BARBULLETIN Volume XXXVII, Number 4 • April 15, 2020
What’s Inside Applying Lessons from Disaster Recovery Efforts to COVID-19 Pandemic Page 6
MSBA Responds to COVID-19 Pandemic On the heels of a legislative victory on taxation of legal services, the MSBA has now shifted its focus to providing its members information and resources on how the COVID-19 pandemic is affecting the practice of law.
s part of its efforts, the MSBA created a dedicated webpage, www.msba. org/covid-19, to house resources, including a collection of all judicial orders affecting Maryland Courts, resource guides, links to free webinars, and articles about to manage your business remotely during this critical time. The webpage is updated daily
with new information, so please check back often for the latest resources. The MSBA has been working directly with the Maryland Judiciary to help answer many questions and provide recommendations based on questions and feedback received from practitioners around Maryland. Our work included submitting written ques-
MSBA Partners with Maryland Chamber of Commerce Page 6
Estate Planning in the Time of COVID-19 Page 10
Recordings of this program, Force Majeure and Insurance Coverage Issues During the Pandemic, and many more are available on MSBA"s Youtube channel
COVID-19 Small Business Bankruptcies - A Safety Net Viewed from Shallow Trenches Page 11
Municipal Emergency Powers in Maryland Page 13
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tions and recommendations, along with follow-up conversations between MSBA President Dana Williams and MSBA Executive Director, Victor Velazquez and Chief Judge John Morrissey, Hon. Laura Ripken, and several other leaders of the judiciary. We commend the Maryland Judiciary for acting quickly with respect to the COVID-19 crisis, and for being fluid and flexible in its approach to a fast changing environment. In addition to its work with the Maryland Judiciary, the MSBA has also been working with a variety of other entities, including representatives in the Governor’s office, Federal Courts, Administrative Courts, among others, to bring members accurate interpretations and implications of various orders, closings, etc. The COVID-19 pandemic is creating new and unique issues that together we can resolve for the safety of all. The goal in every conversation is progress not perfection. If you have questions about the COVID-19 pandemic’s effect on the practice of law, that are not being addressed, please let us know by sending an email to email@example.com.
From now through June 30, 2020, the MSBA is offering free access to 150+ CLE and non-CLE on-demand webinars to all 40,000 Maryland attorneys
n the heels of a successful effort in Annapolis to prevent proposed legislation that would tax legal services, and adversely impact every practitioner licensed in this state and law firms of every size, from solos to the largest Maryland firms, the MSBA has shifted its focus to provide a wealth of resources related to COVID-19 to every attorney in Maryland. VIDEO EXCLUSIVE
These resources are available to all 40,000 Maryland attorneys, including thousands of firms, legal services non-profits, governmental entities, and businesses with in-house counsel. The upcoming Maryland Bar Journal will be released digitally and made available to all legal professionals. We have also made our COVID-19 webpage available to all
Look for the following icons to find related content across our platforms.
during these unprecedented times. On this resource page, legal professionals can find articles on remote work, information on the latest orders from the Maryland Judiciary, Governor and other entities, including interpretive guidance, a host of free webinars on legal issues arising from COVID-19, and resources on how firms can access various CONTINUED ON PAGE 18
BARBULLETIN Volume XXXVII, Number 4
April 15, 2020
Published monthly by the
Maryland State Bar Association 520 West Fayette Street Baltimore, Maryland 21201 (410) 685-7878 • (800) 492-1964 TDD 539-3186 E-mail firstname.lastname@example.org • www.msba.org Executive Director Victor L. Velazquez
Editorial Staff Anna S. Sholl Editor
2019-2020 Officers Dana O. Williams President Hon. Mark F. Scurti President-Elect Delegate Erek L. Barron Secretary M. Natalie McSherry Treasurer
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From the Boardroom The MSBA held its second virtual Board of Governors meeting on Tuesday, March 31, 2020 in light of the COVID-19 pandemic. The first was held in January of this year.
uring his report, MSBA President Dana Williams discussed the MSBA’s swift transition to remote work and virtual meetings. In addition, President Williams provided an update to the Board on the MSBA’s efforts to coordinate with the Maryland Judiciary to provide recommendations and obtain answers to frequently asked questions from practitioners. As part of his report, MSBA Executive Director Victor Velazquez provided further information on the COVID-19 impact to MSBA staff, including the transition to 100% remote work and a reduction to temporary space at Brewers Hill Hub. He also submitted a proposal to temporarily suspend the printing of certain MSBA periodicals, including the April and May issues of the Bar Bulletin and the upcoming edition of the Bar Journal, in favor of a digital only production. The Board approved this proposal, citing the impact of COVID-19 on members’ ability to access mail, the safety of members, and the financial impact of COVID-19 on the MSBA. Executive Director Velazquez also led the Board in a discussion related to the 2020 Legal Summit & Annual Meeting. While the Board agreed to proceed with the Legal Summit & Annual Meeting in June, the Board also determined that the decision would be revisited in late April once more information on the length of the COVID-19 pandemic was available.
Finally, Executive Director Velazquez reported that the MSBA received significant interest in the upcoming vacancies on the Board of Governors. Two of the jurisdictions, Baltimore City and Montgomery County, received more applications than available seats, and, as a result, an online election was required in those jurisdictions. The results of those elections, along with a full listing of the Board for 2020-21 will be announced in the May edition of the Bar Bulletin. Following the Executive Director’s report, the Board heard from various committees, including the Budget & Finance Committee. During his presentation, Budget & Finance Committee Chair Jason DeLoach outlined the methodology and overall approach to the 2020-21 MSBA Budget, and delivered the first draft budget for the Board’s consideration. The Final Draft of the 2020-21 Budget will be submitted for the Board’s approval in the May 2020 Board retreat, which will be held virtually in light of the ongoing COVID-19 pandemic. More information on the Board of Governors meetings, including links to upcoming agendas and approved minutes can be found at www.msba.org/BOG.
MSBA ETHICS HOTLINE April
Cynthia L. Leppert Baltimore City 410-332-8529
Gerard P. Martin Baltimore City 410-547-8764 email@example.com
J. Bradford McCullough Montgomery County 301-657-0734 firstname.lastname@example.org
Randolph S. Sergent Baltimore City 410-528-7926
Charles W. Thompson, Jr. Montgomery County 202-742-1016 email@example.com
Benjamin H. Meredith Baltimore County 410-685-1166 Hon. Dolores Dorsainvil Prince George’s 301-531-5385
Members should address their written ethics inquiries to Patricia Weaver, Ethics Committee, 4800 Hampden Lane, Suite 700, Bethesda, MD 20814, or call (301) 951-9360, or e-mail firstname.lastname@example.org. Opinions of the Ethics Committee are available online at www.msba.org/ethics. Please consult the Rules and MSBA Ethics Opinion Website before calling.
“The best lawyers/judges make the best mediators/arbitrators” Honorable Charles G. Bernstein (Retired)
As a very active trial lawyer and Circuit Court Judge , Judge Bernstein has over 50 years of varied litigation experience in all State and Federal Courts.
APRIL 2020 A special message from MSBA President, Dana Williams.
He is now available for mediation/arbitration at extremely competitive rates.
Watch this video on our YouTube channel at here.
The McCammon Group is pleased to announce our newest Neutral Hon. Alexander Wright, Jr. (Ret.) Retired Associate Judge, Court of Special Appeals of Maryland The Honorable Alexander Wright, Jr. recently retired from the Court of Special Appeals of Maryland after over a decade of distinguished service on that court. He previously served as an Associate Judge on the Circuit Court for Baltimore County and as an Associate Judge on the District Court for Baltimore County. Prior to his judicial service, Judge Wright enjoyed a successful career in both private practice and public service. He is a Fellow of the Maryland Bar Foundation, a former member of the Board of Governors for the Maryland State Bar Association, and a Past President of the Baltimore County Bar Association. Judge Wright now brings this exemplary record of leadership and experience to The McCammon Group to serve the mediation and arbitration needs of lawyers and litigants in Maryland and beyond.
For a complete list of our services and Neutrals throughout MD, DC, and VA, call 888.343.0922 or visit www.McCammonGroup.com
MSBA.ORG | 3
MSBA Coronavirus Updates Page As COVID-19 challenges continue to develop in our area, MSBA has created this page to bring together useful resources to help you deal with the impact, plan ahead, focus on your well-being, continue to engage in learning opportunities, and stay safe.
LinkedIn & Facebook News Stories Hundreds of attorneys follow us on LinkedIn and Facebook. Join them and receive these useful articles and more in real time at msba.org/linkedin and msba.org/facebook.
