AI in the Voting Booth: Misinformation and Election Integrity Respect Replaces Deference: The Post-ChevronRelevance of Agency Expertise What Is the Legal Career That Calls You?
A2JC Commissioner Profile: UBalt Law Dean LaVonda Reed 2025 Legislative Preview
in the Community
and Mingle Events
American Bar Association Annual Meeting
Member Accomplishment
122 Staff Profile: Nathan Levin
124 Executive Director's Message: Adding Members and Adding Value
ANNAPOLIS
30 Maryland Judiciary to Implement Pilot Program on Expanded Voir Dire Beginning in January 2025
35 Simple Steps to a Healthier Gut ACCESS TO JUSTICE
38 Maryland Access to Justice Commission’s New Strategic Vision 40 Commissioner Profile: LaVonda Reed 43 Strengthening Housing Justice: The Renters Rights and Stabilization Act of 2024 Builds on Maryland's Groundbreaking Law
46 The Tenant Safety Act: Rent Escrow, Damages, Fee Shifting, and the Rebirth of Maryland's Habitability Law
Spotlights
FreeState Justice
Cristine LoVetro
113 In Memoriam: Kenneth Sheppard Aneckstein
114 In Memoriam: Judge Michael J. Stamm
115 In Memoriam: Judge Andrew Larimore Sonner
MEMBER CONTENT COMMITTEE (2024-25 BAR YEAR)
Publication Date: Fall 2024
Published quarterly by the Maryland State Bar Association, Inc.
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Telephone: (410) 685-7878 (800) 492-1964
Website: www.msba.org
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Chief Content Officer: Patricia Stockland
Managing Editor: Andrea Solan
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Subscriptions: MSBA members receive THE MARYLAND BAR JOURNAL as $20 of their dues payment goes to publication. Others, $42 per year.
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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.
Donald Quinn
Jasmine N. Pope
Lynette Kleiza
Julie Hopkins
Travys Harvey
Mark Dimenna Jessica Duvall
Hillary Evans
Jessica Markham, Co-Chair Corinne M. Pouliquen, Co-Chair
Andrea Solan
Dave Sidhu Eric Steiner
Anna Sholl, Executive Director
Reena Shah
Andrea Terry
Colleen Aracri
Natasha Nazareth, Emeritus Chair
Amy Dilcher
EDITOR'S NOTE:
Our recent article discussing Maryland Senate Bill 452 (SB452) (“New Liability Rules for Recreational Facilities and Their Impact on Personal Injury Cases,” Maryland Bar Journal, Summer 2024) and its impact on liability waivers at recreational facilities inadvertently presented a perspective that appeared to favor certain stakeholders. While the article accurately reported the bill's contents and potential implications, our editorial team acknowledges that the tone and structure of the coverage could have better reflected our commitment to neutrality. Moving forward, our advocacy team will review draft articles concerning legislation prior to publication to ensure balanced coverage that informs without appearing to advocate for any particular position. We remain dedicated to providing our readers with objective analysis of legal developments that affect our community.
ELECTION & REGULATORY LAW
70 The Voting Rights Act's Elusive Individual Mandate
74 AI in the Voting Booth: Misinformation and Election Integrity
78 Respect Replaces Deference: The PostChevron Relevance of Agency Expertise
80 Special Safe Harbor Can Protect Businesses in IRS Audits of Independent Contractor Relationships
86 Here Comes the Sun . . . and Then What? A Discussion on Decommissioning Requirements for Solar Facilities in Maryland
91 Home Sweet HOA: A Look at the Law of Common Ownership Communities Through the Lens of Local Government
94 Book Bans & The Rise of Censorship in Libraries
CASE NOTE
104 Washington v. Puloka: Applying Daubert and Frye to AI Evidence
ARTIFICIAL INTELLIGENCE UPDATES
52 Generative Artificial Intelligence: A New Partner in Law Enforcement
55 It's Not About the Words, It's About the Idea
FOR YOUR PRACTICE
16 What Is the Legal Career That Calls You?
20 Parenting Coordination: How Maryland Litigators Are Changing the Way Family Court Reduces Conflict Experienced by Children
58 Authenticating Video Evidence in the Age of AI— Mooney v. State Sets Precedent, but AI Concerns Loom Large
62 Res Judicata in Action: Preventing Redundant Litigation in Employment Discrimination Cases
99 The Ozempic Craze May Have a Hidden Price
108 Common Sense Passwords Coming to a Law Firms Soon
110 From Miracle Material to Environmental Challenge: The Evolution of Plastics and Impact of Litigation
your favorite part of the new
MSBA has been busy this fall. We have had several successful Mix & Mingles across the state, part of our ongoing effort to welcome more legal professionals into our membership and provide valuable networking opportunities. Mix & Mingles are informal events that give you a chance to connect with your peers and learn more about the many benefits of MSBA membership. Check the MSBA Events calendar for dates in 2025. I hope you can join us.
JUDICIAL AND ATTORNEY SECURITY
The Maryland State Bar Association remains steadfast in its commitment to ensuring the safety of our legal professionals. We continue to collaborate with our members
Connecting, Advocating, and Informing
and partners through a legislative Task Force to develop recommendations addressing ongoing threats. Our partnership with the Judiciary and our support for legislation like the recently passed Senate Bill 575 in Maryland is a testament to our dedication to this cause. Additionally, we are closely monitoring federal legislation (S. 3984/H.R. 8093) designed to help state courts manage the increasing threats of violence against judges, court staff, and the public.
JURY SELECTION
The Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure has recommended expanding the purpose of jury examination to ensure fair and impartial juries and to aid parties in using peremptory challenges and challenges for cause. MSBA has been actively involved in this process, with members of our Rules Committee participating in meetings held over the summer by the judiciary’s Special Subcommittee on Voir Dire.
In September, the Supreme Court held an open meeting to consider proposed amendments from the Rules Committee to expand voir dire through Rule 2-512 and Rule 4-312. The Supreme Court decided to delay rule changes and instead implement a Pilot Program on expanded voir dire in select
Maryland courts, with data collection and recommendations due by January 2026 for comprehensive amendments to Rule 2-512 and Rule 4-312. This fall, the Maryland Judiciary began planning the Pilot Program, with the MSBA serving on the Advisory Board and establishing MSBA’s Special Committee on Voir Dire to provide feedback and resources. As the process continues, we will continue to keep members informed.
PROFESSIONAL EXCURSION
Now that the days are shorter, it’s a great time to think about some time in the sun. I hope you’ll consider joining fellow bar members and bar leaders at the 2025 MSBA Professional Excursion in Playa Del Carmen, Mexico.
The MSBA Professional Excursion is a great opportunity to learn, connect, take part in a service opportunity, and more while enjoying the colorful streets, beautiful beaches and fine dining that Mexico has to offer. Packages include both three- and five- day stay options as well as a choice between a family-oriented or adult-only resort atmosphere.
Thank you for your continued dedication and support. Together, we are making significant strides in enhancing the security and fairness of our legal system.
Raphael J. Santini, President
Leadership Academy
In September, MSBA's newest class of Leadership Academy fellows engaged with program alumni, committee members, and bar leadership at the annual opening reception held at the Baltimore Museum of Art.
The 12-month Leadership Academy program offers opportunities for future leadership roles within the MSBA, with 15 fellows selected each year. Fellows attend MSBA events, develop and
implement a public service project, and receive training on various leadership skills. They establish relationships with past bar presidents and current bar leaders to enhance their leadership abilities. The program focuses on team building, with fellows developing lasting connections. The skills gained will benefit the MSBA, local/specialty bar associations, and the public.
MSBA looks forward to working with this class of fellows this year and beyond.
MSBA Staff Celebrated for Achievements
Angela Munro, MSBA's Associate Director of Member Engagement, received the Outstanding Achievement Award from the Maryland Hispanic Bar Association in September.
MSBA celebrated the achievements of two of its own who were honored recently for their exceptional dedication and outstanding contributions. Reena Shah and Angela Munro reflect the high caliber of talent within the MSBA team.
Reena Shah, Executive Director of the Access to Justice Commission, was recognized as an Influential Marylander in the category of Law by The Daily Record
MSBA in the Community
Mixing and Mingling Across the State
MSBA members from Calvert, Charles, St. Mary's, and Prince Georges Counties had the chance to connect with colleagues in Mix & Mingles held throughout the fall.
Want to network with peers in an informal setting? Check the MSBA Events calendar for future Mix & Mingles.
American Bar Association Annual Meeting
MSBA's delegation representing at the American Bar Association Annual Meeting in Chicago, Illinois.
UPCOMING EVENTS
Past presidents Hon. Mark Scurti, Hon. Jason DeLoach, Hon. Pamila Brown, Harry Johnson, and current president Raphael J. Santini (above)
Judge Pamila Brown: A FOUR-DECADE LEGACY OF FIRSTS
JUDGE PAMILA J. BROWN, A TRAILBLAZER in the legal profession, dedicated over four decades to advancing justice, diversity, and women's rights. Her distinguished career culminated in her receiving the prestigious Margaret Brent Women Lawyers of Achievement Award from the ABA Commission on Women in the Profession in August 2024, presented at the ABA Annual Meeting in Chicago.
Throughout her career, Judge Brown consistently broke barriers and paved the way for women and minorities in the legal field. She began by providing legal services to underserved communities, becoming the first
Judge Brown received the ABA Margaret Brent Award.
Judge Pamila Brown and her husband, Chris Robinson, at her retirement party in Howard County in June.
female director of inmate legal services at the Baltimore City Jail. Her trajectory continued as she served in various government roles, including assistant attorney general and assistant city solicitor, before establishing her own private practice.
In 2002, Judge Brown was appointed to the district court bench in Howard County, Maryland, where she served until her recent retirement. Her judicial career was marked by a commitment to fairness, excellence, and mentorship. She actively engaged with aspiring lawyers, particularly women, through speaking engagements, mentorship programs, and career guidance initiatives.
Throughout her career, Judge Brown accumulated numerous "firsts." She was the first African American female attorney in the State Highway Administration division of the Maryland Attorney General's office, the first female president of the Bar Association of Baltimore City, and the first woman of color to serve as president of the Maryland State Bar Association. These achievements reflect her pioneering spirit and determination to create pathways for others.
Judge Brown's career is a testament to the power of perseverance, leadership, and commitment to equality. Although she has retired from her position as associate judge in the Howard County District Court, her legacy continues to influence and shape the legal profession, particularly for women and minorities.
Colleagues from across Judge Brown's career shared in celebrating at her retirement party.
What Is the Legal Career That Calls You?
BY JOHN MCKENZIE, ESQ.
Perhaps you have heard the expression “called to the bar.” In medieval England, the expression had a literal quality.
Courts of that era had to fashion a way of dividing the public gallery from the bench. They decided to use a physical barrier: the bar. Those summoned to argue their cases were “called to the bar” to get closer to the bench and away from the public. Among lawyers, only barristers—a term from the root word barre, or bar—had the right to be heard by a court. Solicitors, conversely, had no rights of audience.
Over time, barristers began regulating themselves through the Inns of Court. The Inns, in many ways, were modeled on medieval guilds. These Inns created moot court rooms where junior trainees would observe while more senior pupils could advocate. To get closer to the bench and be heard, the senior pupils were “called to the Utter Bar.”
The Inns of Court would eventually become the gatekeepers of courtroom advocacy in England. To be qualified as a barrister, aspiring lawyers would need to receive a “call to the bar” from one of the four Inns. This practice continues to this day. The English government does not qualify barristers. The Inns of Court do.
Fast-forward to modern American legal practice.
We do not distinguish between barristers and solicitors here. And the Inns of Court do not control the keys to the courthouse. We get licensed by courts or state bar associations. To get our first law license, we pass an exam. In America, we are not called to the bar in a literal sense.
Yet, all of us who practice law are called to the bar figuratively, because the practice of law is a calling. Each of us, for our own reasons, were drawn to this profession.
So what can you do?
Of course, the practice of law is also more than a calling. It can be a business. It can be a paycheck. It can fit within a nine-to-five. Or it can absorb most of our waking hours. It can be an essential public function. Or it can be a purely private matter.
What the practice of law is to you depends on first answering some questions as to what the practice of law can be: What can you do with a law license? In what areas can you practice? And what kind of roles can you pursue?
As law students, we become acquainted with the law as an academic exercise. And of course, for some of us it remains academic. Lawyers can become law professors and commit their lives to legal study, writing, and teaching the next generation of lawyers.
A friend on social media, Miller Leonard, argues that law school prepares students to be appellate judges (as distinct from practicing trial lawyers). True or not, this argument
operations, or law firm administration. Or you can leave the practice of law altogether and decide to start a company or join the workforce in a non-legal capacity.
The possibilities are vast.
Job title is just one question. A related question is the area of law that will be your focus. The law touches almost every aspect of our lives: our families, our jobs, our businesses, our property, our medical care, our deaths, our freedoms, and many other things. Some want to practice law because they want to help people with specific legal issues affecting these core interests. Some practice because they want to use their knowledge within these fields to advance a cause.
Once you decide your ideal title and practice area, you must choose the role that suits you. Legendary trial lawyers like Clarence Darrow or Percy Foreman may capture the public’s imagination. But many lawyers do not practice in court. Many advise on issues like compliance, tax, transactions, immigration, wills and estates, agency law, or any number of practice areas that occur largely outside of a courtroom. Many teach the law. Many serve as neutrals— such as judges, mediators, and arbitrators. And many do not practice at all.
To thine own self be true.
Befitting a precedent-based profession, the practice of law can move at a slow and deliberate pace. There are many well-worn career paths from which to choose. The beauty of this is that there is structure for those who thrive on it. The peril is that you can get swept into the current of the profession and emerge several years later downstream in
Job title is just one question. A related question is the area of law that will be your focus. The law touches almost every aspect of our lives
raises another potential legal career path: becoming a trial, appellate, or supreme court judge.
A law license opens doors—both to the courthouse and to different careers. As a lawyer, you can start your own firm. You can join an existing firm. You can work in-house for a company. You can work for the government. You can work in legal education. You can work in the legal services industry. You can work on the bench. You can become a legal recruiter. You can work in public relations. You can work on legislation as a staffer, lobbyist, or legislative affairs officer. You can work in a non-legal capacity for a law firm, such as business development, law firm
a place you never imagined and may not have really wanted.
So how do you build your own considered and deliberate legal career? How do you find which title, position, employer, practice area, and role is right for you?
As already discussed, the first step requires figuring out the range of options that the practice of law can provide you. The next step is the harder of the two. It requires knowing yourself. You must ask probing questions of yourself to figure out the honest answers to what you are willing, and hopefully eager, to give to the law. And you must ask yourself what you hope to get in exchange.
No one can answer these foundational questions for you.
They are unique to each individual—but they may help guide the inquiry.
Do you want to focus exclusively on legal work, or are you willing to do other tasks as well?
In the long run, do you want to own a business or be an employee?
Are you willing to take the steps necessary to work your way up through the partnership track?
Do you feel comfortable managing others?
Do you feel comfortable doing all of the administrative work necessary to build a business?
Do you trust others enough to build and run a law firm with them?
Are you willing and able to do sales?
How much money do you think you need or want?
Can you go without any salary or income for a while? If so, for how long?
Do you want a fixed compensation structure or can you accept some risk for more potential reward?
Do you want to generate revenue by taking a contingent fee on the cases you win at trial or settle?
Do you want to generate revenue through billing your clients for legal services by tracking your time or charging flat fees?
Are you comfortable writing off time, or do you want to be able to collect on every minute billed?
Do you want a variety of clients and matters or would you like to have one client as your employer?
Are you comfortable working in a supporting role for the core business of your employer rather than being the core business?
Do you want to generate revenue for your employer or do you want to focus on lowering your employer’s costs?
Do you want to drill down and become an expert in a niche, or do you prefer that your practice cover a variety of subject matters?
What subjects interest you?
Do you like routine, or do you want every day to be different?
Which clients would you like to serve (individuals, big businesses, a state entity, etc.)?
How much free time do you want?
Can you handle being on-call for clients?
Do you find structure and bureaucracy comforting or constricting?
Do you want to work for the government?
Are you comfortable with confrontation and disputes?
Do you need or want a job that aligns with your politics?
Are there certain clients or positions that you cannot take because doing so would violate your values?
Do you want your work to be in service of a bigger cause?
Is it important for you to devote a portion of your practice to charitable endeavors?
Does your desired position require credentials that you are realistically willing and able to attain?
Are you willing and able to sacrifice money for experience?
Are you entrepreneurial or more risk averse?
Where do you want to live?
Do you want to be in court trying cases?
Do you seek professional accolades or acclaim?
Are you willing to build a political network and go through an appointment or election process to become a judge or high-ranking government official?
Can you handle the challenges of representing clients on issues that may very well alter the course of their lives, such as criminal cases or custody disputes?
Can you handle the challenges of representing clients in matters that generate publicity?
Can you handle the challenges of representing clients in very high-dollar value disputes?
Can you handle the challenges of managing a high volume of cases?
You do not have to strain to make your personality fit the ambitions of other people.
These factors sometimes work together. For instance, you are more likely to collect for every minute you bill if you drill down in a niche and become very efficient in it. If you are more risk tolerant, you may be more willing to sacrifice money for experience, try different roles, and experiment with starting a business. In the end, how you answer these questions is less important than answering them honestly. You do not have to strain to make your personality fit the ambitions of other people.
Pause for a moment to consider your own ambitions and characteristics. Think about the career that called you to the bar because it reflects your values, talents, and desires. If you are not yet in that career, imagine the steps you could take to obtain that career. Work towards making your calling align with your reality.
John McKenzie is a Partner at Holmes Costin & Marcus PLLC where he found his calling as a trial lawyer focusing on business disputes in Virginia, Maryland, DC, and Texas.
Parenting Coordination
How Maryland Litigators Are Changing the Way Family Court Reduces Conflict Experienced by Children
BY LAURA HAVILAND, ESQ.
Parenting coordinators often help parties work together to implement improved communication and parenting protocols.
THE COVID-19 PANDEMIC produced a seismic shift in the way family lawyers and judges approach contested custody cases. While Maryland has had a parenting coordination rule since July 2011, very few jurisdictions were actively appointing and utilizing parenting coordinators prior to March 2020. Now, across the state, courts from every jurisdiction are appointing parenting coordinators (PCs) to help parents reduce conflict.
Parenting coordination is defined in Maryland as “a process in which the parties work with a parenting coordinator to reduce the effects or potential effects of conflict on the parties’ child.”1 Parenting coordinators may be appointed in an action in which the custody of or visitation with a child of the parties is in issue and the court determines that the case warrants the appointment, or the parents agree to the appointment. The parties meet with the PC on a regular and consistent basis until the conflicts are resolved or minimized, or until the term of the PC expires. By way of agreement, the PC may have some decision-making authority to resolve
1 Md. Rule 9-205.2(a).
an impasse between the parents. PCs often help parties work together to implement improved communication and parenting protocols and to address parenting concerns as they arise in a timely manner. Unlike other alternative dispute resolution processes, the PC is not confidential, and may be subpoenaed by either party to testify in any trial as a fact witness (not an expert witness or custody evaluator). The ability to testify means the PC may be a lay witness to provide details to the Court about the parents; meaningful engagement in problem solving together during PC sessions.
Parenting coordinators must meet the strict qualifications necessary to be court appointed.
On March 13, 2020, the courts closed, and families in conflict quickly realized that their immediate issues would not be resolved in a timely manner. During this time, I was in the height of my litigation practice, working as a partner at a family law firm in Annapolis, Maryland, with my husband and law partner. Although I had been trained as a PC in 2018 and was working with a few families, it was a tangential area of practice. After courts closed, contempt and custody modification matters were not being scheduled, and I began getting calls from family lawyers and colleagues to serve as a PC. At that point in my career, having settled hundreds of cases as an advocate and as a mediator, I had never seen a “pandemic clause” in any parenting agreement. Parents were not equipped to handle all the changes of children being at home, learning to teach children while juggling jobs, medical decisions that had never been an issue prior, and interstate travel. Divorced and separated parents were not equipped to handle the immediate day-to-day changes in their lives as coparents.
Family lawyers went into action. In 2020 an informal group of Maryland PC’s began meeting once a month to discuss cases, and strategies. In October 2021, the Maryland Chapter of the AFCC held a four-week series to educate judges, family magistrates, and family law professionals on the Maryland Rule for Parenting Coordination.
In March 2024, another class of Maryland lawyers and mental health professionals became certified as PCs pursuant to Md. Rule 9-205.2. Parenting coordinators must meet the strict qualifications necessary to be court appointed, including 40 hours of parenting coordination training, 20 hours of family mediation training, a postgraduate degree (in psychology, social work, counseling, negotiation, conflict management, or a related subject area, or from an accredited medical or law school), and three years of professional experience.2 There are three ways in which parents can begin work with a PC: (1) the PC may be appointed or begin work privately by way of a contract signed by both parents, (2) by a court order called a Prejudgment Appointment Order (Md. Rule 9-205.2(f)(1)), or (3) by a Post-Judgment Appointment Order (Md. Rule 9-205.2(f)(2)).
It is the duty of the family support services coordinator for the circuit court of each county to place qualified individuals on a list of parenting coordinators, which list “shall be accessible to the public.”3 Many circuit courts do not have published lists of available PCs.
Subject to any agreement of the parties, the court shall designate how and by whom the PC shall be paid. Parenting coordinator fees vary by professional, usually ranging between $200–500 per hour, much like the range of attorneys’ fees. Parents usually divide the cost of the PC’s fees, unless otherwise agreed upon or ordered by the court. Parents should expect to pay for the PC’s time during sessions, reviewing and drafting documents, and if necessary, testifying. Some jurisdictions have fees allocated to reduce the PC costs.
2 Md. Rule 9-205.2(c).
3 Md. Rule 9-205.2(d).
4 Taylor v. Taylor, 306 Md. 290, 293 (1986).
5 Santo v. Santo, 448 Md. 620, 646 (2016).
6 See Leslie M. Drozd, Robin M. Deutsch, and David A. Donner, Parenting
The PC can testify about observations of the parents’ behaviors during sessions, follow-through over time on tasks, and their ability to communicate and reach decisions. Many parents bring character witnesses to trial, who have not observed the parents together postseparation. A well-prepared case often settles. A PC may be the best fact witness available for any trier of fact to determine the parents’ behaviors, co-parenting capabilities, and reasonableness. The PC has the unique perspective of having worked with the parents together after their separation and leading up to the trial. If the case cannot settle, the willingness or unwillingness of a parent to attempt to work with a PC could be a key factor in determining custody.
In one of the foundational Maryland custody cases, the court decided that an award of joint custody was a permissible exercise of a trial court’s general equity powers and that the most important factor for a court to consider before awarding joint custody is the capacity of the parents to communicate.4 For decades family lawyers spent substantial time and resources proving the parents’ inability to communicate in order to justify an award of custody to one parent over the other. Developing case law also changed the landscape of litigation in custody matters when, in 2016, the Supreme Court of Maryland held “that a court of equity ruling on a custody dispute may, under appropriate circumstances and with careful consideration articulated on the record, grant joint legal custody to parents who cannot effectively communicate together regarding matters pertaining to their children.”5 The Santo ruling resulted in families sharing custody and decision making even when they are in high conflict and unable to communicate.
The convergence of the Santo case with delayed adjudication made the need for PCs even more urgent for feuding parents. Today, Maryland family courts are appointing parenting coordinators in many custody matters pending trial as a way to mitigate conflict for families and a method for resolving the overwhelming family caseloads in our circuit courts. Research confirms that parenting coordination is also a protective factor for victims of intimate partner violence who share custody of children and must navigate raising a child together.6 Not every custody case is resolved with a parenting coordinator. There is virtually no contested case, however, that cannot be improved by working with one.
Laura Haviland is a co-founder Burrows Haviland Law, where she focuses on helping families as a parenting coordinator and mediator. She has presented nationally, and internationally, in the areas of Family Law, including representing children, and Parenting Coordination.
LEADING THE FIGHT FOR LGBTQ+ EQUALITY AND LEGAL EMPOWERMENT
IN MARYLAND
BY COLLEEN ARACRI, ESQ.
FREESTATE
JUSTICE
MARYLAND IS KNOWN FOR its progressive stance, but the fight for LGBTQ+ equality is far from over. FreeState Justice (FreeState), a Baltimore-based nonprofit organization dedicated to supporting and advocating for Maryland’s LGBTQ+ community, stands at the forefront of this battle. Founded to address the unique challenges faced by the LGBTQ+ community, FreeState has become a critical lifeline for many. Its work is grounded in a commitment to ensuring that members of the LGBTQ+ community in Maryland have access to the legal protections and resources they need to thrive.
Photo courtesy of Travis Marshall Photography
FreeState’s team is small but mighty. Many of the staff members shared that their personal experiences and dedication to making a difference in people’s lives drew them to FreeState. Traè McWhite, program coordinator, joined FreeState after experiencing workplace discrimination firsthand. "Who's going to advocate for people like me if I don’t?" McWhite shared, "That’s what brought me to FreeState." For staff attorney Matthew Dare, the mission is about making legal support accessible to those who need it most. "Helping people who stand to lose access or have restricted access to their child gets me up in the morning,” Dare said, noting that someone's sexual or gender identity has no bearing on their ability to parent their child.
Executive Director Phillip Westry was involved with FreeState for years as a pro bono attorney before becoming its leader. "I had always admired FreeState," he shared, "and when the opportunity came to become the legal director, I applied and got the job. I was the legal director for nine months before stepping into the executive director role.”
Lauren Pruitt, the legal director, initially joined FreeState as a temporary attorney but quickly found her calling within the organization. "I came on board to fill a temporary gap, but the work was so meaningful that when a full-time position opened, I took it," she recalled. Now, Pruitt manages a large caseload and oversees pro bono partnerships. She feels it is important to recognize that many Marylanders face significant barriers in accessing legal assistance, which can deepen the effects of systemic inequities and disadvantages. As the Legal Director for FreeState Justice, Pruitt is dedicated to addressing these challenges and advocating for the rights of the LGBTQ+ community and its many marginalized groups.
Maryland's LGBTQ+ Advocates:
A Look at FreeState’s Work
The work at FreeState varies from day to day and person to person, but it is always client-centered.
Free Legal Representation
FreeState, at its core, is a legal services organization. It provides free legal representation to members of the LGBTQ+ community in a broad array of matters, from family law to employment
discrimination and healthcare access. As Pruitt noted, "Being able to provide free legal services can be lifechanging for people who otherwise couldn’t afford it.” Over the years, the organization has expanded its reach, taking on more cases and representing more clients from underserved areas of Maryland.
Family law cases comprise a significant number of the legal matters FreeState handles. Dare points out that LGBTQ+ families face unique challenges, particularly in custody disputes. In many cases, a parent’s identity or sexual orientation becomes the crux of the legal battle. "I recently helped a client, a trans woman, who hadn’t seen her kids in five years due to struggles after her marriage ended. We fought for her, and she now has supervised access," Dare shared.
Another essential aspect of FreeState's work is helping clients navigate the complex legal system for name changes and gender marker corrections. Pruitt estimates that the organization handled up to 200 of these cases last year alone. These cases, while seemingly straightforward, have a profound impact on the lives of transgender and non-binary individuals. "When you have an ID that matches who you are, it allows you to walk into any space confidently, without fear of being questioned or judged," Pruitt explained.
Support Services
While FreeState began as a legal services organization, its scope has since expanded. When Westry joined FreeState, he focused on integrating social services with the organization’s legal efforts and reducing barriers to accessing services, allowing more people to benefit from their legal and social support programs. This expansion ensured that clients not only receive legal help but also access essential resources such as housing and healthcare. "We often can help someone with multiple issues at the same time while they stay within the FreeState Justice family of programs," said Westry.
