case cannot move forward, rights can be seriously impaired.
Photo Courtesy Of Travis Marshall Photography
CALLED TO THE BENCH
JUDGE AMY LORENZINI DESCRIBES THE PHONE CALL from then-Governor Larry Hogan, appointing her as a judge, as one of the fondest moments of a varied career. Prior to her appointment to the bench, Judge Lorenzini spent 17 years at Cumberland & Erly, LLC in Calvert County, practicing in the areas of civil and criminal circuit court litigation and serving as managing partner for eight years.
Throughout this career, “I have been extremely fortunate to have been surrounded by very supportive mentors throughout my career who have helped me overcome most challenges,” she notes. Most recently, these challenges have included those brought on by the COVID pandemic. As managing partner of a law firm at the time, she was proud that Cumberland & Erly was able to maintain continuous service to its clients over the pandemic, incorporating cloud-based software programs that allowed staff to continue working seamlessly from remote locations and equipping the team with the tools to continue participating in court proceedings. “At a time when many were concerned about the constantly changing health and financial landscape, we were able to provide our clients with a high level of service and uninterrupted access to the justice system to the fullest extent possible,” she says.
Judge Lorenzini continues to heed the advice she was given: To always be prepared. “This was advice that I incorporated as an attorney and now as a judge. At times, justice delayed can mean justice denied. If you are not prepared and a case cannot move forward, rights can be seriously impaired.”
On the bench, Judge Lorenzini enjoys the diversity of the cases and the opportunity to constantly learn from the individuals who appear before the court. To date, she’s presided over jury and court trials, motions hearings, criminal matters, guardianships, and adoptions. Above all else Judge Lorenzini says that she “look[s] forward to continuing to serve the people of St. Mary’s County” and hopes to remain involved in the legal and local community while being the best judge that she can be.
As an attorney, one of Judge Lorenzini’s biggest passions in the law includes remaining involved in the community and the legal field. She’s done so by participating and
volunteering in, among other things, the Local and State Standing Committees on Pro Bono Legal Service, the Maryland Supreme Court Character Committee, the Juvenile Drug Court, Christmas in April, Friends of Jefferson Patterson Park, [and] the Calvert Marine Museum.
Judge Lorenzini has been an active member of the MSBA since 2002, including two terms on the Board of Governors in 2016 and again in 2020. She was a member of the Executive Committee from 2020 through 2022 and has been a past member of the Judicial Appointments Committee and Membership Committee.
“The MSBA has helped in countless ways, primarily through the networking opportunities which the organization provides. It has given me the opportunity to meet numerous legal professionals throughout the state.” Judge Lorenzini used her MSBA connections in private practice, referring clients to top-notch attorneys who practice in areas in which I did not practice. She continues to benefit from her membership as a Judge, finding that MSBA “has allowed me to stay on top of legal trends and changes in the laws.”
What’s your favorite hobby?
I enjoy fossil hunting / looking for shark’s teeth along the shores of the Chesapeake Bay and its tributaries.
What’s an interesting fact about you that no one would guess?
I won the Maryland’s Most Beautiful Person Award when I was 12 years old. Contrary to the name, it is not a contest based on appearance. Rather, it is an award for volunteer work in the community. In elementary school, I had organized a program where I saved excess food from the cafeteria and students and helped feed families who would not otherwise have food.
Practicing law and managing a business require different sets of skills, and it is difficult, if not impossible, to focus on legal work if you lack business acumen.
Photo Courtesy of Travis Marshall Photography
ON THE AIR, IN YOUR CORNER
RYAN WILSON HAS BEEN SHARING his legal knowledge with clients for almost 25 years. Since 2020, he has also been offering his insights on policy and elder and estate planning law to a broader audience, as the host of his own radio show, Lawyer in Your Corner.
Throughout his career, Wilson has focused on helping people find practical solutions to their problems. Driven by a longstanding interest in the law and public policy, Wilson earned his law degree from the University of Oregon after obtaining his bachelor’s degree in political science and a master’s degree in public administration from San Francisco State University. Wilson initially concentrated on policy, first as a senior policy analyst and then as legislative counsel with the Maryland General Assembly Department of Legislative Services. Wilson transitioned to a senior strategic policy advisor role at AARP, addressing retirement savings issues.
Wilson opened his own practice, the Law Office of T. Ryan Wilson, in 2016. He found advice from other attorneys about running a law firm to be invaluable, noting that practicing law and managing a business require different sets of skills, and it is difficult, if not impossible, to focus on legal work if you lack business acumen. At his firm, he handles a variety of different matters. He focuses on elder law and estate planning, but also handles business law, non-profit law, and probate and estate administration matters.
The idea for a radio show began when Wilson had lunch with another attorney who had a radio show and talked about how it was both fun and rewarding. Coincidentally, a short time later he received a call from someone asking if he would be interested in hosting his own show. He thought, “sure, what the heck,” and began his show at the beginning of the pandemic.
Wilson pre-records his shows on Wednesday afternoons and devotes a large portion of the day prior to the show to preparing and drafting an outline. He covers numerous topics during his program that he thinks would be useful
to his client demographic, such as how to choose the fiduciaries for an estate plan and factors to consider when designating a guardian for your child in your will. He also discusses recent changes in the law, what is happening in the Maryland courts, and the recent deaths of notable figures. Occasionally, he invites colleagues that work in different practice areas to talk about topics that may impact potential clients. Lawyer in Your Corner airs on Sundays at 9:00 pm on WMAL 105.9 FM.
In his law practice, Wilson likes that his work in multiple areas allows him to deal with a variety of issues and that even if his clients are seeking similar outcomes, they start from different positions. He had found, though, that “there’s nobody happier than someone who just finished their estate planning documents.” While each case presents a new challenge, he enjoys helping his clients address problems they can’t fix themselves and providing them peace of mind that they have taken the steps necessary to protect their interests.
Wilson has been a member of the MSBA since 1999 and has served on various committees. As a member of the Section Council of the Elder Law and Disability Rights Services Section, Wilson works to protect the interests of vulnerable members of the population. He is a member of the National Academy of Elder Law Attorneys and serves as Secretary of the Maryland-DC Chapter. One of the issues NAELA has been working on for the past two decades is trying to modify the Medicaid waiver program so that a greater number of people can obtain home health care.
When he is not working or hosting his radio show, Wilson serves on the board of the Montgomery County Commission on Aging and co-chairs the Public Policy Committee, and is Chair of the Board of Trustees of Arts for the Aging (AFTA), a nonprofit organization that provides arts-based educational interventions for older people primarily in Montgomery and Prince George's Counties. He also enjoys listening to music and has an extensive music collection that includes jazz, classical, rock, punk, R&B, New Wave, and bluegrass recordings.
WHAT IN-HOUSE COUNSEL SHOULD KNOW ABOUT Maximizing the Value of Captive Insurance
BY PAMELA LANGHAM, ESQ.
IF YOUR CLIENT cannot find an insurance company to insure it against particular business risks, you may want to explore captive insurance. A captive insurance company is a wholly owned subsidiary insurer formed to provide risk mitigation services for its parent company or related entities. Deiter T. Ludwig, Vice President of Marsh Captive Solutions, Marsh Management Services, Inc., and Ryan M. Mihalic, Esquire, Director and Assistant General Counsel of CareFirst Blue Cross Blue Shield, discussed captive insurance in Maximizing the Value of Captive Insurance, a program presented during the MSBA's Legal Excellence Week.
Why form a captive insurance company?
Many captive insurance structures offer better (or more affordable) coverage for the parent company’s specific risks. Usually, the insurance provided is more affordable, and there may be tax savings as well as control of administrative costs. Of course, if your client simply cannot find an insurer to protect it against its business risks, then captive insurance is something you should explore and recommend to the decision-makers. A captive insurance company can also fill holes in existing policies or provide coverage not otherwise available in the external market. Risks like cyber-security continue to grow and increase premiums, which highlights the need for robust coverage. Your client may leverage the captive to provide additional lines of coverage for new and existing customers.
Captives can be domiciled and licensed in a wide number of jurisdictions, both in the U.S. and offshore. The captive's primary jurisdiction is known as its “domicile.” Currently, Vermont, Utah, Delaware, North Carolina, and Hawaii round out the top five highest number of captives by U.S. domicile. However, key factors to consider before selecting a domicile include regulations, infrastructure to support the captive (experts who understand captive industry), permitted businesses,, and convenience (requirements to hold board meetings in the state of domicile).
Key steps in the process to determine if captive insurance is feasible for your client Conducting a basic company diagnostic and potential opportunities is a good first step. Analyze the operational and financial advantages with key employees, including the chief financial officer and tax experts. As part of the feasibility study, consider mitigation in gaps in your
available coverages, increased coverage for cyber security risk, and access to global reinsurance markets and federal programs providing coverage for cyber and terrorism. Outline a captive structure and select potential domiciles for the company. Determine whether your client is a good candidate for captive insurance with the decision-makers and experts.
Types of Captives
There are many different types of captive insurance companies. A single-parent captive is wholly owned and controlled by one company. A protected cell captive is formed by a third-party sponsor who “rents'' cells to outside companies. The liabilities and assets of each cell are separate from other cells. A cell may be incorporated for federal tax purposes. This is a low-cost alternative to a wholly owned captive. A risk retention group is permitted per federal legislation known as the “The Risk Retention Act.” The group may only write liability lines of coverage on a direct basis to its participants. The group may also operate in all fifty states but only licensed in its state of domicile. A group captive is owned and controlled by multiple companies to insure or reinsure the risk of the group. Typically, each participant has an individual layer of participants’ risks. This can be less costly than retail insurance. The group benefits from good loss performance, and there is also peer accountability for loss control. This list is not exhaustive, and consideration should be given to more sophisticated or innovative ways to take advantage of captives. The variety of captives provides options for each company’s needs and strategic plans and supports a company’s ability to finance its risk in a way that is conducive to its unique dynamics and structure.
Summary
A captive insurance company is a wholly owned subsidiary insurer that provides risk mitigation services for its parent company or related entities. The potential benefits of having a captive insurance company include lower insurance costs, tax advantages, underwriting profits, and greater control over coverage. Captive insurance companies can be helpful when the commercial insurance market is unable or unwilling to provide coverage for certain risks. Pros and Cons include overhead expenses, compliance issues, and the potential to be underinsured. Most Fortune 500 companies today have captive insurance companies and this type of insurance should be considered if your client is looking to insure a wide range of risks.
Access to Counsel in Evictions Task Force
RELEASES REPORT WITH CLEAR MESSAGE: FULLY FUND THE LAW
THE MARYLAND ACCESS TO JUSTICE COMMISSION (A2JC) has been deeply involved in the collective work of advocating for the passage and funding of the transformational statewide access to counsel in evictions law. This law has the potential to help the hundreds of thousands of Marylanders who navigate the complex legal eviction maze on their own. Similar laws in other jurisdictions have proved to significantly reduce eviction and the harm from the attendant collateral consequences that may stem from the loss of a home.
As implementation of the law begins, A2JC remains deeply involved in monitoring the implementation of the law to ensure that the law succeeds in its primary goal – i.e. to keep Marylanders housed. Tapped by former Attorney General, Brian Frosh, the Executive Director of A2JC, Reena Shah, is serving as the chair of the legislatively mandated Access to Counsel in Evictions Task Force, which delivered its second annual report to the Governor and legislature just before January 1 of this year. Composed of landlords, tenants, community groups, civil legal aid organizations, funders and representatives from the state bar and judiciary, the Task Force’s role is to monitor the status of implementation of the ACE law and make policy, statutory or other reform recommendations to ensure ACE is successfully implemented.
After hearing from all the varied stakeholders involved in the implementation of the law, including the Maryland Legal Services Corporation, civil legal aid organizations, the judiciary and the Department of Housing and Community Development, among others, the Task Force identified threats to successful implementation
In disadvantaged neighborhoods, eviction is to women what incarceration is to men: incarceration locks men up, while evictions lock women out.
–Matthew
Desmond, Pulitzer Prize winning author of Evicted
and made several important recommendations that would help the law deliver on its promise. The key findings and recommendations of the Task Force are summarized below. Many of the recommendations that require statutory changes have been converted to bills that are legislative priorities of the Task Force and A2JC.
HOW DOES THE ACE LAW AFFECT REAL MARYLANDERS? MEET MS. E.
Ms. E contacted Community Legal Services (CLS), just 3 days before her scheduled eviction. She is a single disabled woman who is living with her two teenage children.
Ms. E had been in and out of the hospital for months with several serious medical conditions and she was still not doing well. The sole source of household income for the family was her Social Security Disability Insurance. Due to her illness and multiple hospitalizations, Ms. E missed hearing dates and deadlines. Her housing subsidy had been terminated without her knowledge leaving her responsible for a monthly rent amount that exceeded her monthly income.
Tenants with subsidized housing are required to recertify based on their subsidy. Applications are usually mailed a few months before, but during the pandemic the mail was inconsistent and many Marylanders never received or were notified of their recertification. With all the moratoriums and pandemic news, some tenants never realized they missed their recertification and were incorrectly terminated. Once the tenants correct the recertification, they are still qualified for their subsidy. This ensures continued housing for most of our clients.
The CLS attorney was able to slow down the eviction by filing an emergency motion in the District Court. The CLS attorney also represented Ms. E in the administrative process which resulted in the reinstatement of Ms. E’s housing assistance.
From the time of Ms. E’s first contact with CLS, the case took five months to conclude. It required a comprehensive working knowledge of federal housing and disability law in addition to state law, and dogged determination and persistence by the CLS attorney. And it is not an anomaly.
The cases are difficult and time-consuming but are well worth the effort. Even where a tenancy cannot be preserved, it is critical to preserve the federal subsidy since without financial assistance, families with some of the greatest needs will needlessly experience homelessness.
CLS has represented multiple clients where it is necessary to untangle the court process from the administrative process and restore subsidies or assist clients in challenging incorrect rent determinations.
The cases are difficult and time-consuming but are well worth the effort. Even where a tenancy cannot be preserved, it is critical to preserve the federal subsidy since without financial
“Providing a right access to counsel to tenants in eviction cases is a proven means of preventing the disruptive displacement of families and the resulting social, economic, and public health costs of such displacement.”
assistance, families with some of the greatest needs will needlessly experience homelessness. Find more tenant stories HERE.
ACE TF KEY FINDINGS AND RECOMMENDATIONS:
As pointedly highlighted in the Task Force Report:
“As planning and implementation of the ACE Program gets underway, it is important to reiterate and underscore at the outset the need for an effective ACE Program. As we transition away from pandemic era protections, including the depletion of federal emergency rental assistance by spring 2023, the ACE Program is poised to serve as the strongest bulwark against the expected rise in case filings and evictions.”