MSBA has taken steps to address concerns about the illness by offering virtual attendance options for our upcoming meetings and CLEs, and postponing other in-person events as appropriate, as we are committed to the health and safety of our members and our staff. We will provide updates to you directly about the status of upcoming programs.
Thank you for the rapid response in making these orders known and available to the practitioners who practice in the areas of the law affected by them. MSBA is on top of things and it is greatly appreciated, especially during these difficult times.
Small Business Relief: COVID-19 Resources For Startups
Wake Up Call: Nixon Peabody Furloughs 25% of Staff in Virus Measure
Where can small businesses find relief right now? If you’re in need of help, this ever-growing list of resources may benefit your business.
New U.S. data show the U.S. legal sector cut 1,700 jobs in the month through mid-March, but that doesn’t include recent cuts by law firms and other legal companies seeking to cut costs to survive the crisis.
- MSBA member
Internet Wills: A Path to Enforceability E‑wills, as proposed in the Uniform Electronic Wills Act (UETA), offers a path to allow wills that have been electronically signed and stored in the cloud to be enforceable. Some states have started down that path.
Find MSBA's COVID-19 resources at www.msba.org/covid-19.
4 | BAR BULLETIN
Remote Notarization and Remote Witness Signature (Estate Planning Documents) Last Monday, Governor Hogan's Executive Order authorized remote notarization. The MSBA has received a number of inquiries concerning which electronic services may be used as well as questions on remote witnesses.
Don’t Violate Governor Hogan’s Executive Order to Stay At Home
Greater Baltimore resources for small businesses navigating coronavirus pandemic
Here’s what you need to know about violating Governor Hogan’s Executive Order to Stay At Home.
The Baltimore Business Journal put together a helpful list of resources for small businesses.
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Applying Lessons from Disaster Recovery Efforts to COVID-19 Pandemic
he COVID-19 pandemic presents a challenge unlike anything experienced in our lifetime. In one sense however, it will not be different than other natural disasters: low-income communities will be the hardest hit and in the post-disaster aftermath, law will be both an important tool and also a barrier to recovery. Disaster legal aid is a term used to encompass the civil legal issues that commonly arise for survivors in the aftermath of major crises, and the kinds of legal assistance provided to help survivors address these needs. Many states that face natural disasters, such as hurricanes and wildfires, on a regular basis can serve as a model for Maryland’s civil justice community as it works to develop a disaster response in real time for the on-going COVID pandemic, which has forced unprecedented changes to court operations and delivery of civil legal aid. The importance of civil legal aid during and in the aftermath of a disaster cannot be emphasized enough. In states where natural disasters are common, they recognized early on that emergency management and disaster response organizations
were unaware of the legal issues faced by disaster survivors and the particular needs of low-income communities. They worked actively to connect those dots. While the Major Disaster Declaration for Maryland related to COVID-19 did not trigger a FEMA response, work to ensure that policy-makers are aware of the role of civil legal aid in disasters remains critical. Many pandemic-related civil legal issues currently emerging follow a similar pattern to those seen in the wake of natural disasters. Low-income people need income protection, including unemployment benefits, food stamps, and other public benefits. They also need relief from rent and mortgage payments and protection against eviction. With families experiencing even more stressors after a disaster, it is common to see a spike in domestic violence—and during quarantine, survivors may have to cohabitate with their batterers. With courtrooms closed, low-income persons have less recourse in the face of emerging legal needs. During and after natural disasters, low-income survivors physically congregate at shelters and resource centers, where civil
legal aid providers can provide on-site assistance. Because of quarantine restrictions, civil legal aid providers cannot now be present for low-income clients and communities in the same way. To address the unique challenges presented by the
Maryland Access to Justice Commission Responds to COVID-19 During this critical time, the Maryland Access to Justice Commission COVID - Response has focused on three things: 1. Communications 2. Convenings & Coordination 3. Advocacy Use our COVID Resource Page to find a list of civil legal aid providers offering services remotely and information for the public related to court closures and COVID-related changes in due process and substantive rights affecting vulnerable populations. For the latest, follow us on Twitter @mda2j.
To address the unique challenges presented by the COVID-19 pandemic, Maryland’s civil legal aid community has been quick to respond to meet the needs. COVID-19 pandemic, Maryland’s civil legal aid community has been quick to respond to meet the needs. They have converted their operations to fully remote and continue to provide civil legal assistance via phone and on-line. A2JC and the community are working on developing and disseminating public facing material that will help vulnerable
Marylanders understand the laws and the changes in court procedures. Here too, disaster legal aid materials developed by states facing natural disasters offer a roadmap of a structured approach to disaster recovery in Maryland, including continuity-of-operation plans; materials including trainings for attor-
neys, issue-spotting manuals for community and governmental partners, and public-facing information to help survivors independently identify their legal needs. A2JC is actively working to translate lessons learned from previous efforts at disaster legal aid to help plan for the COVID response and disaster recovery.
MSBA Partners with Maryland Chamber of Commerce
BY RICHARD MONTGOMERY
he MSBA has begun a partnership with the Maryland Chamber of Commerce. And while in the short-term that partnership may focus largely on COVID-19 related relief efforts for our common constituencies, we believe that over time our combined efforts will be of far-reaching benefit to both the MSBA and the varied business groups affiliated with the MD
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Chamber. April 2, 2020, marked the kickoff of weekly MD Chamber COVID-19 Workgroup Meetings. The purpose of the meetings is to enhance opportunities for economic resilience for Maryland businesses. These meetings will occur each Thursday for the foreseeable future. Yesterday’s meeting began with an overview of the $2.2 trillion Coronavirus Aid Relief, and
Economic Security (CARES) Act (H.R.748), the Paycheck Protection Program (PPP), and the Layoff Aversion Fund. Discussion included guidance that there would be forthcoming guidance from the Maryland Department of Commerce (MDC) and the Maryland Bankers Association, particularly with respect to concerns raised by banks over differing interpretations of numerous provisions
of the CARES Act. Because news on the CARES Act is coming at such a rapid pace, MSBA will stay on top of emerging news and issues in this area, and transmit that information as quickly as possible. Also raised in April 2nd’s Chamber of Commerce call was an issue related to Business Interruption Insurance. The New Jersey legislature is considering legislation which would
invalidate pandemic-related exclusion clauses in business interruption insurance coverage for businesses with 100 or fewer employees in the state of New Jersey. The MSBA is researching the status of this measure (the NJ Legislature is currently in Recess), and similar business insurance measures nationally.
Get Maryland’s daily statewide source for law, business, government and real estate news. Behind the compromise Here’s how lawmakers found a way to expand post-conviction relief. 10A
A TEDCO boost
Baltimore medical device startup joins program to help get FDA approval. 3A
Volume 129 | Number 137
Wednesday, April 18, 2018
Maryland’s trusted source of business, legal and government news for 130 years.
Roselyn Aker-Black, Psy.D.
LaKeecia Allen Magistrate Jo Ann Asparagus *Christine D. Aspell Jody S. Berg Maureen M. Black Samantha Bowling, CPA, CGMA Oana A. Brooks Shelley Brown Patricia A. Browne Judge Sharon V. Burrell Renay L. Butler Judge Donine Marie Carrington Dr. Jocelyn Chaney-Gainers Erin Charles, CPA Michelle Coates Michele L. Cohen Alyce Dailey Natasha M. Dartigue Suzzanne W. Decker *Diane Devaney Dr. Tracey L. Durant Barbara Ebel Donna S. Edwards Lynda Ellis Wendy Elover Aileen Eskildsen Tiffany Esther Carolyn Evans, Esq. Jodi Finkelstein Sandy Fitzgerald-Angello Bernadette Fowlkes-Bridges Swata Gandhi
Dr. Kathleen A. Getz *Abby Glassberg Elizabeth Scott Glenn Dr. Michele Guyton Catherine Y. Hamel Kay N. Harding Cassandra Jones Havard *Marie Hartman Geanelle Griffith Herring Aubreana Stephenson Holder Jan Holt Jeannie L. Howe *Betsey Hurwitz-Schwab Asma Inge-Hanif *Lisa A. Hall Johnson Erica Joseph Lexy Kessler Amy Kleine Shawn Kros *Mary Beth Lennon *Cylia Lowe-Smith, Esq. Kathleen McClernan-Walz, Esq. Jill McClune Laurie McDonald Pat Bonner McElroy *Denise K. Mersinger Barbara Pisano Messing Vanessa Milio Janice Miller *Kathleen Momme Terry H. Morgenthaler Shannon M. Neal Kathleen Maletic Neuzil Kim Y. Oldham Tenyo Pearl
*Karen Pecora-Barbour Delegate Joseline Peña-Melnyk Sabita Devi Persaud Lily Qi Ann Quinn Gina Ramsey Johnette Richardson Valda Ricks *Dr. Tonja L. Ringgold Kimberly Y. Robinson Donna Stevenson Robinson Angela Rose Heather B. Sachs *Lynn B. Sassin Laurie-Anne Sayles Tammy S.J. Schneider, CPA *Leslie Simmons, R.N., F.A.C.H.E. Carol Ann Smith Erin Stauder Karen G. Sugar Jessica Wolf Suriano Gustava “Gusty” Taler C. Marie Taylor Rebecca Teaff Maureen van Stone, Esq. MS Judge Cathleen Vitale Annette Campagna Walter Sonya Whited Christina Williams Flavia Williamson Renée M. Winsky Michele K. Wolff
Transportation contract delayed after questions raised Rahn’s handling of selection process under scrutiny By BRyAn P. seARs BSears@TheDailyRecord.com
Transportation Secretary Pete K. Rahn is defending the process by which a $69 million contract is set to be awarded to a group headed by his former employer.