Now, for many clients, FreeState serves as more than just a legal advocate; it is a source of holistic support. As program coordinator, McWhite helps connect clients with resources ranging from emergency housing to mental health services. "Many of our clients are in desperate need of housing," McWhite says. "It’s one of the most common issues we see, along with legal services and genderaffirming care.”
In one memorable case, McWhite assisted an older client who was struggling with suicidal thoughts. "We stayed on the phone for hours, and now he tells me that FreeState saved his life," McWhite shared.
Advocacy Efforts
FreeState is also heavily involved in legislative advocacy, focusing on members of the LGBTQ+ community who have long been marginalized by society and need a voice in Annapolis. In 2023, FreeState aided in the passage of the Trans Health Equity Act and helped repeal the Unnatural and Perverted Sexual Acts criminal
statute, ending its use to criminalize and stigmatize the sexual practices of LGBTQ+ people.
With the ongoing threats posed by discriminatory legislation, FreeState’s work is more critical than ever. As Westry puts it, "We are facing a national crisis of antiLGBTQ+ legislation, and FreeState is proud to be on the front lines.” Looking forward, FreeState has its eyes on modernizing Maryland’s HIV laws, which criminalize people living with HIV. "This is not just an LGBTQ+ issue, but a health justice issue, a racial justice issue, and a women’s health issue," Westry explained. FreeState will also focus on legislation surrounding employment protections for LGBTQ+ Marylanders, sex-based and gender-based policy, support for seniors, and genderaffirming care protections.
Opportunities for Involvement
FreeState Justice’s impact on Maryland’s LGBTQ+ community is immense, but the need for their services continues to grow. With over 500 requests for service last year, the organization often turns to volunteers and pro bono attorneys to meet the demand.
Attorneys can get involved by joining FreeState’s pro bono panel, where they can take on cases ranging from brief advice sessions to full legal representation. "We have firms and attorneys who work with us year-round, not just during Pride Month," Westry emphasized. "There are so many ways to contribute."
Westry shared that attorneys from all backgrounds are welcome to join, emphasizing that working with FreeState can be both professionally and personally rewarding. "The clients are so appreciative, and we can tailor services based on the firm's limitations," he stated.
They welcome attorneys and firms looking to support them in their efforts in other ways as well, including volunteering with outreach at Pride, helping with a legal clinic, or testifying in Annapolis. They are also looking for more people to serve as Board and Board Committee members.
Supporting FreeState is an impactful way to contribute to the fight for LGBTQ+ rights in Maryland. Whether through donations, volunteering, or simply spreading the word, every bit of help makes a difference in the lives of those fighting to live authentically, with safety and dignity.
As the executive director, what is your long-term vision for FreeState Justice?
The future looks like us expanding into having more physical satellite spaces across the state. We're actively looking to get space in places like Frederick County and Montgomery County. We would love to see more consistent work on the Eastern Shore and even further in Western Maryland. Because there are services that have access issues for people who live outside of the major metro areas, and they are just different from people who live in places like Baltimore City and Howard County, and Anne Arundel County and Baltimore County. We're trying to deliver for everyone across the state in just a broader way.
On a personal level, what do you find most challenging about your job?
Being a gay man, I was a bit concerned about the emotional stakes of working so closely within my own community. I've always been a person who enjoys a bit of a separation between my work life and my personal life, but in this work, it's a lot harder to create that separation. That's something I still balance.
There are so many needs within the community. I know that people see us as a big organization, but our budget crossed a million dollars only about a year and a half ago. It’s one of those things where we want, we know the need, and we want to be there delivering all of the things that folks want us to be delivering, but there is a limitation based on actual resources. Trying to balance the community’s expectations and needs with the resources is probably the biggest question that I'm trying to answer.
LEARN MORE
SCAN ME
What does your day-to-day look like as a legal director?
I still do all of our name change cases because I want to stay involved with the clients. I'll have anywhere from 20 to 40 open cases at a time. My favorite thing about my responsibilities is working directly with our clients. Other than that, I organize all of our legal team events. That can include clinics and speaking engagements. We have several name-change clinics coming up. We try to be flexible and go where they think the classes would be best attended. We also have several area law firms that provide pro bono opportunities for their attorneys; they'll partner with us, and we'll basically provide the clients, and they will provide the attorneys. After COVID, I found that doing both remote and in-person options really increases participation, not only with the clients, but also with the attorneys.
Can you share some of the most impactful cases you've worked on?
Over the last year, we've had probably about 150 to 200 name changes. People don't really think about what that means, but when you finally have an ID that has the correct gender marker, and you're able to now walk into your doctor's office confidently and have them use the correct name, walk into a government office, have a meeting where you have to sign in, and you don't have to explain why the name on your ID is different. All of our cases touch someone, but
those really do allow people to apply for jobs and government assistance for the first time. Every one of those cases means a lot to me, which I think is why I continue to take those on even as legal director. We get calls from people who share: I got my passport, or I got a job, or I was able to get housing. It's just really nice to hear and see folks living the lives we were all promised, right? We were all promised this great American dream.
Could you give me some insight into your background?
I spent about 11 years working for the U.S. Forest Service. I took care of people indirectly by taking care of the land, but I felt I wanted to be more connected to people. That's why I went to law school and focused on working in public interest. I sent out a slew of applications to various notfor-profit legal organizations. I had several offers, and I found FreeState to be very intriguing. I'm not a member of the community; I'm an ally, so the opportunity to work with clients who live lives that are different from mine was very exciting.
How do you go about approaching cases that involve complex legal and social issues, especially where the identity of a member of the LGBTQ+ community is at the center of the dispute? I approach every case as if it's just a case. In other words, I don't consider
who the person is, how they live, who the opposing party is or how they live, what they look like, whatever, at first, until it becomes clear that something related to their identity or sexuality is relevant to the case. I found that the clients respond to that. They recognize that they're being treated like any other human in that situation. I also lead with as much empathy as I can muster in all of my cases, particularly custody cases.
I have kids of my own, and I'm not married to their mom anymore, so I can relate to people who are estranged from the other parent. Being able to let them know this might be the hardest thing you ever go through in your life, and I'm going to help you navigate this, I think, gives them reassurance.
What does an average day look like in your role?
On a typical day, I start by checking Airtable, the platform we use to track clients from the intake department. I review any new intakes or information and follow up with clients or potential partners. Once assigned a client, I assess their case, especially if they were victims of assault, and consult with our victim advocate coordinator. If the case falls under my scope, I prepare resources and reach out to the client via their preferred communication method. I often send multiple resources, especially for those with urgent needs like housing, to ensure they have plenty of options. I spend a lot of time building out resources to enhance our program and enhance the community that we serve.
What do you find most rewarding about your role as program coordinator?
Being able to exist in a community that looks like me and is a lot like me and to serve in a capacity that others don't understand. Being welcome, respected, and treated with dignity, knowing that these are the individuals who needed our help and that you were able to help them. It's so rewarding hearing somebody call or say, "Traè, a month ago, I was homeless, but you helped me get housing.”
Carl Silverman
LAW OFFICE OF CARL S. SILVERMAN
CARL SILVERMAN STARTED HIS LEGAL CAREER after earning JD and LLM degrees from Georgetown Law Center. For 40-plus years, Silverman has represented business clients as a partner in Maryland-based law firms and since 2005 in his own firm in Baltimore. He has represented clients primarily in employment relations and workplace litigation. Silverman’s clients include trade associations, nonprofit religious, educational, and other entities. He has also served as a parliamentarian for various organizations.
Photo courtesy of Travis Marshall Photography
ORDER IN THE MSBA
You served as MSBA's Board of Governors' Parliamentarian for 33 years. Describe your role.
One of the most satisfying experiences of my professional life has been the opportunity for me to serve on MSBA’s Board of Governors (BOG) as parliamentarian for its leaders and MSBA members. For the past 33 years, I have been privileged to sit next to 33 presidents presiding at BOG meetings, and each executive committee, executive director, other key staff, BOG members, committee and task force chairs, special invited guests, and others.
In general, as an MSBA parliamentarian, it has been my duty from year to year to prepare for regular BOG, annual membership, and special meetings. It has been my charge to help MSBA’s leadership carry out its mission as the home for over 20,000 attorneys, legal professionals, law students, the bench-bar legal community, and the society in which our legal system operates and is intended to thrive for all.
Please explain how you got interested in serving as a parliamentarian for the MSBA?
After being elected In 1988 as the incoming president of a nonprofit organization in Baltimore, I recognized that I needed to know more about the parliamentary skills necessary to conduct meetings and accomplish related business in my new role.
My first step was to register for an MSBA program on parliamentary procedure for attorneys. I found the MSBA program to be most worthwhile. I then became a charter member in the newly formed “Lawyers Unit” for the Maryland Association of Parliamentarians (MAP), which was affiliated with NAP. As new members in the Lawyers Unit, MAP, and NAP, we lawyers undertook to become more proficient as parliamentarians and to practice doing so as we could.
All of this—thanks to the MSBA— has enabled me to gain and maintain personal relationships, to stay current with the law in real time, and, frankly, to be recharged and inspired regularly and profoundly as a practicing attorney.
I became a Registered Parliamentarian in 1990. I then prepared to become an NAP Professional Registered Parliamentarian (PRP) and earned that credential in 1991. It was at that time that incoming MSBA president Louise M. Gonzales (1991–92) endorsed me to serve as parliamentarian.
The MSBA President for the 1992–93 bar year, Roger Perkins, endorsed me to serve as parliamentarian. Year Number Two began. The rest, as they say, is history.
What are some accomplishments and satisfactions you have achieved during your career?
Over the years, for example, I have formed multi-employer associations and led the collective bargaining process on members’ behalf with an array of labor organizations in Maryland, Virginia, and the District of Columbia, and nationally. I have also litigated for those clients. I also formed and provided counsel for various trade associations in MD and elsewhere.
Representing associations and organizations in the nonprofit world for decades as general counsel, deputy general counsel, special counsel, legal liaison, and parliamentarian provided me with great satisfaction. These opportunities for volunteer service included my serving as general counsel for Baltimore Hebrew Congregation, counsel for the North American Union for Reform Judaism, legal liaison for the National Association of Parliamentarians, counsel for other organizations, and, of course, parliamentarian for MSBA.
What is one MSBA event that has had an impact on you personally or professionally?
“On duty” as parliamentarian for the MSBA for meetings at its annual conferences and legal summits, I have been able to attend the yearly social gatherings and networking opportunities, as well as to participate as a
presenter and attendee in an array of CLE courses and programs. All of this—thanks to the MSBA—has enabled me to gain and maintain personal relationships, to stay current with the law in real time, and, frankly, to be recharged and inspired regularly and profoundly as a practicing attorney.
How do you spend your free time?
During these 33 three years of service for MSBA, before and after, I have been privileged to be married to Carolyn Polowy, herself a long-time member of MSBA. We have, together, raised two (now) adult sons, and much of my “outside career” focus and activity has been spent by me involved in these years as husband, father, and grandfather.
In “my free time,” I have been an avid fan of the Baltimore Orioles (once participating in uniform at the “Orioles Dream Week” in Florida for aspiring “older” baseball players), Baltimore Ravens, and Johns Hopkins Lacrosse Blue Jays. Beyond that, much of my time and focus has been devoted to activity and service for my religious community, and in and for parliamentarian organizations, related activities, and leading programs there.
What is an interesting fact about you that one would not find on your resume?
In April 2022, the Baltimore Ravens selected me to represent “Ravens Nation” at the 2022 NFL Draft in Las Vegas. As a founder of the “Bring A New NFL Team to Baltimore”—and the arrival of the Ravens franchise in 1996, and as an avid Ravens fan and original PSL owner at M&T Stadium, I was privileged to lead the Ravens fan delegation in that year’s draft. I joined NFL Commissioner Roger Goodell on stage to present Kyle Hamilton (all-pro safety) with a Ravens jersey and announce to the world the Ravens’ fourth-round pick.
Maryland Judiciary to Implement Pilot Program on Expanded Voir Dire
BEGINNING IN JANUARY 2025
The Pilot Program will begin with expanded voir dire in eight Maryland circuit courts as a representative sample.
Courts across the country are considering and implementing reforms designed to improve fairness and reduce bias in the jury selection process. Maryland has reviewed the issue for several years, and both the Maryland Legislature and Judiciary have engaged in significant study and work related to expansion. In early 2024, the Maryland General Assembly introduced legislation that would update the jury selection process to include expanded voir dire. Legislative leaders connected with the Maryland Judiciary and its Standing Committee on Rules of Practice and Procedure to consider the proposed expansion in 2024 before any further legislative action.
The Supreme Court of Maryland, in its September 13, 2024 Order, created Rule 16-310, establishing a Pilot Program for Expanded Voir Dire, in response to comments from Maryland practitioners and judges and with a goal to collect comprehensive feedback on a proposed expansion before amending the Rules. Rule 16-310 was adopted in anticipation of potential changes to Jury Selection Rules 2-512 and 4-312, to identify allowing “the parties to obtain information that may provide guidance for the use of peremptory challenges” as an appropriate purpose for juror voir dire (“expanded voir dire”). The Pilot Program is expected to run through mid-2025, and Rule 16-310 shall sunset the Program on January 1, 2026.
The purpose of the pilot program includes gathering information and experience that may be used to:
1. study the effects of expanded voir dire on the effectiveness and efficiency of jury selection, case management, juror satisfaction, public perception of the trial process, court operations, and related concerns;
2. develop guidance and education to assist courts, attorneys, and litigants in the implementation of expanded voir dire statewide; and
3. inform efforts of the Standing Committee on Rules of Practice and Procedure and the Supreme Court to consider whether amendments to Rules 2-512 and 4-312 are appropriate.
MSBA serves on the Judiciary’s Pilot Program Advisory Committee and is supporting the Program’s work through resource updates, member education, and feedback. The Pilot Program will begin in January 2025 with expanded voir dire in eight Maryland circuit courts as a representative sample. MSBA will continue to update members on the Pilot Program and its impact on your practice, given this significant update to the jury selection process through the Program.
MSBA provides a comprehensive timeline of the proposed expansion and recent efforts below.
Voir Dire Timeline
MARYLAND’S GENERAL ASSEMBLY considers HB1079/SB827, expanding the scope of jury selection to (1) to identify and remove prospective jurors who are unable to serve fairly and impartially, and (2) to allow the parties to obtain information that may provide guidance for the use of peremptory challenges and challenges for cause. MSBA monitors the bill, connects with stakeholders, and provides informational comments.
Proponents of the bill argue that expanded voir dire will allow attorneys to assess implicit bias and seat fairer juries. Opponents say the bill will increase the time, costs, and court resources needed for jury selection.
MARCH 2024
SB827 IS AMENDED TO ADD a Workgroup to study the voir dire process and make findings and recommendations by June 30, 2025. The bill passes in the Senate but does not move through the House.
CHIEF JUSTICE MATTHEW J. FADER requests the Court’s Standing Committee on Rules of Practice and Procedure to consider on an expedited basis whether to make recommendation(s) to the current scope of voir dire.
MAY 2024
MSBA PARTICIPATES in meetings with the Special Subcommittee on Voir Dire along with MSBA members who draft MSBA’s Model Pattern Jury Questions. The Special Subcommittee recommends changes to Jury Selection Rules, Rule 2-512 and 4-312, incorporating the language from SB 827.
The Special Subcommittee also reviews jury examination rules from other states, including Washington and California, to address concerns about the use of peremptory challenges and consider expanding the scope of any rule to protect enumerated groups.
JUNE 20, 2024
THE COURT’S RULES Committee reviews the Special Subcommittee’s recommendations and recommends an expansion of the purpose of jury examination. The proposed amendments now go to the Maryland Supreme Court for final consideration and approval in the Committee’s 222nd Report at an Open Meeting in September.
THE MARYLAND JUDICIARY begins planning for the Pilot Program on Expanded Voir Dire to commence in January 2025, with MSBA serving on the Judiciary’s Pilot Program Advisory Board. MSBA establishes a Special Committee on Voir Dire to provide feedback and resources to the Judiciary and the Bar and to educate and inform members of proposed changes. SEPT 12,
THE COURT’S RULES COMMITTEE hears from organizations and practitioners, including MSBA, on the proposed voir dire expansion and next steps. MSBA shares comments, notes its work in creating and publishing model questions in the Model Pattern Jury Instructions, and the availability of our practitioners and judicial members to aid this Committee's work.
The Committee refers the issue of voir dire expansion to a Special Subcommittee on Voir Dire to determine: (1) whether to issue guidance on eliciting information from potential jurors for purposes of peremptory challenges and challenges for cause, (2) consider the scope and purpose of voir dire, (3) consider the impact on trial courts, and 4) engage with groups involved in this issue, including MSBA.
AT THE SUPREME COURT of Maryland’s Open Meeting on the 222nd Report, MSBA provides written and oral comments, expressing support to address implicit bias and increase transparency in the judicial process, while sharing practitioner concerns about the rule’s implementation, impact on jury selection time, process for judges and attorneys to handle questioning prospective jurors, and updated line of questions and potential topics.
After hearing from several attorneys and judges about the proposed rule change to expand voir dire, the court does not approve a rule change. Instead, the court implements a Pilot Program on expanded voir dire in select Maryland courts to collect data and make recommendations to the Rules Committee and the Supreme Court in anticipation of proposed rule changes and whether amendments to Rules 2-512 and Rule 4-312 are appropriate, by January 2026.
As the court considers further expansion, MSBA will continue to connect with the Judiciary’s Advisory Board and the court’s Rules Committee, engage MSBA expert practitioners to review and update model questions that MSBA believes will support the Bar as a whole, and collect and share feedback from its members with the court on the proposed expansion and rule changes.
Inside Annapolis 2025 Legislative Preview
During the 2024 legislative session, MSBA successfully advocated on behalf of the legal profession and defeated a proposed tax on legal services, enhanced judicial and attorney security through the passage of SB575, secured civil legal aid funding, and provided testimony on dozens of bills that impact multiple practice areas. MSBA received national recognition for its advocacy work on the proposed tax on legal services in 2020 and again in 2024, as a recipient of the American Society of Association Executive’s Power of Associations Award. MSBA works on behalf of over 42,000 attorneys throughout the state to identify and take action on legislation that impacts legal practice areas, firms, clients, and the profession.
These priorities continue into the 2025 session, particularly given the continued violence against the judiciary and courthouse threats. MSBA President Santini notes the importance of continued advocacy and the critical role of judicial members in upholding the rule of law: “A judicial officer must be neutral, detached, and free from danger in dispensing justice in our state. The MSBA will continue with the judiciary to participate in the new legislative task force, which shares this goal.”
MSBA prioritizes the following initiatives for the 2025 session:
Taxation on Legal Services: MSBA will continue to prepare and mobilize membership on any proposed sales tax on legal services that MSBA successfully defeated in 2020 and 2024. The proposed tax would have a direct and devastating effect on every Maryland attorney, law firm, and legal organization by increasing operational costs and decreasing competitiveness. A tax on legal services would dramatically alter the legal landscape and most harm the ability of low-income Maryland individuals and small businesses to access critical legal counsel and representation. Advocacy efforts include grassroots campaigns, legislative testimony, member and public education, and connecting with stakeholder groups.
Judicial and Attorney Security: Following the successful passage of the 2024 Judge Wilkinson Judicial Security Act, in partnership with the Maryland Judiciary, MSBA President Santini currently serves on the legislatively-created Task Force to Ensure the Safety of Judicial Facilities, which will report findings and recommendations by January 1, 2025. MSBA’s
MSBA works on behalf of over 42,000 attorneys throughout the state to identify and take action on legislation that impacts legal practice areas, firms, clients, and the profession.
participation ensures that the voices of all of our members, including judges, attorneys, students, and other court professionals, will be heard. As members report ongoing fear for their safety, MSBA will continue to support legislation and advocacy efforts that enhance judicial and attorney safety and security and the rule of law nationwide, including:
• Protecting personally identifiable information of judges, court personnel, and family members;
• Courthouse construction projects, improved infrastructure, and technology modernization; Additional security measures in courthouses, surrounding outdoor areas, commissioners’ offices, and judicial offices and homes;
• Increased security staff and related trainings;
• Threat assessment and response funds; and
• Ongoing assessments and reporting of the current and future security needs of the judiciary.
Funding for the Access to Counsel in Evictions (ACE) Program Funding: MSBA supports adequate funding for the Access to Counsel program to expand the availability of legal services to those Maryland citizens unable to afford adequate legal counsel, as funding is scheduled to sunset in 2027. MSBA will continue to partner with Maryland’s Access to Justice Commission and other civil aid groups to secure funding for these initiatives that affect basic human needs and to educate legislators and the public on the value of civil legal aid and increased funding.
In addition to its legislative advocacy, MSBA will continue to participate and monitor any proposed rule changes, including any introduction of a minimum continuing legal education requirement and any expansion of the jury selection process. For more information and resources, visit MSBA’s Advocacy page.
The MSBA conducts the most effective advocacy with your support. Please join us to advocate for issues that matter to you and to the legal profession.
Simple steps to a healthier gut:
FROM DIET TO STRESS-BUSTING, FOLLOW THESE GUT-BOOSTING TIPS
BY LUCY GORNALL
Thegut, or gastrointestinal tract, runs from our mouth, all the way down to our anus. It's not just one long (nine meter!) tube however, as it also contains digestive organs including the stomach, small and large intestine, gallbladder and pancreas.
When we eat and drink, our digestive system breaks everything down so our body can absorb the nutrients it needs. But there’s a little more to the gut than just breaking down food. Our gut actually has its own microbiome, filled with around 100 trillion bacteria—both bad and good.
This bacteria, which is still being heavily researched, has been proven to increase or decrease our risk of developing a number of chronic diseases. So how do we ensure enough of the right bacteria is housed in our gut? Well, a number factors play a part here—from medications through to stress levels, as well as diet and aging. To keep your gut as healthy as possible, give these tips a try . . .
Eat plenty of plants
Ensuring a diet that is rich in color, variety and also fiber, is important to maintain a healthy gut. From berries through to bananas, leafy greens and legumes (such as lentils and chickpeas), packing in fibrous foods helps feed the bacteria. Plus, there’s even research to show how a diet higher in fruits and vegetables can actually slow down or stop the growth of certain bacteria that cause disease.
Try fermented foods
If you’re new to fermented foods, then start off with small portions as these foods can sometimes lead to gastrointestinal issues including bloating and gas. Essentially, fermented foods are foods which have gone through a process in which the sugars that they contain are broken down by bacteria or yeasts. These fermented foods can help maintain a healthy digestive system, and promote good bacteria, plus a study which took place over a 10-week period actually found that fermented foods can help improve immune responses. Examples of fermented foods include kombucha (a fermented drink), kimchi (fermented cabbage), sauerkraut (another type of fermented cabbage), pickles, and even yogurt.
Opt for prebiotics and probiotics
You may be familiar with these two words; probiotics are good bacteria or live microorganisms found in certain foods, drinks and supplements, whilst prebiotics are a type of fiber that essentially feed this friendly bacteria. Research on probiotics is still underway, however foods rich in probiotics include fermented foods, olives and yogurt whilst prebiotic foods include apples, berries, cocoa and artichokes.
Keep stress low
The state of our gut is impacted heavily by our stress levels with heartburn, indigestion, diarrhea, constipation and nausea just a handful of the stress-related symptoms. So, reducing stress is important to maintain a healthy gut. Try to ensure a solid sleep, with a calm, stress-free wind down before bed, exercise when possible, spend time in nature and avoid working late into the night. Instead, shut off at a certain time and engage in other activities.
Exercise
Movement and exercise gets things ‘moving’ along the digestive tract; especially useful if you’re struggling with constipation. There is also research to suggest that exercise can enhance the amount of good bacteria too, leading to more health benefits. Plus, exercise is known to be a great stress relief, helping to lower the amount of the stress hormone, cortisol.
Maryland Access to Justice Commission’s
New Strategic Vision
BY REENA SHAH, ESQ.
THE MARYLAND ACCESS TO JUSTICE COMMISSION (A2JC) strongly believes that the lack of civil justice data is a barrier to civil justice for all. In an era where information is power, access to data has emerged as a crucial component of social justice, including civil justice for all. The ability to access, understand, and utilize data should be synonymous with access to justice. Data drives decisions in virtually every sector of modern society. From policy-making to resource allocation, data should also inform choices that impact individuals, families and communities that intersect with the civil justice system. However, uniform and actionable data in the civil justice system is hard to come by and is a barrier to access to justice.
Data access can be particularly empowering for the access to justice community and the marginalized communities it serves. It can provide a birds-eye view of the civil justice system, with the potential to identify trends, guide resource allocations and advocate based on systems data and analysis. Additionally, data access and analysis can help promote transparency and hold our justice systems accountable, exposing potential biases, disparities, inefficiencies, or injustices.
A2JC’s newest data tool that will advance our understanding of the civil justice system is the Access to Justice Resource and Asset Map (A2J Map). A2JC partnered with the Mid-Shore Council on Family Violence to develop a real-time data visualization of the Civil Justice Ecosystem in Maryland using the spatial mapping technology, ArcGIS. The A2J Map is the first comprehensive visualization of the civil justice ecosystem in Maryland. Holistic in its approach, it maps out physical locations of courts and the civil legal aid organizations, but also the locations of social services organizations, food pantries, homeless shelters and much more. A data visualization like the A2J Map makes complex information about the civil justice system accessible to the public. It is also valuable in connecting clients to services efficiently; identifying potential partners; showing the relationship between civil legal issues and socioeconomic and demographic factors; unearthing correlations between civil legal matters and community outcomes; identifying trends; and advocating for increased funding and policy reform.
In its first iteration, the A2J Map serves as a one-stop shop to connect clients to the help they need, in an efficient and user-friendly manner. Often, civil legal aid attorneys are called upon to solve complex client needs outside the four corners of a legal case. Many times, the legal issue itself cannot be solved without additional support from a social services entity or the involvement of a
community based program. At the same time, finding and linking to community resources to serve clients can be an onerous and timeconsuming, depleting scarce attorney time.
This A2J Resource Map addresses these challenges by allowing the user to search and instantly find institutions in the civil justice system like state and federal courts, administrative hearing locations, community mediation centers and civil legal aid organizations. It also allows the user to identify other helpful organizations and entities, like government agency offices, community organizations and neighborhood and emergency resources.
How is this helpful? This is helpful because it can help a civil legal aid attorney or staff member to share with a client who is, for example appealing the denial of their SNAP food benefit, to show their client all the food pantries near their home; show the administrative office location of their case’s hearing; help map out the bus route and calculate the time needed to attend the hearing; help identify child care and pet care centers near the home; and find the grocery stores near the client’s home that accept the SNAP card the client needs to take to their hearing. This one-stop shop approach will help civil legal aid organizations serve their clients faster and better, while saving their attorneys and advocates precious time.
Another important application of the A2J Resource Map is that it can be used to identify gaps in coverage and underserved areas that lack nearby legal and other resources. The next iteration of the A2J Map will layer in heat maps of different types of civil legal cases in comparison to the availability of civil legal aid. Mapping case data over time can reveal hotspots; trends and patterns and emerging legal needs in specific communities.
The creation of the A2J Resource and Asset Map can immediately be used to help the
access to justice community and the clients we serve and in the future will help A2J conduct deeper analysis on the civil justice system to help better meet the civil legal needs of Marylanders.