The ACE law took effect in October, 2021, without funding. Almost a year later, after advocacy with the legislature and the Governor, advocates achieved funding through FY2024. The Task Force was unequivocal in stating that its top recommendation was permanent and ongoing State funding for the ACE law to ensure continuity and confidence in building and implementing the ACE Program.
Additional recommendations include:
• Creating consistency in the District Court experience across jurisdictions to ensure Marylanders can meaningfully access counsel;
• Raising the pay of ACE staff to attract and retain talent necessary to implement the law;
• Developing a real-time eviction data hub that enables an equity analysis;
• Enforcing the use of form DC-CV-115, the court-mandated 10-day pre-filing notice; and
• Employing a broad-reaching and data-informed outreach strategy to ensure that those Marylanders in need of help can find it and can reach out for help through a centralized number, 211.
KEY REASONS WHY THE ACCESS TO COUNSEL IN EVICTIONS LAW IS NECESSARY
Eviction is a complex legal process for vulnerable Marylanders to navigate on their own.
CASE FILINGS ARE HIGH RELATIVE TO EVICTIONS, BUT BOTH ARE HIGH ON THEIR OWN TERMS. In 2019, there were 21,676 EVICTIONS
approximately 158K dismissals and 234K Warrants of Restitution
HIGH NUMBER OF FILINGS: 674,575 case filings in 2019
compared to about 805,000 renter households
TENANTS REPRESENTED 96% OF LANDLORDS with some type of legal representation
There is a knowledge gap between landlords and tenants about laws and court process as eviction can involve navigating federal, state, local, contract and case law.
DISPROPORTIONATE IMPACT ON WOMEN AND PERSONS AND COMMUNITIES OF COLOR, especially BLACK WOMEN versus
EVICTIONS ARE A PUBLIC HEALTH ISSUE 1%
EVICTIONS ARE COSTLY TO THE STATE when you add up law enforcement, shelter, healthcare, transportation and foster care costs.
2020 Baltimore City study finds: The number of Black female headed household removals is 3.9 TIMES HIGHER (296% MORE)
than the number of WHITE MALE HEADED EVICTIONS
IN CHILDREN: lower school performance and increased behavioral issues
Negatively impacts physical and mental health of those involved
PROVIDING COUNSEL TO THOSE FACING EVICTION IS cost-effective at preventing evictions
New York City: 84% of households represented in court by lawyers were able to remain in their homes
Cleveland: 93% of represented tenants have avoided an eviction or involuntary move
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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.
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How Legal Aid Salaries Impact Access to Justice
BY COLLEEN ARACRI, ESQ.
Maryland’s civil legal aid organizations are the primary resource for ensuring vulnerable populations have equal access to civil justice. Civil legal aid attorneys provide free civil legal services to low-income individuals throughout the state, and regularly handle a variety of civil matters, including housing disputes, domestic violence cases, immigration issues, expungements, public benefits claims, consumer law, bankruptcies, debt collection matters, and child custody cases. The services civil legal aid attorneys provide are life-changing; without their assistance many people would face homelessness, lose custody of their children, have to endure domestic violence, face deportation, and be unable to obtain jobs or housing due to criminal records.
Despite the fact that the services that civil legal aid attorneys benefit all Marylanders, they are consistently underpaid. Most of the funding for civil legal aid organizations comes from a hodgepodge of local, state, and federal government grants; law firm and individual donations; foundations; and other funding sources like Interest on Lawyer Trust Accounts. While such financial support is essential for such organizations to continue to operate, it does not allow them to compensate their attorneys in a manner that reflects the value of the services they provide.
How Legal Aid Attorneys Salaries Measure Up to Salaries Earned in Other Organizations
Per the NALP/PSJD 2022 Public Service Attorney Salary Survey Report, attorneys that provide civil legal services have the lowest median entry-level salary among attorneys working in public interest organizations, including public defenders. The 2022 NALP Report also demonstrates that civil legal aid attorneys receive the smallest salary increases based on their years of experience. These findings are consistent with similar surveys that have been conducted periodically since 2004.
The 2022 NALP Report shows that the median salary for an entry-level legal aid attorney is $57,000; for an attorney with 11-15 years of experience, the median salary is 78,500. In contrast, the median salaries for public defenders and attorneys working for public interest organizations, respectively, are $59,700 and $63,200 at entry level, and $100,500 and $95,000 with 11-15 years of experience.
The disparity between the salaries of legal aid attorneys and attorneys in private practice is—unsurprisingly—staggering.
The NALP’s 2021 Associate Salary Survey demonstrates that, in 2021, the salary for a first year attorney at a firm with 50 or fewer attorneys is 48% higher than the median salary for an entry-level legal aid attorney, while entry level attorneys at larger firms earned two to three times more than civil legal aid attorneys with the same experience.
Legal Aid Salaries Versus the Cost of Legal Education Legal aid salaries have grown at a modest rate over the past few decades while the cost of legal education has skyrocketed, and continues to increase at a rate of approximately $1,000 per year. As of November 2022, the average tuition for law school is $45,990 per year, for a total of $137,970, while the living expenses, on average, are $22,740 per year, or $86,210, making the average total cost of law school $206,180.1 Most law students lack the financial resources to cover the cost of their tuition and living expenses, and per the American Bar Association, 90% opt to take out federal or private student laws.2 Consequently, many law school graduates begin their careers saddled with substantial debt, which makes private sector jobs that offer significant salaries all the more attractive that public aid positions. am
The Federal Public Service Loan Forgiveness (PSLF) program can help alleviate the financial burden many attorneys carry, which in turn helps legal aid organizations attract and keep skilled attorneys. The PSLF program forgives the remaining balance on a person’s direct federal loans, if they make 120 qualifying monthly payments under a qualifying repayment plan while working full-time for a qualifying employer.
The PSLF program is essential to promoting access to justice, but the process of obtaining forgiveness is complicated, and members of Congress consistently call for the PSLF program to be eliminated or modified to reduce the amount that may be forgiven. A 2015 survey conducted by the National Legal Aid & Defender Association (NLADA) showed that modifications would most likely cause a significant decrease in the number of attorneys who can afford to work for civil legal aid organizations.3 Specifically, half of the attorneys surveyed indicated that they would not have accepted their current position or would leave for a position with a higher salary if PSLF was capped at $57,000, while 70% of those surveyed explained that PSLF was one of the reasons that they took or stayed in their current public interest position. Id.
Altering or ending the PSLF program would greatly diminish the availability of legal services for low-income individuals in the United States. The NLADA survey indicates that without the PSLF program, many dedicated legal aid attorneys would be compelled to seek other positions because of the financial burdens of their legal education, which would subsequently cause a reduction in the quality and availability of competent legal representation for people with limited means, further increasing the justice gap.
Low salaries can make it difficult for anyone who is not financially privileged to work in legal aid.
Recruiting and Retaining Talented Legal Aid Attorneys
As Marylanders face ongoing economic and societal challenges, the need for civil legal aid attorneys continues to escalate. While the legislature has made important strides in ensuring that all Marylanders have access to justice, like creating the Access to Counsel in Evictions Program, without adequate staffing the program cannot be successfully implemented.
Regardless of the increased demand for civil legal aid attorneys, the resources available to compensate such attorneys remain limited, making it challenging for Maryland civil legal aid organizations to hire qualified attorneys. To address this issue, the entities that fund civil legal aid organizations must work to reduce the salary gap between attorneys working for civil legal aid and other public interest organizations.4 Achieving this objective will require an increase in unrestricted funding and recognition that legal aid organizations cannot meet their salary goals without full funding. Id.
Similarly, it is important to acknowledge that the playing field is not equal for all employees, as low salaries can make it difficult for anyone who is not financially privileged to work in legal aid. As such, civil legal aid organizations must work to fund entrylevel attorney positions that offer a salary that allows for a reasonable standard of living, which includes the ability to plan for retirement and pay off student loans. Id.
It is clear that higher salaries will help civil legal aid organizations recruit and retain talent. If such organizations’ recruitment and retention efforts fail, then they cannot successfully build up programs like Access to Counsel in Evictions and in the end, Maryland’s most vulnerable citizens will suffer. To that end, the Maryland Access to Justice Commission intends to support a bill during the 2023 legislative session to encourage increasing funding for civil legal aid.
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Attorneys have a duty of professionalism and a duty of ethics, and no matter what challenges you face those duties apply. So taking what you do seriously and applying the rules religiously is a very important thing.
Jeff Waldstreicher
An Accidental Legislator
THROUGHOUT HIS TIME in the Maryland Legislature, Senator Jeff Waldstreicher has championed causes like investing in Maryland’s schools, cracking down on gun violence, protecting the environment, and fighting for equal access to justice for all.
Waldstreicher, who served Marylanders as an attorney before seeking elected office, describes himself as an “accidental legislator,” noting that in college he thought he would eventually serve as chief counsel to an elected official. But when a vacancy presented itself, an environmental group from a pro bono job he was working on at the time encouraged him to run for the vacant seat in his district. “At the time, I neither knew what a legislative district was, nor what legislative district I lived in . . . but they encouraged me to put my name forward so I did,” he said. “I lost badly, but I also got a taste of the fun you could have and the people you could meet running for office. So when the next vacancy came up, I ran again, and was successful.” That election, for state delegate, took place in 2007, and Waldstreicher would go on to be elected three more times in that role until 2019, when he won election to the Maryland Senate. Waldstreicher currently represents Maryland’s 18th legislative district.
In addition to his work as a legislator, Waldstreicher serves in a number of civil rights organizations including the Maryland Access to Justice Commission. Waldstreicher’s interest in access to justice comes down to the civil justice system being “too challenging a system to navigate” for everyday people who oftentimes need a lawyer but can’t afford one. Pointing to Maryland’s Access to Counsel in Eviction Proceedings law as an example, Waldstreicher explained that a piece by piece approach was one of the best ways to continue expanding access to justice for Marylanders. He also noted that “consumer protection is top of mind when it comes to [expanding] access to justice.” But, distilling these types of expansive ideas into bill text and legislative action is no easy task, according to Waldstreicher, “[legislators often] have these great ideas and we have to translate those ideas into bill text and then into action and that's where my skill set [as an attorney] comes in . . [and] I've learned over time, that every bill requires time and attention, and a real kind of lawyerly research and advocacy.”
Waldstreicher currently serves as the Vice Chair of the Senate Judicial Proceedings Committee, which is assigned legislation relating to such issues as constitutional amendments; criminal and civil laws, family law; juvenile justice; public safety; and landlord and tenant laws. Waldstreicher’s legislative priorities for the 2022 session include a bill “that limits where someone can wear and carry weapons in our state, . . . navigating the constitutional challenges of that will be difficult, but I'm looking forward to working with my colleagues and moving ahead to crack down on gun violence in our state.” Additional priorities include working toward raising the age to purchase certain guns from 18 to 21, and holding the gun manufacturing industry accountable for their dangerous products. He also expects to spend time “focusing on an extradition law to make sure that women who come to Maryland, to exercise their right to choose, cannot be extradited to their home state for criminal charges.”
You've been in the legislature for 17 years. What are some of your proudest achievements so far?
After Sandy Hook and a number of school shootings and mass shootings, we passed the Firearm Safety Act, which is the most comprehensive gun safety law in the entire nation. More recently, Maryland passed the Blueprint for Maryland’s Future and, as a father of three, moving Maryland to the forefront of education policy is one of most important things we can do. I want my children or grandchildren to find the world to be a better place than when they were born, so that includes mitigating climate change. To address that, we've passed a bill called the Climate Solutions Act, which will move us to a carbon free future by 2050. Also, a number of years ago, I created something called the Birth Match program which matches certain records to birth certificates so that if someone who has had a child removed from their home has another child, social services can go in and provide services and resources so that the next child will not be removed and the issues that arose the first time, whether it's mental health or drug abuse or any other issue, are not repeated. And while that’s
not exactly a sexy issue, that program has been an enormous success here in Maryland.
Who are your mentors and has there been a piece of advice that has stuck with you?
Senator Susan Lee, who recently left the Judicial Proceedings Committee and took a position in the Moore Administration as Secretary of State, deserves an incredible shout out. She's an attorney and a wonderful mentor of mine. She will be a wonderful Secretary of State and she has always done an incredible job of giving me advice. I’d also like to shout out Samuel Rosenberg who is also a member of the Access to Justice Commission and a Delegate from Baltimore City. I am relatively new as a Vice Chair, and when I joined the legislature 17 years ago, my first Vice Chair was Delegate Rosenberg. Oftentimes when I come to a fork in the road, as the Vice Chair, I think about what he would have done, and so Sammy Rosenberg has been an incredible mentor for me. Chairman Will Smith and Senate President William Ferguson never cease to amaze me with their calm and peaceful leadership style, and I try to replicate that in my dealings with constituents and advocates. They always approach each problem with a radical accessibility, and radical transparency, and I try to implement the same vision that they have in their offices.
Who do you lean on to help manage the day to day work that comes with your role as a Senator and Chair of the judicial proceeding committee.
Sometimes my office reaches out directly to subject matter experts and sometimes I lean on our department of legislative service library which has an incredible collection of librarians who are so talented and able to access information very quickly. The judicial proceeding committee also has three nonpartisan lawyers, and each bill is assigned to one of those attorneys and they can provide subject matter expertise as well. In addition, I have three staff members and they deserve so much credit. Duwayne Rager is my Chief of Staff and he does so much work on my behalf both on the policy front and for constituents. Ardy Kamali is our number two. He is a constituent and he does great work helping other constituents with those same issues and is playing an increasing role in managing legislation. This year we also brought in Kara Dudley, who has a background in sensible gun policy. Her presence really provides some expertise in the advocacy community that it’ll take to pass gun violence prevention bills.
What advice do you have for young folks entering the legal profession?
Attorneys have a duty of professionalism and a duty of ethics, and no matter what challenges you face those duties apply. So taking what you do seriously and applying the rules religiously is a very important thing. I think we’ve seen people betray the rule of law at the highest level [and] I think we've seen an increasing casualness in the post pandemic world in terms of how people are approaching the profession and so I think there's a certain seriousness that needs to return to what we do on a day to day basis.
Jessica Quincosa
Executive Director, Community Legal Services of Prince
George's County
JESSICA QUINCOSA HAS SERVED as the Executive Director for Community Legal Services (CLS) for more than five years. Since joining CLS, she has overseen the expansion of programs including Tenant Representation Programs in Prince George's and Anne Arundel County, a Domestic Violence Wellness Program, and Jail Program providing legal advice to inmates in civil legal cases. Before CLS, Quincosa spent time in private practice focusing on immigration and criminal law before going on to serve as a supervising attorney for Maryland Legal Aid’s District Court Self-Help Resource Center in Upper Marlboro.