ANNAPOLIS — A $69 million state contract to oversee the largest public-private highway project in the country has been pulled from
the Board of Public Works’ schedule after questions were raised over Transportation Secretary Pete K. Rahn’s relationship with the winner of the contract and his handling of the bidding process. The withdrawal of the contract with a consortium headed by Kansas City, Missouri-based HNTB comes as officials express concerns
about the speed of the procurement, the waiving of standard competitive bidding processes and the relationship between the company and Rahn, who previously worked for HNTB. There are also new questions regarding apparent discrepancies between Rahn’s public statements about his ownership and sale of stock
L A R G E S T L AW FIRMS
* Circle of Excellence honorees
from his former employer and public financial disclosures filed with the Maryland State Ethics Commission. “Members of the Board of Public Works had questions about the procurement process and the department is going to and should and will address those questions,” SEE RAHN 8A
Harford company awarded $45M in rubble landfill dispute with county
Government plans to file appeal in latest ruling in 30-year legal battle By AnAmikA Roy ARoy@TheDailyRecord.com
A Harford County jury Tuesday awarded $45 million to a company that has been battling the county government for nearly 30 years over the right to use a property as a rubble landfill, one of the largest jury awards in county history. After an eight-day trial and nearly five hours of deliberations, the jury found that the county government’s decision to prevent Maryland Reclamation Associates from using the property near Havre de Grace as a rubble landfill was a regulatory taking of property for which the company
THE DAILY RECORD’S MARYLAND’S TOP 100 WOMEN 2018 1
The southbound Fort McHenry Tunnel toll plaza on Interstate 95 in Baltimore. FILE PHOTO
MARYLAND EXPLORES CHANGING TOLLS TO ELECTRONIC ONLY
SEE VERDICT 12A
A DIFFERENT VIEW FROM THE CORNER OFFICE
Q&A with female managing partners, page 2
By kAtheRine BRzozowski Capital News Service
ANNAPOLIS — The Maryland Transportation Authority is exploring phasing out all cash toll booths across the state. Today, tolls are collected three ways: by cash, or electronically, by either
The rise in lateral moves, page 6
an E-ZPass transponder or by video tolling — when the state uses a license-plate photo and mails drivers their bill. Transportation officials say that the transition to all-electronic, high-speed toll collection will: save drivers time on their commute, save the state money, re-
Trustee Calendar Employment
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duce accidents at toll plazas, and reduce CO2 emissions as less fuel is being burned, according to a national study by the University of Central Florida. Drivers in Maryland could start seeing new plazas that only collect tolls electronically at highway speeds by the summer of 2019, said 4A N/A 9A
Lawyer to lawyer Public notice Bids
Kevin Reigrut, executive director of the Maryland Transportation Authority. However the state has no specific timetable or budget for all-electronic tolling at this time, Maryland Transportation Authority Communications Director Cheryl M. Sparks told Capital News
11A 1B 3B
Plaintiff’s attorney Brett Ingerman: ‘The jury was persuaded that what (Harford County) did here was wrong. It was wrong back in 1990 and they thought it was wrong today.’
SEE EZ-PASS 7A
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PRO BONO PROFILE
Switching Gears In Changing Times – Uptick Of Remote Services For Pro Bono Clients PBRC PARTNER PROFILE:
Annie Speedie, Esq.
MSBA Member; PBRC Deputy Director What do you do at PBRC?
What are PBRC’s other projects doing?
I oversee PBRC’s volunteer attorney recruitment and support activities and provide technical assistance to other legal services providers around the state. Some of the most exciting work I do happens while supervising PBRC’s three major in-house pro bono projects: the Courtroom Advocacy Project, the Home Preservation Project, and the Maryland Immigrant Legal Assistance Project. Our staff in those projects recruit volunteers to assist low-income, vulnerable clients at legal clinics held in select Maryland District Courts, Baltimore Immigration Court, and the broader community.
Our Maryland Immigrant Legal Assistance Project typically offers legal consultations on Tuesdays and Wednesdays to families, children, and adults in immigration court. Due to the emergency, those dockets have been suspended, so we are instead engaging volunteers to provide remote video consultations to immigrants. These are slightly more complicated because we involve both attorneys and interpreters in these consults.
How has the COVID-19 outbreak changed PBRC’s work? It has really forced us to adapt! Like many others, the PBRC team is working from home. The work we do with tenants, consumers, and immigrants at in-court legal clinics has obviously been disrupted with the closure of the courts, and our community work is completely different as we can no longer meet with clients in the same physical space. We have also been focused on helping to share information within the legal services community as much as possible, including remote technology tips, updates, and service information changes so that everyone can, as much as possible, continue to assist Marylanders in need of legal help.
How has PBRC responded? Though our in-person clinics have all been suspended, we have been working hard to transition to hosting remote clinics so our clients can still get the critical legal help they need without putting anyone – clients, volunteers, or staff – at risk. We have been using a variety of phone, video
and chat technologies to allow volunteers in one remote location (their home or office) to provide legal service to clients in another location, while our staff continues to provide real-time mentoring and support from yet a third location.
What is an example of how this looks? Every spring, our Home Preservation team has a special focus on assisting Baltimore City and Prince George’s County homeowners who are at risk of tax sale foreclosure. Thankfully, Baltimore has postponed the tax sale process because of the emergency, but the clients are still very much at risk and likely confused and concerned about what to do. So, instead of our normal series of in-person legal clinics held in partnership with Maryland Volunteer Lawyers Service, we are training volunteers online, and setting up one-on-one phone appointments between volunteer attorneys and clients, with staff available by phone and chat to mentor and assist the volunteers as needed. Clients can share documents necessary for their consultations in advance through a variety of electronic means.
PBRC’s featured service opportunity
Volunteering with the Maryland Immigrant Legal Assistance Project: probonomd.org/milap For more information about volunteering in Maryland, contact: Annie Speedie, PBRC Deputy Director: firstname.lastname@example.org, 443-703-3051.
8 | BAR BULLETIN
in Baltimore City District Court or Prince George’s County District Court.
Can lawyers do pro bono in times like these? Absolutely! All of PBRC’s training courses for volunteers remain available online, so in some ways this is a perfect time to learn a new skill and help someone in need. PBRC, and many of our partner organizations, are providing client services remotely now, so there are many great
All of PBRC’s training courses for volunteers remain available online, so in some ways this is a perfect time to learn a new skill and help someone in need.
With Rent Court and consumer dockets on hold, our Courtroom Advocacy Project has also had to switch gears. That team is now available by phone to answer questions from tenants with rent court cases pending in Baltimore City District Court or consumers with pending cases
ways to immediately put your skills to use helping neighbors around the state. Attorneys looking to connect with a pro bono opportunity can visit www. probonomd.org/volunteer-opportunities for more information.
The Pro Bono Resource Center of Maryland will match your skills with a wide range of pro bono opportunities. The Center welcomes new volunteers dedicated to addressing issues impacting low income families and their communities.
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Estate Planning in the Time of COVID-19 BY TIMOTHY CHANCE, ESQ.
t is extremely important, not just for individuals, but for entire communities, that estate planning be done in order to prepare for any unforeseen calamities. Unfortunately, this does not always happen, and people often do not consider estate planning until a crisis has already arisen. The world is currently amid such a crisis now. COVID-19 has forced many people to confront the importance of estate planning and its role in protecting people’s assets and communities. Buying a home is oftentimes one of the biggest decisions that people make in their lives. People buy homes to build families, financial stability and memories. For Maryland Volunteer Lawyers Service’s low-income clients, their home is also often the family’s only asset. Homeownership, coupled with savvy estate planning, fosters generational stability. Just as homeownership is indicative of investing in a family’s future, it is also reflective of an investment in the community at large. Homeowners have a long-term financial stake in their neighborhoods, which leads to community stability. Lawrence Yun, Ph.D. & Nadia Evangelou, National Association of Realtors, Social Benefits Of Homeownership And
During a rapidly evolving and unpredictable situation, people are seeking to regain some sense of stability and control through ensuring that their families will be secure, their health care wishes will be known, and their finances will be properly managed.