A2JC has been a leader in centering access to civil justice data as an access to justice issue. Since 2020, A2JC has worked to collect and collate data from disparate reports, agencies, and organizations to create many first-oftheir-kind data tools, including a Civil Justice Data Dashboard, the Civil Justice for All Story Map, and a Housing Data Dashboard. We have also been a leader in advocating for more civil justice data, especially in relation to evictions, leading to the first Maryland Eviction Dashboard for the state of Maryland. Further, A2JC has used data about the civil justice system to advance our key legislative priority to increase civil legal aid funding. By creating county-specific one-pagers that share detailed data about the impacts of the civil justice system based on each county, we are able to demonstrate to each legislator the impact of the civil justice system on their own constituents. Our Data Hub promotes the importance of data collection and analysis; houses tools and dashboards; and describes advocacy efforts and policy positions that push for transparency and access to more civil justice data.
For several years, Mid-Shore Council on Family Violence (MSCFV) has used Geographical Information System (GIS) technology to increase domestic violence victims' access to housing and resources. MSCFV's GIS Hub provides searchable maps for housing, resources and employment across the state of Maryland. They offer free access to the GIS Hub to nearly 30 community agencies.
LaVonda Reed
Dean at University of Baltimore School of Law
LAVONDA REED, THE NEW DEAN of the University of Baltimore School of Law (UBalt Law), has spent most of her 25-year career working to increase access to legal education and preparing the next generation of legal professionals. Reed made history this past July when she became the first woman to hold the deanship at UBalt Law in its 100-year history.
"I try not to think about it too much because regardless of whether I'm a man or a woman, I've got to run the law school and try to advance it as best I can. And, set it up for many, many years of success long after I am gone." Reed shared, reflecting on her historic appointment.
Reed’s path to UBalt Law began during her undergraduate years at the University of Virginia, where a summer job in the general counsel’s office at the Defense Communications Agency introduced her to telecommunications law. Her journey into the legal profession took a detour after college, however, as she briefly worked in banking before she decided to revisit her desire to pursue law.
Reed earned her law degree from the University of Southern California. After passing the bar, she entered private practice, working at Paul Hastings for three years before transitioning to a career in legal education. She accepted a role as an Assistant Professor at the University of Louisville Brandeis School of Law, teaching telecommunications regulatory law and policy,
Photo courtesy of University of Baltimore School of Law
Access to justice, for Reed, means more than just providing legal representation. It’s about ensuring that people have faith in the legal system and that they are treated with fairness and respect.
property, and wills and trusts. She then joined the faculty of Syracuse University College of Law before moving into an administrative role as the associate provost for faculty affairs.
Before her appointment at UBalt Law, Reed served as the dean of Georgia State University College of Law, where she made history as the school’s first African American dean. "I know representation matters,” she noted, speaking about the impact her presence as a leader has on students, particularly students of color. “I can see it in the student body . . . they take note of it, and I think it’s a source of pride for the institution and inspiration for those I lead and for those coming behind me.”
As a law school that prides itself on focusing on access, UBalt Law has developed numerous clinical programs that offer both valuable learning experiences for students and critical legal services for the community. Under Reed’s leadership, these clinics will continue to play a central role in UBalt Law’s mission. “We are touching a lot of underserved areas through our clinical programs,” she remarked, citing clinics that focus on post-conviction work, family law, community development, and more.
These programs not only provide students with practical legal experience but also help meet the needs of individuals and small businesses that may not otherwise have access to legal representation. Reed acknowledges that while these clinics are a powerful tool for expanding access to justice, they are expensive to run and require significant resources. As such, part of her work as dean will involve finding new ways to support and expand these programs, potentially through partnerships with donors who share the school’s mission of justice.
In addition to her work with students, Reed is keenly aware of the challenges facing the broader legal profession. She serves as a member of the Maryland Access to Justice Commission (A2JC), where she collaborates with other legal professionals to address the significant gap in legal services available to Maryland’s low-income residents. Access to justice, for Reed, means more than just providing legal representation. It’s about ensuring that people have faith in the legal system and that they are treated with fairness and respect. “I see it as a concept . . . where people have confidence that they’re going to be treated by well-trained, competent practitioners and that they will be taken seriously by the legal system,” Reed said.
Reed’s work on the A2JC reflects her belief that access to justice is essential for a functioning democracy. She sees the commission as a vital platform for raising awareness about the gaps in legal services and for finding innovative solutions to bridge those gaps. One of the challenges she highlights is the need to educate the public about the legal system and their rights within it. People need to understand
how laws are made, what their rights are, and “feel as if they have the opportunity to participate in the process,” Reed emphasized. In this way, access to justice is as much about legal literacy as it is about legal representation.
Reed’s commitment to ensuring that the legal profession remains accessible, both to those who wish to practice law and those who require its services, is nothing new; rather, it has been her focus throughout her academic career. When asked what she is most excited about as she takes the helm of UBalt Law, Reed narrowed it down to "three Ps": People, Place, and Purpose. She described the people of UBalt Law—the faculty, staff, students, and alumni—as phenomenal. Baltimore, the place, is an exciting city with a rich history. Finally, she embraces the school’s purpose. As Reed put it, “We are a school of access; we provide access to legal education and access to the profession.”
One of her primary goals as dean of UBalt Law is to continue the school’s long-standing dedication to providing legal education to students for whom it otherwise may not be available and to support pathways to legal education and the profession.
As part of her commitment to that goal, Reed wants to ensure that UBalt Law remains affordable. She understands the burden that student debt places on young lawyers, especially those interested in pursuing careers in public interest law, where salaries can be significantly lower than in other practice areas. “One of the important things I focused on at Georgia State, and will continue to focus on here, is to maintain an affordable education,” Reed said. She emphasized the need for students to be able to pursue their career aspirations without the pressure of having to “mortgage their future.”
Reed has been actively involved in raising funds for scholarships and stipends to support students who are interested in public interest work, ensuring that they have the financial support to pursue their passion for justice. This aligns with her broader vision for UBalt Law, which includes preparing students to not only pass the bar but also to serve communities in need. “Most of our students want to go out and make the world a better place, and to be in an environment like that is really, really inspiring,” Reed said.
Ultimately, Reed’s goal as Dean is to ensure that UBalt Law continues to be a place where students from diverse backgrounds can succeed, where the legal profession is made accessible to all, and where justice is available to everyone, regardless of their means. In her own words, “I am just honored to be a part of it.”
For Maryland attorneys and the broader legal community, Reed’s leadership signals a continued commitment to these values and a bright future for UBalt Law.
Strengthening Housing Justice: THE RENTERS RIGHTS AND STABILIZATION ACT OF 2024 BUILDS ON MARYLAND’S GROUNDBREAKING ACE LAW
BY COLLEEN ARACRI, ESQ.
The Access to Counsel in Evictions (ACE) law, passed in 2021, was groundbreaking legislation that established the right to counsel for lowincome tenants facing eviction. ACE was a critical step in addressing the disparity in legal representation in eviction proceedings. However, the implementation of ACE exposed the need for sustained and increased funding to ensure that this right could be effectively exercised by those in need.
The Renters Rights and Stabilization Act of 2024 (the Act), championed by Maryland Governor Wes Moore, represents a progression from the ACE law. It fortifies the legal protections available to renters, but more critically, it also addresses some of the limitations encountered in the implementation of ACE, including the lack of sustained funding.
The Act fortifies the legal protections available to renters, but more critically, it addresses some of the limitations encountered in the implementation of ACE.
KEY COMPONENTS OF THE ACT
The Act introduces several key changes to Maryland’s landlordtenant laws. Among these are:
Security Deposit Limitations: The Act limits security deposits to a maximum of one month’s rent in most instances, down from the previous two months. This change prevents landlords from charging excessive upfront costs and ensures that any deductions from the security deposit for breach of lease are only for actual damages incurred
While all the provisions of the Renters Rights and Stabilization Act are significant, the funding of counsel for tenants facing eviction is arguably the most critical from an access to justice standpoint.
Office of Tenant and Landlord Affairs: The Act also establishes the Office of Tenant and Landlord Affairs in the Department of Housing and Community Development This office is tasked with creating resources to help tenants understand their rights, which includes developing and publishing the Maryland Tenants’ Bill of Rights, so that they are better equipped with the knowledge needed to navigate and contest potential violations of their rights.
Maryland Tenants’ Bill of Rights: The Act mandates that landlords provide tenants with a copy of the Maryland Tenants’ Bill of Rights at lease signing, ensuring that tenants are informed of their legal protections and how to exercise them.
Tenants’ Right of First Refusal: The Act introduces a right of first refusal for tenants of a residential property with three or fewer individual dwelling units, when their rental property is listed for sale, providing a pathway to homeownership for renters
Data Collection: The Act expands data collection by the Maryland Judiciary regarding evictions and mandates the publication of this information on an eviction dashboard. Specifically, it requires the Department of Housing and Community Development (DHCD) to collect and publish data on tenant property purchases during this negotiation period, as well as eviction-related data from the Maryland Judiciary. This includes information about landlords, premises, eviction filings, trial outcomes, tenant legal representation, and warrants of restitution. The data provisions go into effect on October 1, 2025.
THE NECESSITY OF FUNDING COUNSEL FOR TENANTS FACING EVICTION
The Act also increased the surcharge on eviction filings, with the additional funds directed towards Maryland Legal Services Corporation (MLSC). Specifically, it raised the cost for landlords to file a Failure to Pay Rent Complaint substantially, from $8 to $43 per case, with an additional $10 fee in Baltimore City. Landlords can no longer recover these costs from tenants unless a court judgment is made in their favor, permitting landlords to take the fee out ofthe tenant’s security deposit.
MLSC funds legal aid organizations that provide counsel to low-income tenants. This funding is essential to the effective implementation of the ACE law, ensuring that the right to counsel in eviction cases is not just a theoretical promise but a practical reality.
While all the provisions of the Renters Rights and Stabilization Act are significant, the funding of counsel for tenants facing eviction is arguably the most critical from an access to justice standpoint.
In eviction cases, landlords often have the resources to hire legal counsel, whereas tenants, particularly low-income individuals, rarely have access to legal representation. This imbalance can lead to unjust outcomes, where tenants lose their homes not because they lack a valid defense, but because they lack the means to articulate it in court.
The fees the Act directs towards MLSC will help to address this disparity in representation, by allowing MLSC to fund organizations like the Pro Bono Resource Center of Maryland (PBRC), so that they can continue to strive for justice for underserved individuals in landlord-tenant proceedings. PBRC
has been at the forefront of providing legal representation to tenants facing eviction, and through programs like the Tenant Volunteer Lawyer of the Day (TVLD), PBRC has demonstrated the profound impact that legal representation can have on the outcomes of eviction cases.1 For instance, PBRC has assisted tenants
The stories of tenants who have benefited from legal representation in eviction cases illustrate why the Act’s funding provisions were necessary.
who were at risk of eviction over minimal amounts, often resulting from simple misunderstandings or clerical errors, yet without legal intervention, these tenants would have likely lost their homes 2
The stories of tenants who have benefited from legal representation in eviction cases illustrate why the Act’s funding provisions were necessary. In one case, a tenant represented by PBRC was able to contest multiple wrongful eviction filings due to an ongoing rent escrow action, eventually winning her case.3 Without legal
representation, she might have been unjustly evicted despite complying with her rental obligations
Another tenant, a construction worker, faced repeated eviction filings from an unlicensed landlord, which he successfully contested with the help of legal counsel.4 Despite continuing to pay his rent, the tenant accumulated significant court fees and suffered financial strain due to the repeated court appearances. Many tenants face similar challenges even when they are fulfilling their rental obligations, which demonstrates the importance of legal representation in tenant proceedings.
Moreover, the economic and social benefits of providing counsel to tenants facing eviction are substantial. Preventing evictions helps maintain housing stability, which in turn reduces the need for emergency shelters, public assistance, and other social services. It also prevents the destabilizing effects that eviction can have on families and communities, such as the disruption of children’s education and the loss of employment
By funding legal counsel for tenants facing eviction, the Renters Rights and Stabilization Act of 2024 addresses one of the most critical aspects of housing justice— ensuring that all tenants, regardless of their financial situation, have the means to defend their rights in court. The Act not only represents a continuation of the efforts begun with the ACE law but also a significant enhancement of Maryland’s commitment to housing stability and access to justice for all its residents. With the exception of the data provisions, the Act went into effect on October 1, 2024.
Rent Escrow, Damages, Fee Shifting, and the Rebirth of Maryland's Habitability Law
BY JAMES BELL, ESQ., AND ZAFAR SHAH, ESQ.
IMAGINE YOU HAVE BEEN FORCED to clean mouse droppings from your kitchen cabinets for months; that after a summer without central A/C, your apartment doesn’t stay warm enough so you must use space heaters, but they keep tripping the power. Imagine a building where the exterior lights don’t work, and you worry about getting into your apartment safely at night. And imagine that after submitting numerous maintenance requests with no response, your neighbors in the building aren’t faring any better.
Unfortunately, this is an all-too-common scenario. Maryland renters are often advised to file a rent escrow petition when facing these problems. The rent escrow law (Real Property § 8-211) vests the district court with equitable powers to ensure that residential dwelling units are free from threats to health and safety. However, it would be reasonable for an attorney in private practice to think that a
rent escrow action is not worth their time. As of October 1, however, it may be worthwhile to take a second look.
On October 1, 2024, the Tenant Safety Act of 2024 (TSA) (HB1117/Md. Laws Ch. 125) went into effect, overhauling the state’s rent escrow statute. This article explores changes to the law and highlights new litigation possibilities for attorneys
With the prospect of recovering both attorneys’ fees and “expenses related to litigation,” attorneys who take these cases face less risk and potential compensation for the time and resources needed to thoroughly prosecute their cases.
in private practice including: actions for money damages, recovery of attorneys’ fees, and multi-plaintiff complaints.
wtion for “meaningful sanctions” on irresponsible landlords
In 1975, the General Assembly enacted the rent escrow law, stating:
[I]t is the public policy of Maryland that meaningful sanctions be imposed upon those who allow dangerous conditions and defects to exist in leased premises, and that an effective mechanism be established for repairing these conditions and halting their creation.1
Yet, renters and their attorneys have for years eschewed the rent escrow process, whether for obtaining repairs or making renters whole, a fact that is demonstrated
1 Md. Code Ann., Real Prop. § 8-211(b).
by the small number of cases filed per year. While census data show that there are tens of thousands of moderately and severely inadequate rental units in the state,2 Maryland averaged only 1,700 rent escrow cases per year from 2005 through 2023.3
Case data also tend to show that rent escrow actions failed to provide relief, and reform was urgently needed. In a 2017 study of over 5,000 rent escrow cases, the Baltimore Sun found that judges established an escrow account in just 49% of cases where housing inspectors reported threats to health and safety.4 “Judges reduced or waived rent in just 344 cases, or 6 percent of all complaints” and “awarded damages to tenants in fewer than 20 cases—less than one half of 1 percent of all cases.”5 After three years of negotiation among renters, tenant advocates, multi-family and real estate groups, and the judiciary, the newly enacted law offers four reforms that will help deliver the long-promised meaningful relief promised by rent escrow and provide an effective mechanism to combat substandard housing with sanctions for those who fail to comply.
Creation of a statutory warranty of habitability
A new section of Real Property, § 8-212, now expressly provides that a warranty of habitability is implied in all rental agreements and provides both affirmative and defensive claims for violation of the warranty. Although numerous state courts have found an implied warranty of habitability in common law, some Maryland district court judges have denied tenants’ warranty claims interpreting the rent escrow statute as superseding the common law implied warranty.
For example, before the enactment of the TSA, when a tenant raised dangerous defects as a defense to offset
2 U.S. Census Bureau, American Housing Survey for the United States: 2021, Table Creator (Select area: Maryland, Select a table: Housing Quality).
3 Maryland Judiciary, About the District Court: Statistics, https://mdcourts.gov/district/about#stats.
4 In a 2017 study of over 5,000 rent escrow cases, the Baltimore Sun found that although housing inspectors reported threats to health and safety in 1,427 cases, judges established an escrow account in just 702 [49%] of them. Doug Donovan and Jean Marbella, “Dismissed: Tenants lose, landlords win in Baltimore’s rent court,” The Baltimore Sun (Apr. 26, 2017).
5 Id.
the non-payment of rent, a judge may have found that failure to escrow the rent barred any damages claim based on past harm. The TSA clarifies the potential confusion of two distinct legal claims—one for compensation based on past defects, the other for prospective injunctive relief (repairs, rent abatement) based on continuing defects. Section 8-212(g) now expressly allows tenants to recover: actual damages; abatement of rent; termination of the lease; return of the security deposit; relocation expenses; and “any other order that justice of the case may require.”
Section 8-212 increases the chances that renters will be able to recover not only portions of rent paid to the landlord while their unit was in substandard condition, but also costs related to hotel stays and destroyed personal property. Further, the statute makes clear that a tenant’s assertion of a warranty of habitability claim may not be conditioned upon the tenant’s payment of rent into court.
Enactment of a fee-shifting provision allowing the award of attorneys’ fees, costs, and expenses to prevailing tenants
A tenant or group of tenants who prevail in either a rent escrow case or warranty of habitability case may now recover reasonable attorneys’ fees, costs, and “reasonable expenses related to litigation.” This fee-shifting scheme is limited to claims brought affirmatively, not defensive claims. Nonetheless, fee shifting expands access to justice for low and moderate-income Marylanders by allowing private practitioners who take these cases to potentially recover reasonable attorneys’ fees. The TSA also expands the potential to recover litigation costs such as hiring experts, conducting independent inspections, or testing air quality or for mold. With the prospect of recovering both attorneys’ fees and “expenses related to litigation,” attorneys who take these cases face less risk and potential compensation for the time and resources needed to thoroughly prosecute their cases.
Outside of litigation, this change may incentivize landlords to remediate unsafe and unhealthy conditions sooner. The increased cost of litigating habitability cases may make deferred maintenance and quick fixes less appealing and more costly to landlords in the long run.
Presumption of rent abatement reducing the barrier to rent escrow relief
The new law provides a rebuttable presumption that rent abatement be ordered where the court finds that threats to health and safety exist in the property. With such a finding, the law presumes the tenant is entitled to the abatement of rent in an amount determined by the court which, in turn, allows for the establishment of a rent escrow. Further, the court may only factor the prospective rent into its calculation of the amount to be paid into escrow. 6 Effectively, the TSA shifts the burden of persuasion to the landlord, who must
demonstrate why rent should not be reduced as much or at all given the finding of health and safety violations on the premises. The lack of any rent abatement relief can often be a barrier for lowincome Marylanders in prosecuting their cases for critical and essential repairs.
Allowance of multi-plaintiff cases to bring common claims that advance the common cause of renter communities
Another benefit of the TSA is that it expressly allows multiple renters “to join as plaintiffs in an action . . . in accordance with the Maryland Rules on joinder.”7 This succinct provision recasts both rent escrow and the warranty of habitability as collective actions that could efficiently accomplish both individualized relief and the common good for a renter community. For a private practitioner, the multi-plaintiff aspect of the TSA opens a path to litigating related claims of multiple clients all together against the same landlord at the same time, avoiding inconsistent outcomes, and without the requirement to seek class certification.
For clients in a multi-family property, joinder in habitability cases will streamline litigation of common fact-issues such as the landlord’s actual or constructive knowledge of defects, the past and/or ongoing existence of defects, the effectiveness of attempted repairs, and the diminished value of the rental property. Joinder makes the use of experts more affordable and available as well.
The impact of the Tenant Safety Act: expanding access to justice through greater representation of tenants living in unsafe and unhealthy homes
By enacting the TSA with a fee shifting provision and the ability to represent multiple tenant plaintiffs with common claims in one action, the legislature recognized the critical role of the private bar to expand enforcement of the warranty of habitability and ensure tenants’ rights to safe and healthy homes. The state’s legal services organizations alone do not have sufficient resources or numbers to represent every potential group of clients living in properties with substandard housing conditions. Increased private bar involvement in this area of law will expand access to justice in our state. Attorneys who have rarely or never taken one of these cases in the past can now be a part of a broader effort to protect the rights of tenants and contribute to the preservation and promotion of safe, healthy and affordable housing for all our fellow Marylanders.
Note: Maryland Legal Aid’s Tenant Right to Counsel Project represents thousands of people living in rental properties each year and conducts outreach to renters every week. As our attorneys, paralegals, and outreach staff engage with renters on strategies to address serious, unsafe housing conditions, we welcome the opportunity to speak with members of the private bar about taking TSA cases on referral, co-counseling cases, or providing training or consultation for your firm. Please reach out to Maryland Legal Aid’s Director for Pro Bono, Angus Derbyshire, at aderbyshire@mdlab.org and Assistant Advocacy Director for the Tenant Right to Counsel Project, Zafar Shah, at zshah@mdlab.org.
UPHOLDING THE
HUMAN SPIRIT
CRISTINE LOVETRO
LoVetro Law Office
“
There are few things that give me more pleasure than knowing that I have helped someone who really needed it.
Photo courtesy of Travis Marshall Photography
CRISTINE
EVANS LOVETRO OFTEN MEETS PEOPLE during very difficult times in their lives. As an attorney focused on elder law, estate planning, and administration, LoVetro says she has “the honor of working with people who are contemplating what the end of their lives will look like.” LoVetro’s dedication to estate planning and end-of-life decisions is not merely a duty, but a calling.
What do you enjoy most about your career?
I love knowing what to do to help when someone is in a challenging situation. I find great satisfaction listening to a client’s concerns, spotting issues, problem-solving, and then working together to come up with a solid plan. Sometimes the “end” is presumably a long time away, sometimes I am talking with someone whose death is imminent. I have learned to take a deep breath and ask the difficult questions to make sure that family members really “hear” the answers.
I believe that my clients trust me because they know that I will follow their directions and that I will do my best to guide their grieving family members through the legal challenges that lie ahead.
There are certainly times when the work that I do is heartbreaking; still, I find this area of law to be extremely gratifying.
What are some of the challenges you face in your current role?
Sometimes, there just aren’t enough hours in the day, and I find it challenging to complete everything that I want to. I spend a lot of time talking with my clients. Not only do I thoroughly enjoy the interaction, I also feel that communication is essential to really understand the goals a client wishes to accomplish with their estate plan. My days can become very long. To achieve some work/life balance, I have had to limit the number of new clients I am able to accept.
Describe a memorable MSBA event or product that has had an impact on you personally or professionally. I attended the Legal Summit in Ocean City in 2023 and received the Maryland Pro Bono Service Law Firm Award from the Maryland Pro Bono Resource Center. Although none of us perform pro bono activities for the recognition, receiving the award did help me feel like I am even more a part of our great organization.
What causes are you compassionate about?
I believe strongly that everyone should have a medical advance directive regardless of age or health status. Although it is also important to have a financial power of attorney and last will and testament, the state of Maryland has a pretty straightforward default for financial decisions and propertyrelated distributions. I do not think the same is true for
end-of-life decisions. Sure, the court can appoint a guardian and there are guidelines in the Health-General Article for surrogate decision-making, but I think every human being should make their own very personal medical treatment decisions. It is gut-wrenching to be at the hospital ICU with a family who is struggling—or worse, disagreeing—about whether to keep a loved one on life support. I have met with people several years after their family faced this type of crisis and, often, the heartbreak and wounded relationships have not healed. Please have this challenging conversation today.
How do you serve your community?
I enjoy sharing my knowledge with people who have questions. I speak to groups when asked, participate in clinics and workshops, volunteer when able, and often engage in pro bono activity. There are few things that give me more pleasure than knowing that I have helped someone who really needed it.
What professional accomplishments are you most proud of?
I was fortunate to start my career as a Law Clerk for the Hon. G. Edward Dwyer, Jr. in the Circuit Court for Frederick County and soon became an active member of the Bar Association of Frederick County, and later serving on the Executive Committee. I am proud to be the first BAFC President who is an open member of the LGBTQ community. I serve as the chairperson for the Adult Public Guardianship Review Board.
How do you spend your free time?
I am blessed with a wonderful, supportive spouse and a family that I love very much. I enjoy spending time with my parents, and I will always be grateful for their love, encouragement, and laughter. I like my dogs, my yard, working on my house, and making quick trips to the Delaware coast.
What is an interesting fact about you that is not on your resume?
I see myself as not just a practitioner in the law, but a steward of justice, compassion, and kindness. I approach my work with a profound sense of thankfulness for the opportunity to serve those in the twilight of their lives. I believe that my legal work is a way of giving back to the community. I feel incredibly fortunate to be a lawyer, a role I cherish deeply, and through compassionate service uphold the law but also the human spirit.
GENERATIVE ARTIFICIAL INTELLIGENCE: A New Partner in Law Enforcement
BY PAMELA LANGHAM, ESQ.
Law enforcement agencies are increasingly exploring and implementing generative artificial intelligence to enhance their investigative capabilities and operational efficiency. They also intend to leverage generative artificial intelligence (AI) further to fight, solve and prevent crimes transforming the way law enforcement agencies operate. As these technologies continue to evolve and become more sophisticated, it is crucial for legal practitioners to understand the implications, both in terms of enhanced law enforcement capabilities and the potential legal challenges that may arise from their use. This article sheds light on the practical applications of AI in law enforcement that is currently being used.
Facial Recognition
AI can improve low-quality images or video footage to make facial recognition more effective. AI can also generate more accurate suspect sketches based on witness descriptions. For cold cases or missing persons, AI can create updated images of how individuals might look years later. This technology may also be employed to identify victims (sex trafficking) or witnesses.
Traditional facial recognition technology has been fraught with errors at times. For example, in a case out of New Jersey, law enforcement ran a shadowed driver’s license photo of a suspect through a facial recognition computer system (nonAI), which determined that Nijeer Parks, a Black male, was a possible hit. The police immediately applied for an arrest warrant, without first independently verifying the whereabouts of Mr. Parks at the time of the criminal offense. Then, the police failed to disclose to the judge reviewing the application for the arrest warrant about the historical unreliability of the facial recognition software. Subsequently, Mr. Parks was arrested and placed in jail for 10 days, even though law enforcement could have easily verified that he was nowhere near the scene of the crime at the time of the incident. This case is one of a number of known wrongful arrests due to law enforcement's misuse and application of facial recognition technology. It also highlights the tendency of the technology to misidentify Black people at a higher rate than the population at large. Hopefully, AI can improve facial recognition software. Regardless, law enforcement should remain vigilant about independently verifying the AI output of their facial recognition tools before acting on it.
Evidence Gathering
AI can process vast amounts of data from various sources (social media, surveillance footage, witness descriptions, financial records) to identify patterns and connections.
Law enforcement collects, generates, and analyzes large amounts of data.
AI can assist in the organization of this evidence in support of investigations.
AI can also analyze text from documents, social media, or transcribed conversations to extract relevant information. For video analysis, AI can scan through hours of video footage from CCTV, body-worn cameras, interviews, and home security videos to identify specific objects, people, or events of interest.
Monitoring online websites and social media for possible criminal activity, including human trafficking or drug transactions, requires a substantial amount of time and resources. Leveraging AI to detect common terminology or patterns for illicit activity could prove to be invaluable.
Predictive Policing
AI models can predict potential crime hotspots based on historical data and current trends. Law enforcement can use these AI models to optimize the deployment of law enforcement resources. Leveraging AI to identify crime patterns, law enforcement can also predict the likelihood of suspicious activity.
Digital Forensics
AI can assist in data recovery by recovering and reconstructing deleted or damaged digital evidence. AI can also assist in pattern recognition by identifying similarities in cyber attacks or digital signatures of criminals.
Investigative Support
Law enforcement collects, generates, and analyzes large amounts of data and AI can assist in the organization of this evidence in support of investigations. AI can also assist in lead generation by suggesting new leads or connections that human investigators might overlook. Generating possible crime scenarios to aid in investigation planning is another task that AI can assist with.