“ My inspiration for the work that I do is knowing that our services can change the lives of so many.
Quincosa, an active member of the Hispanic community, has served as President of the Maryland Hispanic Bar, co-chair for the Judicial Nominations Committee, board member of the Public Service Committee and Communications Committee, and member of the Hispanic Bar Association of DC. She has worked to help clients win U-Visa approval through Tahirih Justice Center and volunteered her time with many clinics and organizations including, the HBA-DC Advice and Referral Clinic (now Immigration Legal Advice Clinic).
In 2021, Quincosa was awarded the Outstanding Achievement Award from the Maryland Hispanic Bar Association and in 2020, she received the Prince George's County President's Award for her work in expanding Access to Justice. Quincosa is an active member of the Maryland State Bar Association (MSBA). In 2010–2011 she completed a fellowship as a part of the MSBA’s Leadership Academy and served as a Co-Chair and member of the MSBA Leadership Academy Committee for over 10 years. Quincosa is also a current Commissioner for the Access to Justice Commission and a standing member of the Administrative Office Of Courts Standing Committee on Pro bono.
Tell us about your path into the legal profession and your personal journey to your current role.
I always wanted to work in legal services and I focused on legal services during my internships in law school. When I graduated from law school, I ended up working in private practice for a few years and eventually began working at Maryland Legal Aid as a staff attorney in 2011. In 2017, I had the opportunity to become the Executive Director of CLS and since becoming Executive Director, I have had the opportunity to increase our passionate staff and program.
What do you love about your current role and/or what is the biggest challenge you face?
The things I love the most about my role as Executive Director for CLS in Prince George’s County is working with a really passionate staff and knowing that we make a difference in the lives of so many members for our community. Although I enjoy what I do, during the pandemic, funding challenges were some of the biggest stressors we faced. Since then, CLS has been lucky to diversify our funding and grow during the pandemic.
What do you think makes you a unique leader?
I think I bring a different perspective to the role of Executive Director. I have worked in private practice and in legal services. While in private practice I actually took judicare cases. Judicare Family Law cases are cases paid and referred by some legal services providers including CLS, so I know some of the challenges our pro bono providers face. Similar to some of our clients, I am a first generation American and the first in my family to attend college and law school. I bring my unique personal experiences to my position and I use those to help guide my goals including those of expanding CLS’s services.
What inspires you to lead a civil legal aid organization? My inspiration for the work that I do is knowing that our services can change the lives of so many. In family law cases, we can assist a client with custody and child support not only ensuring consistency for the client but for their children as well. With our landlord and tenant and foreclosure cases, we are minimizing the number of people that experience eviction. I have a job that provides me with the opportunity to assist others that may not receive help otherwise and while sometimes it is a challenge to manage programs, the amount of people we assist on a yearly basis makes it worthwhile.
What do you do to unwind/ de-stress?
I wake up at 5:30 am on the weekdays and around 7 am on weekends to work out. I try to do 30 minutes of cardio and 30 minutes of strength training five days a week.
Community Legal Services of Prince George’s County Inc.
Community Legal Services of Prince George’s County (CLS) is a civil legal services provider assisting income eligible clients with civil matters. Started in 1985 as a pro bono referral program, CLS has grown to provide assistance in stand-alone clinics, representation in protective orders and family law cases, expungements, foreclosure and bankruptcy, and landlord and tenant matters. CLS has expanded their services to include direct representation programs for survivors of violence as well as a same day landlord and tenant program. More recently, in response to the pandemic, and in an effort to meet the needs of Marylanders in the community, CLS has worked to increase staffing in its landlord tenant program and has expanded its reach to include Anne Arundel County.
Careful Editing: The Key to Identifying and Avoiding Analytical Gaps in Legal Writing
BY LAUREN STONE
Suppose you are providing a friend with directions to your home or office. This is a route you take every day, and you know it well. You quickly describe what roads to take as your prospective visitor takes notes. But in your familiarity with your own route and haste in providing the instructions, you inadvertently gloss over some of the turns. Your visitor misses a crucial exit. Without making the exit, the visitor misses some of the steps and continues coasting down the highway and never arrives at the final destination.
Accurate and complete driving directions are essential for drivers to arrive from one point to another. A missing step makes the entire set of directions confusing and may prevent the driver from arriving at their destination. In legal writing, writers likewise want to guide their readers through the caselaw to forge connections and reach the intended destination. If steps in the directions to reach the conclusion are missing, the analysis will be incomplete, and the reader has a reduced chance of agreeing with the desired conclusion. Legal analyses require logical arguments with each step of the reasoning laid out in a manner so readers can follow the argument, evaluate its soundness, and decide if it is persuasive.1 To avoid conclusory reasoning, legal writers must “show their work” and avoid analytical gaps in their reasoning. Clear and logical reasoning, in which authors show their work, is a hallmark of a persuasive analysis. However, sometimes an otherwise detailed
1
legal analysis is missing a step and skips a crucial link in the reasoning. There is a leap between the premise and its application.
The concept of an analytical gap was crystallized in General Elec. Co. v. Joiner, a follow-up case to Daubert v. Merrell Dow Pharmaceuticals, Inc., which provided a standard for measuring expert reliability.2 Daubert was a medical products liability case involving assertions that a particular cluster of birth defects was linked to a morning sickness pill; this assertion needed expert testimony to provide a supporting link.3
Daubert provided a multi-factor test to help judges determine whether an expert’s opinion testimony was reliable enough to be admitted.4 Joiner extended those factors, particularly where the expert’s opinion has made a leap in reasoning not supported by evidence.5 The plaintiff in Joiner was an electrician who alleged that his lung cancer had been “promoted” by exposure to certain chemicals at his employment.6 Some of these chemicals had been linked to prostate cancer in mice, and the plaintiff’s expert argued that this supported the conclusion the plaintiff’s lung cancer was linked to the same chemicals.7 The trial court declined to accept that inference, and the U.S. Supreme Court in Joiner held that reliability of expert opinion was traceable to the expert’s methodology and the extent to which it linked the opinion with data.8 If the analytical gap between the data and the opinion is too great, a court need not—and likely will not—accept the opinion.
Expert reports are different from legal writing because the first is evidence and the second is an argument meant to
The author is familiar enough with their own thoughts that when they re-read what they have written, their brain automatically fills in the gap for them, and they don’t even notice that a gap is present. This problem persists even in projects with more than one author if they are not proofreading carefully or if they have worked with each other enough that they automatically fill the inferential gap themselves.
When the gap is identified, writers can often explain the link in their reasoning and fill the gap. This forces them to go back and show the work behind their reasoning, which allows the reader to understand the reasoning too. Alternatively, when faced with the gap, writers sometimes realize there is a flaw in their reasoning and they have to rework their argument. In both cases, redevelopment is necessary because the reader cannot provide the inferential link that exists in the author’s mind. Either outcome results in a stronger and more fully developed analysis that reduces inferential leaps, which should lead to the argument being more persuasive.
Fortunately, there are safeguards writers can use to ensure a legal argument does not suffer from an analytical gap. The first involves planning sufficient time to detach from the work and returning with a fresh mind to slowly and intentionally proofread.9 This can allow the writer to objectively review their reasoning and identify the analytical leaps on their own. The second is to have a colleague proofread the analysis.10 In addition to double checking the quality of the work, peer review can also test whether a neutral person can follow the writer’s analysis without making mental leaps. The third is
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.
inform or persuade. However, Joiner can be helpful to understanding why analytical gaps lead to less persuasive analyses. But why do writers skip steps in their legal reasoning that are necessary to make their points persuasively? In legal writing, the gap is sometimes created because the author is moving too fast. They have already reached the end of the reasoning chain by the time the words have been typed on the screen.
to plan enough time to rewrite the draft.11 Rewriting already forces the author to reword and reorganize their draft. By rearranging the analytical steps, the author can more easily see and thus reduce the possibility of an inferential leap. Properly avoiding analytical gaps in legal writing is crucial for persuasive arguments. Like any other skill, it requires practice and time, but strong legal analysis is worth it.
2 General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (relying on Daubert v. Merrill Pharms., Inc., 509 U.S. 579 (1993) to hold that an expert’s mere use of an acceptable methodology does not require a court to admit the opinion if the expert’s conclusions are not properly linked to the data).
3 Daubert, 509 U.S. at 582.
4 Id. at 593, 594 (describing a “flexible standard” comprising a non-exhaustive list to include whether a theory or technique has been tested; whether it has been peer reviewed; the error rate; and general acceptance in the relevant community).
5 Joiner, 522 U.S. at 146.
6 Id. at 140.
7 Id.
8 Joiner, 522 U.S. at 146.
9 See June Casagrande, A Word, Please: Here Is What Happens to the Brain When Editing Your Own Work, LA Times, (Dec. 4, 2015, 3:31 PM), https://www.latimes.com/ socal/daily-pilot/opinion/tn-hbi-et-1224-casagrande-20151224-story.html
10 See Susan Provenzano and Lesley Kagan, Teaching in Reverse: A Positive Approach to Analytical Errors in 1L Writing, 39 Loy. U. Chi. L.J. 123, 174 (2007) (suggesting use of collaborative, social techniques as a method to eliminate analytical gaps in legal writing).
11 Danielle Pineres, Ten Tips for Transitioning to Legal Writing, Geo. U. L. Ctr., https://www.law.georgetown.edu/wp-content/uploads/2018/07/Ten-Tips-for-Transitioning-toLegal-Writing-Final.pdf (last updated in 2017 by Michael Fazio).
PLEADING CAUSES OF ACTION IN MARYLAND
7 TH EDITION
BY PAUL MARK SANDLER, JAMES K. ARCHIBALD, AND ELEANOR T. CHUNG
Pleading Causes of Action in Maryland, Seventh Edition is the starting point for drafting and analyzing virtually all pleadings in Maryland.
Sandler, Archibald, and Chung’s practical organization make this an exceptionally easy-to-use practitioner’s and judge’s tool.
The authors’ analysis and advice help the reader develop an acute awareness of the strengths and weaknesses of a case, making this an invaluable reference manual for all Maryland lawyers. Each chapter provides sample pleadings, as well as authoritative commentary of elements of a claim and issues to consider.
Just one of 130+ print and digital treatises and coursebooks provided by MSBA.
THIS EDITION FEATURES:
• More Than 100 New Cases
• New Causes of Action, including Breach of Fiduciary Duty and Intentional Interference with an Inheritance or Gift
• New Chapters
• Significant updates to forms
• Updates on MDEC Requirements
BUILDING
STRONG RELATIONSHIPS
MITCHELL
DOLMAN 3L Student at UBLaw
MITCHELL DOLMAN IS PREPARING to graduate from the University of Baltimore School of Law and begin his legal career as an associate attorney at Miles & Stockbridge. During his time in law school, Dolman has served as Associate Comments Editor for University of Baltimore’s Law Review and as the international student committee chair for the Student Bar Association. He is the head legal writing fellow for the University of Baltimore Legal Writing Center, which provides written features for the MSBA through The Writing Lab partnership.
I want to establish a strong base in government contract law because of its complexity, so I can hit the ground running when I return after my clerkship. “
Dolman decided at age 11 that he wanted to be a lawyer based on a love for arguing and writing. Although he initially intended to work in sports management, he is currently a law clerk in Miles and Stockbridge’s government contracts group, where he will be returning as an associate after his clerkship.
Speaking about his government contracts work, Dolman says he enjoys the novelty of each issue. “Every assignment I have completed has been regarding an issue I did not know existed or one that required in depth learning. The law involved with government contracts is fascinating.” In addition to developing his knowledge of the field, Dolman has focused throughout his clerkship on building strong relationships with his superiors now, so that when he returns it will be a seamless transition. “I want to establish a strong base in government contract law because of its complexity, so I can hit the ground running when I return after my clerkship."
Dolman urges law students to trust their gut and seek out mentorships when determining a career path. “Many law students feel pressured to enter a specific area of law even if it does not feel right to them. Mentors have changed my trajectory and made internships and jobs possible that would not have been without those individuals,” he says.
As he finishes law school, Dolman says he is looking forward to “working in a profession and practice area that is ever changing and incredibly intellectually stimulating.”
What are some of the challenges you are facing as a Law Student?
Feeling obligated to do more even when the current workload is quite substantial and stressful. Finding adequate time to relax and enjoy the last year of school before entering the work world.
What’s a cause or charity that you are passionate about? Or how do you give back to your community?
As we just recently passed through the holidays, one thing I am passionate about is trying to make sure families have great holidays. My wife and I sponsored a family of three to help provide them with a wonderful Christmas, which is something we will continue to do because the holidays should be a time of joy, especially for kids.
What do you do to unwind/ de-stress?
Weight lift and play video games.
What’s an interesting fact about you that no one would guess?
I am a very good cook.
What’s your favorite vacation spot? Hawaii.
Examining the Impact of Supreme Court Rulings on State Law
West Virginia v. US Environmental Protection Agency
THE CLEAN POWER PLAN, THE AFFORDABLE CLEAN ENERGY RULE, AND THE “MAJOR QUESTIONS” DOCTRINE–REGULATING GHGS FROM POWER PLANTS
BY JON A. MUELLER, ESQ.
THE UNITED STATES AND THE WORLD are experiencing the effects of climate change due largely to human combustion of fossil fuels. Globally, 2022 was the 6th warmest on record contributing to long standing drought and damaging wildfires in the west.1 Regionally, sunny day flooding is now the norm in Annapolis, Maryland and Norfolk, Virginia, snarling traffic, blocking access to homes, and closing businesses. Over the next 30 years, Baltimore and Norfolk are expected to experience a 1–3 foot rise in sea level and, if greenhouse gas (GHG) emissions are not reduced, an over 3-5 foot rise by the end of the century.2
Flooding related to increased sea level rise, storm events, and rainfall volume pose serious threats to our economy, national defense, and human health, especially in environmental justice communities.3 By 2050, flooding is expected to occur, on average, more than 10 times as often as it does today. Without additional risk reduction measures, U.S. coastal infrastructure, communities, and ecosystems will face increased impacts. Those measures will be costly.4
The scientific evidence is conclusive that GHG emissions, e.g., carbon dioxide, produced from the combustion of fossil fuels, have largely contributed to the problem. In fact, industry and Congress have known about the problem since the 1960s.5
As a signatory of the Paris Climate Agreement, the United States has committed to reducing total carbon emissions from 6.5 million metric tons per year to approximately 3.5 million metric tons by 2030.6
By reaching back to review a dormant rule and establishing a vague test of agency authority, the Supreme Court undercut the government’s efforts to reduce CO2 emissions and help stave off climate change. But all is not lost.