Stable Housing (2016), available at realtoru. edu/wp-content/uploads/2014/06/Homeownership-Stable-Housing.pdf. In short, prudent homeownership can create familial and community stabilization. Conversely, the failure to think ahead, regarding homeownership and estate planning can seriously upend families and entire communities. The failure to properly pass on real property, either through probate or life estate deeds, creates tangled titles. Individuals with tangled titles can find themselves in a precarious housing situation. They do not qualify for property tax credits. As a result, tax foreclosure looms as a potential eventuality. Similarly, mortgage foreclosure is much more likely without the option to negotiate with the mortgage providers. If the property falls into a state of disrepair, unless the occupant can solely afford the repairs, they are forced to either live in unsafe conditions or abandon the home
10 | BAR BULLETIN
because they cannot qualify for a loan or grant. Unfortunately, if there is a tangled title on a property, there is the very real possibility that the home will be vacant in the future – either as a result of foreclosure or forced abandonment. Vacant homes pose a threat to the well-being and health of the neighborhood at large. Erwin de Leon & Joseph Schilling, Urban Institute, Urban Blight and Public Health: Addressing the Impact of Substandard Housing, Abandoned Buildings, and Vacant Lots (2017), available at www.urban. org/research/publication/urban-blightand-public-health/view/full_report. Vacant homes attract criminal activity, are major fire hazards, and decrease the property value of neighboring buildings. Luke Telander, Heirs’ Property, Part I: Preventing “tangled titles” and subsequent blight in Philadelphia, Community Progress Blog (June 28, 2016), www.communityprogress.net/blog/
heirs-property-part). Neighborhoods filled with vacant properties have been displayed higher rates of mental distress and chronic illnesses. de Leon, supra. Neighborhoods often are determinant of an individual’s health and economic success. Id. Vacant homes can lead to truly calamitous results for entire neighborhoods. People are now anxious to get their affairs in order as a result of COVID-19. During a rapidly evolving and unpredictable situation, people are seeking to regain some sense of stability and control through ensuring that their families will be secure, their health care wishes will be known, and their finances will be properly managed. However, the novel coronavirus has complicated estate planning in Maryland. Due to social distancing, face-to-face meetings with clients are an impossibility. For the most part consultations can be done remotely, but this can be problematic for older adults.
Setting up a remote conference requires equipment, high speed internet service, and a level of tech-savviness that not every older adult possesses. Although the estate planning documents can be drafted remotely, they eventually will need to be executed. COVID-19 presents a major barrier to the signing of documents, as financial power of attorneys need to be notarized, and all the documents need to be witnessed. Attorneys, notaries and other legal professionals are swiftly pivoting to adjust to the realities of our current crisis. On March 30, 2020, Governor Larry Hogan issued an executive order which waived the requirement of in-person notarization and allowed remote notarization during the COVID-19 crisis. This situation has highlighted the volatility and unpredictability of the world – it is critical that advance planning be done as soon as possible. Attorneys interested in volunteering to assist clients protect themselves, their homes, and their communities should please visit mvlslaw.org. Timothy Chance, Esq. is the Tangled Title Attorney at Maryland Volunteer Lawyers Service.
COVID-19 Small Business Bankruptcies A Safety Net Viewed from Shallow Trenches
BY BUD STEPHEN TAYMAN
arch comes in like a lion and goes out like a lamb. Or so the saying goes. Not 2020. March, 2020 began with a vibrant, productive economy. It will end with the economy shut down and in tatters. Businesses shuttered. Employment in shambles. This as a result of the Covid -19 pandemic. How long the economy will be down is anyone’s guess. February, 2020 was like any other month. An unusual major upset was that the general Assembly might enact legislation making legal services subject to sales tax. Fortunately, that was short lived. February ended with no sales tax on legal services. The month was otherwise uneventful. Now, all that is talked about is Covid-19. Ironically, as if somehow predestined from a far away place, on February 19, 2020, the Small Business Reorganization Act of 2019 (“SBRA”), Pub. L. No. 11654, §2 (2019) became effective. The SBRA added Subchapter V to Chapter 11 of the bankruptcy code, 11 U.S.C. §§1181 - 1195. The SBRA is designed to assist small business debtors by simplifying the bankruptcy reorganization process and rendering it less expensive than a traditional Chapter 11 case. To qualify as a small business debtor, on the date of the filing of the bankruptcy case, among other requirements, the debtor must have aggregate noncontingent liquidated secured and unsecured debts in an amount not to exceed $2,725,625, exclusive of debts owed to 1 or more affiliates or insiders, with not less than 50% of the foregoing debt having arose from the debtor’s commercial or business operations. Moreover, the debtor must voluntarily elect to proceed under the SBRA. The Coronavirus Aid, Relief, and Economic Security Act, signed into law on March 27, 2020, increases the debt ceiling of the SBRA to the amount of $7.5 million for a period of one (1) year. The SBRA simplifies a small business reorganization through the implementation and stream-
lining of several factors including, but not necessarily limited to, the following: 1. Unless otherwise provided by court order, there is no requirement that the debtor prepare, serve, and solicit acceptances of a Disclosure Statement. See, 11 U.S.C. §1181(b), 2. The absolute priority rule has been eliminated, making it easier to obtain confirmation of a Chapter 11 Plan which proposes a pro rata payment of unsecured debt rather than payment in full and which itself will often be the difference between the success or failure of the case. See, 11 U.S.C. §§1181(a) and 1191(c), and 3. The debtor may cram down certain specific liens secured solely by its principal residence if (1) the new value received in connection with the granting of the specific security interest to be crammed down was (2) not used primarily to acquire the residence and (3) was used primarily in connection with the debtor’s small business. See, 11 U.S.C. §1190(3). The SBRA did not come along any too soon. It is not difficult to predict the financial devastation which will be left in as Covid-19 ravages the United States. Anticipated debt problems facing small businesses include unpaid salaries, taxes, suppliers, and substantial rent and mortgage defaults to name a few. The SBRA will provide essential relief from these and other problems. That is a fundamental bankruptcy purpose. Notably, however, business and bankruptcy counsel alike must be cognizant of the fact that anticipated business financial turmoil will be the result of a shutdown which was wholly unanticipated and sudden. With a few days notice, businesses were ordered to shut down. There was precious little time to plan. There was too much to do. Too much to think about and be cognizant of. The least of which was, and remains, the threat to personal
The Coronavirus Aid, Relief, and Economic Security Act, signed into law on March 27, 2020, increases the debt ceiling of the SBRA to the amount of $7.5 million for a period of one (1) year. survival and taking steps to protect against the coronavirus. As a result, and despite any feelings of financial and personal panic, care must be exercised to thoroughly evaluate and analyze the ramifications of a bankruptcy on a potential debtor and, in the case of the average small business, on the debtor’s principal or principals. While this analysis should always be a matter of routine pre bankruptcy planning, it would be easy to overlook in a climate characterized by heightened tension, such as where we are today. Keeping in mind that until the immediate warning to shut down was issued, business trans-
actions were conducted as they would normally be conducted, knowing that there was a tomorrow for the business. In fact, time may prove that not to be the case for some businesses. That may ultimately turn ordinary business transactions into potential avoidable preferential transfers and fraudulent conveyances, both recoverable by a trustee in bankruptcy, depending on the facts. Bud Stephen Tayman focuses his practice on all aspects of bankruptcy representation in bankruptcy cases filed under chapters 7, 11, 12, and 13. Mr. Tayman is board-
certified in both consumer and business bankruptcy law by the American Board of Certification and is a sustaining member of the American Bankruptcy Institute. Mr. Tayman is also a member of the Councils of both the Consumer Bankruptcy Section and the Agriculture Law Section of the MSBA. Mr. Tayman maintains offices in Germantown, Maryland and may be reached at btayman@ taymanlaw.com.