Human traffickers use the internet to advertise sex trafficking victims using unique keywords known by criminals seeking to purchase a victim. For example, depicting the age of a child trafficking victim is done by using cartoon characters or a pacifier to advertise young children. AI can be leveraged to search the internet and social media for these types of keywords, symbols, or other patterns to identify criminals
involved in human trafficking. Taken one step further, AI may be able to locate the trafficking victims based on a multi-factor approach.
Document Processing
AI programs can automate report writing by drafting initial police reports based on input data. AI can also conduct a document analysis quickly, scanning and extracting relevant information from large volumes of documents.
Recently, the MSBA reported that law enforcement is using AI to generate police reports in a matter of seconds by pulling data from the audio recordings of body cameras. See “A Look at the Use of AI Drafted Police Reports,” Colleen Aracri, MSBA Blog (Sept. 9, 2024). While AI significantly saves officers time in the writing of these police reports, there are concerns. Mainly, all criminal lawyers know the importance of accurate and trustworthy police reports. They are the primary documents from which law enforcement justifies an arrest, supporting reasonable suspicion and probable cause, identifying witnesses, and describing the time, place, and manner of the suspected criminal act. The opposite is also true. AI GPTs have been known to hallucinate and create fake facts and references. As with every application of AI, human verification of the AI output is necessary, especially when an individual’s liberty is at stake.
Behavioral and Communication Analysis
In the realm of criminal activity, behavioral analysis involves observing human activity to determine normal behavior versus anomalous activity to identify potential illicit activities. Bad actors are constantly changing their tactics to avoid detection. In addition, the volume of data necessary to deter crime is overwhelming. AI can synthesize all of this data, including calls, texts, emails, social media messages, etc., and analyze patterns in criminal behavior to profile unknown suspects, identify networks, or predict future actions and patterns.
There are many other uses of AI that law enforcement is currently employing to assist in their investigations and operations including detecting deepfake images and audio, real-time translation of foreign language communications or documents, and identifying suspects through voice samples.
AI has emerged as a powerful tool with the potential to revolutionize policing practices.
professionals
Ethical and Privacy Considerations
AI has the potential to improve crime detection and prevention, but its success depends on how well law enforcement professionals use it. Continuous education and training are crucial to keep law enforcement officers updated on the latest AI technologies and methods. These training programs can help blend traditional investigative techniques with modern digital tools, making it easier to incorporate AI into daily law enforcement work.
There are many privacy concerns with law enforcement using AI, specifically in the area of data privacy and how law enforcement’s use of AI technology interplays with the Fourth Amendment. Accountability is also a factor - law enforcement needs to ensure that AI-assisted decisions can be humanly explained and justified. Will AI assisted evidence gathering be admitted in evidence against a criminal defendant? The answer to that question depends on the accuracy, reliability, and trustworthiness of the AI-assisted discovery of evidence and the independent verification of that evidence by law enforcement. That is why addressing potential biases in AI systems that could lead to unfair targeting of certain groups should be mitigated and resolved.
Conclusion
In recent years, law enforcement agencies have increasingly turned to cutting-edge technologies to bolster their investigative capabilities and streamline operations. Among these innovations, AI has emerged as a powerful tool with the potential to revolutionize policing practices. From predictive crime analysis to automated report generation, AI is rapidly transforming how law enforcement professionals approach their work. As these technologies continue to evolve and become more sophisticated, it is important for legal practitioners to understand the implications, both in terms of enhanced law enforcement capabilities and the legal and ethical challenges that may arise from their use.
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It's Not About the Words, It's About the Idea
BY RICHARD E. SHERMANSKI, JR., ESQ.
In the rapidly evolving landscape of legal practice, the conversation around Artificial Intelligence (AI) has become increasingly prevalent. This year, I had the privilege of attending the American Society of Association Executives (ASAE) Annual Meeting, where I serve on the Ethics Committee. A recurring theme in our discussions, as well as in those of other committees, was AI—its implications, ethical considerations, and the ways in which associations can navigate this ever-changing field. I would like to thank my ASAE Ethics Committee colleagues Larry C. Smith and Joy Davis for their comments and contributions to this article.
In my experience, AI is an accommodation that makes tedious tasks less timeconsuming, and in so doing, makes it less likely I’ll miss something important. It’s not about relying on AI to do the work for us; it’s about using AI as a tool to enhance our capabilities by taking over the labor that wears us down and makes us less effective.
As an attorney with disabilities, I have found AI to be a transformative tool, enabling me to draft legal documents and articles more efficiently for nearly two years. I know there are pockets of skepticism in the legal community that view AI as a shortcut that undermines the integrity of legal research and writing. Every professional field is wrestling with this question, or soon will be. I am seeking to challenge that notion, emphasizing that the value of AI lies not in the words it generates but, in the ideas, it helps to articulate.
The Role of AI in Legal Practice
The legal profession is built on precision, critical thinking, and the ability to communicate complex ideas clearly and effectively. Traditionally, this has required significant and often exhausting time and effort in research, drafting, and revision. AI has introduced a new dimension to this process, offering tools that assist in organizing thoughts, generating drafts, and even conducting preliminary research.
For many attorneys, particularly those with disabilities like myself, AI is a game-changer. AI can help me structure my ideas into coherent narratives, making my workflow more efficient and freeing time for me to focus on the substantive aspects of legal practice. In my experience, AI is an accommodation that makes tedious tasks less time-consuming, and in so doing, makes it less likely I’ll miss something important. It’s not about relying on AI to do the work for us; it’s about using AI as a tool to enhance our capabilities by taking over the labor that wears us down and makes us less effective.
The ABA’s Stance on AI Ethics
The American Bar Association (ABA) recently issued its first formal guidance on the ethical use of AI tools in legal practice, emphasizing the responsibility of attorneys to maintain the
1 American Bar Association. “ABA Issues First Ethics Guidance on AI Tools.” July 2024
2 Ibid
3 Ibid
4 Ibid
integrity of their work while leveraging these technologie.1
The ABA emphasized that while AI can greatly enhance legal practice, it requires careful consideration regarding confidentiality, accuracy, and the potential for bias.2 Lawyers must ensure that AI tools are used in a manner that upholds the core ethical standards of the profession.
One key takeaway from the ABA’s guidance is the importance of transparency. Attorneys must be clear with clients about the use of AI in their legal work, ensuring that clients understand how these tools are being employed.3 I think this is an especially important concern today, at the dawn of the use of these tools in legal work. In a decade, I suspect it will be assumed by our clients—who are now seeing AI enter their workplaces, too—that we are using AI to make their cases move faster and more efficiently.
The ABA also stressed the necessity for attorneys to remain actively involved in the legal process, using AI to supplement— not replace—their expertise.4 We should anticipate that companies will appear to attempt to replace an attorney’s expertise with AI’s access to those banker boxes and all the previous research and arguments they contain. Clients will quickly learn, however, that an attorney’s expertise is what they need, and it can’t be replaced by the artificial intern. Our industry will adjust accordingly.
AI as an Organizational Tool
One of the most significant benefits of AI is its ability to organize complex thoughts into comprehensive and understandable language. Legal writing often involves distilling intricate legal theories, case law, and statutory provisions into clear and concise arguments. This is where AI shines. Attorneys can expand their approach to the structure of their arguments quickly by entering key concepts and ideas into AI-driven tools. This isn’t a replacement for critical thinking—it’s a supplement that offers fresh perspectives on how an attorney might present information. AI provides a framework for attorneys to build on, ensuring that their arguments are well-organized and accessible to clients and the public. That’s the actual focus of legal work.
Supporting Attorneys with Disabilities
I have become a vocal proponent of AI as a vital tool for attorneys with disabilities. AI removes barriers that hold all attorneys back, but especially people like me. AI helps us to organize our thoughts, streamline our workflows, and communicate complex ideas more effectively. This is about more than making our jobs easier. It’s another step toward a level legal playing field in which all attorneys can participate equally. Employers can benefit right now by permitting attorneys with disabilities to begin using AI as an accommodation, and
This article was partially AI-generated, specifically to help organize structure and flow of ideas. The content, including the legal analysis and reviewed, refined, and completed by the author.”
learn from their experiences as AI develops into a ubiquitous tool. Rather than viewing AI as a potential replacement for human talent, it should be seen as a means of enhancing the capabilities of all attorneys, particularly those with disabilities. By embracing AI, employers can foster a more inclusive workplace that values the contributions of every team member, regardless of physical or cognitive limitations. This approach benefits individual attorneys and strengthens the effectiveness and diversity of legal teams.
The Ethical Considerations
I am a member of ASAE’s Ethics Committee, and we are wrestling with the implications of AI alongside every other profession. One primary concern is the potential for AI to be used in a way that undermines the integrity of legal work. Critics argue that reliance on AI could lead to a decline in rigorous legal research and writing. They frame the use of AI as attorneys taking shortcuts.
This ignores a crucial point: AI is a tool, not a substitute for legal expertise. The quality of the output is only as good as the input. An attorney who uses AI to generate a legal document still needs to review, revise, and refine the content to ensure
AI increases the precision, clarity, and efficiency of their communication.
Conclusion
As the legal profession continues to evolve, it is essential that we embrace new technologies while remaining mindful of the ethical considerations they bring. AI should be seen as a tool that can assist attorneys in their work. By using AI to organize complex thoughts and articulate ideas more clearly, we can enhance our ability to serve clients and the public.
Employers, too, stand to benefit from embracing AI, as it enables a more inclusive and effective workforce. Rather than fearing AI as a potential replacement, they should recognize its potential to empower all attorneys, particularly those with disabilities, to contribute at their highest capacity.
Ultimately, it’s not about whether AI generated the words on the page; it’s about the ideas that those words convey. As we navigate this new landscape, let us remember that the power of AI lies not in replacing the attorney, but in empowering them to communicate their ideas more effectively.
Employers can benefit right now by permitting attorneys with disabilities to begin using AI as an accommodation, and learn from their experiences as AI develops into a ubiquitous tool.
it meets the necessary standards.5 In other words, AI assists in the process, but it does not replace the need for thorough legal analysis and judgment.
It’s About the Thought, Not the Tool
It’s not about the words, it’s about the ideas. The true value of AI lies in its ability to help attorneys articulate their thoughts more effectively. The process of legal writing is inherently creative and intellectual; it involves synthesizing information, analyzing complex issues, and crafting persuasive arguments. AI can facilitate this process by organizing ideas and providing suggestions, but the essence of the work remains in the hands of the attorney.
I have spoken with numerous colleagues who have embraced AI as a tool to enhance their work. They enter their ideas into AI-driven platforms to organize their thoughts and receive feedback on how to structure their arguments. Far from diminishing the quality of their work, they’ve found
This article was partially AI-generated, specifically to help organize the structure and flow of ideas. The final content, including the legal analysis and arguments, was reviewed, refined, and completed by the author.
Richard Shermanski is currently an Ethics/Compliance Attorney that works for the American Speech-LanguageHearing Association Ethics Office. He is a member of the MSBA Board of Governors and serves on the DEIA & Ethics Committees. He is also serving his second term on the Montgomery County Commission for People with Disabilities.
AUTHENTICATING VIDEO EVIDENCE IN THE AGE OF AI — Mooneyv.State Sets Precedent, but AI Concerns Loom Large
BY COLLEEN ARACRI, ESQ.
“[T]he bar for authentication of evidence is not particularly high.” So stated the Supreme Court of Maryland in Sublet v. State, 1 a case in which it adopted what it deemed a “straightforward test for authentication of social media evidence,” the reasonable juror test. The court elaborated, “to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be.”2 The court also concluded that the preponderance of the evidence standard applies to the “reasonable juror” test.
While Sublet established the test for authenticating social media evidence, the question of the proper method for authentication of video evidence remained unanswered until the Supreme Court of Maryland’s recent opinion in Mooney v. State. 3
The State charged Christopher Mooney with several crimes, including attempted first-degree murder, arising out of the non-fatal shooting of Joshua Zimmerman. During the trial, the State moved to introduce video footage from a camera located near the shooting as evidence. Mooney’s counsel objected to the introduction of the video on the grounds someone could have altered it. The State authenticated the footage through the testimony of Zimmerman, who did not witness the shooting itself but testified that the video accurately depicted the events surrounding it.
The trial court admitted the video over the objection. The jury ultimately convicted Mooney of second-degree assault, reckless endangerment, and gun crimes. He then appealed. On appeal, the Supreme Court of Maryland addressed whether video footage can be authenticated through circumstantial evidence rather than traditional methods, such as the “pictorial testimony” or “silent witness” theories. Typically, the Court explained, video authentication requires testimony from a witness who either has personal knowledge of the events depicted or can vouch for the process by which the video was created.
The court noted that Md. Rule 5-901(a) states that evidence must be authenticated with sufficient proof that it is what it claims to be. Rule 5-901(b) provides various methods for authentication, including witness testimony and circumstantial evidence. In prior cases, the court discussed three theories for authenticating videos: “pictorial testimony,” where a witness confirms the video accurately represents what they saw; “silent witness,” where the reliability of the video process is established; and as a business record, which is selfauthenticating under certain conditions.
The trial court in Mooney deemed the video properly authenticated despite the witness not having personal knowledge of all events shown. On appeal, the court affirmed the trial court ruling that the video was properly authenticated through both witness testimony about the events leading up to and following the shooting, and the circumstantial evidence provided by the video’s origin and content. In doing so, the court held that the “reasonable juror” test applies to the authentication of video evidence. In other words, for video footage to be admissible there must be sufficient evidence for a reasonable juror to find by a preponderance of the evidence that the video is what it is claimed to be. Further, the court ruled that video footage could be authenticated in a variety of ways, including through circumstantial evidence under Md. Rule 5-901(b)(4).
In its majority opinion, the court discussed the authentication of other types of evidence, such as social media evidence as discussed in Sublet, various methods of authentication of video evidence addressed in prior opinions, and the authentication of video evidence in other states. It refrained, though, from analyzing the prevalence of artificial intelligence (AI) and its potential impact on evidentiary issues. While the court noted that videos could be altered and the rise of artificial intelligence may make the authentication of videos challenging, it characterized the alteration of images as “nothing new,” albeit admitting it might be easier in the digital age. Regardless, the court opined that the application of existing methods was sufficient to authenticate video evidence.
Chief Justice Fader wrote a concurring opinion to share that “evidentiary concerns associated with the growth and proliferation of artificial intelligence, especially generative artificial intelligence, are real and pressing.” He urged courts to be heedful of claims that evidence may have been altered by AI, and noted AI may eventually require an adjustment of the procedure and rules for authenticating videos, but stated that Mooney was not the case that required such changes. Similarly, in his dissent Justice Gould stated that the risk of fabricated evidence has never been greater than in the age of AI, and the risk will only increase going forward, before stating that he did not believe the trial court properly authenticated the evidence in question.
In sum, the court largely ignored the issue of AI modifications of video evidence, or evidence in general.
The Supreme Court of Maryland is hardly unique; to date, it appears that only a Washington State Superior Court judge has issued an opinion dealing with AI-altered video evidence. In a decision issued in State v. Puloka on March 29, 2024, King County Superior Court Judge Leroy McCullogh barred the use of AI-enhanced video evidence in a criminal case, citing concerns over the technology’s reliability.
The defense had attempted to introduce a cellphone video, enhanced by AI, depicting a 2021 shooting. However, forensic analysis revealed that the AI-generated enhancements introduced new visual elements not present in the original footage, which raised significant issues regarding the video’s authenticity. Judge McCullogh emphasized that the AI technology used relies on “opaque methods” that estimate rather than accurately reproduce the original scene, potentially misleading jurors.
When considering the admissibility of AI evidence, judges must weigh whether the potential for bias or deepfake deception outweighs the evidence’s value.
While the Puloka ruling has no legal impact outside of Washington, it is likely just the first of many cases throughout the United States dealing with AI enhanced videos.
Recently, Paul Grimm, retired judge of the U.S. District Court of Maryland and current director of the Duke Law School Bolch Judicial Institute, spoke about the growing challenges judges face with the admissibility of AI-generated evidence at the American Association for the Advancement of Science’s conference on Scientific Evidence and the Courts. Judges are already tasked with assessing the relevance, accuracy, and authenticity of scientific or technical evidence, but AI presents new difficulties due to the opaque nature of algorithms and the risk of deepfakes misleading juries. Judge Grimm noted that while there are no AI-specific guidelines in the Federal Rules of Evidence, judges must still apply existing standards, such as the Daubert standard, to ensure the scientific quality of AI evidence. He stressed the importance of transparency in how AI models are trained, especially when proprietary systems are involved. Judge Grimm also highlighted the need for protective orders to allow both parties access to essential details about the algorithms used.
When considering the admissibility of AI evidence, judges must weigh whether the potential for bias or deepfake deception outweighs the evidence’s value, especially since deepfake videos can significantly influence jurors’ perceptions. Although juries are ultimately responsible for determining the authenticity of evidence, Judge Grimm expressed concern that they often lack the technical expertise to do so effectively, making the issue of deepfakes particularly troubling.
Judge Grimm and Dr. Maura R. Grossman of the University of Waterloo also recently submitted a proposal to the Advisory Committee for the Federal Rules of Evidence, suggesting that they revise the Rule 901(b) (9) standard for admissible evidence from “accurate” to “reliable.”
The new rule would read:
(A) evidence describing it and showing that it produces a valid and reliable result; and (B) if the proponent concedes that the item was generated by artificial intelligence, additional evidence that:
(i) describes the software or program that was used; and
(ii) shows that it produced valid and reliable results in this instance.
Grimm and Grossman also recommended the addition of a new rule, 901(c), to address the threat posed by deepfakes:
901(c) Potentially Fabricated or Altered Electronic Evidence. If a party challenging the authenticity of computer-generated or other electronic evidence demonstrates to the court that it is more likely than not either fabricated, or altered in whole or in part, the evidence is admissible only if the proponent demonstrates that its probative value outweighs its prejudicial effect on the party challenging the evidence. Courts throughout the country are dealing with growing tension between the rapid advancement of AI technologies and the need to ensure that evidence admitted in trials is both scientifically valid and transparent. Whether the Maryland courts will ultimately raise the bar for authentication of AI-generated evidence, and how greatly AI-manipulation will impact the use of evidence and rulings in both criminal and civil matters, remains to be seen.
Artificial Intelligence and the Law
Artificial
By Pamela Langham, Esq.
MSBA LEGAL CONTENT EDITOR
RES JUDICATA IN ACTION: Preventing Redundant Litigation in Employment Discrimination Cases
BY PAMELA LANGHAM, ESQ.
Res judicata, also known as claim preclusion, is a legal doctrine that prevents parties from relitigating issues that have already been resolved in a court of law. In the context of federal employment discrimination cases, res judicata can be applied with certain considerations. On September 23, 2024, the Fourth Circuit Court of Appeals affirmed the U.S. District Court for the District of Maryland ’s application of res judicata in an ADA, Title VII, and FMLA cause of action,1 a good example of applying res judicata to employment discrimination matters.2 This article summarizes the Maryland District Court’s opinion.
History and Facts
In March 2018, plaintiff sued the Maryland Transit Authority (MTA) and two MTA employees in their individual and official capacities alleging violations of the American with Disabilities Act of 1990 (ADA), the Family and Medical Leave Act of 1993 (FMLA), and Title VII of the Civil Rights Act of 1964 (Title VII).3
Plaintiff began working for the MTA in 1994. In September 2005, she was promoted to the bus supervision team as a controller. Throughout her employment, she became disabled due to multiple back surgeries, with the last surgery in July 2014. In November 2014, she was given
1 See Hayes v. Md. Transit Admin., 2024 U.S. App. LEXIS 24108, 2024 WL 4262786 (4th Cir., Sept. 23, 2024).
2 See Hayes v. Md. Transit Admin., No. CV 1:23-cv-01195-JRR, 2023 U.S. Dist. LEXIS 227182 (D. Md. Dec. 21, 2023).
3 See Hayes v. Maryland Transit Admin., No. CV RDB-18-0691, 2018 U.S. Dist. LEXIS 189755, 2018 WL 5809681 (D. Md. Nov. 6, 2018).
the choice to return to work on December 3, 2014, or opt for a medical pension. She chose to return to work and submitted a request for an ergonomic chair as a reasonable accommodation for her disability on October 14, 2015. After delays, she received the chair in September 2016. The delay in receiving the accommodation allegedly caused further damage to her back, leading her to apply for FMLA to cope with her inability to timely report to work. Despite an initial denial on April 13, 2016, her FMLA request was eventually approved through April 21, 2016.
Plaintiff used FMLA leave on November 12, 2016, and was later accused by management of attending a social event on the day she took leave. On November 18, 2016, a conference call was conducted regarding the plaintiff’s alleged misuse of FMLA and providing false information to support her FMLA request. Plaintiff claims that on November 29, 2016, she was terminated from her employment. On December 14, 2016, the plaintiff received a letter informing her of a five-day suspension for “falsifying FMLA.” Subsequently, on January 13, 2017, she received a letter titled “Notification of Resignation without Notice,” stating that due to her failure to provide medical documentation for her absence from work after January 4, 2017, or to contact her manager, she was considered to have resigned without notice effective January 6, 2017.
Res Judicata
The first argument asserted by defendants was that plaintiff’s claims must be dismissed because a final judgment had been entered on her claims related to the ADA, FMLA and Title VII, and the plaintiff’s IIED claim was barred. The District Court noted that in order to prevail on a res judicata defense, a party must establish “a final judgment on the merits in a prior suit. . . an identity of the cause of action in both the earlier and the later suit, and. . . an identity of parties or their privies in the two suits.” The District Court emphasized that “res judicata not only bars claims that were actually litigated in a prior proceeding, but also claims that could have been litigated,” like the new IIED claim.
The District Court ruled that res judicata barred plaintiff’s claims, and ruled that the ADA and Title VII claims were barred by the statute of limitations because plaintiff filed the lawsuit more than 90 days after receiving the EEOC’s right to sue letter. Additionally, the District Court ruled that plaintiff’s FMLA claims were also barred by the statute of limitations because the alleged conduct regarding her FMLA claims occurred in April 2016, seven years before filing the instant action on April 3, 2023. FMLA claims have a twoyear statute of limitations or three years if the violation was willful. Finally, the District Court ruled that plaintiff’s IIED claim was also filed outside of Maryland’s three year statute of limitations for civil actions.
Res judicata not only bars claims that were actually litigated in a prior proceeding, but also claims that could have been litigated.
In the 2018 lawsuit, the U.S. District Court for the District of Maryland granted the defendant’s motion for summary judgment. Plaintiff appealed to the Fourth Circuit, which found no reversible error and affirmed the district court’s order.4 Plaintiff then appealed to the U.S. Supreme Court, but the Supreme Court denied her petition for certiorari and her request for reconsideration.5
Not to be deterred, the plaintiff filed a lawsuit on April 8, 2023 in the Circuit Court for Baltimore City against defendants for violation of the ADA, FMLA, and Title VII. The lawsuit included a new claim for intentional infliction of emotional distress (IIED) based upon the same set of facts. Defendants moved the action to the U.S. District Court for the District of Maryland (District Court) and filed a motion to dismiss or, in the alternative, motion for summary judgment.
4 See Hayes v. Gorman, 748 F. App’x 519 (4th Cir. 2019).
5 See Hayes v. Gorman, 140 S.Ct. 93, 205 L.Ed. 2d 95 (2019).
Fourth Circuit Court of Appeals
On September 19, 2024, the Fourth Circuit affirmed the District Court’s decision by an unpublished per curiam opinion simply ruling that they reviewed the record and found no reversible error.6 This case is a good review of the application of res judicata in employment cases especially since the Fourth Circuit affirmed the District Court’s decision to apply res judicata to the plaintiff’s new theory of liability—the IIED claim—that was not in the original 2018 litigation. This case is also a good example of the enforcement of the statute of limitations in ADA, Title VII, FMLA, and torts’ litigation.
6 See Hayes v. Md. Transit Admin., 2024 U.S. App. LEXIS 24108, 2024 WL 4262786 (4th Cir., Sept. 23, 2024).
DEEPLY COMMITTED TO DUE PROCESS
MANY FACTORS DRAW PEOPLE to the law; some attorneys are motivated by earning potential, while others join the profession in pursuit of intellectual challenges. Oana Brooks is driven in her practice by a deep commitment to due process, a value rooted in her family's experience under a regime that denied basic legal protections.
OANA BROOKS BrooksLaw LLC
Photo courtesy of Travis Marshall Photography
“
These cases, they're not cases, right? They're people.
Brooks was born in Romania. Her family fled the country to escape communism, and she eventually came to the United States as a refugee when she was 11. Her parents' inability to leave the country legally and safely, due to the lack of due process and rule of law, left a lasting impression on her. This early exposure to injustice, in part, inspired her to found BrooksLaw LLC, a Baltimore-based firm, so that she could focus on ensuring that students facing allegations of misconduct and Title IX complaints receive fair treatment. Brooks also handles employment discrimination, criminal, and general civil litigation matters.
Throughout her childhood, Brooks’ family stressed the importance of education. This emphasis on academics, coupled with her own determination, led Brooks to pursue a career in law. "I always knew that I wanted to be a lawyer, but I don't recall the moment when I decided that," she shared.
Brooks obtained undergraduate and law degrees from the University of Maryland. She began her career as a judicial law clerk for the Honorable John N. Prevas, Chief Judge of the Circuit Court for Baltimore City.
Following her clerkship, Brooks joined the Baltimore City State's Attorney's Office. She considers her time as a prosecutor one of the most valuable experiences of her career. "Being a prosecutor in Baltimore City will forever remain one of, if not the greatest, job I ever had," she says. "It taught me how to try a case and how to evaluate evidence," she adds.
Brooks transitioned to a role at Johns Hopkins University in the Office of Institutional Equity, where she investigated claims of discrimination, including complex cases of sexual misconduct. This work at Hopkins was a turning point in her career, as it exposed Brooks to the nuances of Title IX regulations and the challenges faced by both accusers and the accused in university settings.
Ultimately, Brooks’ experience at Hopkins influenced her to start her own firm. With her background as a former criminal prosecutor, she felt strongly that she could be a voice for those who are accused. Brooks' practice is driven by her belief in the critical importance of fair treatment and thorough investigation. The majority of her practice is focused on defending students accused of sexual misconduct.
Brooks' work is both challenging and deeply personal. "These cases, they're not cases, right? They're people," she emphasizes, recognizing the significant impact that the outcomes of these
investigations can have on her clients' lives. "You want to make sure that you do everything that you can for your clients," she says, while also acknowledging the difficulty of managing expectations, emotions, and the long timelines often involved in these cases.
Although the nature of the cases Brooks handles may seem daunting, she enjoys the opportunity to help people during some of the most difficult times in their lives. "Nothing is better than when I get an unexpected thank you note," she says. One such moment stands out in her memory—a case involving a young man at the U.S. Naval Academy who faced expulsion over a minor infraction. After securing a positive outcome for him, Brooks received a text from his mother showing him in full uniform, shaking hands with President Biden. "To receive something like that—that's what brings me the greatest joy.,"
While Brooks has hit her stride professionally, at the beginning of her career she often felt uncertain about fitting into the legal community, particularly because she didn’t come from a family where anyone worked in the legal profession. She credits MSBA events with helping her overcome those feelings and find a sense of belonging by providing opportunities for connection, mentorship, and learning.
Looking ahead, Brooks is focused on continuing to grow her practice and finding new ways to make an impact. While she remains open to the possibility of returning to public service, her passion for defending due process in higher education continues to drive her. She noted, "It's an honor that people hire me to do something that I'm extremely passionate about.”