2 National Oceanic and Atmospheric Administration, National Ocean Service, 2022 Sea Level Rise Technical Report, https://oceanservice.noaa.gov/hazards/sealevelrise/sealevelrise-techreport.html
4 The U.S. Department of Defense has recognized “the planet’s changing climate has a dramatic effect on our missions, plans and installations.” DOD, Navy Confront Climate Change Challenges in Southern Virginia, U.S. Department of Defense (July 21, 2021), https://www.defense.gov/News/News-Stories/Article/Article/2703096/dod-navy-confront-climate-changechallenges-in-southern-virginia/. Climate change will continue to have worsening implications for U.S. national security. Lloyd J. Austin III, Secretary of Defense, Foreword, Department of Defense Climate Risk Analysis, October 2021, https://media.defense.gov/2021/Oct/21/2002877353/-1/-1/0/DOD-CLIMATE-RISK-ANALYSIS-FINAL.PDF
5 See, Restoring the Quality of Our Environment, Report of the Environmental Pollution Panel, President’s Science Advisory Committee, November 1965. https://www.climatefiles.com/climatechange-evidence/presidents-report-atmospher-carbon-dioxide/ 6 https://unfccc.int/sites/default/files/NDC/2022-06/United%20States%20NDC%20April%2021%202021%20Final.pdf
To curb CO2 emissions from our then largest sources of GHGs,7 EPA issued rules addressing two “types” of fossil fuel fired EGUs: newly constructed, modified, and reconstructed facilities, 80 Fed. Reg. 64510 (Oct. 23, 2015), and existing facilities, 80 Fed. Reg. 64662 (October 23, 2015). The existing source rule, referred to as the Clean Power Plan (CPP), relied upon Clean Air Act § 111(d) to establish the Best System of Emissions Reduction for these EGUs. The rule set out three “building blocks” states could require from EGUs within their jurisdictions to reduce CO2: (1) improve the heat rate8 of existing coal-fired plants for more thermal efficiency; (2) increase electricity generation from natural gas plants (they emit less carbon) and reduce generation from coal-fired power plants; and (3) increase renewable electricity generation from sources such as wind and solar. 80 Fed. Reg. 64667.
The CPP was never implemented. The day it was promulgated the rule was challenged in D.C. Circuit Court by industry and 27 states charged with implementing the new rule. After argument but before a decision was rendered, the case was held in abeyance. The plaintiffs then petitioned the U.S. Supreme Court for a stay, which was granted by Chief Justice Roberts. West Virginia v. EPA, 577 U.S. 1126 (Feb. 9, 2016). In 2019, the CPP was withdrawn by the Trump administration, and the Affordable Clean Energy (ACE) rule was substituted in its place. 84 Fed. Reg. 32520 (July 8, 2019). It relied solely on heat rate improvements to achieve emissions reduction. EPA projected that ACE would reduce CO2 emissions by less than 1%. American Lung Ass’n v. EPA, 985 F.3d 914, 940 (D.C.
Cir. 2021). Far less than necessary to help slow climate change. The decisions to revoke the CPP and issue ACE were also challenged and found to be illegal by the DC Circuit. American Lung Ass’n, supra. In 2021, the Biden EPA announced it would not implement the CPP or ACE and would propose a new rule. EPA’s announcement failed to placate the plaintiffs in WVA v. EPA, leading them to revive the action before the Supreme Court which took up the matter despite EPA’s claims that it was now moot. West Virginia v. EPA, 142 S. Ct. 2587, 2594 (2022).
On review, the Supreme Court found that the CPP’s second and third options constituted “generation shifting” because in setting limits on a state’s overall emissions, EPA could effectively force states to generate from cleaner sources, prompting the retirement of the dirtiest plants (typically coal-fired). That view, the Court held, impermissibly expanded EPA’s power to regulate power plant emissions under section 111(d) of the Clean Air Act beyond the footprint of individual plants to the regional electric energy grid. Id. at 2616.
The Court held that “there are ‘extraordinary cases’ in which the ‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.”9 Id. at 2608–09 (2022) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000)). In such cases, under the major questions doctrine, the agency must “point to ‘clear congressional authorization’ for the power it claims.” Id. at 2609 (quoting
7 In 2013, coal and gas fired Electric Generating Units (EGUs) emitted a combined 2,039 million metric tons of CO2, the largest stationary source sector. 80 Fed. Reg. 64523, Table 5. In 2021, the sector emitted 1,523 million metric tons of CO2, second only to the transportation sector. U.S. Energy Information Administration, Frequently Asked Questions, “What are U.S. energy-related carbon dioxide emissions by source and sector?” https://www.eia.gov/tools/faqs/faq.php?id=75&t=11. Currently, power generation accounts for 28% of US GHG emissions. Id.
8 Heat rate is the amount of energy used to generate a kilowatt hour of electricity. U.S. Energy Information Administration, FAQs. https://www.eia.gov/tools/faqs/faq.php?id=107&t=3#:~:text=The%20 heat%20rate%20is%20the,Btu)%20per%20net%20kWh%20generated
9 When reviewing an agency’s interpretation of an ambiguous statute, courts have always had the ability to determine whether an agency is staying within the bounds of the authority delegated to it by Congress. See Arlington v. FCC, 569 U.S. 290, 297 (2013). However, the concept that this level of review is triggered whenever an agency develops a rule that is in the court’s view “extraordinary” is very broad.
Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). Here, EPA failed to prove Congress had authorized it to require generation shifting from EGUs to renewable sources. Thus, by reaching back to review a dormant rule and establishing a vague test of agency authority, the Supreme Court undercut the government’s efforts to reduce CO2 emissions and help stave off climate change. But all is not lost.
Despite the prognostications that courts would flock to apply the major questions doctrine in subsequent government action cases,10 since the WVA v. EPA decision, no court has held that the doctrine governed the outcome of the case. See, e.g., Clark v. Governor of N.J., 53 F.4th 769 (3d Cir. 2022); United States v. Empire Bulkers Ltd., 2022 U.S. Dist. LEXIS 151817 (E.D. LA, 2022); and Phillips v. United States Army Corps. of Eng'rs, 2022 U.S. Dist. LEXIS 153611 (D. Utah 2022).
Others have suggested that EPA’s options for reducing EGU CO2 emissions are now severely limited. But EPA still has authority under the CAA to regulate individual EGUs and thereby reduce CO2 from those sources. For example, EPA can now assert that carbon capture and sequestration are achievable and affordable due to the Inflation Reduction Act (IRA) carbon credit program,11 thus, new, and existing EGUs must be required to utilize them.12
Given the severity of the problem we face, we do not have time to litigate over the right way to reduce our dependence on fossil fuels. Seven years have passed since the promulgation of the CPP, and we still have no regulation requiring the reduction of CO2 from EGUs.
The United States continues to fall behind in its efforts to meet its target set under the Paris Agreement of reducing GHG emissions 50–52% below 2005 levels by 2030.13 In order to meet the 2025 target of 26–28% below 2005 levels and get back on track for the 2030 Paris goal, the United States needs to significantly increase its efforts.
We are already seeing market forces drive down the use of fossil fuels. However, industry evolution based upon changing economic factors takes time and is highly dependent on a thriving economy. Sadly, we are running out of time to reduce carbon emissions and global economies regularly fluctuate.
Beyond Congress and EPA, two other entities have the ability—and the responsibility—to make needed progress. First, the states can require emissions reductions from major sources of CO2 within their jurisdictions by joining programs like the Regional Greenhouse Gas Initiative.14 But more states
We are already seeing market forces drive down the use of fossil fuels. However, industry evolution based upon changing economic factors takes time and is highly dependent on a thriving economy.
must quickly join, and changing state politics threaten the initiative.
Second, oil and gas companies can voluntarily choose to reduce emissions from their respective facilities and drive global initiatives. In the 1980s, the world learned that the use of CFCs in refrigerators and air conditioners had led to a hole in the ozone layer increasing human exposure to UV radiation leading to increased rates of cancer. The United States opposed a ban on CFC use until DuPont, the world’s largest producer, developed alternative chemicals. From then on, U.S. businesses supported an international treaty to phase out CFCs.15 Today, the hole in the ozone layer continues to shrink.16 Here, the power generation industry could take the lead and voluntarily reduce a significant portion of the country’s carbon emissions without the need for lengthy rulemaking and litigation.
Jon A. Mueller is Richard T. Pelham Chair and Vice President of Litigation at the Chesapeake Bay Foundation. Jon came to CBF in 2004 as the first Director of Litigation. From 1982–87, he worked as a litigator in private practice. Jon worked as a civil litigator at the U.S. Department of Justice, Environmental Enforcement Section from 1987–2004.
10 See Key Takeaways from U.S. Supreme Court Decision in West Virginia v. EPA, The National Law Review, July 2, 2022, https:// www.natlawreview.com/article/key-takeaways-us-supreme-court-decision-west-virginia-v-epa
In 1832, William Wirt traveled from Baltimore to argue Worcester v. Georgia before the U.S. Supreme Court. He persuaded the Court to hold, in one of Chief Justice Marshall’s greatest opinions, that the “Cherokee nation . . . is a distinct community occupying its own territory in which the laws of Georgia can have no force.”1
In 2022, the Supreme Court declared Worcester dead. It held in Oklahoma v. Castro-Huerta, 2 “the Worcester-era understanding of Indian country as separate from the State was abandoned later in the 1800s.” In dissent, Justice Gorsuch listed several times the Court had since reaffirmed Worcester.
Dobbs should not have been a surprise, even before the draft opinion leaked. President Trump promised in 2016 to appoint justices who would overturn Roe, and he delivered on that promise. Still, reminiscent of the myth of Cassandra—the priestess doomed to see the future but to be disbelieved—there was no shortage of pundits saying Roe was safe. Until it wasn’t.
Castro-Huerta shows that Dobbs is the rule, not the exception. No precedent is safe when five justices disagree with it. The doctrine of stare decisis—that courts generally stand by their decisions—is not the backstop it once was.
He observed that “Worcester came to be recognized as one of this Court’s finer hours . . . Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.”3
In most any other term, Castro-Huerta would have been big news. But it came five days after Dobbs v. Jackson Women’s Health Organization, 4 which overturned the 49-year-old abortion rights decision in Roe v. Wade
1 6 Pet. 515, 520 (1832).
2 142 S. Ct. 2486, 2497 (2022).
3 Id. at 2505 (Gorsuch, J., dissenting).
4 142 S. Ct. 2228 (2022).
Soon after Dobbs, President Biden signed the Respect for Marriage Act, which creates safeguards if the Supreme Court overturns its decisions requiring states to recognize same-sex marriage or even interracial marriage.
Maryland should take similar steps to prepare for the distinct possibility that the U.S. Supreme Court will overturn key precedents on criminal procedure. For example, what if the Supreme Court overturns Miranda v. Arizona and holds that the Fifth Amendment does not require police to advise in-custody suspects of the right to remain silent and to obtain an attorney?
That possibility implicates another Latin phrase: in pari materia, or “upon the same matter.” Article 22 of the Maryland Declaration of Rights provides, for example, that “no man ought to be compelled to give evidence against himself in a criminal case.” Maryland courts have “generally interpreted Article 22 in pari materia with the SelfIncrimination Clause” of the federal Fifth Amendment.5
Still, as Judge Dan Friedman has observed, it is not clear what Maryland courts mean when they use in pari materia to describe the relationship between federal and state rights. Different decisions have “used the phrase to indicate a range of relationship from as weak a relationship as arose in response to the same impetus all the way to the strong relationship position, which entails a prior commitment to automatically be given the same interpretation as the U.S. Supreme Court gives to the federal analog.”6
If precedents like Miranda fall, Maryland’s appellate courts will have to resolve what in pari materia means. Will coordinate rights vanish from the Declaration of Rights? Should a postconviction court find ineffective assistance from counsel’s failure object under a lateroverruled decision? These are just some of the hard questions Maryland courts will face.
I propose two modest measures to address potential obstacles to the Maryland appellate courts deciding questions of state constitutional law in the coming years.
First, the General Assembly should ease limits on certiorari jurisdiction. Like
5 Madrid v. State, 474 Md. 273, 320 (2021).
6 Dan Friedman, Does Article 17 of the Maryland Declaration of Rights Prevent the Maryland General Assembly From Enacting Retroactive Civil Laws?, 82 Md. L. Rev. 55, 66 (2022).
7 Mahai v. State, 474 Md. 648, 667 (2021).
8 Md. Code, Cts. & Jud. Proc. § 12-202 (with proposed modifications in underline and strike-through).
9 Md. Rule 2-517, 3-517, 4-323.
many jurisdictions, Maryland requires unsuccessful post-conviction petitioners to apply for leave to appeal. Unlike other jurisdictions, however, our high court cannot review most intermediate appellate court orders denying leave to appeal.7 To give the justices flexibility in managing their petition docket, I propose that the jurisdictional statute be amended to read: “Except as the Supreme Court may by rule provide, review by way of certiorari may not be granted by the Supreme Court in a case or proceeding in which the appellant seeks [leave to appeal].”8
Second, I am proposing to the Maryland Rules Committee an addition to the rules on preservation of objections:9 “An objection under the Constitution of the United States or federal law shall be deemed to include an objection under any analogous provision of the Maryland Constitution or state law.”
Facing an uncertain future, Marylanders should ensure their judiciary has the tools to answer the difficult questions coming our way.
Mr. Klepper leads the appellate practice at Kramon & Graham, P.A. He is co-editor of the MSBA treatise, Appellate Practice for the Maryland Law and editor-in-chief of the Maryland Appellate Blog.
The RedistrictingCongressionalProcess and Partisan
Gerrymandering
BY STRIDER L. DICKSON, ESQ.
WHEN STATE LEGISLATURES REDRAW UNITED STATES CONGRESSIONAL DISTRICTS, the new districts frequently are challenged in state and federal courts. In recent years, litigation over congressional redistricting plans increasingly has involved claims of unconstitutional partisan gerrymandering.1 This article summarizes the legal landscape surrounding these claims and analyzes how that landscape may change after Moore v. Harper,2 a case argued before the U.S. Supreme Court in December 2022.
Every 10 years, U.S. congressional district lines are redrawn after completion of the United States census. Redistricting is necessary to ensure that congressional districts satisfy constitutional requirements, particularly the “one person, one vote” rule that requires congressional districts to be as equal in population as practicable.3
The United States Constitution grants state legislatures the primary responsibility for crafting federal congressional districts. Specifically, the Election Clause provides that “[t]he Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”4
Unfortunately, state legislators sometimes use this power to draw congressional districts in a way that favors one political party over another. This practice, called partisan gerrymandering, is most common in states where one political party controls redistricting.5 Although political gerrymandering is not new,6 modern technology has made it “far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides.”7
Courts have recognized that partisan gerrymandering is incompatible with democratic principles.8 Among other things, it threatens “the core principle of republican government” that “voters should choose their representatives, not the other
1 This article does not address other ways litigants challenge congressional redistricting plans, including claims of racial gerrymandering; nor does it address claims challenging the drawing of state legislative districts.