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Remote Witnessing – Governor’s Executive Order No. 20-04-10-01 BY RICHARD MONTGOMERY
n Friday, April 10, 2020, Governor Hogan enacted an emergency order to allow wills, powers of attorney, and advance directives to be witnessed remotely, i.e. by video conference. The order is available here. Currently, the law requires witnesses to be physically present when these documents are signed. The Executive Order is an emergency measure that suspends certain statutory in-person witnessing requirements for the duration of the COVID-19 State of Emergency. The MSBA Estates & Trusts Section (E&T) leadership, Danielle Cruttenden (Section Chair),
Anne Coventry (Section Chairelect), Jonathan Lasley (Immediate Past Chair), and Senator Chris West were instrumental in the development and crafting of the order. Further, they were instrumental in conveying to the Governor’s Office the pressing need for relief from statutory constraints which have hampered the efforts of Maryland attorneys to execute estate planning documents since the onset of the COVID-19 pandemic. The E&T Section has already drafted emergency legislation designed to sustain remote witnessing after the expiration of the Governor’s Executive Order, which occurs upon the termination
of the COVID-19 State of Emergency. That legislation will be introduced either during a 2020 Special Session of the General Assembly (should the pandemic subside), or in the next Regular Session in January 2021.
Governor Larry Hogan previously issued an order, Executive Order Number 20-03-30-04, waiving the equirement of in-person notarization of documents, thereby authorizing remote notarization of documents during the COVID-19 emergency. That order can be found here.
Judiciary Discontinues Use of Zoom; Impact on Court of Special Appeals Arguments As of April 9, 2020, the Judiciary has discontinued the use of Zoom. The Court of Special Appeals is exploring alternative meeting platforms to conduct oral arguments. Oral arguments for April 10, 2020 have been postponed – the Clerk will coordinate with counsel regarding next steps. Oral arguments scheduled for April 13 and 14, 2020 (originally scheduled on April 1, 2 and 3, 2020) currently remain as scheduled, but counsel should check back frequently for updates. When an alternative platform for holding remote oral arguments has been determined, the Clerk will send counsel detailed instructions on how arguments will be conducted. Public access to arguments held remotely will be provided by posting a recording of the argument on the Court’s webpage.
WE REPRESENT INJURED WORKERS
More than $10 million recovered for injured workers in 2019
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Byron B. Warnken, Jr.
Rebecca L. Smith
Municipal Emergency Powers in Maryland BY KEVIN J. BEST, ESQ.
Along with the Governor, every local government in Maryland has the potential to exercise local emergency powers. According to § 14-301 of the Public Safety Article of Md. Ann. Code, a “public emergency” means: (1) a situation in which three or more individuals are at the same time and in the same place engaged in tumultuous conduct that leads to the commission of unlawful acts that disturb the public peace or cause the unlawful destruction or damage of public or private property; (2) a crisis, disaster, riot, or catastrophe; or (3) an energy emergency meaning a situation in which the health, safety, or welfare of the public is threatened by an actual or impending acute shortage in energy resources.
aryland has 23 counties, Baltimore City, 156 municipalities, and 167 special taxing districts. The counties are the principal unit of local government and the default public service provider in Maryland and are responsible for most basic services. Compared to the vast majority of states in the union, Maryland ranks near the bottom or 45th among the states in the number of local governments. Many communities in Maryland do not have a municipality set up and are governed in an emergency and otherwise solely by the federal, state and the county governments. A municipality is a public corporation exercising both corporate and governmental authority. The Maryland General Assembly has defined a “municipal corporation” as a city, town or village established either under general or formally under special law for “general governmental purposes” and subject to Article XI-E of the Constitution, “which possess legislative, administrative and police powers for the general exercise of municipal functions, and which carry on such functions through a set of elected and other officials.” Municipal corporations in Maryland including Baltimore City may exercise a broad grant of authority when passing police power ordinances. Despite Dillon’s Rule under the Common Law of Maryland, which states that municipalities, as creatures of the State, can exercise only those powers expressly delegated and those implied powers that are necessary to carry out the express powers or those other powers that are indispensably necessary to carry out the express powers, this police power authority is so extensive that Article XI-E (Municipal Corporations) of the Constitution of Maryland probably amounts to a grant or devolution to municipalities of almost all of the state’s police powers to be exercised within the municipal geographic limits. Municipalities are chartered to provide municipal services including law enforcement for the convenience and accountability of the city’s or town’s residents and typically provide a limited array of public services that in many instances complement county government services. Some of the larger municipalities are full-service providers that rival or surpass the county governments. Municipalities in rural counties on the Eastern Shore and in Western Maryland provide services that may not be offered at all by the respective county government.
The municipal charter serves as the equivalent of a constitution for the municipal government and the municipal code of ordinances serves as the equivalent of a code of statutes. The primary purpose of a municipal charter is to delineate the powers and structure of the municipal government and the duties of its officers. The federal government, although supreme in its sphere, is a government of limited powers. The State governments, although beholden to their own constitutions and the federal government under the Supremacy Clause of the U.S. Constitution, as the original sovereigns
few problems as it desires. Unless a suspect classification (i.e., race, national origin, or ancestry) or fundamental right (i.e., the right to vote, travel, access to criminal appeal, or procreation) is involved in a particular case or statute, a municipality, using its police power, may criminalize certain behavior which happens to be legally acceptable in a neighboring town without violating either state or federal equal protection guaranties. The structure of municipal government in Maryland is similar to the various structures found in the rest of the nation’s municipal corporations. A municipality
In approximately fifteen of the 157 municipalities, the chief executive officer is an appointed city manager or administrator, who performs most of the duties of a traditional mayor. The manager or administrator is a professional, normally possessing a specialized degree and training. In the council-manager form of government, the mayor presides over meetings and acts as the ceremonial representative of the city, but the city manager executes the day-to-day operations of the municipal government. The General Assembly recognizes the Governor's broad authority in the exercise
The State governments, although beholden to their own constitutions and the federal government under the Supremacy Clause of the U.S. Constitution, as the original sovereigns possess almost unlimited powers to pass laws for the health, safety and welfare of their citizens including certain emergency police powers delegated by statute to the Governors.
possess almost unlimited powers to pass laws for the health, safety and welfare of their citizens including certain emergency police powers delegated by statute to the Governors. An incorporated community has the independent power to determine for itself which potholes are filed, where to deploy police forces, how to regulate land use or invest taxes, how to handle emergencies, which recreation programs to implement, whether to ban certain offensive behavior or other detrimental conditions impacting urban living. A municipality can focus its finite resources on solving as many or as
consists of a governing body known as a council, commission or board. Each city or town government has a senior elected official usually designated to serve as the chief executive officer or mayor. The power of the mayor varies greatly amongst the municipalities. In some cities or towns, the mayor possesses powers similar to those of our governor or president. However, in many cities or towns the mayor may simply presides over council meetings and votes only in case of tie, which may be more or less akin to the role of the chairman of the board of a business corporation.
MSBA has been advocating for the legal profession throughout the COVID emergency, engaging leadership at the Governor’s Office, Judiciary, Chamber of Commerce, and local legislators. MSBA has worked on important issues including remote notaries, remote witnessing of wills and other estate documents, and confirming the authority, under state law, for local county and municipality ordinances to take effect. MSBA’s State and Local Government Section had a lively conversation about local government ordinances during the Section’s virtual “Coffee Talk” on April 9. As MSBA continues to work on this issue with the Governor’s Office and the Chamber of Commerce, we are thankful for our members, including Kevin Best, Esq., who remain active in pursuing and presenting this topic to our members.
of the police power of the State to provide adequate control over persons and conditions during impending or actual public emergencies. The Governor's emergency powers are primarily found in Subtitle 3 of Title 14 of the Md. Ann. Code. Many of the powers delegated to the Governor of Maryland to declare state emergencies are similarly delegated to the local chief executives. The mayor or chief executive/administrator are usually authorized by charter or ordinance to declare an emergency. Who exactly is responsible to exercise local emergency powers depends on the structure of municipal government described in the local charter, and the municipal code of ordinances; however, state law requires it to be “the principal executive officer of a political subdivision.” Declaration of a local state of emergency activates the response and recovery aspects of any applicable local state of emergency plan; and authorizes the provision of aid and assistance under the applicable plan. A mayor, town manager or president of the commission should not assume that CONTINUED ON PAGE 19
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COVID-19: The Virtual Reality A Q&A with Irwin Kramer, Kramer & Connolly
Q. I haven’t been infected with COVID-19, but I’m already sick of this virus. My firm isn’t set up for remote work, courts are closed, and I feel paralyzed. Any advice?