Randolph Sergent
EXECUTIVE VICE PRESIDENT GENERAL COUNSEL & CORPORATE SECRETARY
AT CAREFIRST
“
Each individual interaction may not seem like much, but when you look back over 20 years, you’ve built a wealth of experience, friendships, and contacts.
Photo courtesy of Travis Marshall Photography
FROM CODE TO COUNSEL
FOR MANY, THE DESIRE to make a career in the law emerges early on. For Randolph S. Sergent, the path was less direct but no less meaningful. Starting his career as a computer engineer, Sergent transitioned into the legal profession after realizing the fundamental role law plays in shaping and supporting society. "I was attracted to law because it is central to a free society," says Sergent, now the Executive Vice President, General Counsel & Corporate Secretary at CareFirst BlueCross BlueShield (CareFirst). "We rely on the law to support good governance, promote transparency, ensure open opportunities, and provide fairness in resolving disputes."
With nearly three decades of experience, Sergent has held roles in both the private and public sectors. His journey began at Venable LLP, where he worked as a mid-level associate before becoming part of the civil division in the Maryland Attorney General’s office. Sergent initially hesitated to join the attorney general’s office, as it would require a pay cut, and he had three small children. Advice from Jim Shea, Venable’s chairman at the time, helped him decide to make the move and shaped his long-term career outlook. Shea “advised me a legal career is a marathon, not a sprint. We spend decades developing our knowledge, skills, and reputation, and that opportunity to serve the state of Maryland was a great one," Sergent recalls. This lesson continues to influence his leadership style today, as he mentors younger attorneys at CareFirst, encouraging them to look beyond the present to build a meaningful career in law.
Among his many achievements, Sergent is especially proud of his promotion to Executive Vice President General Counsel & Corporate Secretary at CareFirst in July, leading the legal team in its support of CareFirst’s mission to provide affordable, accessible, and high-quality healthcare. This mission aligns with Sergent’s passion for service, and he finds great satisfaction in guiding the company through the ever-changing healthcare landscape. "Healthcare is changing quickly, and the leadership team at CareFirst is committed to meeting that change and having a positive impact on health problems in our region. I really enjoy finding ways to help the organization get where we need to go."
Sergent’s role at CareFirst is multifaceted. "I lead the legal, public policy, and government affairs teams," Sergent explains, noting that the team operates like an internal full-service law firm with a strong public policy component. Under his leadership, his team navigates the complex regulatory and business environment that CareFirst operates in, tackling issues ranging from healthcare governance to strategic partnerships.
In addition to his work at CareFirst, Sergent serves as chair of the Maryland Health Care Commission (MHCC), an organization he describes as integral to advancing healthcare in the state.
"The MHCC provides a wealth of information to the Maryland legislature and other Maryland that can be used for better decisionmaking," says Sergent. His work with the commission allows him to contribute to advancing better healthcare in Maryland outside of his work at CareFirst.
Sergent is also committed to fostering connections within the legal community. He sees a unique challenge for corporate counsel, who can often be isolated from their peers in other organizations. "I would like to strengthen connections among the many corporate legal teams in Maryland, especially among the large healthcare companies," Sergent notes. He noted that “MSBA provides so many opportunities to meet other lawyers and build connections.” He compares a legal career to building a house—one brick at a time— starting with small but meaningful interactions like joining a section or volunteering for a committee. "Each individual interaction may not seem like much, but when you look back over 20 years, you’ve built a wealth of experience, friendships, and contacts."
A dedicated MSBA member since joining the bar in 1996, Sergent has played an active role in shaping its future. His service to MSBA has spanned multiple leadership roles, including chair of the Budget & Finance Committee, chair of the Ethics Committee, chair of the Health Law Section, member of the Board of Governors, and member of the MSBA Executive Committee.
Sergent is also passionate about causes that go beyond healthcare and corporate law, particularly freedom of speech. "This is a foundational right essential to the functioning of a free society," he explains. His commitment to this cause began during law school, where he interned at the Thomas Jefferson Center for Freedom of Expression. Today, he supports the Foundation for Individual Rights and Expression, advocating for a diversity of thought in a world that often favors ideological rigidity.
As he settles into his new role at CareFirst, Sergent is focused on the future—not just for himself, but for the next generation of legal professionals. "I share the advice I received early in my career: look past the 'job' of today and focus on building a career," he says.
LAW LAW
The Voting Rights Act's Elusive Individual Mandate
BY DON QUINN, ESQ.
On November 20, 2023, the Eighth Circuit Court of Appeals issued a decision that could forever change the trajectory of voting rights in America. In Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment,1—what should be considered a landmark ruling—the three-judge panel of the Eighth Circuit concluded that Section 2 of the Voting Rights Act (VRA)2 did not grant private citizens an individual cause of action to bring a case in the event that they felt that the state, county, or local governments were violating their voting rights.
Two advocacy groups, the Arkansas National Association for the Advancement of Colored People and the Arkansas Public Policy Panel, brought a lawsuit to challenge proposed redistricting maps by the Arkansas legislature that they argued will make it harder for Black voters to elect representatives that they preferred. The complaints alleged that the Arkansas legislature had engaged in both “cracking” and “packing.” Cracking is the process by which redistricting spreads minorities thinly across primarily majority districts to dilute their vote. Packing is the political process of packing minorities into large “super districts,” thereby limiting their overall number of seats in the legislature to one or two districts. However, the decision from the Eighth Circuit addresses none of the complaint’s substance, instead focusing on whether or not the plaintiffs themselves had a Congressionally granted cause of action. It concluded, as the district court had done below, that the plaintiffs did not have a cause of action and dismissed the case, making it ripe for appeal to the U.S. Supreme Court. As courts across the country implement conflicting views on whether our own citizens have standing under Section 2 of the VRA, Supreme Court intervention becomes more and more necessary.
In its decision, the Eighth Circuit focused heavily on Section 2’s use of specific language in the VRA that grants a cause of action to the Attorney General of the United States and does not mention any other party as having a cause of action. Relying on 52 U.S.C.
1 86 F.4th 1204, 1207 (8th Cir. 2023).
2 52 U.S.C. §10101.
3 86 F.4th 574, 588 (5th Cir. 2023).
§ 10308(d), the appeals court concluded that by granting the right to sue to the attorney general specifically, Congress had intended to exclude any other party from having a cause of action. This decision is problematic, as Chief Judge Lavenski R. Smith pointed out in his dissent, because it overturns well-established
As courts across the country implement conflicting views on whether our own citizens have standing under Section 2 of the VRA, Supreme Court intervention becomes more and more necessary.
precedent, including from the Supreme Court, that assumes both explicitly and implicitly that a private right of action exists under the VRA. Chief Judge Smith identifies the problems caused by the Supreme Court not explicitly ruling on this matter and recommends that until it does so, following well-established precedent is a more advisable course of action rather than blazing a new trail—especially one that denies voters access to justice should a politically appointed attorney general refuse to act in accordance with 52 U.S.C. § 10308(d).
Other federal circuits have a less strict interpretation of the VRA. For example, in Robinson v. Ardoin, 3 the Fifth Circuit examined the same issue and found that plaintiffs have a right to private action under Section 2 of the VRA. Similarly, and quoted by the Fifth Circuit decision, the Sixth Circuit in Mixon v. State of Ohio
In the face of recent electoral question marks raised by candidates and advocacy groups, will Congress choose to tighten the language of the VRA, making the Supreme Court review moot?
(without analysis) reached the conclusion that plaintiffs do have a private right of action to bring a VRA case.4 In Alabama State Conf. of Nat’l Ass’n for the Advancement of Colored People v. Alabama, which was later vacated for mootness, the Eleventh Circuit also held that a private right of action exists within Section 2 of the VRA.5
Shortly after the Arkansas State Conference NAACP case ruling, other federal district courts found the ruling to be unpersuasive. Specifically, in Singleton v. Allen6 in the U.S. District Court of Northern Alabama; in Nairne v. Ardoin7 in the U.S. District Court for the Middle District of Louisiana; and in Stone v. Allen, 8 also in the District Court of Northern Alabama. These courts appear to be treating the Eighth Circuit decision as an aberration, but given the court’s standing and this decision’s apparent undermining of the rationale offered by numerous U.S. Supreme Court decisions (including Morse v. Republican Party of Virginia9), it seems necessary that the Supreme Court tell us whether or not voters definitively have an individual mandate to sue under Section 2.
The challenge for voters who live in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota is that the decision by the Eighth Circuit is binding on their U.S. District Courts—limiting the ability of any citizen to bring an action for racially motivated gerrymandering, vote suppression, election literacy tests, or a host of other items banned by the VRA unless the attorney general chooses to file an action on behalf of the United States having heard the complaints of the plaintiffs involved. In a world where the attorney general is a political appointee who may have a personal interest at stake in voting matters, this ruling appears on its face to undermine the very thing the VRA hoped to accomplish. Free and fair elections without political interference are the centerpiece of why Congress passed the VRA. If the only way persons who are aggrieved can seek justice is through a political appointee, then the decision by the Eighth Circuit would be the death knell of the VRA and the protections it offers voters.
4 193 F.3d 389, 406 (6th Cir. 1999).
5 949 F.3d 647, 651 (11th Cir. 2020).
6 No. 2:21-CV-01291-AMM, 2024 WL 3384840, at *13 (N.D. Ala. July 11, 2024).
7 No. 2:21-CV-01291-AMM, 2024 WL 3384840, at *13 (N.D. Ala. July 11, 2024).
8 No. 2:21-CV-1531-AMM, 2024 WL 578578, at *6 (N.D. Ala. Feb. 13, 2024).
9 517 U.S. 186 (1996).
10 Coca v. City of Dodge City, 669 F. Supp. 3d 1131, 1140 (D. Kan. 2023).
As Chief Judge Smith wrote about the Arkansas State Conference NAACP case, the Eighth Circuit attempted to “predict the Supreme Court’s future decisions” by “conduct[ing] a searchingly thorough examination of Section 2’s text, legislative history, and the Sandoval analysis. Holding that Section 2 does not provide a private right of action would work a major upheaval in the law.” Meanwhile, “scores if not hundreds of cases have proceeded under the assumption that Section 2 provides a private right of action. All the while, Congress has consistently reenacted the VRA without making substantive changes, impliedly affirming the previously unanimous interpretation of Section 2 as creating a private right of action.”10 While nuanced legal arguments over standing can seem denuded of politics, this issue does not exist in a vacuum. Whatever side of the aisle you are on, assuming that politicians and political appointees will act outside of their own best interest is naïve at best and dangerous to democracy at worst. Putting the only ability to bring suit against state laws that restrict voting rights onto the attorney general—a political actor—functionally takes away the right of private citizens to enjoy protection from discrimination in the electoral process.
Given the vast number of voters impacted by the Arkansas case, the conflicts among the circuits, and the conflict with the U.S. Supreme Court’s own previous rulings, this matter is ripe for review. The question is: will the Supreme Court stand on precedent, or would its own analysis reach the same conclusion as the Eighth Circuit? Equally importantly, in the face of recent electoral question marks raised by candidates and advocacy groups, will Congress choose to tighten the language of the VRA, making the Supreme Court review moot? Any decision by either of these two bodies could have long-term impacts on democracy, and while, for now, the ACLU has declined to pursue this specific case, others are working their way through the justice system with many of us waiting with bated breath to see how the Supreme Court rules.
and Election Integrity
BY PAMELA LANGHAM, ESQ.
AI in the Voting Booth: Misinformation
“Elections remind us not only of the rights but the responsibilities of citizenship in a democracy.”
— ROBERT KENNEDY
Generative artificial intelligence (AI) is revolutionizing numerous sectors, and its influence on the U.S. electoral process is a subject of increasing importance and scrutiny. There is a dual-edged nature of this technology. On one hand, AI can enhance democratic engagement by aiding voter education, streamlining electoral logistics, and stopping cyberattacks. On the other hand, it poses risks such as the dissemination of deepfakes and the manipulation of public opinion. This article will explore both the positive and negative impacts of AI on electoral processes.
Positive Impacts
Election officials are increasingly turning to AI to bolster the integrity of elections. This technology is being utilized in various ways, such as improving the accuracy of voter registration databases, detecting and preventing fraudulent activities, and enhancing the security of electronic voting systems. AI can analyze vast amounts of data to identify patterns that may indicate fraudulent behavior. Additionally, AI-driven simulations can be used to anticipate and counteract potential cyber threats, ensuring that election infrastructure remains robust against attacks. Others may use AI tools to monitor social media platforms for disinformation campaigns, swiftly identifying and mitigating the spread of false information that could undermine election credibility. Moreover, generative AI aids in the creation of educational materials that inform voters about the electoral process, helping to build trust and transparency. By adopting AI, election officials are not only streamlining administrative processes but also reinforcing the democratic principle of fair and free elections. It is important to note, however, that not all AI systems are accurate 100% of the time. Hopefully, election officials are keeping humans in the loop when implementing this new technology.
Negative Impacts
Deception, distortion, and untruths are, unfortunately, timeless elements of human history. And these elements are inherently ensconced in all forms of government, including democracy. Political acrimony in the United
States is nothing new. In 1796, political discord emerged between former allies, Adams and Jefferson, escalating by 1800 into an unprecedentedly bitter presidential race, mirroring the vitriol of modern campaigns. The era was marked by similar controversies: foreign collusion allegations, immigration anxieties, fears of authoritarian rule, free speech curtailment, and governmental abuse for political gain. But we don’t have to peer back all the way to the 18th century to find historical accounts of political rascality. There are countless examples of modern misuse of robocalls and political advertising to sway elections. The tools used in political campaigns may have evolved, (i.e. printing, human phone pools, robocalls, TV ads, emails, websites, social media and now AI) but the strategy of spreading rumors, launching attacks, and perpetuating falsehoods have persisted unchanged. Regardless, it is self-evident that the onset of AI technology has created an atmosphere of heightened use of and mass production of misinformation to sway voters. A large amount of this misinformation is in the form of AI generated deepfakes or other synthetic media—threatening elections and democracy itself.
AP recently reported “about 4 in 10 Americans say the use of AI will make it much more difficult or somewhat more difficult to find factual information, while another 4 in 10 aren’t sure—saying it won’t make it easier or more challenging.”1 Results from a national survey conducted by Elon University and the Imagining the Digital Future Center found that 73% of Americans believe “AI will be used to manipulate social media to influence the outcome of the presidential election, 70% say it is likely the election will be affected by the use of AI to generate fake information, video and audio material, 62% say the election is likely to be affected by the targeted use of AI to convince some voters not to vote . . . and 78% say at least one of these abuses of AI will affect the presidential election outcome.”2
With the onset of AI generated deepfakes hijacking social media and videoconferencing, voice cloning and other forms of misinformation, AI applications are frequently utilized to generate counterfeit visuals of notable figures, often with the intent of perpetuating specific adverse
1 Swenson and Sanders. 2024. “Most Americans Don’t Trust AI-Powered Election Information,” AP, September 12, 2024, apnews.com/article/ai-chatbots-misinformationvoting-election-2024-7131822c0f2ebe843b4c7e3cb111a3d3.
2 “New Survey Finds Most Americans Expect AI Abuses Will Affect 2024 Election,” Elon University, May 15, 2024, www.elon.edu/u/news/2024/05/15/ai-and-politics-survey.
Deepfakes challenge the electorate’s capacity to distinguish authentic information from manufactured falsehoods, complicating the process of making knowledgeable choices during voting.
storylines. These manipulated images range from depicting Vice President Kamala Harris clad in a communist garb to former President Donald Trump portrayed as being restrained in handcuffs.3 The underlying purpose of these fabrications is to bolster certain derogatory themes associated with these individuals.4 And although manipulated images have been a mainstay in elections, AI-generated deepfakes in elections pose an existential threat. Five years ago if an individual wanted to create a deepfake, it required superb technical expertise and skill, and computing power. But now individuals, who lacked the expertise just a few years ago to create a deepfake, have easy access to AI technology. Consequently the quantity and speed in which deepfakes can be created and deployed have substantially increased. These deepfakes challenge the electorate’s capacity to distinguish authentic information from manufactured falsehoods, thereby complicating the process of making knowledgeable choices during voting. Moreover, as the public becomes increasingly aware of the danger of deepfakes, bad actors can take advantage of that fear by claiming authentic video or audio content of their political opponent is fake and artificially generated by AI. This phenomenon is called “the liar’s dividend.”5 This theoretical dynamic is simple: “when people learn that deepfakes are increasingly realistic, false claims that real content is AI-generated become more persuasive too.”6
Consequently, such deceptive media content endangers the sanctity of electoral processes and the very foundation of democratic systems. Nevertheless, the prospect of legislating against deceitful political expression is fraught with complex issues related to First Amendment principles.
Despite several proposed federal bills to regulate AI-generated deepfakes in elections, no laws have yet been enacted. However,
legislatures across various states are enacting laws to mitigate the diverse risks associated with AI assisted manipulated images and audios. Nineteen states have enacted laws governing the use of AI in elections and campaigns. Maryland is not one of them. Under these laws, a disclaimer or disclosure that the media (photo, video, or audio) was manipulated is required. In addition, many of these laws make it illegal to disseminate deepfakes with the purpose of swaying an electoral outcome within a specified number of days before an election, e.g. Texas sets the boundary at 30 days, while California sets the boundary at 120 days. The substantial majority of states passing laws governing the use of AI have both time-based restrictions and disclaimer requirements.7
There is also a foreign threat to U.S. elections through the use of AI technology. The FBI partnered with the Department of Homeland Security and the Office of the Director of National Intelligence to initiate the Protective Voices program, which is aimed at educating and assisting political campaigns at mitigating the risk of online foreign threats and cyber threats, including the use of AI technologies targeting U.S. elections. The program provides resources to help political campaigns, organizations, and individuals protect their digital presence against bad actors who may attempt to hijack their political message. Protective Voices emphasizes the importance of cybersecurity, offering guidance on protecting digital devices, social media accounts, and private information from cyberattacks. Additionally, it educates on foreign influence tactics and how to identify and mitigate them. The initiative also encourages the reporting of suspicious activities to local FBI field offices. By fostering awareness and preparedness, Protected Voices helps maintain the integrity of the electoral process against the evolving threat of cyber influence operations.
5 Goldstein and Lohn. “Deepfakes, Elections, and Shrinking the Liar’s Dividend,” Brennan Center for Justice, January 23, 2024, www.brennancenter.org/our-work/research-reports/deepfakeselections-and-shrinking-liars-dividend
7 “Artificial Intelligence (AI) in Elections and Campaigns,” National Conference of State Legislatures, October 7, 2024, www.ncsl.org/elections-and-campaigns/artificial-intelligence-ai-in-electionsand-campaigns
Summary
The advent of AI has also seen the rise of sophisticated misinformation campaigns, where politicians, interest groups, or foreign actors can manipulate public opinion with targeted, false narratives.
AI holds both promise and peril for the U.S. electoral process. On the positive side, AI can enhance the administrative tasks associated with elections, such as efficiency and accuracy of voter registration, data analysis, and the management of electoral rolls. Election officials can leverage AI to detect and mitigate fraudulent activities, ensuring a more secure voting process. However, the advent of AI has also seen the rise of sophisticated misinformation campaigns, where politicians, interest groups, or foreign actors can manipulate public opinion with targeted, false narratives. Deepfakes, hyper-realistic video, or audio manipulations pose a particular threat to the integrity of elections, prompting some states to enact legislation to curb their use near election times. These laws aim to balance the protection of democratic processes with the freedoms of expression and innovation. Further laws may be necessary to safeguard against AI’s potential harms.
For more reading on AI generated deepfakes and voice cloning, please see “Impact of Deepfakes on the Legal Profession,” MSBA Blog (July 5, 2024); “Deepfakes Continue to Rattle,” MSBA Blog (April 22, 2024); and “Deepfakes and Voice Cloning: The Coming Evidentiary Crisis,” MSBA Blog (March 21, 2024).
deception distortion untruths
Respect Replaces Deference:
The Post-Chevron Relevance of Agency Expertise
BY MICHAEL MEYERSON, ESQ. & MATTHEW BRADFORD, ESQ. 1
For 40 years and three days, the field of administrative law was dominated by the “Chevron doctrine.” Following the holding in the 1984 case, Chevron v. Natural Resources Defense Council, 2 courts would defer to administrative agencies in their interpretation of ambiguous statutory language. Whenever a statute was silent or ambiguous on a particular issue, courts were instructed to defer to an agency’s interpretation, as long as it was “based on a permissible construction of the statute.”3
This June, the U.S. Supreme Court overruled Chevron, in Loper Bright Enterprises v. Raimondo. 4 The majority held that the judicial deference required by Chevron violated the 80-year-old Administrative Procedure Act that mandated that a court reviewing agency actions “shall decide all relevant questions of law . . . .”5 Thus, ruled the Court, executive agencies are no longer entitled to judicial deference in their interpretation of ambiguous statutory language.
The New York Times described the case as a “seismic decision” that marked “a major victory in a decades-long campaign by conservative
activists to shrink the power of the federal government . . . .” Other commentators predicted that the decision would significantly weaken agencies and make it more difficult for a president to protect the environment or workers’ rights.
A careful reading of the opinion, however, suggests that agencies will still be able to play a significant role in the interpretation of many of the statutes that empower them. The critical point is that the Loper Bright decision repeatedly made a distinction between two types of statutory ambiguities. On the one hand, classic statutory ambiguities, resulting from imprecise language or legislative omissions, should now be decided by courts in the same manner that courts generally interpret the meaning of ambiguous statutes that have nothing to do with agency power. But for those statutory ambiguities that fall within an “agency’s technical subject matter expertise,” courts are required to give “respect” to the agency’s interpretation.6 The majority said that in those technical subject matters, courts must pay “[c]areful attention to the judgment of the Executive
1 The views expressed in this article are the authors’ alone and do not purport to be those of the Baltimore City Department of Law or the City of Baltimore.
2 467 U.S. 837 (1984).
3 Id., 467 U.S. at 843.
4 144 S. Ct. 2244 (2024).
5 5 U.S.C.A. § 706.
6 Id., 144 S. Ct at 2267, 2247.
Implicit in the Court’s opinion is the understanding that technical agency interpretations are to be paid more respect than that of other litigants. This does not mean that non-governmental litigants should be ignored.
Branch” to inform their interpretation.7 The end of deference means that an agency’s interpretation of a statute will not “bind a court.” However, when courts provide the “respect” envisioned in Loper Bright, that agency interpretation should still be “especially informative ‘to the extent it rests on factual premises within its expertise . . . .’”8
Respect is not a legal term of art, and a skeptic may well view the term “respect” as so nebulous that courts are now free to simply disregard the technical expertise of agencies. That need not and should not be the case. It is certainly possible that rogue judges may ignore agency expertise, but the Court’s opinion was quite clear that respect should have legal significance.
Consider a case from the Chevron era, Teva Pharmaceuticals USA, Inc. v. FDA, 9 that was cited in Justice Kagan’s dissent. That case involved a statutory grant of power to the Food and Drug Administration to regulate biological products including “protein[s].”10 Statutory interpretation was needed to decide when an “alpha amino acid polymer” qualifies as a “protein.”
Using Chevron deference, the court accepted the FDA’s interpretation of the word “protein.”
Under the Loper Bright standard of “respect,” that case should turn out the same way. The scope of the definition of “protein” is a scientific question, and, thus, respect is due to the government’s technical interpretation. If that interpretation is reasonable, there must be a very good reason for the judiciary to reject that interpretation.
These cases should not become a simple battle between experts paid by corporate litigants versus the expertise of the executive agency. Implicit in the Court’s opinion is the understanding that technical agency interpretations are to be paid more respect than that of other litigants. This does not mean that nongovernmental litigants should be ignored. Any argument made in good faith should be considered, and an obviously stronger interpretation of law from a non-governmental litigant should be applied. But under Loper Bright, the government is entitled to something more than the general consideration afforded to all those appearing in court. Indeed, as the Court noted, Executive
7 Id., 144 S. Ct. at 2273.
Branch interpretation should be given “particular ‘power to persuade, if lacking power to control.’”11 The better view of the respect standard is that an agency’s interpretation of ambiguous technical language should be viewed as first among equals. Executive agencies should be mindful that Loper Bright does not require particular respect in all matters concerning ambiguous statutory language. Ambiguity is inherent in law and virtually inevitable in statutes. The government will always be involved in litigation, and not all ambiguities involve technical questions. If an agency believes its interpretation is entitled to such respect, it must explain how its technical expertise is essential for a proper reading of the statute.
In conclusion, Loper Bright should not be viewed as a dismissal of agency expertise and its importance in interpreting statutes. Courts may no longer “defer” to agencies and now will not be bound by the agency’s interpretation of statutory language. But where there is technical language in a statute that is truly ambiguous, courts must pay special respect to an agency’s interpretation.
8 Id., 144 S. Ct. at 2247 (quoting Bureau of Alcohol, Tobacco & Firearms v. FLRA., 464 U.S. 89, 98 (1983)).
9 514 F. Supp. 3d 66 (D.C. Cir. 2020).
10 42 U.S.C. § 262(i)(1).
11 Id., 144 S. Ct. at 2267 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)(emphasis added)).
Michael Meyerson is DLA Piper Professor of Law & Director, Fannie Angelos Program for Academic Excellence, at the University of Baltimore School of Law.
Matthew Bradford currently serves as Chief of Staff for the Baltimore City Department of Law, providing advice and legal counsel to the Baltimore City Solicitor and the Mayor and City Council of Baltimore. He is a graduate of Morgan State University and the University of Baltimore School of Law. The views expressed in this article are the authors’ alone and do not purport to be those of the Baltimore City Department of Law or the City of Baltimore.
Special Safe Harbor
Can Protect Businesses in IRS Audits of Independent Contractor Relationships
BY RUSS HOLLRAH, ESQ.
The growth of independent contractors throughout the nation has been widely reported.1 This growth has led to disputes over whether individuals who are classified as independent contractors are classified properly. One context in which these disputes can occur is an employment tax audit conducted by the Internal Revenue Service (IRS)—especially due to the increased funding IRS has been receiving under the Inflation Reduction Act.
A company subject to such an audit might be eligible for a valuable safe harbor provision contained in section 530 of the Revenue Act of 1978 (Section 530). While this safe harbor has existed for more than four decades, it has never been codified into the Internal Revenue Code and is sometimes overlooked. If a company is not careful, it can permanently disqualify itself from the safe harbor when implementing a change without considering the safe harbor’s requirements.
By way of background, the general test for determining an individual’s status for federal employment taxes is a commonlaw test. In General Investment Corp. v. United States, 2 the court explained that “employer control over the manner in which the work is performed, ‘either actual or the right to it, is the basic test.’” One difficulty presented by the common-law test is that its application to specific facts can be highly subjective and unpredictable.
The substantive consistency requirement, is arguably the most stringent barrier against Section 530 eligibility. It requires that a company has never treated as an employee for federal tax purposes any individual holding a substantially similar position as the individual with respect to whom Section 530 is being claimed.
Section 530 of the Revenue Act of 1978
Congress responded to this difficulty by enacting Section 530, which can protect a company against any federal employment tax liabilities with respect to its classification of an individual as an independent contractor. To qualify for Section 530 protection, a company must satisfy three criteria, namely:
Demonstrating Eligibility for Section 530 Protection
As noted, for a company to qualify for Section 530 protection, it must satisfy all three requirements of Section 530.