2 Moore v. Harper, No. 21-1271 (Oct. Term 2022).
3 Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964).
4 U.S. Const. art. I, § 4, cl. 1. Importantly, the Election Clause also provides that “Congress may at any time by Law make or alter” the laws for selecting U.S. Representatives. In other words, Congress could establish uniform national rules that do away with partisan gerrymandering. It has not.
5 Samuel S.H. Wang, et al Laboratories of Democracy Reform: State Constitutions and Partisan Gerrymandering, 22 U. Pa. J. Const. L. 203, 208 (2019).
6 Accusations of unfair congressional map drawing have been made since Patrick Henry allegedly attempted to gerrymander James Madison out of the First Congress. Rucho v. Common Cause, 139 S. Ct. 2484, 2494 (2019). And the term “gerrymander” dates back to 1812, when Massachusetts Governor Elbridge Gerry approved an oddly shaped congressional district—one that opponents claimed resembled a salamander—drawn to favor the Democratic-Republican party. Id.
7 Rucho, 139 S. Ct. at 2512–13 (Kagan, J., dissenting).
8 E.g., Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 791 (2015).
STATE of FLORIDA
Courts have recognized that partisan gerrymandering is incompatible with democratic principles.
way around,”9 tends to “make some votes more powerful than others” by minimizing political minorities’ chances of electing candidates of their choice or influencing election outcomes,10 and “[a]t its most extreme . . . amounts to rigging elections.”11
The Search for Judicial Standards and Rucho
Because partisan gerrymanders “benefit those who control the political branches,” opponents of the practice have turned to the courts for relief.12 Lawsuits alleging unconstitutional partisan gerrymanders, however, present difficult problems for the judiciary. They require courts to enter a “political thicket.”13 Courts also have struggled to identify neutral principles of law to apply when deciding these cases.
In a series of cases beginning in 1986, the Supreme Court began searching for constitutional standards courts could apply when reviewing claims of partisan gerrymandering.14 In Davis v. Bandemer,15 a majority of the Court
9 Id. at 824.
10 Harper v. Hall, 868 S.E.2d 499, 508 (N.C. 2022).
11 Gill v. Whitford, 138 S. Ct. 196, 1940 (2018) (Kagan, J., concurring).
12 Id. at 1934–35; see also Wang, et al., supra, at 208.
13 Colegrove v. Green, 328 U.S. 549, 556 (1946).
concluded that partisan gerrymandering claims were justiciable under the Equal Protection Clause.16 But the Court could not agree on a proper standard to determine when a constitutional violation had occurred.17 By 2018, the Court still had not settled on the legal principle(s) governing partisan gerrymandering cases.18 In Gill v. Whitford,19 a case decided that year, different members of the Court articulated different ways partisan gerrymandering might violate the constitution, but no consensus emerged.20
In 2019, the Supreme Court deemed the search for neutral legal principles hopeless. In Rucho v. Common Cause, 21 the Court held that partisan gerrymandering claims were political questions not justiciable in federal court.22 As the Court explained: “[J]udicial action must be governed by standard, by rule, and must be principled, rational, and based upon reasoned distinctions found in the Constitution or laws. Judicial review of partisan gerrymandering does not meet those basic requirements.”23
14 The cases included Davis v. Bandemer, 478 U.S. 109 (1986); and Gill v. Whitford, The Court has never found a state’s congressional districting plan unconstitutional based on a claim of political gerrymandering.
15 478 U.S. 109 (1986).
16 Id. at 143.
17 Id. at 185 n.25 (Powell, J., dissenting).
18 Between 1986 and 2018 the Court heard two cases concerning partisan gerrymandering: Vieth v. Jubelirer, 541 U.S. 267 (2004); LULAC v. Perry, 548 U.S. 399 (2006). The Court could not agree on judicially manageable standards to govern gerrymandering claims in either case.
19 138 S. Ct. 1916 (2018).
20 See id. at 1929–33; see also id. at 1935–40 (Kagan, J. concurring); Wang, et al., supra, at 218–25.
21 139 S. Ct. 2484 (2019).
22 Rucho, 139 S. Ct. at 2506–07. Rucho thus echoed Colegrove v. Green, 328 U.S. 549 (1946), where Justice Frankfurter, for a plurality of Court, wrote that gerrymandering claims were “of a peculiarly political nature and therefore not meet for judicial determination.” Id. at 552.
23 Rucho, 139 S. Ct. at 2507 (internal quotation marks and citation omitted).
But the Court also stated that it neither condoned partisan gerrymandering nor condemned complaints about it “to echo into a void.”24 Among other things, the Court explained that “[p]rovisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.”25 Rucho, therefore, appeared to banish partisan gerrymandering claims from the federal courts, while leaving open the possibility that those claims could be brought in state court.
State Court Political Gerrymandering Litigation After Rucho
Opponents of partisan gerrymandering took up Rucho’s invitation to seek relief in state courts. In 2021, after the most recent round of congressional redistricting, courts in North Carolina,26 Maryland,27 New York,28 and Ohio29 found gerrymandered congressional districts unconstitutional. These courts joined the Pennsylvania Supreme Court, which in 2018 struck down the Pennsylvania legislature’s congressional redistricting plan as an unconstitutional partisan gerrymander.30
These courts looked to provisions in their respective state constitutions to supply necessary legal standards and find that political gerrymandering was unlawful. The Pennsylvania Supreme Court based its decision on the Pennsylvania constitution’s requirement that elections “be free and equal”;31 the North Carolina decision relied on a similar “free election” provision in the North Carolina constitution, as well as other provisions in that constitution guaranteeing the rights of assembly, free speech, and equal protection;32 the Maryland decision relied on provisions of the Maryland constitution guaranteeing the rights to free and frequent elections, free speech, and equal protection;33 and the decisions in New York and Ohio found violations of state constitutions that specifically prohibit partisan gerrymandering.34
These courts also expressly rejected arguments, based on Rucho, that partisan gerrymandering claims were not justiciable. They thus recognized that “the very premise of the cases that foreclose federal remedies,” like Rucho, “constitutes a clear call to state courts to step into the breach.”35
Moore and the Independent State Legislature
But not all were happy with state courts increasing their scrutiny of congressional redistricting plans, especially those responsible for the invalidated plans. Seeking relief from a decision they believed to be an unlawful usurpation of the state legislature’s constitution authority to craft congressional districts, the defendants in the North Carolina case—now called Moore v. Harper36—turned to the U.S. Supreme Court.
Because the North Carolina Supreme Court based its decision in Moore on the North Carolina Constitution, the Moore defendants normally would have no recourse in the U.S. Supreme Court. Recognizing the limits of its power in this regard, the Supreme Court explained nearly 80 years ago that “[i]t is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions.”37 The Moore defendants, however, sought to evade this “fundamental” by claiming that the North Carolina Supreme Court’s decision violated the United States Constitution’s Elections Clause.
Specifically, the Moore defendants based their challenge on an aggressive strain of what has become known as the “Independent State Legislature” theory (ISL).38 The ISL, as advanced by the Moore defendants, posits that the plain language of the Elections Clause—“[t]he Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof”—means that only state legislatures have the authority to create new congressional districts. Thus, a state court cannot review
24 Rucho, 139 S. Ct. at 2507.
25 Rucho, 139 S. Ct. at 2507.
26 Harper v. Hall, 868 S.E.2d 499, 510 (N.C. 2022).
27 Szeliga v. Lamone, 2022 Md. Cir. Ct. LEXIS 9, at *126 (Mar. 25, 2022).
28 Matter of Harkenrider v. Hochul, 197 N.E.3d 437, 454 (N.Y. 2022).
29 League of Women Voters of Ohio v. State Redistricting Comm’n, 2022-Ohio-1235, 1–2 (Apr. 14, 2022).
30 League of Women Voters v. Commonwealth, 178 A.3d 737, 740 (2018).
31 Id. at 741.
32 Hall, 868 S.E.2d at 510–11.
33 Szeliga, 2022 Md. Cir. Ct. LEXIS 9, at *124–*125.
34 Matter of Harkenrider v. Hochul, 197 N.E.3d 437, 454 (applying N.Y. Const. art. III, § 4(c)(5)); League of Women Voters of Ohio, 2022-Ohio-1235, at 1-2 (applying Oh. Const. art. XI, § 6).
35 William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 503 (1977).
36 Moore v. Harper, No. 21-1271 (Oct. Term 2022).
37 Minnesota v. National Tea Co., 309 U.S. 551, 557 (1940)
38 There are various stains and applications of the ISL. See generally Michael T. Morley, The Independent State Legislature Doctrine, 90 Fordham L. Rev. 501 (2021).
a state legislature’s enactment of congressional districts to ensure compliance with a state constitution because such a review would violate the state legislature’s plenary power under the Elections Clause.39
This version of the ISL has faced widespread public criticism, with some commentators even arguing that it presents an existential threat to democracy in the United States.40 The Court, moreover, appears unlikely to adopt it. Prior precedent does not support it.41 And during oral argument in Moore, most Justices appeared unwilling to revisit those cases or accept the claim that there are no checks on state legislatures in the creation of congressional districts.42
A slightly “watered down” version of the ISL, however, may end up deciding Moore and having significant ramifications for future partisan gerrymandering cases. During oral argument, several Justices seemed drawn to a version of the ISL first set forth in former Chief Justice Rehnquist’s concurrence in Bush v. Gore.43 There, Chief Justice Rehnquist wrote that a state court can violate the Electors Clause found in Article II of the Constitution44 if the court impermissibly distorts state election laws governing presidential elections.45 Thus, state courts can interpret and apply state law governing presidential elections. But federal courts can review those decisions, under a deferential standard, to ensure that a state court decision does not violate the federal constitution by impermissibly distorting state law.46
Chief Justice Rehnquist’s version of the ISL has a direct corollary to challenges to state court reviews of redistricting plans under the Elections Clause.47 As applied in such cases, state courts can evaluate a state legislature’s congressional districting plan to ensure that it complies with state constitutions. But state courts can violate the Elections Clause when they impermissibly distort or significantly depart from established
state constitutional law. In other words, state courts violate the Elections Clause when, in the review of congressional districts, they start acting more like a legislature than a court.
If the Supreme Court ultimately adopts this version of the ISL to resolve Moore, state courts will continue to have a role in reviewing state legislatures’ redistricting. In fact, under Rucho, partisan gerrymandering litigation almost certainly will have to begin in state courts. But federal courts will also be back in the partisan gerrymandering game. For if a state court strikes down a state legislature’s congressional districting plan as an unconstitutional partisan gerrymander, the defenders of the plan will turn to the federal courts, surely arguing that the state court decision violated the Elections Clause by impermissibly distorting or significantly departing from state constitutional law.
Conclusion
After Rucho, state courts stepped into the void to stop partisan gerrymandering. And they did so based on provisions in state constitutions. They thus implemented a view of our federal system that “[s]tate constitutions, too, are a font of individual liberties, their protection often extending beyond those required by the Supreme Court’s interpretation of federal law.”48 But after Moore, state courts’ ability to interpret their state constitutions may be subject to federal oversight. Thus, the “fundamental” notion that state courts be left “free and unfettered” in interpreting and applying their state constitutions” may not—at least in partisan gerrymandering case—be so “fundamental” after all. And in ten years’ time, when litigants file claims challenging the next round of congressional district mapmaking, federal courts may be forced to evaluate whether state courts deciding those claims have impermissibly distorted state constitutional law in doing so.
Strider L. Dickson is Of Counsel at McAllister, DeTar, Showalter & Walker LLC. He represents clients in civil litigation and criminal matters.
39 See generally Petitioner Merits brief in Moore v. Harper, available at https://www.supremecourt.gov/ DocketPDF/21/21-1271/236562/20220829124545799_21-1271%20Brief%20for%20Petitioners.pdf.
40 See, e.g., Erwin Chemerinsky, Op-Ed: The Ominous Way the Supreme Court Could Change Our Elections, L.A. Times, Dec. 7, 2022, available at https://www.latimes.com/opinion/story/2022-12-07/supreme-court-elections. See, e.g., Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 568-69 (1916) (holding that citizens may reject a state legislature’s congressionaldistricting plan through a referendum authorized by the state constitution); Smiley v. Holm, 285 U.S. 355, 375 (1932) (holding that Minnesota’s governor could exercise his state constitutional authority to veto the legislature’s congressional-districting plan); Ariz. State Legis., 576 U.S. at 817-18 (“Nothing in the [Elections] Clause instructs that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”).
42 A transcript of the oral argument is available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-1271_5i26.pdf (hereafter “Tr. of Oral Argument”).
43 Bush v. Gore, 531 U.S. 98 (2000).
44 The Article II Electors Clause provides: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” U.S. Const. art. II, § 1, cl. 2.
45 Bush, 531 U.S. 98 at 112–15 (Rehnquist, C.J., concurring).
46 See id.
47 See, e.g., Tr. of Oral Argument at 105.
48 Brennan, supra, at 491
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U.S. Supreme Court Dismisses Case on Attorney-Client Privilege
BY MICHAEL BERMAN, ESQ.
THE SUPREME COURT’S RECENT dismissal of In Re Grand Jury, 598 U.S. ___, 143 S.Ct. 543 (2023), leaves the Ninth Circuit’s “primary purpose” analysis of so-called “dual purpose” communications intact as the test for privilege. For a good analysis, see GreenbergTraurig’s blog, ‘If It Ain’t Broke, Don’t Fix It’: U.S. Supreme Court Dismisses Case on Attorney-Client Privilege | Insights | Greenberg Traurig LLP (gtlaw.com)(Jan. 25, 2023).
The issue presented in petitioner’s brief was: “Whether a communication involving both legal and non-legal advice is protected by attorneyclient privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.” 2022 WL 17327250.
In opposition, the United States framed the issue as: “Whether the district court permissibly denied petitioner’s general claim of attorneyclient privilege over communications, related to the preparation of a tax return, that did not have obtaining legal advice as their primary purpose, while instructing that all legal advice contained in the communications be redacted.” 2022 WL 17833093. In its brief, the government wrote: “Petitioner is a law firm that both prepares tax forms for its clients and provides clients with tax advice . . . . A federal grand jury conducting a criminal investigation of one of petitioner’s clients subpoenaed petitioner for the production of certain documents, which petitioner refused to produce . . . . The client, an early promoter of bitcoin, expatriated from the United States in early 2014 . . . . The client retained petitioner in 2012 to provide advice on the expatriation process . . . . The client also retained petitioner to prepare the client’s 2014 tax return, which was filed in mid-2016, along with other tax filings.”