First, be thankful for your health. This pandemic is testing the health of our law firms and of our entire judicial system. Though no one could have foreseen a crisis of this magnitude, a global state of emergency won’t suspend your duty to provide competent and diligent representation. The rest of the world may be shutting down, but our professional obligations remain. Under Rule 1.1 of the Maryland Rules of Professional Conduct, “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” To be fully prepared to represent our clients, we must prepare for situations which may threaten our ability to do so. This takes more than keeping current with the law. We cannot bury our heads in the books and ignore changes in the world around us. Considering the impact of technology on the practice of law, the American Bar Association recently commented that competent lawyers must keep abreast of “the benefits and risks associated with relevant technology” as well. Model Rule 1.1, Comment . Maryland has yet to adopt this comment. But we hardly need new language to recognize the need for modern technology. The days of the Luddite lawyer proudly clinging to the practices of the past are over. To provide competent representation, we must give our clients the benefit of technological innovations designed to improve the efficiency of our practices and the stability of our firms in times of chaos. If your use of technology is limited to word processing and email, you cannot pretend to provide competent representation
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in a world that offers so much more. Had you kept current with technology, you would: 1 Use Case Management Software – there are numerous
programs which will provide easy online access to all client matters, keep an organized rolodex of contacts, maintain all of your communications in chronological order, automate the drafting of many documents, and reduce your trips to the filing cabinet.
2 Scan Important Documents – if you are not scanning pleadings, discovery, relevant evidence and other important materials to your computer, what would you do in the event of a fire or other catastrophe that blocks your access to the original files in your office? As most courts have implemented electronic filing, there is simply no need to cling to that highly-flammable technology known as “paper.” 3 Use Accounting Software – manual time sheets and handwritten ledgers are relics of the past. Modern law firms rely on programs that keep track of their lawyers’ time, generate pristine invoices, and manage operating and trust accounts. Whenever you get a retainer, receive a payment, or write a check, these programs will account for all transactions, enabling you to generate ledgers, income statements and other reports at the push of a button. There’s no need to rely on pen and paper, or to invite the mistakes that come with them. 4
Enable Remote Access – law-
yers who have remote access to firm resources have a distinct advantage over those who don’t. If your firm isn’t set up for remote work, how can you provide competent and diligent representation at times like these?
5 Protect Your Systems – your computers can’t catch COVID-19, but other viruses may wreak havoc on your systems without the right protection. Whether you are a large or small firm, an IT consultant who serves law firms will help you implement systems to resist hackers, malware and other problems that may impair the privacy and security of your data. 6 Backup Your Data – a fire or flood can destroy your hard drives just as easily as your paper files. Despite all of the cautionary articles on the ethics of online storage services, competent lawyers use the “cloud” to preserve access to vital data. For redundancy, you may also backup your data to portable media that may be taken off-site every day. No system is impenetrable, but lawyers who lack any system at all place client data at far greater risk. 7 Train Your Staff – as part of your duty to supervise others within your firm, you and your IT consultant should train your staff on best practices to minimize risk and to enjoy the full benefits of technology.
If you take these steps, you will strengthen your practice and preserve your ability to serve your clients when they may need you the most. Unfortunately, lawyers aren’t the only ones to lag behind technology. Sworn to administer justice in a manner that “ensures the greatest possible public confidence,” see Maryland Rule 18-100.4(a), judges preside over a system that is now closed to the public. Unable to work from home, or to use technology to assist in the adjudication of cases, the Judiciary has done little to ensure the confidence of criminal suspects who must wait behind bars for courts to reopen, of detained immigrants whose cases have been postponed to next year, or of clients whose requests for prompt relief cannot penetrate the locked doors of the courthouse. Rather than offer them the benefits of modern technology, the Judiciary has long shunned its use. Indeed, more than 150 years after the invention of the telephone, many courts still maintain a docket of “status conferences,” “calendar calls,” and “scheduling conferences” which could be handled more efficiently in a simple conference call. Considering all the technology available for video conferencing and
other communications, judges have more tools than ever to conduct these proceedings, and even more substantive hearings, from the comfort of their own homes. Ignoring these tools, the Judiciary has cluttered its dockets with unnecessary proceedings, increased the expense of representation, and reduced access to justice. Electronic filing systems are a step in the right direction, but the lethargic adoption of these platforms hardly excuses the neglect of far more powerful technology. We are all paying the price for it now. As the Judiciary scrambles to take “emergency measures” in the course of this crisis, it would do well to recognize that efficient access to justice is always a matter of urgency. Our legal system will survive this pandemic. But for it to thrive, lawyers and judges must use all available tools to ensure that the doors of justice never close again. The managing partner of Kramer & Connolly, Irwin R. Kramer represents attorneys faced with grievances. He provides additional information on this process at AttorneyGrievances. com and may be reached at irk@KramersLaw.com.
COVID-19 Tests Rules for Electronic Participation in Judicial Proceedings It is difficult to generalize given the lack of uniformity, but some practical suggestions have been offered by judges and attorneys who have participated in remote proceedings. These include:
ew took notice in June 2018 when the Court of Appeals added Chapter 800 to Title 2 of the Maryland Rules, setting parameters for remote electronic participation in circuit court. Less than two years later, Rule 8-201 et seq has taken center stage as courthouses around the state remain closed to the public during the COVID-19 pandemic. By emergency order, the Court of Appeals has extended the authority to conduct remote hearings to all Maryland courts that “have the capacity to hear emergency and other matters remotely.” March 20, 2020 Administrative Order. The manner in which courts are exercising this authority has been inconsistent, but remote electronic participation in judicial proceedings is on the rise even as logistical hurdles are being negotiated in real time.
The Court of Appeals has postponed all scheduled hearings until May 12, and “is currently considering holding oral argument by videoconferencing or other electronic means.” March 31, 2020 Administrative Order. As it considers what platform to use to conduct its business, the Court left open that choice for others. It has not yet dictated the technology to be used, and waived a pre-COVID requirement that the State Court Administrator approve the platform to be used for electronic participation. The Court did, however, subsequently add a limitation when it announced on April 9 that the
judicial offices could no longer use Zoom. The Zoom ban disrupted plans previously announced by the Court of Special Appeals. On March 30, the CSA issued its Notice Regarding Conduct of Remote Oral Arguments, the most comprehensive guidance provided by any court in the state. The notice initially said that its April oral arguments would be conducted on Zoom, and some were. Those scheduled for April 10 and thereafter have been postponed as the Court explores other options. Parties have been advised to check frequently for updates.
No definitive guidance has been provided by trial courts for conducting remote hearings. Counseling patience, Howard County Circuit Court Administrative Judge William V. Tucker observed that “the situation is fluid and subject to change; every jurisdiction is conducting remote hearings, but each has its own policies and procedures.” With few exceptions, those policies and procedures have not been shared publicly in writing. Like the CSA, the Circuit Court for Prince George’s County first announced that it would conduct emergency hearings and settlement conferences using
1. Do not hesitate to ask if a judge will entertain your matter remotely, but remember that clerk’s offices and chambers are short-staffed, so be patient. 2. Consult with opposing counsel before asking. Joint requests often get more favorable consideration, particularly where the presence of the principals can be waived for purposes of the remote hearing. 3. Be clear about what it is that you are asking the court to consider. 4. If it is not a true emergency, explain why handling the matter now would benefit the parties and the court in the long run. Helping to clear dockets now, or to put everyone in a position to do so quickly upon a return to some semblance of normalcy, is a plus. 5. Be certain to check your voice- and -emails regularly. Several assignment offices have reported that attorneys are becoming hard to find, and opportunities are being lost. 6. Determine what platform the judge prefers and become familiar with it. Have a back up plan, e.g., a cell phone, ready in case there is a glitch. Note that the Judiciary has sponsored in-house webinars for its employees only for Skype for Business, which is likely to become its exclusive platform. 7. Inquire as to how the court would like to receive necessary documents (e.g., email, fax), particularly in non-MDEC jurisdictions. 8. Secure your environment to eliminate audio and visual distractions before dialing in or logging on; treat any remote proceeding as you would a court appearance. 9. Dress appropriately, and be mindful of your background if you will be on video. 10. Mute your microphone when not talking, and identify yourself every time you begin to speak.
Zoom, but that announcement has been withdrawn. Other courts have used Skype for Business (the apparent favorite of the Administrative Office of the Courts), WebEx, GoTo Meeting, and Blue Jeans. Polycom, the video solution long used in many jurisdictions for bail reviews, remains popular for courts that already have the necessary equipment. Polycom, Skype and WebEx appear to most readily integrate into the CourtSmart recording system used by many courts, an important consideration for matters that need to be on the record. Ordinary telephone conferencing is also an option and has been frequently employed for
routine matters that can later be memorialized in a short order. In addition to bail reviews, protective order and juvenile detention proceedings, courts are variously hearing CINA shelter matters, guardianship and child custody cases, other emergency matters, initial appearances, and bail reviews. Some courts are conducting settlement conferences, hearing dispositive civil motions, criminal sentence modifications, and taking guilty pleas from incarcerated defendants upon joint request. These remain very much local, case by case determinations in every trial court.