(1) The company filed all IRS Forms 1099 required to be filed with respect to the individual for that period, Section 530(a)(1)(B);
(1) The company (and any predecessor) did not treat the individual or any individual holding a substantially similar position as an employee for federal tax purposes for any period beginning after December 31, 1977, Sections 530(a)(1)(A) and 530(a) (3); and
1 2 3
(3) The company had a reasonable basis for not treating the individual as an employee, Section 530(a)(1).
Section 530 is to be liberally construed in favor of the company.3
One feature of Section 530 that makes it especially helpful to companies is that when IRS audits a company, IRS is required to first determine the company’s eligibility for Section 530 protection with respect to any individuals it classifies as independent contractors before IRS can consider their status under the commonlaw test.4 This means that the company can demand that IRS first determine its eligibility for Section 530 protection before exploring the individuals’ status under the subjective and time-consuming common-law test. This can lead to an accelerated and cost-effective resolution of an employment tax audit for a company that satisfies the Section 530 requirements.
Satisfying the first requirement of section 530 is the least problematic. Even in the absence of Section 530, an entity should comply with the information reporting requirements that pertain to the payments it makes to independent contractors, i.e., by reporting the payments on IRS Forms 1099.
The second requirement, known as the substantive consistency requirement, is arguably the most stringent barrier against Section 530 eligibility. It requires that a company has never treated as an employee for federal tax purposes any individual holding a substantially similar position as the individual with respect to whom Section 530 is being claimed. There is no de minimis exception to the substantive consistency requirement.5
As a practical matter, this requires that a company has never issued an IRS Form W-2 to an individual holding a position substantially similar to the individual with respect to whom Section 530 is being claimed. Section 530 generally is applied on an entity-by-entity basis, whereby each entity operates under its own Employer Identification Number (EIN).
A context in which this requirement can be inadvertently violated is when the owner of a company acquires another business. For example, consider company #1 that classifies as independent contractors individuals who perform certain projects. If the owner of company #1 were to acquire another business (company #2) that treats substantially similar individuals as W-2 employees, it would be important to ensure that company #2
3 Rev. Proc. 85-18, 1985-1 C.B. 518, citing the Revenue Act of 1978, H.R. Rep. No. 95-1748, 95th Cong., 2d Sess. 5, 1978-3 (Vol. 1) C.B. 629.
4 Internal Revenue Service Manual 4.23.5.3.1 (Nov. 22, 2017) (“Section 530 is a relief provision that must be considered as the first step in any case involving worker classification.”) (emphasis in original).
5 A company’s treatment for federal employment tax purposes of even one substantially similar individual as an employee will violate this requirement. E.g., La Nails, Inc. v. United States, 1998 WL 556266, at *2 (D. Md. May 4, 1998); Inst. for Res. Mgmt., Inc. v. United States, 22 Cl. Ct. 114, 118 (1990).
remains as a separate entity relative to company #1. This is to avoid the same entity treating substantially similar individuals both as independent contractors and as employees for federal tax purposes – in violation of the substantive consistency requirement
The third requirement of Section 530 is the reasonable basis requirement. This requirement can be satisfied by showing that the company’s classification of the individuals at issue as independent contractors was in reasonable reliance on any of the following:
• Acceptable judicial precedent,
• Section 530(a)(2)(A); A prior IRS audit, Section 530(a) (2)(B);
• or Industry practice, Section 530(a)(2)(C).
In addition, Rev. Proc. 85-18, 1985-1 C.B. 518, makes clear that reasonable basis also can be demonstrated in some other manner.
Another limitation on Section 530 is that it applies only to federal employment taxes, but not for any other purpose, such as federal income taxes or state payroll taxes.
A final limitation on Section 530 is contained in Section 1706 of the Tax Reform Act of 1986 (Section 1706). Section 1706 provides that Section 530 does not apply with respect to technical personnel
Any company that contracts with independent contractors is exposed to a risk that the individuals could be determined to have been misclassified. Section 530 offers a safe harbor that can largely eliminate this risk for federal employment-tax purposes.
Examples of ways in which a company can establish reasonable basis in some other manner include, among others, reliance on a reasonable interpretation of the common-law test,6 reasonable reliance on the tax opinion of an attorney or accountant,7 and reasonable reliance on a statute prohibiting an entity from treating the type of service provider at issue as its employee.8
If a company contracts with a significant number of independent contractors but cannot establish a reasonable basis, it should consider obtaining a tax opinion concerning the independent contractors from a tax advisor who is knowledgeable about federal employment tax issues.
Limitations on Section 530
Section 530 is subject to important limitations. For example, Section 530 applies only to a company that classifies individuals as independent contractors. It does not apply to the individuals who are so classified. Thus, Section 530 statutorily protects a company against any federal employment tax liability with respect to affected individuals, but the individuals’ status for purposes of determining their own federal employment tax liabilities would be determined without regard to Section 530.
who provide services for a business through a third party. Technical personnel for these purposes are defined as engineers, designers, drafters, computer programmers, systems analysts, and other similarly skilled workers engaged in a similar line of work.
Conclusion
Any company that contracts with independent contractors is exposed to a risk that the individuals could be determined to have been misclassified. Section 530 offers a safe harbor that can largely eliminate this risk for federal employment-tax purposes. But for a company to qualify for this protection, it needs to satisfy all three requirements of Section 530 and ensure that it does not permanently disqualify itself from Section 530 eligibility when acquiring another business or making other changes to its operations.
Russ Hollrah has a national practice devoted to contingent workers. He assists companies in structuring relationships with contingent workers and defends companies in worker-classification disputes before federal and state administrative agencies.
Photo courtesy of Travis Marshall Photography
Inspired by the courage of civil rights legends like the Honorable Thurgood Marshall, I developed tenacity and a penchant for outcome-driven, zealous advocacy that I could only truly learn in Baltimore. “
Director during the 2019 Legislative Session, I helped to achieve long-shot policy objectives and legislative victories in these subject matters. Inspired by the courage of civil rights legends like the Honorable Thurgood Marshall, I developed tenacity and a penchant for outcome-driven, zealous advocacy that I could only truly learn in Baltimore. Battle-tested and audacious attorneys like William H. “Billy” Murphy, Jr. of Murphy Falcon Murphy and former Baltimore City State’s Attorney Marilyn Mosby influenced my leadership style by demonstrating strength and prowess under pressure when handling high-stakes, controversial legal battles in the national spotlight.
What is the best piece of advice you have received from someone in the legal profession?
When I was a law student at Tulane University Law School, I asked then President Obama what tips he had for young people who have been inspired by him and the First Lady. He advised me to work hard to deserve the investments that people have made in me and invest in younger people coming up behind me. He also said, “Don’t worry so much about who you want to be, worry about what you want to do. Worry about the person you want to be and what you want to accomplish.” He discussed how the First Lady’s father worked at a water treatment plant, mentioning, “If you are interested in the environment, you don’t have to be the head of the EPA to make a difference. You might organize in a local community to clean up a site and plant gardens and make sure that the water is clean.” The next semester, I joined the Tulane Environmental Law Clinic as a student attorney and continued my work on environmental justice matters in the greater New Orleans area. I also started mentoring younger women—especially Black women—interested in furthering their careers in the legal profession and working on environmental advocacy campaigns.
Can you highlight some of your professional accomplishments?
I unexpectedly moved from Louisiana to Maryland after graduating from law school. I had no money, no job, and no bar license. I wanted to use my legal training to make a difference for marginalized communities, so I began working with Maryland legislators and advocacy organizations to advance economic development initiatives and renewable energy and environmental policy matters. During the 2018 campaigns and while working in the Maryland General Assembly as a Legislative
Now that I am licensed to practice law in Maryland, New York, the District of Columbia, and Louisiana, I have handled legal and business matters in the U.S., Africa, Latin America, Europe, and Asia, involving international, federal, state, and local governments, publicly traded companies, small- and mediumsized businesses, and gritty entrepreneurs, as well as innovative renewable energy projects valued at over $1 billion.
What do you enjoy most about your career?
Though climate change impacts everyone worldwide, Maryland and Louisiana are among the U.S. states that experience some of the most notable impacts from climate change—whether ecosystem changes, sea level rise, coastal erosion, natural disasters, or increased flooding. I am grateful for the opportunity to creatively employ my legal acumen to mitigate the impacts of climate change that threaten our ways of life, our economies, and cultures.
What are your goals for yourself in your current role?
Since establishing my international energy law practice earlier this year, my top priority has been to deliver exceptional service and value to my clients. My objective is to become the leading attorney for renewable and alternative energy and decarbonization project development and to expand my local and international influence on energy transition matters. To achieve this, I am laser-focused on honing my craft, and strengthening my relationships with other legal practitioners and organizations such as The Aspen Institute, The Institute for Energy Law, and the Center for Strategic and International Studies.
Apart from that, one of my biggest goals this year is to be able to secure more Maryland clients despite my sincerely held conviction that Louisiana’s Cajun/Creole seasonings and Tabasco are superior to Old Bay!
. . . and Then What?
A Discussion on Decommissioning Requirements for Solar Facilities in Maryland
BY COLLEEN O’CONNOR COLLINS, ESQ. AND NICOLE LACOSTE FOLKS, ESQ.
MARYLAND’S CLIMATE SOLUTIONS NOW ACT OF 2022 outlines a comprehensive strategy to reduce the state’s reliance on fossil fuels while promoting the increased adoption of clean energy sources, including solar and wind power.1 In response, the solar energy industry has been expanding the development of solar facilities on land throughout the state. For purposes of this article, a “solar facility” is a large-scale installation of photovoltaic panels, mounted directly on land, designed to convert sunlight into electricity, typically spanning significant acreage and requiring State and local approvals.
1 Maryland Climate Solutions Now Act of 2022, Md. Code Ann., Env’t §§ 2-1201 to 2-1211 (2022).
The development of solar facilities sits at the intersection of real estate law and energy and environmental law. The legal process combines contracts of sale, lease and easement agreements, zoning approvals, coupled with compliance regulations and decommissioning obligations. While the State and local jurisdictions have similar requirements, the decommissioning process for a solar facility is not uniform across the board. Local jurisdictions may enforce different timelines, financial assurance obligations, and restoration of land standards when deconstructing and removing a solar facility from land where it once operated.
Decommissioning
The term for commercial leases for utility-scale solar facilities typically span between 25–45 years. What happens to the solar facility when the lease term ends? It will need to be decommissioned. Decommissioning is the process
Research Program (PPRP) division, will recommend to the PSC certain conditions be met to uphold environmental stewardship, including decommissioning standards. These recommendations are published by the PPRP in the applicant’s docket on the PSC website.
An example of PPRP’s decommissioning recommendations to the PSC include the following requirements:
At least 90 days before construction, the applicant must submit a decommissioning plan to the PSC, PPRP, and the local jurisdiction for approval.
The plan must detail responsible parties, timelines, and estimated costs for removing all components, including cables, wiring, and foundations, while addressing environmental preservation and site stabilization.
The plan must include evidence of insurance,
State and local jurisdictions often differ in their decommissioning requirements for solar facilities, with some jurisdictions imposing more localized standards for land restoration, decommissioning timelines, and ongoing oversight.
of deconstructing and removing a solar facility from the subject land at either the end of the solar facility’s useful life or the end of the applicable lease term, and restoring the land to certain conditions that were present prior to installation. The decommissioning process is regulated by both state and local jurisdictions, and though their approaches share similar intent, the distinct requirements ultimately determine how a solar facility must be removed.
State Decommissioning
A Certificate of Public Convenience and Necessity (CPCN), a legal authorization granted by the Maryland Public Service Commission (PSC), allows the construction and operation of energy infrastructure, including solar facilities.1 The PSC’s approval of a CPCN preempts local zoning regulations. To qualify for a CPCN, a facility must have an alternating current generating capacity exceeding two megawatts and is subject to regulatory review and approval. If a solar facility does not meet the threshold requirements for a CPCN, then the installation will be subject to local zoning approvals.
When reviewing an application for a CPCN, the Maryland Department of Natural Resources, through its Power Plant
warranties, and recycling/reuse strategies.
Construction cannot begin until the PSC approves the plan, comments are addressed, and financial guarantees are secured.
A financial mechanism, such as a bond or letter of credit, must ensure decommissioning costs are not passed to the State or local jurisdiction in case of abandonment.
The applicant must obtain an independent estimate of decommissioning costs to set the financial guarantee for safe removal of all components of the solar facility. Salvage value can offset up to 85% of decommissioning costs if the applicant shows evidence of a recycling market.
Every five years, the applicant must update decommissioning costs and financial guarantees, submitting revised figures to the PSC for approval.
Decommissioning must start within 12 consecutive months of non-operation unless a repowering request is pending, with notification to the PSC, PPRP, and local jurisdiction.
1 Maryland Public Service Commission, CPCN Process, https://www.psc.state.md.us/cpcn/ (last visited Sept. 25, 2024).
The development of solar facilities sits at the intersection of real estate law and energy and environmental law.
Decommissioning Requirements by Local Jurisdictions
State and local jurisdictions often differ in their decommissioning requirements for solar facilities, with some jurisdictions imposing more localized standards for land restoration, decommissioning timelines, and ongoing oversight. Below are descriptions of the decommissioning requirements for two counties, Caroline County and Queen Anne’s County.
Caroline County
Caroline County’s solar decommissioning requirements differ from those established by the PSC, with local regulations mandating comprehensive removal of solar infrastructure to restore agricultural land suitability. Comparatively, restoring the land to make it “tillable” and “suitable for agricultural uses” exceeds the PSC requirements, which do not include specific agricultural restoration directives as mandated by Caroline County.
The Caroline County Code includes the following requirements (emphasis added):
Decommissioning. The solar energy system shall be completely decommissioned by the facility owner within 12 months after the end of the energy producing, abandonment or termination of such facility. Decommissioning shall include removal of all solar electric systems, buildings, cabling, electrical components, roads, foundations, pilings, and any other associated facilities, to the extents that any agricultural ground upon which the facility was located is again tillable and suitable for agricultural uses. Any components of the solar energy system buried greater than three feet may remain to avoid unnecessary topsoil disturbance. Disturbed earth shall be graded and re-seeded unless the landowner requests in writing that the access roads or other land surface areas not be restored. The owner of
2 Caroline County, Md., Code § 175-86 (2017).
the facility shall secure the costs of decommissioning by appropriate bond, letter of credit, or escrow agreement satisfactory to the County and shall include a mechanism for calculating increased removal costs due to inflation. Both a decommissioning plan and estimated costs shall be submitted by the owner and subject to approval by the County prior to issuance of any permits required.2
Queen Anne’s County
Queen Anne’s County’s approach to solar decommissioning also differs from the PSC’s broader regulations, particularly in terms of timelines for facility production and abandonment or inactivity, site restoration including the removal of underground structures, electrical wires, and the use of like-kind topsoil for replanting. These specific obligations imposed on solar developers reflect a desire by the Queen Anne’s County’s government to have localized oversight of the decommissioning process, such as the requirement for the County’s Board of Appeals to review and approve any changes to a decommissioning plan.
Queen Anne’s County’s requirements include:
A bond or financial assurance is required for complete removal of the solar array, renewable with notification of expiration and adjusted for inflation.
Removal of the facility must occur within one year of the solar array’s end of life or abandonment.
The operator must notify Queen Anne’s County if the solar array is inactive for 6 or more months.
A solar array unused for 12 continuous months is considered abandoned unless an extension is granted by the Board of Appeals, where the owner is able to present evidence of extenuating circumstances.
Removal and restoration must occur within one year of notice from Queen Anne’s County, including the removal of all structures, underground components, and legal disposal of materials.
A Decommissioning Plan that must include the expected life of the solar array, timeline for decommissioning, estimated removal costs, and approved sediment and erosion control measures.
All above and underground equipment, structures, fencing, and access roads must be removed, with only like-kind topsoil used for restoration.
Legal documents must outline responsibility for any environmental pollution occurring after removal.
Any alterations to the decommissioning plan require Board of Appeals approval.
End Use Plan must propose the condition of the site after removal, including requests to retain vegetation, roads, and fencing, and if applicable, document open space use with restrictive covenants.3
Conclusion
The PSC defines broad principles for solar decommissioning, concentrating on financial mechanisms such as a surety bond or letter of credit, operational deadlines, and environmental preservation. Caroline County, on the other hand, stresses the total removal of all solar equipment, guaranteeing that the land is returned to agricultural use while leaving certain subsurface components in place to minimize topsoil disturbance. Queen Anne’s County establishes unique financial assurance criteria and requires direct communication to the County when solar arrays are no longer in active energy production, demonstrating its commitment to local supervision and environmental care during the decommissioning process.
Both States and certain local jurisdictions vary in their approach and expectation for removal of solar projects from the underlying land. Understanding the conditions of the solar permitting process in Maryland, including the decommissioning process, is crucial for effectively drafting lease agreements and other related documents that address the specific obligations of solar companies.
3 Queen Anne’s County, Md., Code § 18:1-95.5(a) (2024).
Colleen Collins is an Associate in the Real Estate and Energy & Environment practice groups at Gordon Feinblatt LLC, bringing a diverse background in renewable energy, real estate, and financial transactions. Her experience as a Solar PV designer for multiple solar companies has provided her with valuable practical knowledge, having played a key role in numerous solar projects.
Nicole Lacoste Folks is a Member in Gordon Feinblatt LLC’s Real Estate and Energy & Environment practice groups where she focuses on renewable energy projects, commercial real estate projects such as acquisitions, leasing, zoning, land use and administrative approvals for complex commercial projects.
A Look at the Law of Common Ownership Communities Through the Lens of Local Government HOME HOA
BY MEGAN MANTZAVINOS, ESQ.
If you’ve ever attended a condominium or homeowners association meeting, whether on behalf of a client or just as an engaged member of the community, you probably noticed similarities between it and the meeting of a town or county council. Following a pre-published agenda, the meeting might have included discussions about things like budgets, roads, and parks. Votes may have been taken, and there may have been time reserved for public comment. It’s easy to think that condominium associations and homeowners associations (HOAs) operate the same way as local governments, and that they are all subject to the same rules.
Despite the similarities, though, it’s important to be conscious of the fact that each of these types of entities are governed by separate state statutory and regulatory frameworks. Certainly, it can be helpful to use government law as a frame of reference for understanding how condominium associations and HOAs operate. But there are also a number of significant differences, not only in how they operate, but also in what they can and cannot do in managing the affairs of the community. Recognizing these areas is key in guiding a client, be they a homeowner or the association itself, in understanding their rights and responsibilities as members of a common ownership community. This article will highlight a few of those similarities and differences.
Maryland has long recognized that condominium and homeowners associations—also called common ownership communities (COCs)—are in essence a form of private government.1 Like local governments, their existence is granted and their power defined by the General Assembly via the Maryland Code. Whereas municipalities are subject to the Local Government Code, condominium and homeowners associations are subject to the Maryland Condominium2 and Homeowners Association3 Acts. All three of these statutes create a framework for the communities to which they apply to govern
themselves, raise revenue and enforce financial obligations, maintain public spaces, and provide public services.
Whereas the Local Government Code empowers municipalities to draft a charter and legislation applicable to it, the Condominium and HOA Acts provide for a declaration or master deed, bylaws, and regulations. All three statutes also address the powers, composition, and selection of governing bodies, open meeting and public notice requirements, and inspection of records. Like municipalities, COCs are required to hold elections for their governing boards. They must provide notice to the community of meetings and, except under circumstances narrowly defined by the applicable Act, their meetings must be open to the community.
Much like members of a city council, COC board members are largely immune from suit for actions taken in their capacity as board members, as are the governing boards themselves. But while a municipality’s immunity derives from the sovereign immunity of the state,4 that of a COC board derives from the common-law Business Judgment Rule,5 applicable to corporations and associations.6 As it applies to COCs, the Business Judgment Rule protects the decisions made by a board of directors from judicial review unless there is a showing of fraud or bad faith.7
1 Id. See also, Pines Point Marina v. Rehak, 406 Md. 613, 634–5 (2008).
2 Md. Code Ann., Real Property § 11-101, et seq (hereinafter Real Prop. § ).
3 Real Prop. § 11B-101, et. seq.
It can be helpful to use government law as a frame of reference for understanding how condominium associations and HOAs operate. But there are also a number of significant differences.
Besides the variations in provisions among the local government code and the Condominium and HOA Acts, there are also a few areas where the differences between local governments and COCs are more glaring. For example, the ability of any government to regulate the use and enjoyment of private property is heavily curtailed by both the common law of property and by constitutional rights such as the First Amendment right to free speech, the Fourth Amendment freedom from unreasonable searches and seizures, and the Fifth Amendment proscription on the taking of private property. As privately governed communities, however, COCs have much broader leeway to regulate and restrict such things as display of signs and decorations, storage of equipment, and enforcement of aesthetic standards.
4 Higgins v. Rockville, 86 Md. App. 670, 676–7 (1991), citing Mayor and City Council of Baltimore v. State, ex rel. Blueford, 173 Md. 267, 271–72 (1987).
5 Maryland has codified the Business Judgment Rule. See Md. Code Ann., Corporations & Associations § 2-405.1.
6 Reiner v. Ehrlich, 212 Md. App. 142, 153 (2012). (“As a general rule, with only limited exceptions, courts will not interfere in the internal affairs of a corporation.”)
7 Black v. Fox Hills North Community Ass’n., 90 Md. App. 75, 82 (1992). In addition, actions involving a board member with a conflict of interest are subject to further scrutiny under the Business Judgment Rule, although they are not automatically void. See Cherington Condo. v. Kenney, 254 Md. App. 261, 279–81 (2022).
What restrictions a COC does have comes primarily from its own governing documents, that is, its declaration or master deed, and its bylaws and regulations. However, the Condominium and HOA Acts themselves contain restrictions which apply regardless of any provisions in the governing documents. For instance, both acts limit a COC’s ability to prohibit or regulate the display of political signs,8 prohibit the operation of homebased daycare businesses,9 and to prohibit or unreasonably restrict composting.10 In 2018, the General Assembly added a provision to the HOA Act to require HOAs to remove from their governing documents any restrictions on ownership based upon race, religion, or national origin.11
Restrictions on COC governance can also come from other sources at both the state and county level. Title 2 of the Real Property Code, for example, prohibits unreasonable restrictions on installing solar panels,12 portable basketball hoops,13 and low-impact landscaping.14 In addition, while COCs have the ability to regulate use, particularly of common areas in the community, they cannot do so in a way that dilutes any homeowner’s percentage ownership interest.15 Likewise, they cannot use regulations to revoke any of the property rights an owner acquired upon purchase.16
Of course, the law places restrictions on the ways in which both public entities and community associations enforce their ability to collect taxes and assessments. And for COCs, the regulation of enforcement ability is multi-layered. Much like government is bound by the tax codes, COCs are bound by the collections procedures outlined in their respective Acts
COCs are empowered by their respective acts to impose assessments on each lot or unit owner in the community.
and governing documents. Beyond that, though, the Supreme Court of Maryland has also made clear that under Maryland law, a condominium or homeowner’s liability for assessments constitutes consumer debt within the meaning of the Maryland Consumer Protection and Consumer Debt Collection Acts.19 Likewise, the court has found that homeowners fall within the definition of “consumer” under the MCPA.20
One of the critical functions of COCs, and one which makes them most like local government, is the provision of such services as road maintenance, snow and trash removal, and maintaining community spaces such as playgrounds, swimming pools, and other recreational facilities. Interestingly, this is also one of the areas in which Maryland law treats COCs more like private businesses than quasi-governments.
Whereas public entities finance these types of services primarily through taxes, COCs are empowered by their respective acts to impose assessments on each lot or unit owner in the community.17 Each act also provides tools for collecting assessments, including the ability for a community to use its governing documents to provide for interest and late charges, and to place liens on the units or lots of delinquent owners.18
8 Real Prop. §§ 11-111.2 and 11B-111.2.
9 Real Prop. §§ 11-111.1 and 11B-111.1.
10 Real Prop. §§ 11-111.5 and 11B-111.5.
11 Real Prop. § 11B-113.3. See also, Logan v. Dietz, 258 Md. App. 629, 677 (2023).
Thinking of condominium and HOAs as a type of local government can provide a useful framework for understanding how they operate and in advising clients on issues where the law is emerging or less than clear. But like so many other things in the law, the devil is in the details. Before offering advice, it’s important to be clear about what type of entity you are representing, and to refer to the correct body of law, including the portion of the code applicable to that entity.
12 Real Prop. § 2-119. See also, Blood v. Stoneridge at Fountain Green Homeowners Ass’n., 242 Md. App. 417 (2019).
16 Elvaton Towne Condo. Regime II, Inc. v. Rose, 453 Md. 684, 703 (2017).
17 See Md. Code, Real Prop. § 11-110 and § 11B-117.
18 Md. Code, Real Prop. § 11-110(c)–(e) and § 11B-117.
19 Goshen Run Homeowners Ass’n. v. Cisneros, 467 Md. 74, 95 (2020).
Megan Mantzavinos is a partner at Marks, O’Neill, O’Brien, Doherty & Kelly in Towson. She counsels and defends common ownership communities in Maryland and Delaware on matters including governance and employment practices.
20 Id. Further, the Homeowners Association Act expressly provides that a purchaser, lessee, or other recipient of a lot in a development is a “consumer” for purposes of conferring enforcement authority upon the Division of Consumer Protection, Md. Code, Real Prop. § 11B-115. The Condominium Act contains no similar provision.
Book Bans & The Rise of Censorship in Libraries
BY KRISTINA J. ALAYAN, ESQ.
The end of September in many libraries is known as “Banned Books Week.”1 It’s an opportunity for libraries to remind their respective communities that the library’s authority to determine how best to manage their collections within the context of their expertise as information professionals working in partnership with their respective institutional missions has been interrogated to varying degrees since time immemorial. The book first recognized as being banned in what is now the United States was written by Thomas Morton in 1637. It was perceived as a threat to Puritans and their way of life—and was subsequently banned.2 Since then, countless titles have been added to this notorious list—perhaps most famously Mark Twain’s Adventures of Huckleberry Finn3 and Ray Bradbury’s Fahrenheit 451, about a dystopian society in which books are outlawed.4
Before diving into some of the challenges for libraries navigating this territory, it may be useful to clarify what we mean when we are talking about “book bans.” For example, this can encompass books that are prohibited from being published, distributed, owned, and/or read. However, within the context of the United States, we are typically referring to books that have been permanently removed from a library’s collection and those that have been pulled temporarily while being scrutinized. In other words, they are otherwise still available for individuals to purchase— if they have the means to do so. Groups tracking these developments include the American Library Association (ALA) as well as freedom of expression advocacy groups (e.g., PEN America). While the goals of these groups can be aligned, their methodology, influence, and membership necessarily vary.
1 This year, Banned Books Week took place September 22–28, 2024 (https://www.ala.org/bbooks/ banned).
This model has substantially shifted in recent years with the increased prevalence of and investment in political action committees (PACs) whose increased funding, more sophisticated communications strategy and coordination have accelerated the volume of titles being flagged for review.
Within the K–12 context, concerns have historically been addressed between an individual concerned parent and relevant librarian and/or administrator. This model has substantially shifted in recent years with the increased prevalence of and investment in political action committees (PACs) whose increased funding, more sophisticated communications strategy and coordination have accelerated the volume of titles being flagged for review.5 According to anti-censorship researchers, the books targeted for removal have been “overwhelmingly written by or about people of color and LGBTQ people.”6
To be clear: every day, libraries decide which books to purchase and add to their collections. They also decide which books to remove from the collection within the context of regular maintenance (e.g., removing books that are damaged, replacing print with an electronic equivalent, removing physical books under duress due to loss of physical space that can no longer accommodate the size of the current collection). We typically do not characterize these choices as banning books—or content more generally. Instead, it’s typically understood to be within the scope of their duties and expertise to make decisions about how the collection should evolve. For many libraries, these decisions are informed by training (including, but not limited to, education at the graduate level), the collection development policy and/ or mission, procedures, and the library’s available resources (e.g., staffing, budget, space). Different libraries will arrive at different outcomes with regard to what they add and/or discard, and this is not necessarily cause for alarm.