The government continued:
The district court recognized that “although communications that are only about tax return preparation are not covered by the attorney-client privilege, communications seeking legal advice about what to claim on tax returns or other tax-related legal advice may be privileged” when “the primary purpose of the communication was to obtain or provide such legal advice . . . . Applying that framework, the district court permitted petitioner to withhold in full various documents, including a memorandum analyzing tax-related legal questions for the year of the client’s expatriation and all related communications . . . . As relevant here, the court ordered disclosure of 54 documents “where the primary or predominate purpose [of the documents] was about the procedural aspects of the preparation of [the client’s] tax return” or where a certified public accountant “provided advice as an accountant” rather than as an agent assisting the attorneys in providing legal advice . . . . In so doing, the district court directed petitioner to redact the portions of the documents that “concern communications about tax-related legal advice,” while ordering petitioner to disclose the portions that are “only about tax return preparation.”
The law firm refused to produce any of the documents and was held in contempt. The Ninth Circuit applied the primary purpose test. In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021), cert. granted sub nom. In re Jury, 214 L. Ed. 2d 16, 143 S. Ct. 80 (2022), and cert. dismissed as improvidently granted, 143 S. Ct. 543 (2023). It wrote:
Given our increasingly complex regulatory landscape, attorneys often wear dual hats, serving as both a lawyer and a trusted business advisor. Our court, however, has yet to articulate a consistent standard for determining when the attorney-client privilege applies to dual-purpose communications that implicate both legal and business concerns.
In this case, the grand jury issued subpoenas related to a criminal investigation. The district court held Appellants—whom we identify as “Company” and “Law Firm”—in contempt after they failed to comply with the subpoenas. The district court ruled that certain dual-purpose communications were not privileged because the “primary purpose” of the documents was to obtain tax advice, not legal advice. Appellants argue that the district court erred in relying on the “primary purpose” test and should have instead relied on a broader “because of” test. We affirm and conclude that the primarypurpose test governs in assessing attorney-client privilege for dualpurpose communications.
The Ninth Circuit explained:
When dual-purpose communications are involved, there are two potential tests that courts have adopted: the “primary purpose” test and the “because of” test. Under the “primary purpose” test, courts look at whether the primary purpose of the communication is to give or receive legal advice, as opposed to business or tax advice…. On the other hand, the “because of” test—which typically applies in the work-product context—“does not consider whether litigation was a primary or secondary motive behind the creation of a document.” [citation omitted]. It instead “considers the totality of the circumstances and affords protection when it can fairly be said that the document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of that litigation.” [citation omitted]. It is a broader test than the “primary purpose” test because it looks only at causal connection, and not a “primary” reason.
The court left open whether “a primary purpose test” should apply. Id. at 1094–95.
Michael Berman, Esq., is the owner of E-Discovery LLC and Of Counsel to Rifkin Weiner Livingston. He has published extensively, including as the editor-in-chief and a contributing author in “Electronically Stored Information in Maryland Courts” (Maryland State Bar Ass’n. 2020). The
BY LUCY GORNALL
When it comes to lunch, do you pop out and grab a sandwich and chips? Perhaps you prefer a light salad? Or maybe you go out for a hearty work lunch alongside a glass of wine? The foods (and drinks) you choose to eat at lunch however, can very much dictate your mood, energy and productivity across the rest of the day.
Eating too much or too little can also help or hinder your afternoon; too little food can leave you hungry and lacking energy, while too much (especially of the wrong kind) can leave you bloated and full and often, drowsy.
So what’s best to eat and what should likely be avoided? Whether you make your own lunch, or you buy it on the day, this is what you should be aiming for to achieve a solid afternoon of work, without the slumps and sleepiness!
PICK THE RIGHT CARBS
Forget “white” carbs like white bread and white rice; instead, opt for the whole grain varieties. Not only do they contain more fiber to keep you fuller for longer, but wholegrain such as quinoa and brown rice also contain B vitamins which support brain health, vital for powering through the afternoon!
GET YOUR COLORS IN
Fruit and vegetables are packed with vitamins and minerals, but to really enjoy an array of nutrients, you need to ensure that your lunch is packed full of color!
From the sulforaphane-packed greens such as kale and pak choi, which could protect against certain cancers to the antioxidant-filled deep purples of berries and beetroot; different colors indicate different nutrients. Red tomatoes and other red vegetables for example contain lycopene, said to help protect against cardiovascular disease, while orange foods such as sweet potatoes and carrots contain beta carotene, which is converted to vitamin A in the body helping to protect eyes and make hormones. Plus, fruits and vegetables generally contain high levels of fiber as well as vitamin C, to help boost immune health. But why is this important for afternoon productivity? Certain vitamins and minerals can help with concentration and focus, both important to get through a busy work day!
ENJOY AN AVOCADO
Half an avocado sliced, chopped, or spread is a great addition to your lunch, with research finding that it can boost the levels of lutein levels, helping with memory and concentration.
Avocados contain healthy monounsaturated fats (so do other foods such as olive oil, almonds, hazelnuts and pumpkin seeds) and these fats have been linked to general intelligence, proving that they support brain health.
POWER UP WITH PROTEIN
An essential macronutrient, protein isn’t just useful for the gym goers hoping to build muscle. In fact, protein is essential for every tissue in the body, and is vital for various reactions that take place. Basically, we need adequate protein to function.
Enjoy lean protein sources such as chicken, beef, eggs and fish with vegan options including tofu and tempeh. Dairy foods are also a tasty choice of protein; opt for yogurt, cheese and milk.
Oily fish are a good protein option as they also contain omega-3 fatty acids, famous for their brain-boosting abilities. Try salmon, sardines or mackerel for lunch to reap the benefits.
AVOID THE SUGAR
A lunch filled with simple carbs such as sugary foods and the white, refined versions of foods, can cause a drastic spike in blood sugar, which might boost productivity for a short time, but in the long run, it can lead to a big sleepy slump, as well as major brain fog, neither of which are ideal for staying focused at work! It can also lead to you needing more sugary foods to help maintain energy levels, which then places you on a vicious cycle.
SO, WHAT’S THE PERFECT LUNCH?
Try to strike a balance; enjoy a fist sized portion of whole grain carbs, a fist-sized portion of protein and an abundance of vegetables with some good fats such as avocado or a sprinkling of seeds, thrown in for good measure. This could be a nutritious salad, or even a warming soup filled with brown rice, meat and vegetables.
If you need something a little more portable, a wholegrain wrap filled with feta, tuna and leafy greens offers a tasty solution or even a classic wholegrain sandwich layered with your protein of choice and vegetable slices. Alongside your power lunch , try to stick to water or non-sugary drinks to help maintain focus.
A JOB WITH DAILY VARIETY
MICHELE SHIPLEY
Corporate Paralegal, Allegis Group
AS THE HOME OF MARYLAND’S LEGAL PROFESSION, the MSBA advocates for and supports not only attorneys but also paralegals. The MSBA counts hundreds of paralegals among its members and, in 2020, formed the Paralegal Task Force. The mission of the Paralegal Task Force is to advance and promote the paralegal profession by advocating for the professional, effective, and ethical utilization of paralegals, enhancing communication between attorneys and paralegals by creating ongoing and continuing opportunities for camaraderie and cohesiveness throughout the legal community.
Photo courtesy of Travis Marshall Photography
“
Shipley advises people interested in entering the paralegal profession to “get a good foundation and get an education by attending an accredited paralegal program.
Michele A. Shipley, PACE - Registered Paralegal, currently serves as Co-Chair of the Paralegal Task Force. After getting a Bachelor of Arts degree in Political Science, Shipley began her legal career in 1993, working as a legal secretary at a small firm in Annapolis. Driven by a desire to learn and work on more substantive legal tasks, she took evening paralegal classes at Anne Arundel Community College. After she obtained her paralegal certificate in 1996, she became a paralegal at the firm. She stayed in that position until she joined Allegis Group in 2021. Looking ahead, she is excited to learn more about the litigation process as part of Allegis Group’s legal department.
While the highlight of her paralegal career was finding out that she passed her PACE - Registered Paralegal® credentialing exam on her first attempt in November of 2005, she loves that her work as a paralegal “is different every day and that I have the opportunity to learn new things and challenge myself.” She advises people interested in entering the paralegal profession to “get a good foundation and get an education by attending an accredited paralegal program, preferably one that has been approved by the American Bar Association.”
Shipley has been a member of the MSBA for many years and was involved with the
Special Committee on Paralegals before joining the Paralegal Task Force. She says that her MSBA membership allows her to network with attorneys and other legal professionals. She has also taken advantage of the continuing legal education courses the MSBA offers to obtain the credits needed to maintain her Registered Paralegal credential.
In her position as Co-Chair, Shipley is excited to help the Paralegal Task Force continue to thrive and work on its mission as it demonstrates to lawyers, the judiciary, and the general public how the paralegal profession can be effectively utilized, especially in the areas of affordable law and access to justice.
When she is not working, Shipley enjoys spending time with her family. Her daughters are collegeaged—one works full time and attends graduate school, and the other is a senior in college, working on her capstone project and applying to graduate schools. They are both very busy and live in the opposite direction of one another, so they don’t get to spend a lot of time together as a family, so when they are together, it is very fulfilling, if a bit more chaotic. Now that she is an empty-nester, Shipley can often be found next to her husband on the sidelines of Navy Sprint Football and Navy Men’s Lacrosse games, handing out water to the mids as they come off the field. She also kickboxes five to six days a week, an activity she took up in January 2020. She finds it to be great exercise and a fantastic way to release the stress of the day. Shipley feels it is important to give back as well, and is on the Alumni Council at St. Mary’s College of Maryland and sits on the Paralegal Studies Advisory Board at Anne Arundel Community College.
Virtual Services: The New Legal Landscape
BY HEATHER PICKETT
VIRTUAL LEGAL SERVICES are not new. In fact, Major, Lindsay & Africa's 2018 Industry Outlook Report demonstrated that hybrid staffing, which employs both contract attorneys and freelance staff, was becoming increasingly popular as a solution to industry challenges. The use of virtual services skyrocketed when the COVID-19 pandemic began, though, as law firms had no choice but embrace them to carry on. Now lawyers in all practice areas are increasingly using virtual services for support.
Support staff are indispensable to the attorneys that they assist. Having a right hand, a second set of eyes, and a person who is educated, experienced, and skilled in law to help with casework is invaluable. It can save the attorney precious time and give them peace of mind, allowing them to take on more cases and increase revenue because they have the team to do the work. Many law firms lost staff during and after the pandemic due to the drastic changes that came with COVID, such as layoffs, the necessity to relocate, a reduced workload or need for staff, and the loss of childcare. Once courts returned to regular schedules, attorneys were left scrambling to find a new team in an overly competitive market. With the demand growing, the need for virtual legal services was more prevalent than ever. Attorneys are no longer limited to hiring only those who live within commuting distance from their office, which overcomes some of the hiring challenges.
The change has turned out to be much more positive and productive than most imagined. Virtual services have saved firms time, money, and stress. They allow attorneys to grow their practice, outsource much of their substantive legal work to highly skilled and competent individuals, and take on more clients, allowing firms to flourish.
Attorneys are now outsourcing their support needs to specialized companies that offer a variety of virtual services.
For example, CertificateofService.com provides same-day legal noticing services, Del.Trust offers remote and virtual legal recruiting and staffing services, and virtual paralegal companies, including Propel Paralegal Services, Virtual Premier Services, Best Virtual Paralegals, and StarrParalegals, furnish virtual paralegal, legal assistant, and legal administrative support to attorneys throughout the United States.
The post-COVID legal landscape has shown us that we work better when working together. Outsourcing your work to those who specialize in the applicable areas is a smart and efficient way to work. We can all do what we do best and let our virtual team do what they do best, collaborating to create an optimal law office environment.
Heather Pickett is the founder and CEO of Propel Paralegal Services. Propel provides virtual paralegal and legal assistant services to attorneys across the United States.
Remembering Walter E. Laake, Jr.
“
He was always steadfast, warm, kind, dedicated to the law, of strong moral and ethical character, and quite simply a wonderful person.
–Paul F. Riekhof
WALTER E. LAAKE, JR., Managing Partner at Joseph Greenwald & Laake (JGL) until his retirement, passed away on February 7, 2023.
A graduate of Archbishop John Carroll High School, University of Maryland College Park, and University of Maryland School of Law, Walter practiced law with the same group of attorneys he considered good friends, from 1968 until retiring in 2019. During his 27 years as Managing Partner, he grew the firm from five to 35 attorneys. Paul F. Riekhof, the firm’s current Managing Partner, remembers Walter as “deeply committed to the success of JGL and everyone who worked at the firm. He was always steadfast, warm, kind, dedicated to the law, of strong moral and ethical character, and quite simply a wonderful person. He was also a brilliantly creative lawyer who achieved momentous results for many clients during the course of his career. Walter was a founding pillar of our firm, and in many ways JGL is his legacy. We will miss him greatly.”
Walter led a life of service as a preeminent personal injury attorney. He established landmark legal precedents, winning
substantial verdicts for countless individuals who suffered serious injuries. He volunteered with the Trial Lawyers for Public Justice and Trial Lawyers Care, offering pro bono services to victims of 9-11.
Walter was a member of the Maryland State Bar Association and a Fellow of the Maryland Bar Foundation. He served as President of the Prince Georges County Bar Association, and President of the Maryland Association of Justice. Walter was a lifelong Terps fan, who thoroughly enjoyed live music, sporting events, global travel, movie classics and organizing reunions.
He is survived by his beloved wife of 54 years, Sandra Laake, their children; Dana Thomas, Kimberly Benson and Kevin Laake; his sons-in-law, Brendan Murray and Justus Benson; daughter-inlaw, Sarah J. Laake; six grandchildren, Rasta Thomas, Caleb, Isaac and Nathan Benson, Katherine and Leah Laake; and his brothers Stuart H. Laake and Peter W. Laake.
While that heading might seem a little silly, it is absolutely true that fighting digital addiction is a true battle. It took us a long time to realize how deep our addiction was – and winning our battle against the “drug-like” compulsion to be online was not an easy victory.
So . . . if you know you need a digital detox, we hope that what follows with be useful to you. And take heart, there are many of us who have now graduated from addiction to a MUCH healthier way of living!
The History of the Legal Profession’s Focus on Lawyer Well-Being
A brief history is useful on this topic. We’ve talked about lawyer wellness for a very long time, but the first giant wave that got dead serious about lawyer well-being was the ABA’s 2017 report “The Path to Lawyer Well-Being.” After all this time, it’s still a good read—and of course lawyer well-being encompasses far more than digital detoxing.