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MSBA Lawyer Assistance Program Wellness TipSheet
Managing Your Anxiety During The COVID-19 Pandemic BY LISA CAPLAN, LCSW-C
t’s very normal to feel nervous and concerned about the Coronavirus. These are times of uncharted waters. Never in history has the reaction to a pandemic been this extensive. Understandably you may feel on edge. Here are tips that might help you feel more in control and help you manage your life during this situation:
Stay calm and find accurate information. It’s hard
to navigate all the information and know what is accurate. The Center for Disease Control has up to date information here.
Avoid information overload. The news is going over
and over the same information. Have a plan on how many times you will check in with the news during the day to get accurate updated information. Make decisions with intent. Think about why you are doing what you are doing. This will help you feel more empowered to handle this situation.
Talk to your family and friends to get support. In
the world of technology there are many ways to stay connected, e.g., skype, facetime, texting, email.
Avoid people who are fueling your anxiety. Those
who are not being productive in managing their life and focusing on the negative can cause heightened anxiety. Have a support group that is proactive in handling anxiety and navigating this emergency in a healthy way.
Have a family meeting to discuss the situation.
Involving even small children will help lower their anxiety. Hearing you discuss the situation calmly in a productive way will help them be less anxious.
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Have a strategy to manage stress and anxiety, for
example: • Practice mindfulness. There are many Apps that are available. • Get moving. Instead of going to the gym go outside to take a walk, run or hike. Research shows that exercise helps with anxiety. You can practice social distancing and still go for a walk with a friend. There are also many online exercise program that can be helpful: https:// www.businessinsider.com/how-to-work-out-athome-in-case-coronavirus-quarantine-2020-3 • Eat healthy. Avoid sugar and caffeine, which can add to your anxiety. • Stick to a daily schedule as much as you can. Only change your schedule when necessary, with intent and not as a reaction. • Take precautions that are recommended but be careful not to obsess over them or try to be perfect. This can lead to unhealthy behavior. • Don’t use alcohol, drugs or other unhealthy behaviors to manage your anxiety. This may cause lasting effects on your life and increase your anxiety. • Breathe. As long as you are alive you can breathe, and it is a powerful way to stay grounded. Often we don’t even realize we are holding our breath. Intentionally stop what you are doing and just breathe. • Call the Lawyer Assistance Program for professional help and support. Sessions are being offered over the phone.
For more tips on wellness check out the Wellness Portal www.msba.org/wellness-portal
For assistance, please contact the Lawyer Assistance Program for free, confidential counseling. We have a network of counselors throughout Maryland. Lisa Caplan, LCSW-C, Associate Director, (443) 703-3042, email@example.com. Toll Free 1(888) 388-5459. We offer financial assistance for mental health and substance abuse treatment. Please feel free to reach out to our LAP Committee Members and Volunteers www.msba.org/health-and-wellness Lisa Caplan, LCSW-C has over 20 years experience in her field, and extensive experience working with lawyers and judges in the areas of mental health, substance abuse and trauma. In her free time she enjoys spending time with family and friends, paddle boarding, sailing, rock climbing and doing triathlons.
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ET ALIA City of Annapolis announces a new city attorney. D. Michael Lyles took over for Acting City Attorney Kerry Berger following confirmation by the Annapolis City Council on December 9, 2019. He was sworn in on December 10, 2019. Lyles comes to the City from private practice and academia. He is currently Of Counsel at Stroud Priest, LLC in Baltimore and an adjunct professor teaching employment law in the business school for the University of Maryland Global Campus. D. Michael Lyles
Stephanie Wood has joined PilieroMazza as Counsel in the Firm’s Litigation & Dispute Resolution, False Claims Act, and Audits & Investigations groups in Washington, DC. Ms. Wood brings more than 15 years of broad-ranging litigation experience in all facets of the litigation process, from developing a tactical approach to dispute resolution, to advocating for clients’ interests on appeal. She keenly understands what is persuasive to fact-finders and is particularly adept at determining and developing effective litigation and trial strategies for clients.
ECONOMIST: Lost income, benefits and life-care plans valued for personal injury, wrongful death and employment cases. University professor with extensive experience. DR. RICHARD B. EDELMAN, 8515 Whittier Boulevard, Bethesda, MD 20817. (301) 469-9575 or (800) 257-8626. References and vitae on request. Visa/MC. Please visit at: www.economic-analysis.com. Beautiful offices for rent overlooking city dock in Annapolis. Go to www.loopnet.com/Listing/91-93-Main-St-AnnapolisMD/15518461/ for photos and contact information. Well established Real Estate Settlement Company seeks Attorney for Residential & Commercial Settlements. Great opportunity to join a friendly, busy office located in Frederick, Maryland. Competitive compensation and benefits package. Please email resume and cover letter to: firstname.lastname@example.org. EOE
Send your latest news and updates for inclusion in Et Alia: BarBulletin@msba.org.
Judge James F. Schneider
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small business benefits. In addition, the MSBA is offering complimentary health and wellness tools as part of the ongoing expansion of the Lawyers’ Assistance Program. Now, as we seek to support every attorney at every organization in the State, the MSBA is offering even more, by providing complimentary access to its entire on-demand CLE catalog to all legal professionals. The MSBA CLE Catalog is available at: www.msba.org/cle-catalog. Please enter the following coupon code at checkout: FREECLEMSBA*. Although we’re making all of these resources available to every legal professional, we do need you… The MSBA is able to fight for and support the entirety of the legal profession from solos to large firms, from public interest to in-house counsel because of the dedication of its members. Your membership makes so much good possible. Here’s just an short list of examples of what choosing to be member allow us to do: • Advocate on behalf of the profession in Annapolis, monitoring and engaging on hundreds of bills each year; • Partner with the Maryland Judiciary; most recently our 150+ questions on COVID related orders have helped to clarify orders, provide guidance to support the judiciary’s efforts and have led to new Administrative Orders helping our profession and the public during these trying times; • Provide confidential mental health and substance abuse services to hundreds of attorneys in need. Colleagues you will never know have been helped by this service; • Help thousands to benefit from access to justice efforts and pro bono initiatives; • Establish leadership development for underrepresented segments in our profession; • Deliver tools and resources free as part of membership; • Offer cutting-edge CLE with top notch presenters at costs lower than for-profit providers. All because attorneys chose to be members... We hope you’ll take advantage of the many
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resources we’re making available. We also invite you to join us in this fight and help us continue our support for the legal profession. We need every attorney in the state to belong to the MSBA in order for us to continue our nearly 125 year history of fighting and advocating for the profession. But now, more than ever, as the only statewide organization representing the entire profession, we need to be in this together. Because of the tens of thousands that belong to the MSBA, we are the home of the legal profession. All 40,000 joining together would make us even stronger and more capable. Together...we can be the new…. MSBA. MSBA.org/Join . * OnDemand CLEs must be purchased and viewed by or before June 30, 2020.
It is with great sadness that the MSBA announces the passing of retired Judge James F. Schneider who served for 35 years on the U.S. Bankruptcy Court for the District of Maryland. Judge Schneider passed away on Monday, April 6, 2020 at the age of 72 after losing his battle to prolonged illness. Judge Schneider made significant contributions to the legal profession across Maryland. A noted historian, Judge Schneider authored, among other works, “Century of Striving for Justice”, published in 1996, memorializing the history of the MSBA. In addition, he was the motivating force behind the creation of the Legal Museum in the Clarence Mitchell Courthouse. Former MSBA Executive Director, Paul Carlin, saddened to hear the news of Judge Schneider’s passing, noted that “Jim will be missed by all since he treated everyone with so much fairness and friendliness.”
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M S B A . O R G / P L E A D I N G C AU S E S
From the MSBA Archives
Watch a past interview with Judge Schneider here.