What, then, is cause for concern? If libraries are unable to fulfill their mission and meet the needs of their community as a result of undue influence and/or interference, we have a problem. This may appear
as a reduction in resources to such a degree that core functions simply cannot be maintained reliably. Libraries being closed or reduced so substantially could be characterized as an indiscriminate ban that applies comprehensively to all resources and services. Alternatively, the more surgical approach that has received increasing attention and concern in recent years is worth examining. Librarians are the first to agree that not all materials appeal to all readers. In fact, depending on the context, they would likely agree that not all materials are even appropriate for all readers. According to a 2022 survey, most voters (91%) agree to varying degrees that if someone objects to a book in the library, the solution is to not check it out—as opposed to removing it from the collection permanently and preventing others from accessing it.7
Despite the clarity reflected in this data, lawmakers have begun to regulate access in a manner that threatens not only access to information, but also attempts to question the authority and expertise of the individuals who have historically been managing and building library collections in the first place.8 This does not mean to suggest information professionals or the profession as a whole is beyond reproach. At our best, libraries reflect the values found in the ALA Library Bill of Rights.9 Like any profession, we are inherently dynamic and should be in the habit of critically evaluating our work and the members of our profession.
Examples of legislation that has passed to restrict content that has been applied to books can be found across the country (e.g., Arizona, Florida, Georgia, Missouri, Tennessee, Utah, Virginia). In some instances, administrators and librarians have reported difficulty ensuring compliance due to the ambiguous language and often err on the side of being overinclusive. In other words, when in doubt, they will exclude the
Even in states where no legislation is in place banning materials, complaints can lead to books being removed.
title from the collection. Even in states where no legislation is in place banning materials, complaints can lead to books being removed. In at least one example, it led to a police officer searching a middle school library without the authority to do so. An apology was subsequently issued by the police department.10
Maryland has distinguished itself from other states by going in a different direction: banning book bans. The Freedom to Read Act prohibits libraries that receive state funding from banning books.11 This is particularly noteworthy, since Maryland is among the top 20 states nationwide exceeding 100 contested titles.12 Research from the Maryland State Library Agency revealed a 133% increase in challenges since 2019 and over 50% of librarians felt less secure acquiring certain titles even when they believed those books would add value to the readers they serve.13 Maryland’s work in this area reflects the values shared by the overwhelming majority of Americans.14 While a particular point of view or demographic may be under increased scrutiny today, the pendulum can swing in a different direction just as easily. Preserving these values ensures we can all continue to enjoy the freedom to access, read, and be challenged by materials found in libraries—if not nationwide, at least within the state of Maryland.
Kristina J. Alayan is associate dean for library & technology and associate professor at the University of Maryland Carey School of Law. She is dedicated to ensuring the library is an active, thriving center for learning and innovation for the law school community.
The winter holiday season is a time for celebration with family and friends, which inevitably includes delicious meals and decadent desserts. However, the seasonal pattern of weight gain that typically occurs during this time—and tends to remain throughout the new year—can create a level of stress incomparable to any other time of the year.
Research and emerging litigation indicate that the craze with Ozempic may actually come with a hidden price.
Instead of focusing on the social gaieties of the season, many worry about their expanding waistline. To that end, weight loss supplements have always been a constant in many households, although their efficacy remains controversial. A new trend has emerged, however, to repurpose the use of Novo Nordisk’s (Novo) Ozempic—a medication prescribed to treat type II diabetes—into a weight loss drug. Ozempic has gained immense popularity in the past couple of years as many users, some of who are celebrities with large fan bases, have touted dramatic weight loss results in short time frames. Novo has also heavily advertised the successful weight loss component of its medication, creating a surge in demand for the drug to treat obesity. In fact, many may be considering the use of Ozempic to curb their hyperfocus on weight management this holiday season. Is this off-label use of Ozempic the safest and most sustainable way to tackle weight loss? Research and emerging litigation indicate that the craze with Ozempic may actually come with a hidden price.
What is Ozempic?
Ozempic is a once-weekly injectable medication that was approved by the United States Food and Drug Administration (FDA) in December 2017 to lower blood glucose levels in adults with type II diabetes.1 Manufactured and distributed by Novo, Ozempic must be prescribed by a licensed medical clinician to ensure that the patient receives the correct therapeutic dose.2 After receiving the proper dose, the medication can be self-administered.3 Along with a balanced diet and adequate exercise, Ozempic is meant to be used long-term.4 However, the lowest dose that can generate the desired individualized result should be administered.5
How Ozempic works
Ozempic is an incretin mimetic medication, which stimulates the pancreas to increase the production of insulin by imitating the incretin hormone that is naturally produced in the human body—glucagonlike peptide-1 (GLP-1).6 The increase in
1 Novo Nordisk. Ozempic (semaglutide) [package insert]. U.S. Food and Drug Administration website.
2 Id.
3 Id. at Dosage and Administration.
4 Id. at Indications and Usage.
5 Id. at Dosage and Administration.
6 Nauck MA, Meier JJ. “Incretin hormones: Their role in health and disease.” Diabetes Obes Metab. 2018 Feb; 20 Suppl 1:5-21. doi: 10.1111/dom.13129. PMID: 29364588; See also Hansen, Katrine B. Vilsboll, Tina and Knop Filip K. “Incretin Mimetics: A Novel Therapeutic Option for patients with Type 2 Diabetes—A Review.” (May 17, 2010) Diabetes Meta Syndro Obes., 2010 May 17, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3047973/
insulin lowers the glucose levels in patients with type II diabetes, which effectively controls their metabolic condition.7 The use of incretin mimetics has also been found to suppress appetite by increasing feelings of satiety, leading to weight loss in its users.8
Approved Clinical Use
Since its FDA approval in 2017 and availability on the market in 2018, Ozempic quickly grew in popularity for the treatment and management of type II diabetes. In 2020, Ozempic was approved to reduce the risk of cardiovascular events in patients “with type [II] diabetes and established cardiovascular diseases . . . .”9 In 2022, a higher Ozempic dose of 2 mg was approved to lower glucose levels.10
Despite its secondary benefit of promoting weight loss, the FDA has not officially approved Ozempic for weight loss.
Disclosed Side Effects
The original product label issued in 2017 indicates that the most common adverse reactions from Ozempic are nausea, vomiting, diarrhea, abdominal pain, and constipation.11 The label also warns of the
7 Id.
8 Id
While found to be an effective therapeutic for type II diabetes, Ozempic was linked early in the post-marketing phase to adverse reactions.
following serious conditions that could occur with Ozempic use: risk of thyroid C-cell tumors, pancreatitis, diabetic retinopathy complications, hypoglycemia with concomitant use of insulin secretagogues or insulin, acute kidney injury, hypersensitivity, and macrovascular outcomes.12 Health care providers are instructed to advise their patients of these potential risks.13
Undisclosed Side Effects
Gallbladder disease
While found to be an effective therapeutic for type II diabetes, Ozempic was linked early in the post-marketing phase to adverse reactions. In fact, soon after its FDA approval in 2017, numerous scientific studies reported a link between Ozempic use and the increased risk of gallstones and/or gallbladder disease. The first scientific study indicating this association was published in the Diabetes, Obesity & Metabolism Journal in 2017.14 In that study, researchers analyzed 113 clinical trials spanning a minimum of 11 weeks, whereby the participants enrolled were type II diabetics.15 Based on the data from these
clinical trials, the researchers concluded that the use of GLP-1 drugs, such as Ozempic, greatly increased the risk of gallstones.16 This meta-analysis was repeated in 2020, and the same conclusion from 2017 was reached— there exists a strong relationship between type II diabetics who use GLP-1 drugs, such as Ozempic, and the development of gallbladder and biliary diseases.17 Despite these initial negative reports, Novo did not update its label.
In March 2022, after a series of scientific studies confirming the findings of Ozempic use and the increased risk of gallstones and gallbladder disease, Novo updated the label to include this risk.18 Additional data continued to be published on this association after the label was updated. Importantly, in August 2022, the Journal of the American Medical Association (JAMA) Internal Medicine published a Research Letter showing that GLP agonists, such as Ozempic, have a significantly higher risk of gallbladder disease.19 The FDA had conducted their own assessment from the data collected in the FDA Adverse Event Reporting System (FAERS).20
9 Novo Nordisk. Ozempic (semaglutide) [package insert]. U.S. Food and Drug Administration website, https://www.accessdata.fda.gov/drugsatfda_docs/label/2020/209637lbl.pdf. Revised January 2020. Accessed December 18, 2023.
10 Novo Nordisk. Ozempic (semaglutide) [package insert]. U.S. Food and Drug Administration website, https://www.accessdata.fda.gov/drugsatfda_docs/label/2022/209637lbl.pdf. Revised March 2022. Accessed December 18, 2023.
11 xi Novo Nordisk. Ozempic (semaglutide) [package insert]. U.S. Food and Drug Administration website, https://www.accessdata.fda.gov/drugsatfda_docs/label/2017/209637lbl.pdf. Revised December 2017. Accessed December 18, 2023.
12 Id.
13 Id.
14 Monami M, Nreu B, Scatena A, Cresci B, Andreozzi F, Sesti G, Mannucci E. “Safety issues with glucagon-like peptide-1 receptor agonists (pancreatitis, pancreatic cancer and cholelithiasis): Data from randomized controlled trials.” Diabetes Obes Metab. 2017 Sep;19(9):1233-1241. doi: 10.1111/dom.12926. Epub 2017 Jun 20. PMID: 28244632.
15 Id.
16 Id.
17 Nreu B, Dicembrini I, Tinti F, Mannucci E, Monami M. “Pancreatitis and pancreatic cancer in patients with type 2 diabetes treated with glucagon-like peptide-1 receptor agonists: an updated meta-analysis of randomized controlled trials.” Minerva Endocrinol (Torino). 2023 Jun;48(2):206-213. doi: 10.23736/S2724-6507.20.03219-8. Epub 2020 Jul 23. PMID: 32720500.
18 Novo Nordisk. Ozempic (semaglutide) [package insert]. U.S. Food and Drug Administration website. https://www.accessdata.fda.gov/drugsatfda_docs/label/2022/209637lbl.pdf. Revised March 2022. Accessed December 18, 2023
19 He L, Wang J, Ping F, et al. “Association of Glucagon-Like Peptide-1 Receptor Agonist Use With Risk of Gallbladder and Biliary Diseases: A Systematic Review and Meta-analysis of Randomized Clinical Trials.” (Mar. 28, 2022). JAMA Intern Med. 2022. https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2790392.
20 xx Woronow D, Chamberlain C, Niak A, Avigan M, Houstoun M, Kortepeter C. “Acute Cholecystitis
Associated With the Use of Glucagon-Like Peptide-1 Receptor Agonists Reported to the US Food and
Gastroparesis
Gastroparesis, or stomach paralysis, is a gastrointestinal adverse event that slows down—and sometimes completely stops—food from moving through the intestine. This can cause abdominal pain, bloating and intestinal blockage. The condition has been found to occur in patients who have diabetes, Parkinson’s, lupus, and specific neurological disorders. Some medications, such as opioids, can also cause gastroparesis.
Although limited, cases of semaglutideinduced gastroparesis began to be reported in 2023.21
Ozempic use and increased risk of gastrointestinal conditions in diabetic patients. In fact, as recently as October 2023, JAMA published a study entitled, “Risk of Gastrointestinal Adverse Events Associated with Glucagon-Like Peptide-1 Receptor Agonists for Weight Loss.”23 This study indicates that users of medications, such as Ozempic, have a heightened risk of severe gastrointestinal issues.24
Lawsuits Against Novo Nordisk
The development of gallbladder disease and gastroparesis from prolonged use were emerging risks that Novo failed to add to their product label upon knowledge of such risks. Novo took months and years to update the Ozempic label with the risk of those side effects.
Despite growing evidence of the association between Ozempic and gastroparesis, Novo did not swiftly make any changes to the Ozempic label to add a warning about gastroparesis, nor did the company inform doctors of the potential for this condition to develop.
Recent Update to Ozempic Label
The number of reports of gastrointestinal complications, such as gastroparesis, continued to grow. Consequently, in September 2023, the “Warnings” section of the product label was modified by the FDA to include intestinal blockage and the gastrointestinal disorder ileus.22 Even after the label was updated to include ileus, additional research continues to establish a link between
A “failure to warn” product liability lawsuit is based on the premise that a manufacturer—or other company in the chain of distribution—had knowledge that its product could be harmful to consumers and failed to timely or adequately warn the public of these potential risk(s), causing harm to consumers.
In a failure to warn lawsuit based on strict liability, plaintiffs must allege the following:25
1. The manufacturer knew of the danger posed by the product
2. The manufacturer had a duty to warn its consumers of this product-related danger
3. The manufacturer failed to warn
4. The manufacturer’s failure to warn caused the plaintiff’s injury While the effectiveness of Ozempic in treating type II diabetes is clear, the
Drug Administration.” (Aug. 29, 2022) JAMA Intern Med. 2022. https://jamanetwork.com/journals/jamainternalmedicine/article-abstract/2795476. 21 Klein SR, Hobai IA. “Semaglutide, delayed gastric emptying, and intraoperative pulmonary aspiration: a case report.” Can J Anaesth. 2023 Aug;70(8):1394-1396. English. Doi: 10.1007/s12630-023-02440-3. Epub 2023 Mar 28. PMID: 36977934.; Kalas MA, Dang TQ, Galura G, Alvarado L, Dwivedi AK, Deoker A, McCallum R. “Frequency of GLP-1 receptor agonists use in diabetic patients diagnosed with delayed gastric emptying and their demographic profile.” J Investig Med. 2023 Jan;71(1):11-16. Doi: 10.1136/jim-2022-002480. PMID: 36198436.; Kalas MA, Dang TQ, Galura G, Alvarado L, Dwivedi AK, Deoker A, McCallum R. “Frequency of GLP-1 receptor agonists use in diabetic patients diagnosed with delayed gastric emptying and their demographic profile.” J Investig Med. 2023 https://pubmed. ncbi.nlm.nih.gov/36198436/. Sodhi M, Rezaeianzadeh R, Kezouh A, Etminan M. “Risk of Gastrointestinal Adverse Events Associated With Glucagon-Like Peptide-1 Receptor Agonists for Weight Loss.” JAMA. 2023;330(18):1795–1797. doi:10.1001/jama.2023.19574.
22 Novo Nordisk. Ozempic (semaglutide) [package insert]. U.S. Food and Drug Administration website. https://www. accessdata.fda.gov/drugsatfda_docs/label/2022/209637lbl.pdf. Revised December 2022. Accessed December 18, 2023.
23 Sodhi M, Rezaeianzadeh R, Kezouh A, Etminan M. “Risk of Gastrointestinal Adverse Events Associated With GlucagonLike Peptide-1 Receptor Agonists for Weight Loss.” JAMA. 2023;330(18):1795–1797. doi:10.1001/jama.2023.19574.
24 Id.
development of gallbladder disease and gastroparesis from prolonged use were emerging risks that Novo failed to add to their product label upon knowledge of such risks. Novo took months and years to update the Ozempic label with the risk of those side effects. Consequently, the first Ozempic gastroparesis lawsuit was filed on August 2, 2023.26
Novo was sued by a woman who took semaglutide injections to treat her type II diabetes and developed severe gastroparesis leading to hospitalization and a loss of teeth due to extreme and repetitive vomiting.27
Plaintiff alleged that the company failed to warn about the risk of developing gastroparesis and intestinal blockage in a timely manner—a risk that Novo knew or should have known about and did not warn in its label until September 2023.28 Plaintiff provided a myriad of studies and clinical trials outlining Novo’s knowledge and asserts that the labels were inadequate for her physicians to properly warn her of those risks.29
This lawsuit has drawn increased attention to the undisclosed health risks associated with Ozempic. Many users have begun analyzing their own experiences with Ozempic and filed suit against Novo as well. It’s anticipated that this litigation will gain more momentum with time.
Conclusion
Ozempic’s popularity is clearly warranted as it is highly effective, and FDA approved, in treating one of the most significant metabolic diseases. It is also effective in promoting weight loss, but this benefit is considered an off-label use as the FDA has not approved the drug for this purpose. Regardless of the purpose for which the medication is prescribed, there are risks to taking Ozempic that all potential patients should consider. These risks may vary in weight, however, depending on that purpose.
Ozempic’s adverse reactions may make the medication unsafe for use by its intended users.
However, for most type II diabetic patients, the benefit of glycemic control will outweigh the risk of potential injury. Conversely, for unintended users, taking Ozempic may not be worth the risk because there are safer and more sustainable approaches to losing weight, such as a balanced diet and exercise.
Consequently, for those considering the off-label use of Ozempic for weight loss this holiday season, be mindful as it could come with a price that is quite costly. That cost could be unnecessary—and possibly non-compensable—damage to your health.
Sharon A. Reece is a health law attorney in Baltimore, Maryland. Sharon is a three-year graduate of Washington University in St. Louis and earned her JD from DePaul University College of Law. Her practice currently focuses on toxic tort and mass tort litigation matters that have been consolidated into multidistrict litigations.
Many users have begun analyzing their own experiences with Ozempic and filed suit against Novo as well. It’s anticipated that this litigation will gain more momentum with time.
26 Bjorklund v. Novo Nordisk, 2:23-cv-01020 (2023).
27 Id.
28 Novo Nordisk. Ozempic (semaglutide) [package insert]. U.S. Food and Drug Administration website. https://www.accessdata.fda.gov/drugsatfda_docs/label/2023/209637lbl.pdf. Revised September 2023. Accessed December 18, 2023. 29 Id.
Applying Daubert and Frye to AI Evidence
BY PAMELA LANGHAM, ESQ.
RECENTLY, A COURT IN THE STATE of Washington excluded generative artificial intelligence (AI) enhanced videos proffered by a defendant in a criminal case. The case, Washington v. Puloka , No. 21-1-04851-2 (Super. Ct. Kings Co. Wash. 2024), is the first known court decision on the admissibility of an AI enhanced video in a criminal case. The court conducted a Frye hearing to determine the admissibility of the enhanced video and the expert witness’s testimony who used an AI tool to improve the clarity of the video. The court’s ruling underscored the stringent standards that novel technologies—AI—must satisfy to gain acceptance in legal proceedings, reiterating that expert evidence must be backed by tools and techniques that have garnered widespread trust within the relevant scientific community. This decision may lead the way to admissibility of evidence derived from AI technology in forensic video analysis. It is a perfect example of how AI is and will continue to permeate legal cases and the justice system.
Daubert and Frye
As a refresher, there are two governing standards for admissibility of expert witness testimony. All federal courts follow the Daubert standard set forth in the United States Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Some states apply Daubert, but others still follow the Frye standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
In Daubert, the Supreme Court set forth criteria by which the trial court is to determine whether scientific knowledge would be admissible: whether the technique or theory has been tested, whether it has been published and subjected to peer review, its known error rate, the existence or maintenance of standards controlling its operation and whether it has attracted widespread acceptance within a relevant scientific community.
The Frye standard evaluates whether the scientific knowledge expressed by an expert “gained general acceptance in the particular field [to] which it belongs.” Frye at 1014. In other words, an expert’s opinion is
The court’s ruling underscored the stringent standards novel technologies—AI—must satisfy to gain acceptance in legal proceedings.
admissible if the scientific technique on which the opinion is based is “generally accepted” as reliable in the relevant scientific community. In the state of Washington, courts apply the Frye standard.
Washington v. Puloka
The Washington v. Puloka case involved a triple homicide as a result of a shooting. A bystander recorded the shooting on their iPhone and later streamed it on Snapchat. The source video was 10 seconds long. According to the defendant’s expert, the source video was of low quality, fuzzy, and suffered “motion blur.” He enhanced the source video using an AI tool to improve its quality. The criminal defendant sought to admit the enhanced version of the source video. The defendant’s expert had been a professional videographer and filmmaker since 1993. He did not possess a background in forensic video analysis nor did he receive any formal training in this specialized field. The AI tool the defendant’s expert used was from Topaz Labs AI. This tool is designed to improve videos, enhancing their resolution and overall clarity. The tool adds sharpness and definition, resulting in smoother edges to objects. The defendant’s expert then took the enhanced video and processed it with Adobe Premier Pro, a leading video editing software, to ensure the highest quality of visual evidence was presented.
The defendant’s expert did not know whether the AI tool was utilized by the forensic video analysis community. He also did not know whether any testing, publications, or discussion groups within his peer group (professional videographer and filmmaker) evaluated the reliability of AI tools for video enhancement purposes. He described his peer group as “corporate.” The defendant’s expert testified that the Topaz Labs AI tool uses “machine learning,” based on a library of videos. However, he did not know what videos the AI tool large language model (LLM) was trained on, did not know whether the training used AI in their algorithms, and agreed that the algorithms used were proprietary and not disclosed to the user or public. The defendant argued
the court should recognize the video production community which encompasses both filmography and videography as the relevant community for purposes of the Frye test.
The state’s expert witness was a Certified Forensic Video Analyst who had both national and international forensic video analysis credentials. The state’s expert testified that the relevant forensic video analysis community included North America, Europe, and other parts of the world. He had testified approximately 300 times in court, half for the prosecution and half for a defendant. His professional focus is not on creating a smoother, clearer product for a user. Instead, his professional focus is applying his forensic video analysis expertise on “image integrity.”
The state’s expert criticized the defendant’s expert’s use of an AI tool that increased the pixel count of the source video by a factor of sixteen to improve the clarity of each frame. He also testified that the AI technology employed by the defendant’s expert used an algorithm and enhancement techniques that have not been examined or approved by experts in forensic video analysis. Additionally, the AI tool used introduced artificial details into the source video, which is considered unreliable by the forensic video analysis community due to its potential to alter the interpretation of the video content. Furthermore, the state’s expert explained that the AI tool didn’t just enhance the video, it modified the source video by eliminating the motion blur, removed data, smoothed the edges of the images, and added information that was not in the original images such that the objects in the video did not “maintain their original shape and color from the source video. . .” Moreover, the AI technology “removed artifacts on individual images, altered shapes, and removed the opportunity to forensically analyze which frames in the video utilized reference, predictive, and bi-directional images. In short, the AI-enhancement tools made proper, accepted forensic analysis of the video impossible.”
Next, the state’s expert testified there are image techniques utilized by the forensic video analysis community that are approved and accepted in the community. However, the Topaz Labs AI tool uses “an opaque process called machine learning to enlarge and enhance video.” The forensic video analysis community has a professional association that publishes best practices for video enhancement for legal
purposes. One of the publications endorses the method of “nearest neighbor interpolation” to enlarge objects in a video that mitigates the distortion of an object’s shape. This method mitigates the potential of adding additional or misleading content. The forensic video analysis community and professional organization has not approved any video AI enhancement tools and issued warnings about the use of such tools in legal proceedings because it is difficult “to identify what processes were applied to the imagery and replicate those steps with accuracy.”
Court’s Ruling
The court rendered multiple conclusions of law, ultimately excluding both the defendant’s expert witness testimony and the enhanced video he produced by using AI technology. The court specifically found that the use of AI technology to enhance video in a criminal trial is novel. Therefore, the court stated a “proponent of evidence utilizing these AI tools must show that any expert’s opinion or theory is based
The court emphasized that the standard for “admitting evidence utilizing a novel scientific theory or principle is whether it has achieved general acceptance in the relevant scientific community."
Finally, the state’s expert testified that the video community may have tested the AI technology used by Topaz Video AI, but they have never published any testing outcomes. Consequently, any findings cannot be evaluated by the defendant or state’s expert witness, the forensic video analysis community, or the court.
on methodology accepted in the relevant community.” The court emphasized that the standard for “admitting evidence utilizing a novel scientific theory or principle is whether it has achieved general acceptance in the relevant scientific community,” as pronounced in Frye
In applying Frye, the court is required to examine “testimony that asserts general acceptance, articles and publications, widespread use in the community, secondary legal sources, and/or legal authority from other jurisdictions.” Washington v. Puloka. Additionally, an expert’s testimony is only admissible if it will assist the trier of fact, and is reliable. Id. And, if the
testimony is relevant, it still may not be admissible if its probative value is substantially outweighed by the danger of unfair prejudice. Id.
Next, the court determined that the relevant scientific community for purposes of the admissibility of the defendant’s expert use of AI technology to enhance the source video is the forensic video analysis community.
Regarding whether the AI technology had been peer reviewed, the Court stated:
“The Topaz AI Video AI enhancement tool(s), which utilize ‘machine learning’ algorithms, have not been peerreviewed by the forensic video analysis community, are - at the present timenot reproducible by that community, and are not accepted generally in that community. The defense has not offered any state or federal appellate court decisions, from any jurisdiction, which have examined - let alone approved ofthe introduction of AI enhanced videos in a criminal or civil trial.
The defense has not offered any articles, publications, or secondary legal sources approving the introduction of AI-enhanced video evidence in a criminal or civil trial. The video evidence produced by the Topaz Video AI enhancement model does not satisfy [the evidence rules], as the resulting video does not show with integrity what
actually happened but uses opaque methods to represent what the AI model ‘thinks’ should be shown.” Id. (emphasis added)
Further defeating the defendant’s attempt to introduce their expert’s testimony and the enhanced video, the court concluded that admittance of the AI enhanced video would confuse the issues, muddle eyewitness testimony, and any relevance was substantially outweighed by the danger of unfair prejudice. Finally, the court concluded that the best evidence for the jury was the source video—the original. Therefore, the court excluded the testimony of the defendant’s expert and all of the AI enhanced videos produced by the defendant’s expert using AI technology.
Key Points
The court applied the traditional Frye standard to determine admissibility of the AI enhanced video—the same standard that all expert evidence must withstand (in many jurisdictions) to be considered admissible. The enhanced video in this case would likewise fail to withstand scrutiny under a Daubert
analysis. However, AI is not inherently inadmissible in court. The court’s opinion was excellent in that it meticulously applied the Frye standard; and, in doing so, educated the bar on how a proponent may be successful in getting AI evidence admitted. The same is true for an opponent objecting to the admissibility of AI evidence. Expert witnesses who have utilized AI to render an opinion, need to be prepared to satisfy the admissibility standards of Frye or Daubert, which can vary by jurisdiction. By meticulously preparing an expert witness who used AI in the formulation of their opinion, a lawyer can effectively navigate the complexities of the Frye and Daubert standards to present compelling and admissible expert testimony.
How Happy Is Your Law Firm with the Current Password Requirements?
The usual answer is “we’re not happy, not at all happy”
Anyone who understands passwords has bemoaned the current state of law firm passwords which make no sense and cause more harm than good. The National Institute of Standards and Technology (NIST) is preparing to change that. Who would believe that a federal agency got it right?
Amazingly, NIST has come out with a well thought out set of changes, released in August 2024, which is very likely to be adopted with little modification sometime after the deadline for responding to Public comment on its second draft (via email dig-comments@nist.gov) which is open until 11:59 pm Eastern Time on October 7, 2024.
Can You Make the Commonsense New Rules Effective Now?
Sure you can. As a Managed Service Provider (MSP), which provides cybersecurity for many law firms, we distributed the late September NIST proposed rules to our cybersecurity staff. They breathed a sigh of relief that we are contemplating adopting some of the rules soon, after we’ve had a chance to sit down around a conference table and evaluate each new rule and its suitability for law firms and other clients.