In our own state of Virginia, we added “Comment 7” to our version of ethical rule 1.1 (Competence). The comment states: “A lawyer’s mental, emotional, and physical well-being impacts the lawyer’s ability to represent clients and to make responsible choices in the practice of law. Maintaining the mental, emotional, and physical ability necessary for the representation of a client is an important aspect of maintaining competence to practice law.”
Amen. The Virginia State Bar also issued a report in May of 2019 entitled: “Proactive Wellness: How to Identify, Understand, and Mitigate Lawyers’ Occupational Risks.” Author Nelson had the privilege of serving on the Virginia State Bar Special Committee on Lawyer Well-Being which authored the report. Her particular emphasis was on – you guessed it –digital addiction and digital detoxing. That report (and many like it across the country) are well worth reading.
Virginia issued an updated report in June 2022 entitled “The Occupational Risks of the Practice of Law.” Since we all solve problems by learning about the genesis of the problems and proven techniques for conquering the problems, the three resources above are a good place to start. Undoubtedly, your own state bar has many resources of its own.
of 40 are much less likely to detox. In fact, 76% never or seldom detox. So . . . the younger you are, the greater your addiction to smartphones (which may extend of course to laptops/computers).
Overall, depending on the study you read, 20-40% of lawyers have a digital addiction problem. Our own experience with our lawyer friends suggests that the percentage may be closer to 40%.
DO WE NEED TO DISTANCE OURSELVES FROM OUR SMARTPHONES?
We think the answer is a resounding yes!
Studies have shown that we check our phones an astonishing 47 times a day. And 2/3 of us check our phones within 15 minutes of getting up. Half of lawyers sleep with their phone on their nightstand – or even in their beds!
Overall, more than half of our waking hours is spent staring at some sort of screen.
We live in a world where research shows that one-third of us are trying (not very successfully) to cut back on screen time.
THE SMARTPHONE: A BALL AND CHAIN
Increasingly, we are tied to our smartphones. You have only to drive to work to see a scary number of people, lawyers included, driving while texting. We live in a world where research shows that one-third of us are trying (not very successfully) to cut back on screen time. Our self-assessment tends to be that we are “burned out.”
Do you remember the terms “digital immigrants” – those who had no computers/smartphones in their youth and “digital natives” – those who can’t remember a day without them? Statistics show that the “digital natives” have a rougher time detoxing. The statistics indicate that 47% of lawyers detox “sometimes.” But lawyers under the age
THAT BRINGS US TO THE “3 Cs” DEFINING ADDICTION.
CONTROL – we cannot control our use of our computers or phones
COMPULSION - we are preoccupied with technology to the exclusion of many other parts of life
CONSEQUENCES – we continue our fervent use of technology in spite of negative social, physical and mental consequences. If the “3 Cs” are reflective of your life, perhaps it’s time for a change.
Feelings
SYMPTOMS OF DIGITAL ADDICTION
(Many are similar to symptoms of alcohol/drug addiction)
Let’s just make a list – no one will fit all, but if you see yourself in some, it should hit home.
Burning eyes Exhaustion Poor time management Sore neck, back pain, etc.
HOW DO YOU FIND HELP?
Virtually every state has the equivalent of the Virginia Judges & Lawyers Assistance Program. These programs are wonderful resources, particularly if your addiction has become so serious that your health and/or your work are badly impacted.
The wonderful part of such programs is that they are confidential. These assistance programs don’t share information with the disciplinary folks so you can be candid about what’s wrong without being apprehensive about being disciplined by the bar.
The folks who staff the programs are familiar with the issues you are facing and have concrete suggestions for helping you unchain yourself from your addiction.
If you simply search online for “Digital Detox Retreats”, you’ll be overwhelmed. These retreats are now global!
“Disconnect to reconnect” is an often used phrase – and it’s apt – we do indeed need to disconnect to reconnect - with family, friends, nature, and so much more.
Even your phone can be your friend. Two of the best things you can do to disconnect is use the software already on your phone to manage screen time. If you have an Android phone, go to “Settings . . . Digital Wellbeing” and set your time for work time or “me time.” If you have an iPhone, Go to “Settings . . . Screen Time” and set time limits for all your apps – while you are there, schedule downtime!
TIPS FOR DIGITAL DETOXING SUCCESS!
email after hours on Friday may receive a reply that you will respond to emails on a Monday. Most of us already use “away messages” when we go out of town, but why not use them simply to let clients know when they will hear back? Colleagues will receive the same message – you may want (or need) to have a method for them to contact you in an emergency (e.g., via text).
Delete time-sucking apps – you know which ones suck all your time!!! At one presentation we gave, a judge stopped listening to us once he heard this tip and he deleted 84 apps from his phone on the spot. We got a wonderful note later from the judge telling us what a difference those deletions had made in his life. The “cure” can be different for different people, that’s for sure!
In a world where we get an average of 60-80 notifications per day, get rid of push notifications (anything you can see, hear or feel) so your train of thought is not continuously interrupted. For Androids and iPhones, just go to “Settings/ Notifications” to make this happen.
LAW FIRMS HAVE AN OBLIGATION TO HELP LAWYERS SUCCEED IN DIGITAL DETOXING
Increasingly, law firms are noting that digital addictions is a problem for their lawyers – especially where the law firms themselves mandate employee online access. We are beginning to see law firms have guidelines for availability at night or during weekends – tiny steps today, but we hope they will grow as law firms appreciate the role they can play in nurturing lawyer wellness.
FINAL WORDS OF ENCOURAGEMENT
Chinese philosopher Lao-Tzu said long ago, “A journey of a thousand miles begins with a single step.” Take that single step today and then keep on taking your journey away from digital addiction step by step.
We did exactly that – and it made all the difference in the world.
Sharon D. Nelson is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association and the Fairfax Law Foundation. She is a co-author of 18 books published by the ABA. snelson@senseient.com
John W. Simek is vice president of Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional (CISSP), Certified Ethical Hacker (CEH) and a nationally known expert in the area of digital forensics. He and Sharon provide legal technology, cybersecurity and digital forensics services from their Fairfax, Virginia firm. jsimek@senseient.com. Loneliness or isolation Sleep disruption Inability to concentrate Headaches
Make a plan and stick to it. Rome was not built in a day and you won’t detox in a day. Wean yourself off the phone gradually. Give clients notice – an “away message” is a great help for emails, so (for instance), a client who sends an
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Five Key SEO Metrics All Law Firms Should Be Tracking
BY TAYLOR TOBEY, MBA, 9 SAIL
While there is an abundance of metrics to analyze in determining the success of your SEO efforts –below, we highlight five key SEO metrics that every law firm should be tracking.
ORGANIC TRAFFIC
There are a variety of channels through which traffic can come to your website – including organic search, direct and social. On a monthly basis, you’ll want to see how much of your total website traffic came from organic search. Be sure to monitor whether the traffic increased or declined month-over-month. This will help you identify trends and if there is room for improvement.
Seeing the different channels through which traffic came to your site can be easily seen within Google Analytics. All you have to do is navigate to Acquisition All Traffic Channels. Once there, you can see metrics for all the channels that are driving traffic to your website.
ORGANIC CLICKS AND IMPRESSIONS
An organic impression occurs when someone searches a query and your website shows up in the results; an organic click occurs when someone clicks through to your website from those results.
It’s important to note that – whether you show up on page one or page ten of the SERPs – this will count as an impression. Because of this, you’ll always have a greater amount of impressions than clicks. Monitoring these two metrics within your Google Search Console will allow you to identify top-performing pages and underperforming pages that would benefit from further optimization.
KEYWORD RANKINGS
One of the most crucial components of properly executing any long-term SEO strategy is keyword research. While conducting your research, you’ll want to make a list of 30-50 actionable keywords you plan to target. An actionable keyword is a keyword that will drive leads or action on your website. For example, “Montgomery County personal injury attorney”: someone searching for this keyword is actively searching for an attorney in those areas (both practice-related and geographically) and is more likely to call or fill out a contact form on your website.
Once your research is complete, you’ll want to choose a keyword tracking tool and input your keyword list. While there are a number of keyword tracking tools available, at 9Sail, we use SemRush’s Position Tracking Tool for clients. Once your tracking is set up, you’ll want to glance at it weekly and make note of any major ranking changes whether positive or negative, helping you understand what’s working and what needs improvement.
ORGANIC CONVERSIONS
A conversion is any user action deemed to be important, such as a download or phone call. Conversion tracking is incredibly important because it allows you to understand which traffic channels and pages are driving the
most leads. While conversions tracked can vary by firm depending on top-line business objectives, there are two conversions every law firm should be tracking.
Contact Form submissions—Contact form submissions can be tracked in Google Analytics as long as you have a “Thank You” page that triggers once a user fills out a form.
Phone Calls— Phone calls can be tracked by setting up a goal in Google Analytics or by utilizing a call tracking platform.
NUMBER AND QUALITY OF BACKLINKS
Link building is hard work, but it pays off if done correctly. As you may know, the number and quality of websites linking back to your website affects your search engine rankings. A quality backlink is one that is relevant and comes from a website with a high domain rating or trust score. The higher the domain rating, the more effective your link will be in boosting your search rankings. Thus, tracking the number and quality of backlinks you obtain can help you understand the effectiveness of your link building efforts.
Taylor Tobey, MBA, is a digital strategist with 9Sail, a lead generation and SEO marketing agency serving the legal industry.
MSBA ETHICS OPINION 2022-02
INTERNET ADVERTISING: COMPETITIVE KEYWORD PURCHASES
QUESTION PRESENTED
Is it ethical for an attorney engaged in online advertising to purchase the name of another attorney or law firm as part of a keyword internet marketing campaign?
CONCLUSION
It is the majority opinion of this Committee that the purchase of a competitor’s name as a keyword in an internet marketing campaign violates the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”), Rule 8.4.
BACKGROUND
We wade into these uncertain and murky waters with the knowledge and understanding that internet advertising and search engines are an ever-changing sea. With that context in mind, we will endeavor to describe the current seascape.
Internet search engines typically produce at least two types of search results for internet searchers: organic and non-organic. Organic results are a list of links to websites in ranked order based on complex algorithms developed by the search engine provider. Non-organic results are the product of paid advertising, and are supposed to be clearly marked; they may appear at the top, in between organic results, or on the side and bottom of organic results. There is also a third tool used by search engines to direct users to certain results which is referred to as boosting or optimizing results defined as “the practice of optimizing web pages in a way that improves their ranking in the organic search results.” (emphasis added).1
When an internet user conducts a search containing certain keywords, links to the websites of paid advertisers and boosted results are generally more likely to appear and/or will appear higher in the result than they otherwise would. Paid advertising results are required to be marked in some way and identified as “Ads” or “Sponsored” results.2 In some cases it is clear that the results are paid or sponsored, and in other cases it is more
difficult to tell whether the links in the search results are organic or represent a paid or boosted result. Boosted or Optimized results are not marked or distinguished in any way, and may appear to be regular organic results.
At least one study found that 62% of those surveyed were not aware of a distinction between paid, boosted and unpaid results.3 The same survey found that only about 1 in 6 searchers say they can consistently distinguish between paid and unpaid results. Id. Research also shows that most consumers are unaware of the fact that results that appear organic may be vertically boosted by payments and may not be marked as advertising in any way.4
COMPETITIVE KEYWORD ADVERTISING
Keyword advertising involves bidding or registering certain keywords or phrases with a particular search engine in order to have an advertisement or listing for the purchasing lawyer’s or firm’s website appear when those search terms are used, or in order to boost indirectly the purchasing lawyer’s or firm’s website in the organic results. The specific practice of purchasing a competitor’s name as a keyword is referred to as “Competitive Keyword Advertising.”
APPLICABLE RULES
MARPC Rule 7.1, Communications Concerning an Attorney’s Services, provides that:
An attorney shall not make a false or misleading communication about the attorney or the attorney’s services. A communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) is likely to create an unjustified expectation about results the attorney can achieve, or states or implies that the attorney can achieve results by means that violate the Maryland Attorneys’ Rules of Professional Conduct or other law; or
(c) compares the attorney’s services with other attorneys’ services, unless the comparison can be factually substantiated.
(Emphasis added). Comment [1] specifies that the Rule “governs all communications about an attorney’s services, including
The specific practice of purchasing a competitor’s name as a keyword is referred to as “Competitive Keyword Advertising.”
You indicated that some lawyers in Maryland are now engaged in Competitive Keyword Advertising and requested a formal opinion from the Maryland State Bar Association’s Committee on Ethics as to whether it would be ethical for you, as a Maryland attorney, to take part in Competitive Keyword Advertising as part of your firm’s internet marketing strategy.
advertising and direct personal contact with potential clients permitted by Rules 19-307.2 (7.2) and 19-307.3 (7.3). Whatever means are used to make known an attorney’s services, statements about them should be truthful.” (emphasis added).
MARPC Rule 7.2 provides that, provided they comply with rules 7.1 and 7.3, an
1 Misplaced trust? The relationship between trust, ability to identify commercially influenced results and search engine preference, Journal of Information Science, May 14, 2021, https://journals.sagepub.com/doi/ pdf/10.1177/01655515211014157
2 FTC Sample Letter to Internet Providers, June 24, 2013, https://www.ftc.gov/sites/ default/files/attachments/press-releases/ftc-consumer-protection-staff-updates-agencys-guidance search-engine-industryon-needdistinguish/130625searchengine generalletter.pdf
3Search Engine Users, Pew Research Center, January 23, 2005, https://www.pewresearch. org/internet/2005/01/23/search-engine-users/
4 The FTC has noted that many search engines now often integrate or offer specialized or vertical search options as part of their search service. “Although sometimes specialized search is just another way of organizing and presenting a subset of natural results, in other instances, it is something different entirely. Sometimes the results returned as part of a specialized search are based at least in part on payments from a third party.” https://www. ftc.gov/sites/default/files/ attachments/press-releases/ftc-consumer-protection-staff-updates-agencys-guidance-searchengine-industryon-need-distinguish/130625search-enginegeneralletter.pdf
attorney may pay for advertising or written communications permitted by this Rule. Any communication made pursuant to 7.2 shall include the name of at least one attorney responsible for its content. (Emphasis added; 7.2(d)).5
MARPC Rule 8.4 (c) declares that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation….” Md. Rule 19-308.4 (c).