We were heartened when cybersecurity specialist Bruce Schneier, famous in our world, reviewed the proposed rules and gave them a rousing “Hooray!”
Bruce may have been as surprised as we were when he titled his post “NIST Recommends Some Common-Sense Password Rules.”
You can almost hear his oft-repeated criticism of the old rules when his first sentence says “NIST’s second draft of its “SP 800-63-4“—its digital identify guidelines—finally contains some really good rules about passwords.”
So, What Are the New Rules? NIST will no longer recommend using a mixture of character types in passwords or regularly changing passwords. Do we hear lawyers shouting “Hurray”? We sure do.
NIST sets forth technical requirements as well as recommended best practices for password management and authentication. The latest guidelines
instruct credential service providers (CSP) to stop requiring users to set passwords that use specific types of characters or mandating periodic password changes (commonly every 60 or 90 days). Also, CSPs are instructed to cease using knowledge-based authentication or security questions when selecting passwords.
When NIST first introduced its password recommendations (NIST 800-63B) in 2017, it recommended complexity: passwords made of a mix of uppercase and lowercase letters, numbers, and special characters. However, complex passwords aren’t always strong (i.e., the famous "Password123!"). And complexity led to users making their passwords predictable and easy to guess, writing them down in easy-to-find places, or reusing them across accounts. We can’t recount the huge number of those mistakes that we encounter regularly with new clients. The NIST focus is on longer passwords which are harder to crack with brute-force attacks and are easier for users to remember without being predictable. NIST is now recommending password resets only when there’s a credential breach. Making people change passwords frequently means they tend to choose weaker passwords. When passwords are sufficiently long and random, and there's no evidence of a breach, making users change passwords could potentially lead to weaker security.
Previous versions used the words "should not" while this draft says "shall not," which means the rule has moved from a suggestion to an actual requirement. Yay!
What Lawyers Should Do Sooner Rather than Later
Be open to changing the way you protect your data. The advice from NIST is very sound and changes made after the October input are likely to be minor. Be wary of MSPs that want to keep things just as they are. ‘Just as they are’ will not properly protect you.
Our guess is that the cyberinsurance folks will start requiring compliance with the new NIST guidelines, likely in 2025. Get ahead of the curve. Be safer sooner!
Final Thought
One more quote from cybersecurity specialist Bruce Schneier “Complexity is the worst enemy of security, and our systems are getting more complex all the time.”
From Miracle Material to Environmental Challenge: The Evolution of Plastics and Impact of Litigation
for their durability, versatility, and low cost. These qualities allowed them to permeate nearly every industry—from medicine to consumer goods and packaging—positioning plastics as a solution to countless manufacturing challenges. However, their persistence in the environment and the risk of negative health impacts, particularly through microplastic pollution, has transformed public perception. This shift is increasingly reflected in courts across the nation, where legal actions target companies for their role in plastic pollution, false advertising, and misleading claims about product recyclability.
Th e National Landscape: Key Cases in Plastics Litigation
BY COLLEEN ARACRI, ESQ.
Across the United States, litigation involving plastics has evolved to address consumer deception, environmental harm, and public health risks. Notable cases are challenging corporations on the basis of misleading marketing, improper waste management practices, and lack of transparency about the environmental impact of plastic products. For instance, Sierra Club v. Coca-Cola No. 4:21-cv-04644 (N.D. Cal. 2021) and Swartz v. Coca-Cola Co No. 3:21-cv-04643 (N.D. Cal. 2021) are class actions challenging Coca-Cola’s marketing of plastic bottles as “100% recyclable.” Sierra Club and other plaintiffs argue that because not all parts
of the bottles are recyclable or regularly recycled, CocaCola’s labeling misleads consumers and violates consumer protection laws. Similarly, in Connecticut v. Reynolds Consumer Products No. HHD-CV-22-6156769 (Conn. Super. Ct. 2022), the Connecticut Attorney General targeted Hefty trash bags for labeling them as “recyclable” even though they are not accepted in the state’s recycling facilities.
These cases signal a shift toward transparency and accountability, with plaintiffs arguing that labels suggesting environmental friendliness should reflect the reality of local recycling and waste systems.
Another area of focus within plastics litigation is the impact of microplastics—tiny plastic particles that have been found in waterways, air, soil, and food chains. While scientific research on the health effects of microplastics is still emerging, studies link these particles to potential risks such as endocrine disruption and immune system effects.
Noteworthy cases that address microplastic contamination
Moore v. BlueTriton Brands, Inc. Docket No. 1:24-cv01640 (2024) and Michael Dotson v. Danone Waters of America, , Docket No. 2:24-cv-02445 (2024), where plaintiffs allege that companies falsely advertised bottled water as “natural” while it contained synthetic microplastic contaminants. These cases claim that the presence of microplastics in consumer goods should be disclosed to align with truthful labeling laws.
San Antonio Bay Estuarine Waterkeeper v. Formosa Plastics Corp. No. 6:17-cv-00047 (S.D. Tex. 2017) demonstrates the potential liability of companies for microplastic contamination under federal environmental statutes. San Antonio Bay is a Clean Water Act case addressing the discharge of plastic pellets into Texas waterways. Formosa agreed to a $50 million settlement, with funds allocated toward environmental remediation efforts in affected waterways.
Cases involving microplastics are particularly relevant to Maryland due to their presence in water sources like the Chesapeake Bay, which supports both the environment and regional economy. As research advances, Maryland could see an increase in health-based litigation targeting manufacturers and distributors of products containing microplastics.
Legal Challe nges and Preemption in Plastic Bans
Plastic bans are increasingly popular at the local and state levels as cities seek to curb the prevalence of single-use plastics. However, attempts to enact such bans often face legal hurdles, particularly from industry groups challenging these regulations on grounds of state preemption. For example, in City of Laredo v. Laredo Merchants Ass’n No. 16-0748 (Tex. Sup. Ct. 2016), the Texas Supreme Court struck down a citywide ban on single-use plastic bags, ruling that it was preempted by state law. This ruling limited the city’s ability to independently regulate plastic waste, highlighting a common challenge faced by local governments. California, on the other hand, has successfully defended local plastic bag bans against industry challenges, with rulings affirming the right of cities to implement bans that align with state environmental policy. More than 130 cities in California now have local ordinances banning or limiting single-use plastics.
Maryland’s Approach
In Maryland, the Mayor and City Council of Baltimore filed a lawsuit against companies like PepsiCo, Coca-Cola, and major plastic producers, claiming that these corporations are liable for the extensive plastic pollution burdening Baltimore’s environment, infrastructure, and public health. Mayor and City Council of Baltimore v. Pepsico, Inc., et al. (2024). The case argues that these corporations knowingly contributed to plastic pollution and made misleading statements about the recyclability of their products, contributing to a substantial cleanup cost for the City.
Baltimore’s case may set a precedent for other Maryland wFor instance, it may prompt Maryland to consider Extended Producer Responsibility (EPR) laws similar to those enacted
in states like New York, which require manufacturers to bear a portion of waste management costs. These laws aim to incentivize companies to reduce waste through sustainable product design and packaging choices. Should Baltimore succeed, other Maryland cities may follow suit, using litigation to mitigate the costs and environmental impacts of plastic waste on local communities.
The evolving landscape, both nationally and locally, suggests that Maryland will likely see a continued push for accountability, particularly through state and local ordinances, scientific advancements in microplastic research, and the application of consumer protection laws to false environmental claims. Maryland may look to model laws in other states, such as New York’s packaging reduction requirements or California’s plastic bans, to develop localized solutions to plastic pollution. As the body of evidence linking microplastics to health risks grows, plaintiffs may find new avenues for claims under public health and product liability statutes.
Given the rise in false advertising claims around “recyclable” and “sustainable” labels, Maryland’s consumer protection laws could see greater application in plastics cases, particularly if the state follows other jurisdictions in defining standards for environmental marketing claims. For Maryland’s legal community, staying informed on national litigation trends and scientific advancements in plastics research will be crucial for providing strategic guidance to clients. Whether advising corporate clients on compliance with environmental laws or supporting municipalities in public nuisance claims, Maryland attorneys will play a central role in shaping the state’s response to one of the most complex environmental challenges of our time.
Remembering Kenneth Sheppard Aneckstein
“
Aneckstein’s influence extended beyond his clients; as a professor at the University of Maryland School of Law, he imparted his knowledge to a new generation of lawyers.
The Maryland State Bar Association mourns the sudden passing of Kenneth Sheppard Aneckstein, on Sunday, August 4, 2024. He was 56.
Aneckstein was a valued member of the Maryland legal community and a partner at Gordon Feinblatt LLC, where he focused his practice on trusts and estates. He also advised clients on all aspects of tax planning, business succession planning, asset protection and management strategies.
Aneckstein began his legal career clerking for the Honorable Glenn T. Harrell, Jr., Associate Judge of the Maryland Court of Special Appeals. He worked at DLA Piper for over 25 years before joining Gordon Feinblatt LLC, in 2018.
In recognition of Aneckstein’s unparalleled expertise in estate planning he was named to The Best Lawyers in America for Trusts & Estates, in 2020, 2021, 2022, 2023 and 2024. He was also a member of the 2011 class of the Greater Baltimore Committee Leadership Program.
Aneckstein’s influence extended beyond his clients; as a professor at the University of Maryland School of Law from 2002 to 2012, he imparted his knowledge to a new generation of lawyers, teaching courses in Estates and Trusts and Estate Planning.
Aneckstein is survived by his beloved partner, Lisa Lipsky, his brothers, James and Benjamin Aneckstein, and his many nieces, nephews, grand-niece, and grand-nephew.
Aneckstein’s dedication to providing excellent service to his clients will endure in the countless lives he touched. He will be dearly missed by all who had the privilege of knowing and working with him.
“ Remembering Judge Michael J. Stamm
He was not just a judge but a mentor, a friend, and a source of solace to those who sought his counsel.
The Maryland State Bar Association joins the legal community in mourning the loss of Judge Michael J. Stamm with his passing on October 2, 2024.
The Honorable Michael J. Stamm, a pillar of justice and a beacon of wisdom in Maryland's legal community, left an indelible mark on the hearts and minds of those he served. Born on August 31, 1956, Judge Stamm's journey was one of purpose, dedication, and love. His early years were spent in Cornwall, NY, where the seeds of his future in law and education were sown. A graduate of Newburgh Free Academy, he carried with him the values of hard work and perseverance that would define his career and life.
Judge Stamm's academic pursuits led him to St. Mary's College, where he earned a Bachelor of Arts in History, followed by a Master of Arts degree in education and human development from George Washington University.
His legal journey began at the University of Baltimore School of Law, where he earned his Juris Doctorate in 1990. This was not just a professional milestone but a calling that he embraced. As a private law practitioner and a member of the St. Mary's County State's Attorney Office, he demonstrated an unwavering commitment to justice and the rule of law.
Subsequently, Judge Stamm's path led him to the bench, where he served as the County Administrative Judge for the St. Mary's County Circuit Court, 7th Judicial Circuit. His tenure was marked by fairness, integrity, and a profound understanding of the law's impact on people's lives. He was not just a judge but a mentor, a friend, and a source of solace to those who sought his counsel.
Beyond the courtroom, Judge Stamm was a man of many interests and talents. Judge Stamm's zest for life extended to DIY projects and watching the New York Giants. His greatest pride, however, was his family. A devoted husband, father, and grandfather, Judge Stamm's legacy is carried on through his sons, David and Kevin, and his granddaughter, Natalie, who had her 'PopPop' wrapped around her finger.
As we remember Judge Stamm, we reflect on a life well-lived. He treated everyone with respect and kindness. His passing on October 2, 2024, is not just a loss for his family but for the community he served with such distinction. His memory will continue to inspire and guide us, reminding us of the profound impact one individual can have on the lives of many.
Remembering Judge Andrew Larimore Sonner
“
He loved his career, his legal community, and the opportunity to serve the cause of justice.
The Maryland State Bar Associationmourns the passing of Judge Andrew Larimore Sonner on October 13, 2024. He was 90 years old.
MSBA mourns the passing of Judge Andrew Larimore Sonner on October 13, 2024. He was 90 years old.
A longtime MSBA member, Sonner was Montgomery County’s State’s Attorney for over 25 years. In 1996, he was appointed to the then Court of Special Appeals, now the Appellate Court of Maryland, where he served until his formal retirement in 2005. Upon his retirement from the bench, Sonner worked with an international community of judges in Bosnia.
Throughout his career, Sonner served on various county, state, and national committees and councils supporting criminal sentencing policies, pre-trial release, and juvenile justice. He received numerous honors and awards, authored reports for government agencies and non-profit organizations, and wrote articles in professional journals. In his formal retirement, he served as a substitute judge and published a professional memoir. He was an active member of the National District Attorney’s Association, as well as the Montgomery County, Maryland, and American Bar Associations. He loved his career, his legal community, and the opportunity to serve the cause of justice, fully retiring only at age 87.
Judge Sonner’s obituary noted that “he believed that a society should be judged by how we treated the least among us, exhorting his children, his clerks, his staff, and his friends to remember our shared commitment to one another and the importance of the social contract.”
Sonner was a graduate of the American University and the Washington College of Law at American. While attending law school at night, he taught high school; he continued to teach throughout his legal career, at the University of Maryland and the Washington College of Law, among others, and serving as a Wasserstein Public Interest Fellow at Harvard Law School.
Judge Sonner is survived by his six children and his companion, Kathy Parker. He was predeceased by his wife, Sandra.
A celebration of life ceremony was held on October 25th at 11:00 a.m. at the F. Scott Fitzgerald Theatre at the Rockville Civic Center. In lieu of flowers, the family requests contributions to the Andrew L. Sonner Memorial Scholarship Fund at the Washington College of Law.
IN YOUR LETTER DATED MARCH 4, 2024, you requested an opinion concerning additional actions this committee suggests you undertake regarding a conflict arising from a previous client’s involvement in an unrelated investigation under review by your current employer. The Committee on Ethics of the Maryland State Bar Association considered and approved the following as our written opinion on the question you raised.
QUESTION PRESENTED:
What are an attorney’s obligations upon learning of a representational conflict?
CONCLUSION:
First, the attorney should determine whether the current role of counsel is materially adverse to the former client. Depending on the answer to this question, additional actions should be taken to comply with the Maryland Attorney Rules of Professional Conduct.
However, in any case of conflict, once the attorney is aware of the conflict, at minimum the following actions should be taken: (1) Inform the current client or employer of the conflict; (2) Inform the former client of the conflict and of the strategy to remedy the conflict.
Additional steps should be taken based on the individualized circumstances of the conflict. This opinion is limited to the facts and circumstances of this matter presented in the letter to the Committee.
BACKGROUND:
You advised that you are an attorney previously employed as a special victims’ counsel for a quasi-government agency. You were subsequently employed by the same employer in a different capacity, as trial counsel. In your role as trial counsel you were assigned to “review an investigation”, where you discovered that the investigation “involved” a former special victim-client. You advised that the current investigation is not related to your previous representation of the former client. Additionally, you advised that prior to seeking the advice of this Committee, you informed your supervisor of the conflict and were removed from the case.
Based on the information in your letter it is not clear to this Committee what role you would have had in the matter. The role and level of interest your former client has in the current matter is also unclear, and all of these considerations would be necessary to determine whether your appearance in the matter was materially adverse to the former client.
DISCUSSION/ANALYSIS:
Maryland Attorneys’ Rules of Professional Conduct 19-301.7(a) states:
Further, Rule 19-301.9 states in pertinent part:
(a) An attorney who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
In any case of conflict, once the attorney is aware of the conflict, at minimum the following actions should be taken: (1) Inform the current client or employer of the conflict;
(2) Inform the former client of the conflict and of the strategy to remedy the conflict.
(a) Except as provided in section (b) of this Rule, an attorney shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the attorney's responsibilities to another client, a former client or a third person, or by a personal interest of the attorney.
(c) An attorney who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Given that your employer is a government or quasi government agency, whose clientele and representative capacities are not discretionary in the same manner as those of a private firm or sole practitioner, the Maryland Attorneys’ Rules of Professional Conduct still require that government attorneys adhere to Rule 19301.9. See Rule 19-301.11(a)(1). Even with such requirements, the Rules also seem to recognize that government attorneys generally do not have the ability to choose the clients they will represent. Nor can government attorneys reasonably anticipate that a past client will present a representational conflict in a future matter, as is implied by Comment 4 of Rule 19-301.11, which states:
This Committee recognizes that the work of government attorneys, especially those belonging to a prosecuting office, may require a certain level of secrecy, where providing notice of the conflict is not prudent under the circumstances.
extent the former client is an interested party in the current matter. The answers to these considerations necessarily require additional action. However, since sufficient information for these considerations was not presented to the Committee, the Committee declines to opine on these permutations, but refers your attention to Rule 19-301.9 (b), (c), Rule 19-311 (c), see also Rule 19-301.9
Rule 19-301.8(b) states:
(b) An attorney shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
More pointedly Comment 5 of Rule 19301.8 outlines:
An attorney should not be in a position where a benefit to the other client might affect performance of the attorney's professional functions on behalf of the government. . . . the rules governing attorneys presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified attorneys as well as to maintain high ethical standards. Thus, a former government attorney is disqualified only from particular matters in which the attorney participated personally and substantially. While the Committee understands, based on your representation, that the current matter is not related to your representation of the former client, it is not clear from the information provided whether the new matter is in anyway directly or materially adverse to the former client, or whether and to what
Comments 6, 7, 8, Rule 19-301.11
Comments 4, 5, 7.
The following rules provide guidance on what an attorney should do in instances of conflict. Rule 19-301.7(b) provides:
(b) Notwithstanding the existence of a conflict of interest under section (a) of this Rule, an attorney may represent a client if:
(1) the attorney reasonably believes that the attorney will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the attorney in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Use of information relating to the representation to the disadvantage of the client violates the attorney's duty of loyalty. Section (b) of this Rule applies when the information is used to benefit either the attorney or a third person, such as another client or business associate of the attorney. … The Rule does not prohibit uses that do not disadvantage the client. For example, an attorney who learns a government agency's interpretation of trade legislation during the representation of one client may properly use that information to benefit other clients. Section (b) of this Rule prohibits disadvantageous use of client information unless the client gives informed consent, except as permitted or required by these Rules.
Based on the rules stated, it follows that in any case, once a conflict is recognized, at minimum the rules require that a conflicted attorney must:
(1) Notify the current employer of the conflict and the nature of the conflict—which you have already done.
(2) Notify the former client through counsel, if represented, of the conflict and of the strategy to remedy the conflict.
It cannot be understated that these are the minimum actions that should be taken when a conflict arises. However, it should be noted that these suggestions are given without the benefit of specific knowledge of the circumstances of the “investigation” and the former client’s involvement in the investigation. This Committee recognizes that the work of government attorneys, especially those belonging to a prosecuting office, may require a certain level of secrecy, where providing notice of
the conflict is not prudent under the circumstances. Accordingly, the suggested actions outlined above should be taken to the extent they are applicable and feasible.
We hope this response is helpful. Thank you for contacting the Committee on Ethics.
Very truly yours,
MSBA COMMITTEE ON ETHICS
REFERENCES:
RULES CITED:
• 19-301.7
• Comment 2
• Comment 4
• Comment 6
• Comment 8
• 19-301.9
• Comment 4
• Comment 6
• Comment 7
• Comment 8
• 19-301.11
• Comment 4
• Comment 5
• Comment 7
Online Review Rebuttals
BY IRWIN R. KRAMER, ESQ.
My online reputation is everything to me. So how should I respond to a scathing review that called me an “awful” and “dishonest lawyer” who cares more about money than people?
Once you’re caught in the world wide web, it’s hard to get untangled. Social media, and online review sites like Yelp and Avvo, help us reach more people than ever before. But they also give our critics a platform to question our competence and integrity.
Free speech can be costly. There’s no way to prevent a disgruntled client—or anyone—from posting negative, even scandalous reviews for all to see.
Some sites have a mechanism for flagging such reviews, especially if they’re posted by competitors seeking to sabotage your business or by those you never represented. Even then, it may be difficult to get them removed.
If that doesn’t work, you must decide whether to respond. If the attack comes amidst a plethora of positive reviews (or reduces your pristine 5-star rating to 4.5 stars), why would you dignify this aberration with a response that may elevate its prominence? With a quick internet search, you can usually determine whether the review has gained enough notoriety to do damage. If it hasn’t, don’t post a response that will.
If you think the post may hurt your business or require some form of response, reply with caution. When others attack your character, competence or professionalism, you should respond in a way that preserves all three:
Watch Your Tone— it may be cathartic to slam your critics for posting false or unjustified reviews. But self-righteous rebuttals composed in anger will undermine your credibility with readers who haven’t made up their minds.
Don’t Sling Mud— stooping to the level of your antagonist isn’t professional. If you want to be seen as a professional who takes the high road and is not easily rattled, you must act accordingly.
Be Courteous— true professionals act cordially whether others deserve it or not. Leave the “nastygrams” to them. Your posts must be diplomatic in all respects.
Keep it Brief— the more you say, the more you legitimize the attack and the more “keywords” you give Google and other search engines to scan. So a point-bypoint rebuttal unwittingly reinforces the original post and increases the chance that it will catch the eyes of prospective clients.
If you want to be seen as a professional who takes the high road and is not easily rattled, you must act accordingly.
The devil is in the details. If you share too much information about the client’s case, you will violate your duty to maintain client confidentiality. In Maryland, as in most states, this duty goes well beyond privileged attorneyclient communications and extends to any information you received during your representation, even if it is publicly available.1 While you may use such information to respond to a bar complaint or to defend yourself in a malpractice action, the rules don’t let you do so to preserve your online reputation. In fact, the American Bar Association and numerous state bar ethics committees caution that a client’s “posting of criticism does not rise to the level of a controversy that would allow a lawyer to disclose confidential information in responding.”2
Rather than breach this duty by posting a detailed rebuttal, play it safe with the following diplomatic response:
I wish you called me to discuss your concerns in person. Although I do not agree with your assessment, I cannot address the merits of your complaint on this site. As an attorney, the rules of ethics forbid me from disclosing the confidential and privileged information required to provide a fair and accurate response. I would be pleased to meet with you to discuss these issues, but I cannot compromise your privacy by doing so in a public forum. Please call me.
This shows your concern for the client’s welfare, your adherence to the rules of ethics and your professionalism. That, more than any detailed response, will speak volumes for the type of lawyer you really are.
1
2
Irwin R. Kramer advises lawyers and law firms throughout Maryland and the District of Columbia. Combined with significant trial and appellate experience, his law firm management experience gives him an appreciation for the pressures of law practice and the ethical issues confronting lawyers daily. He also publishes a regular blog on ethics issues at https://attorneygrievances.com.
Nathan Levin
MEMBER SERVICE SPECIALIST
I always strive to provide excellent customer service and to streamline routines and procedures to increase the organization’s efficiency. I am also a clearinghouse to troubleshoot technology issues.
NATHAN LEVIN has been an integral part of MSBA staff for over nine years, serving as a member service specialist. In his role, Nathan fields member inquiries and fulfills requests related to the full scope of MSBA operations, products, and services. His dedication to offering exceptional support to members has made him an invaluable asset to the MSBA team.
Tell us a little about yourself.
I am a father to six children ages 13 through 23 and a grandfather to one adorable one year old. In addition to spending time with family, I am an active participant in my faith community and take part in my neighborhood safety patrol.
Tell us a little about your career. Any highlights? I have held a variety of positions over my career straddling the fields of early childhood education, internet security, durable medical supply, and nonprofits. While I have played many roles, I always strive to provide excellent customer service and to streamline routines and procedures to increase the organization’s efficiency. I am also a clearinghouse to troubleshoot technology issues.
What did you do before you joined the MSBA? I served as the purchasing agent and warehouse manager for a durable medical supply company.
Tell us about your role at the MSBA.
I respond to member inquiries and fulfill member requests in connection with the full range of MSBA operations and product and service offerings. I also work in tandem with the Learning and Publications teams to support the production of in-person and online events and to process sales of electronic and hardcopy practice manuals and legal treatises.
What's your favorite part of your job?
Getting to work from home so there is no commute.
What is an interesting fact about you we wouldn’t find on your resume?
I write with my right hand but throw, catch, and bowl with my left hand.
What do you do to de-stress or unwind?
I enjoy attending sporting events to watch our local teams play football and baseball.
Adding Members and Adding Value
The 2024–25 Bar year is barely at its halfway point, and MSBA has been working hard to add more members and improve the value of its membership offerings. So far this year, we are happy to announce that we’ve added hundreds of new members from the Maryland Office of the Attorney General and other local government and legal services organizations. Improving MSBA’s membership density in
these critical sectors has been a long-term goal of the MSBA’s strategic plan. Our existing and new members will benefit from greater learning and networking opportunities with a more diverse membership base.
MSBA continues its dedication to being an inclusive association. In October, the Diversity, Equity, Inclusion, and Accessibility Committee hosted the half-day DEIA Forum: The Pursuit of Excellence. I was inspired and encouraged by the judges and practitioners who spoke about progress made in courtrooms and the business community. The work is far from done, and MSBA will persist in its efforts to make the MSBA a welcoming community with a seat at the table for everyone.
MSBA is also proud to announce new programs and partnerships for our solo and small firm members from across the state. In December MSBA’s Solo & Small Firm Section will host the 2024 Solo & Small Firm Symposium. This event will be more than just a day out of the office; it will be an opportunity for attendees to network with peers to expand their professional circle, sit in on discussion topics tailored to solo and small firm needs, and learn from curated experts.
As I write this, MSBA is gearing up to advocate on behalf of the legal profession during the 2025 Maryland Legislative Session, which begins January 8. Our legislative priorities will include mobilizing membership on any proposed sales tax on legal services; judicial and attorney security; and funding for the Access to Counsel in Evictions (ACE) program funding. I invite all MSBA members to join us in Annapolis for Lobby Day on February 11, 2025, to have a direct audience
Our existing and new members will benefit from greater learning and networking opportunities with a more diverse membership base.
with Maryland’s elected officials and help put MSBA's advocacy program to work.
Heading into 2025, MSBA stands ready to build on its momentum with expanded member services, strengthened advocacy efforts, and deeper engagement across all sectors of Maryland's legal community. Our growing membership base positions us to effectively address the evolving needs of legal practitioners statewide. I invite you to join us in shaping the future of Maryland's legal profession through active participation in MSBA's programs and initiatives.
Anna Sholl, Executive Director
C&R
LawPay
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The McCammon Group
is pleased to announce our newest Neutral
Hon. Christopher Panos (Ret.)
Retired Associate Judge, Circuit Court for Baltimore City
The Honorable Christopher Panos has joined The McCammon Group after eleven years of dedicated service as an Associate Judge on the 8th Judicial Circuit Court for Baltimore City. He previously served as an Associate Judge for the District Court of Baltimore City and as a Special Master for the Family Division of the Circuit Court for Baltimore. Prior to his tenure on the bench, Judge Panos enjoyed a successful career in civil litigation including family law, bodily injury, and commercial matters. He is a Life Fellow of the Maryland Bar Foundation and a Fellow of the Baltimore City Bar Foundation. Judge Panos’ memberships include the International Association of LGBTQ+ Judges, Maryland State Bar Association, and Bar Association of Baltimore City. Judge Panos co-chaired the BABC Bench-Bar Committee and chaired the BABC Family Law Committee. Additional memberships have included the MSBA Standing Committee on Professionalism and the MSBA Family and Juvenile Law Section Council. Judge Panos now brings this exemplary record of excellence and experience to The McCammon Group to serve the mediation and arbitration needs of lawyers and litigants in Maryland and beyond.