The Supreme Court of Maryland (formerly the Maryland Court of Appeals) has interpreted 8.4 to encompass a “broad universe of misbehavior” including conduct “evincing a lack of honesty, probity or integrity of principle” or “[a] lack of fairness and straightforwardness.... Thus, what may not legally be characterized as an act of fraud, deceit or misrepresentation may still evince dishonesty.” Att’y Grievance Comm’n v. Thomas, 440 Md. 523, 555, 103 A.3d 629 (2014).6 See also Att’y Grievance Comm’n of Maryland v. Dore, 433 Md. 685, 708, 73 A.3d 161, 174 (2013)
DISCUSSION AND ANALYSIS
In Maryland, the contents and manner of advertising are covered by 7.1, and 7.2 and are guided by the rules themselves as well as the compelling interests described in the comments. With respect to manner and content of advertising, the rules are not prescriptive so long as “[w]hatever means are used to make known an attorney’s services, statements about them should be truthful” and any advertising communication must “include the name of at least one attorney responsible for its content.” Both of these
rules therefore address not the means of advertising, but its content. As such, so long as the text of the link that appears in the search as well as the linked website are clearly marked with the name of the lawyer responsible for the advertising and the name of the responsible firm, and so long as text that appears is not otherwise misleading, rules 7.1 and 7.2 would not expressly prohibit the use of Competitive Keyword Advertising.
The decision to purchase another attorney or firm’s name and have your name or web page appear in advertising proximate to the organic search results, or higher in what appears to be an organic search is also attorney conduct which is governed in part by MARPC 8.4. MARPC 8.4 requires that the attorney not engage in any practices or conduct that involves dishonesty, fraud, deceit or misrepresentation. As noted above, in Maryland all that needs to be shown to find a violation is that there was a lack of honesty, probity or integrity, a lack of fairness and straightforwardness, or a false statement or misrepresentation that is dishonest; intent to deceive is not required. See Att’y Grievance Comm’n of Maryland v. Dore, 433 Md. 685, 708, 73 A.3d 161, 174 (2013).
Maryland has not previously addressed whether or not Competitive Keyword Advertising that directs searches for a competitor’s name or firm to another lawyer’s webpage violates 8.4, and none of the comments to 8.4 specifically address it. However, the issue has been considered by several other state bars.7
In an early opinion on the subject, the North Carolina State Bar opined that “[t]
he intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.
North Carolina State Bar 2010 Formal Ethics Opinion 14, April 27, 2012, Use of Search Engine Company’s Keyword Advertisements.8
In contrast, the Texas State Bar Professional Ethics Committee found no rules violation where a lawyer would have his name or firm name appear in a “sponsored” or “ad” area when a potential client searches for a competing lawyer or firm by name. State Bar of TX Prof. Ethics Committee Op. No. 661 (July 2016).9 Finding that “[a] lawyer does not violate the Texas Disciplinary Rules of Professional Conduct by simply using the name of a competing lawyer or law firm as a keyword’ so long as “[t]he lawyer’s statements included in this advertising program must not contain false or misleading communications” and “comply in all respects with applicable rules on lawyer advertising.”
The New Jersey’s Advisory Committee on Ethics considered the question of whether a lawyer may (1) purchase a competitor lawyer’s name as a keyword in order to have the lawyer’s own law firm appear in the search results when a person searches for the competitor lawyer by name; and/or (2) pay a search engine or otherwise insert a hyperlink on the name of a competitor lawyer that will divert the user from the searchedfor website to the lawyer’s own law firm website. NJ Supreme Ct. Adv. Committee
5 Comment [1] notes that “[t]he interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by attorneys entails the risk of practices that are misleading or overreaching.”
6See also Att’y Grievance Comm’n of Maryland v. Maldonado, 463 Md. 11, 203 A.3d 841 (2019) (attorney who introduced herself as “Dr. Maldonado” when calling a medical doctor’s office in order to bypass the office staff to speak directly to the medical doctor made a material misrepresentation and engaged in conduct “likely to impair public confidence in the profession, impact the image of the legal profession and engender disrespect for the court” in violation of 8.4); Att’y Grievance Comm’n of Maryland v. Kalil, 402 Md. 358, 371, 936 A.2d 854, 861 (2007) (attorney who called Merit Systems Protection Board administrative judges’ offices three times and provided three different pseudonyms did not violate 8.4 in use of pseudonyms (because it was not material) but did violate 8.4 by representing that he was calling “on behalf of” D.C. Bar Counsel; even if there was an absence of “intent to deceive” the attorney’s actions in representing that he was calling on behalf of Bar Counsel were deceitful and untrue whenever an attorney knowingly makes a false statement, he necessarily engages in conduct involving misrepresentation).
7In Florida, there has been a flurry of activity on this issue, which remains unclear. In 2013, the bar was poised to issue an advisory opinion banning competitive keyword ads, but withdrew the proposed opinion, concluding that some forms of such advertising may be permitted. The Florida Bar Board of Governors proposed rule changes which would limit, but not entirely prohibit, competitive keyword ads. See Eric Goldman, The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads, Technology & Marketing Law Blog, June 5, 2019, https://blog.ericgoldman.org/archives/2019/06/the-florida-bar-regulates-but-doesnt-ban competitive-keyword-ads.htm. 8In the scenario presented in the North Carolina Bar opinion, Attorney A selected the name of Attorney B, a competing lawyer with a similar practice, for use in the search-term-based advertising program. Attorney A’s keyword advertisement caused a link to his website to be displayed on the search engine’s search results page any time an Internet user searched for the term “Attorney B” using the search engine. Attorney A’s advertisement may appear to the side of or above the unpaid search results, in an area designated for “ads” or “sponsored links.” Attorney B never authorized Attorney A’s use of his name and the two lawyers have never formed any type of partnership or engaged in joint representation in any case.
9In the Texas inquiry, Lawyer A purchased keywords so that when someone conducted a search for Lawyer B, Lawyer A’s advertisement would appear to the side of or above the search results in an area designated for “ads” or “sponsored links.” The bar found that the resulting advertisement does not state or suggest that Lawyer A and Lawyer B are partners, shareholders, or associates of each other and that a person familiar enough with the internet to use a search engine to seek a lawyer should be aware that (1) there are advertisements presented on web pages showing search results, and (2) that not every lawyer shown in the list of search results has some type of relationship with the lawyer whose name was used in the search. The Bar also concluded that the practice did not involve fraud, dishonesty or deceit, given the prevalent use of names of competing businesses as keywords in search-engine advertising.
on Prof. Ethics Op. No. 735 (June 2019). The Committee opined that that the first scenario did not violate 8.4, but the second would; surreptitiously redirecting a user from the competitor’s website to the lawyer’s own website is purposeful conduct intended to deceive the searcher for the other lawyer’s website, and such deceitful conduct violates Rule of Professional Conduct 8.4(c).
In response, the New Jersey Bar Association recommended that a comment be added to Rule 8.4 stating that:
It is a violation of RPC 8.4(c), representing dishonesty, fraud, deceit, or misrepresentation, for a lawyer to purchase another lawyer or law firm’s name as a keyword search term from internet search engines to use in the lawyer’s own keyword advertising. The purchase of the recognition and reputation associated with a lawyer’s name or law firm’s name to direct consumers to another lawyer’s website is neither fair nor straightforward and is misleading.
Letter from New Jersey Bar to New Jersey Superior Court, Re: In re Opinion No. 735 of the Supreme Court Advisory Committee on Professional Ethics/Docket No. 08339, February 17, 2022.10
The Ohio Board of Professional Conduct has found that, “[t]he purchase and use of a competitor lawyer’s or law firm’s name as a keyword for advertising is an act that is designed to deceive an Internet user and thus contrary to Prof.Cond.R. 8.4(c).” Ohio Bd. Prof. Cond. Opinion No. 2021-04 (June 11,
2021). The Board concluded that a lawyer’s plan to bid on keywords containing the names of competing firms may lead to a search result that places the purchasing lawyer’s website above that of the competitor and could mislead an unsophisticated consumer. As such, the Board concluded that the practice would violate 8.4 and was prohibited. The Ohio Opinion goes on to conclude that “[t]
the North Carolina State Bar that the purchase of a competitor’s name as a keyword violates Rule 8.4. We reach this conclusion because the language of MARPC Rule 8.4 is broad, and the Supreme Court of Maryland (formerly Maryland Court of Appeals) has found that 8.4 is triggered by behavior that fails to rise to the level of fraud or deceit.
Such conduct is inherently deceptive, especially to the unsophisticated consumer.
he use of another lawyer’s name, without consent, to increase traffic to one’s own website and to further one’s own financial and business interest displays a lack of professional integrity. It calls into question the lawyer’s trustworthiness, sense of fairness to others, and respect for the rights of others, including those of fellow practitioners.”
Similarly, last year the Mississippi Bar concluded that an attorney was not permitted to employ a lead generator service designed to generate potential clients with advertising using another attorney’s/law firm’s name, finding it unethical. Mississippi Bar Ethics Op. No. 264 (April 7, 2022).11
After reviewing these opinions, as well as the language of the Maryland Rules and case law interpreting them, the Committee’s majority agrees with the New Jersey Bar Association, the Ohio Board of Professional Conduct, and
11 Examples of an attorney “lead generation service” include: a searchable “lawyer directory” that sells ads or premium listings that lawyers pay for which move the lawyer up to the top of a list; a “legal referral service” that requires a fee and claims to “pair” consumers with “the best” lawyer for the consumer’s legal problem; lawyers who pay a fee have more clients directed to them; a “legal matching service” that pairs a lawyer directory with a referral service.
Conduct that evidences a lack of honesty, probity or integrity, lack of fairness and straightforwardness or misrepresentation will suffice. The core reason for purchasing as a keyword the name of another lawyer or law firm is to appropriate for oneself the earned reputation of another lawyer or firm in order to further one’s own financial interests. In the view of the majority of this Committee, such conduct is inherently deceptive, especially to the unsophisticated consumer, evidences a lack of professional integrity and calls into question the trustworthiness of the lawyer who does so.
We hope this response is helpful. Thank you for contacting the Committee on Ethics.
Very truly yours,
MSBA COMMITTEE ON ETHICS
Eric Goldman, The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads, Technology & Marketing Law Blog, June 5, 2019, https://blog. ericgoldman.org/archives/2019/06/the-florida-barregulates-but-doesnt-ban competitive-keyword-ads.htm.
• Letter from New Jersey Bar to New Jersey Superior Court, Re: In re Opinion No. 735 of the Supreme Court Advisory Committee on Professional Ethics / Docket No. 08339, February 17, 2022, https://tcms.njsba. com/personifyebusiness /Portals/0/NJSBA-PDF/Reports%20&%20Comments/In%20re%20Op.%20735 % 20Docket%20No.%20083396%20-%20NJSBA%20Letter%20-%20RPC%20 Language.pdf
Misplaced trust? The relationship between trust, ability to identify commercially influenced results and search engine preference, Journal of Information Science, May 14, 2021, https://journals.sagepub.com/doi/ pdf/10.1177/01655515211014157
Sample Letter to Internet Providers, FTC, June 24, 2013, https://www.ftc.gov/sites/ default/files/ attachments/press-releases/ftc-consumer-protection-staff-updates agencys-guidance-search-engineindustryon-need-istinguish/130625searchengine generalletter.pdf
• Search Engine Users, Pew Research Center, January 23, 2005. https://www.pewresearch.org/ internet/2005/01/23/search-engine-users/
DATE APPROVED BY COMMITTEE: January 11, 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.
Beth Salsgiver Hunt
MEMBER SERVICE, RECRUITMENT & RETENTION SPECIALIST
Tell us a little about yourself.
I was born and raised outside of Pittsburgh. I graduated from Indiana University of Pennsylvania with a degree in Criminal Justice and headed south almost immediately. Maryland offered jobs, something that Pennsylvania could not. I began working in family law as a paralegal in the Prince George’s County Courthouse and soon grew roots in both my professional life and personal friendships. Twenty-four years later I still consider myself a Maryland transplant, but in reality I have lived here more than anywhere else in my life.
Tell us a little about your career. Any highlights? I have always enjoyed being in the courtroom with judges and magistrates. I started my career with the Office of Child Support Enforcement as a paralegal doing audits of delinquent child support cases and testifying to these audits in court. I met attorneys from all over and have been inspired by their work ethic and the theatrics of defending a case. I met my husband in a courtroom in Prince George’s County. He didn't know I’d be his wife 22 years after we met, but life has an interesting way of bringing you back to where you need to be.
What did you do before you joined the MSBA?
I was a legal assistant in an elder law firm in Howard County. The founding attorney plucked me directly from my seat in the Trust Office of Prince George’s County courthouse, and I enjoyed all three years I had with that firm before COVID shut us down.
Having supported judges, magistrates and attorneys in every step of her career journey, from the outside and the inside, membership services comes naturally for Beth.
Tell us about your role at the MSBA.
I joke that my role is membership “stuff,” but in reality I am 100% membership focused in every aspect of my role—from attending in-person events and networking to recruiting new members, to emails and phone calls for member retention. I handled a great deal of the Professional Excursion to Puerto Rico and enjoyed integrating my personal love of travel with my MSBA role.
What's your favorite part of your job?
I love meeting members either on the phone or in person! Before I started in this role, I thought I knew most of the lawyers in Maryland, boy was I wrong! While it is always comforting to get a familiar voice on the phone, I truly enjoy engaging each and every member.
What is an interesting fact about you we wouldn’t find on your resume?
I am an avid traveler and a vegetarian, sometimes vegan. Every summer my husband and I travel to a country we haven’t been to before. This past summer we went to Vietnam; we’ve also traveled to Uruguay, Argentina, Brazil, and Colombia. We loved El Salvador so much we went twice! My favorite, by far, is the Yucatan peninsula of Mexico.
What do you do to de-stress or unwind?
Nothing soothes my soul more than climbing a mountain or trekking through the desert sand. Over the holidays, I climbed Lone Mountain in Las Vegas as well as explored the Valley of Fire and Red Rocks Canyon.
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Our Noble Profession
As legal professionals, we understand the vital role that our profession plays in society. We are the advocates, counselors, and defenders of justice, ensuring that our legal system operates fairly and effectively. Our work impacts not only our clients but also the broader community. It is a noble profession that requires integrity, dedication, and a commitment to excellence.
But the legal profession is not just about the work we do. It is also about the community we build. As members of this association, we are part of a larger network of legal professionals who share our values and our passion for the law. We have the opportunity to learn from each other, to support each other, and to make a difference together.
This sense of community is more important now than ever before. As we navigate the challenges of a rapidly changing legal landscape, we need to rely on each other for guidance, inspiration, and support. We need to work together to promote the rule of law and to ensure that justice is accessible to all.
So I urge you to take advantage of the resources and opportunities available to you through our association. Attend our events, participate in our committees, and connect with your fellow members. Together, we can make a difference in our profession and in our communities.
As your Executive Director, I wanted to take a moment to express my gratitude for your continued membership and support.
Anna Sholl, Executive Director
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