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simply because he or she is the chief elected or appointed official of the city or town that he or she automatically has emergency powers or the ability to declare an emergency and marshal the municipalities employees and equipment to face the crisis. Typically, there will be in place a civil emergencies ordinance that spells out how to declare an emergency and what emergency powers are available. Local civil emergency ordinances often include an enumerated list of emergency powers that a local mayor or manager can select to supplement existing law and to provide certain authority and establish guidelines for a municipality to react to and operate under during periods of civil emergencies, and to prevent or mitigate conditions that threaten to destroy property and harm the public health, safety or welfare of residents of, or visitors to, the city or town. The authority to enact such provisions or regulations is provided in Title 14 (Emergency Management) of Public Safety Article of Md. Ann. Code, the local charter and other Maryland Statutes. A municipal civil emergencies ordinance may include sections entitled as follows: purpose and authority, applicability, proclamations (executive orders) of civil emergency, authority of the principal officer to issue such orders, the required contents of an emergency order, use of certain services and equipment, disaster readiness and response plans, emergency operations committees or team, emergency purchases of supplies, emergency notifications, and penalties for violating an emergency order. Subject to § 14-1002 of the Public Safety Article of Md. Ann. Code, a local government has a duty to prevent civil disturbances, and if a structure or personal property is stolen, damaged, or destroyed in a riot, the injured party may recover actual damages sustained in a civil action against the county or municipal corporation of the State in which the riot occurred. Furthermore, pursuant to § 14-305 of the Public Safety Article of Md. Ann. Code, a law enforcement agency of a county or municipal corporation shall notify the Secretary of State Police if the local law enforcement agency receives notice of a threatened or actual disturbance that indicates the possibility of serious domestic violence. Pursuant to most municipal charters and § 5-209 of the LG Art. of the Md. Ann. Code, the
municipal governing body has the power to pass ordinances to protect and preserve the health of the municipality and its inhabitants. The governing body also may appoint a public health officer, and to define and regulate his or her powers or duties; to inspect, regulate, and abate any buildings, structures or places which cause or may cause unsanitary conditions or conditions detrimental to health provided that none of these powers and duties impair the Md. Secretary of Health and Mental Hygiene, the county board of health, or any public, general or local law relating to the subject of health. According to § 14-111 of the Public Safety Article of Md. Ann. Code as found in the Maryland Emergency Management Agency Act, only the principal executive officer of a political subdivision, which means a county or municipal corporation of the State, may declare a local state of emergency, and except with the consent of the governing body of the political subdivision, a local state of emergency may not continue or be renewed for longer than 30 days. Typically, the chief executive officer is deemed to be the senior official who oversees the day-to-day administration. A de facto or acting mayor ordinarily will be permitted to exercise the mayor’s emergency powers. Typically, an executive order of a civil emergency by the mayor or other executive officer shall, within some period of time from issuance of the proclamation or at the earliest practicable time be filed with the appropriate clerk for presentation to the governing body for possible ratification and confirmation, modification, or rejection. The governing body typically may, by resolution, modify or reject the proclamation, and if rejected, it shall be void. If the governing body modifies or rejects the proclamation, said modification or rejection will typically be prospective only, and shall not affect any actions taken prior to the modification or rejection of the proclamation. Under state law, except with the consent of the governing body of the political subdivision, a local state of emergency may not continue or be renewed for longer than 30 days pursuant. The mayor’s or chief executive’s emergency powers are extraordinary, but their constitutionality has generally been upheld. The mayor’s exercise of these powers must be reasonable and may be invoked only for the purposes specified by the legis-
lature [governing body], and only when an emergency exists. Any exercise of these powers during a non-emergency period will be invalid. Notwithstanding the above, the determination of whether an emergency exists lies with the mayor or chief administrator. However, in order to ensure that the mayor does not assume unfettered control over governmental operations, that determination is subject to judicial review. Ordinarily, if the mayor’s declaration is challenged, the local trial court will scrutinize the facts underlying the mayor’s determination that an emergency existed in the context of the situation that existed when the declaration
modifying employee salaries or exercising other legislative powers, or doing whatever else he may deem necessary for the purpose of meeting the emergency. Pursuant to § 14-306 of the Public Safety Article of Md. Ann. Code, the chief executive officer or governing body of a county or municipal corporation may request the Governor to provide the militia to help bring under control conditions existing within the county or municipal corporation that, in the requestor's judgment, the local law enforcement agencies cannot control without additional personnel. (Furthermore, the Governor by proclamation may require that each able-bodied
with all necessary equipment, in accordance with § 7302 of the Intelligence Reform and Terrorism Prevention Act of 2004 (108 P.L. 458, 118 Stat. 3638). Of course, many municipalities in Maryland already have in place mutual aid agreements (“MAA’s”) such as police MAA’s to allow assistance during times or emergency or when there is no emergency and certain jurisdictions simply wish to work together to provide aid and assistance. Occasionally, the Governor will directly delegate certain powers to local chief executives or administrators through his emergency orders. An interesting situation recently arose under the current COVID-19 health
The mayor’s or chief executive’s emergency powers are extraordinary, but their constitutionality has generally been upheld.
was made. The party who seeks to attack the mayor’s declaration has the burden of establishing its invalidity by proving that no emergency existed. The court’s task in reviewing the mayor’s determination is not an easy one. The applicable provisions of law rarely define the circumstances constituting an emergency except in general terms. Rather, the mayor is vested with a great deal of discretion in formulating his decision to declare an emergency. It has been held that where a charter provision described an emergency as being a situation in which public property, or the lives, property or welfare of the city’s residents was threatened, it did not have to be limited to situations including a public disaster such as an earthquake, fire, flood or bombing, but also included that where the municipal police and fire departments were on strike. Once an emergency is deemed to exist and has been declared by the mayor or chief administrator, he is given a wide range of powers to cope with it. These may include assuming control over the city’s police and fire departments, or summoning, organizing and directing the members of any other appropriate city agency, marshaling, deputizing or otherwise employing private citizens, issuing directives which may derogate express charter provisions,
individual in the State between 18 and 50 years old, inclusive, who is not regularly or continuously employed or engaged in a lawful and useful business, occupation, trade, or profession immediately register for work under Subtitle 9 of Title 14 of the PS Art.) Where the mayor or chief executive/ administrator has made a valid emergency proclamation, subsequently adopted ordinances approved by the mayor will not impliedly repeal or otherwise modify his emergency powers where the emergency continued to exist at the time of their passage, and where the ordinances were not intended to have any influence on his exercise of those powers. Pursuant to § 14-8A-02 of the Public Safety Article of Md. Ann. Code, the state, the governing body of a county or municipal corporation, or any other governmental agency within the National Capital Region, as defined under § 2674( f)(2) of Title 10 of the United States Code, may enter into a reciprocal agreement for the period that it considers advisable with a federal agency, the Commonwealth of Virginia, the District of Columbia, or a county or municipal corporation, within or outside the state, and establish, train, and implement plans to request or provide mutual aid through the use of its officers, employees, and agents, together
emergency that necessitated the postponement of several municipal elections, which occur around the State in every month of the year. Several cities and towns expressly amended their charters in accordance with the Constitution of Maryland to move the election dates but did so using the Governor’s emergency order suspending the timelines and procedural requirements for amending municipal charters found in State statutes. As an exercise of the broadly delegated police power, Maryland’s incorporated cities and towns potentially possess a full array of emergency and enumerated powers. Although all municipalities in Maryland may potentially declare and exercise certain emergency powers to combat a calamity or health emergency, the mayor, manager, or administrator must typically do so in accordance with a duly enacted civil emergencies ordinance. This article was written by Kevin J. Best, Esq. who is a municipal attorney in Maryland with offices in Annapolis. A substantial part of this article is credited to or derived from a treatise by Charles S. Rhyne, Mayor: Chief Municipal, Executive Law, §11.16 (1985).
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COVID-19 Gives Rise to Phishing Scams and Cybersecurity Issues Cybercriminals are taking advantage of the COVID-19 pandemic to exploit remote workers, vulnerable populations and others with increased online scams to extract personal and financial information. These scams may be sent through email, text, and social media. These communications may appear to be from legitimate individuals and organizations, as cybercriminals often try to imitate someone you trust. The MSBA would like to take this opportunity to remind everyone that the MSBA, including its volunteer leaders and staff, do not send emails
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soliciting gift, gift cards, or money. It is very important that if you receive an email from the MSBA, its volunteer leaders or staff, that you verify the email address is from MSBA.org. If you are unsure of whether an email that appears to be from the MSBA is legitimate, please contact our membership team at email@example.com or reach us at firstname.lastname@example.org. For additional resources on cybersecurity and how to avoid online scams, please visit msba.org/ covid-19 or staysafeonline.org.
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BARBULLETIN Volume XXXVII, Number 4 • April 15, 2020
MSBA Responds to COVID-19 Pandemic
MSBA Offers Free CLE to Legal Professionals Page 1 COVID-19 Tests Rules for Electronic Participation in Judicial Proceedings
How will you respond?
Our victories don’t make headlines. Our clients don’t boast about our work. But, behind the scenes, lawyers have trusted our responses for years.
When an applicant’s character is under scrutiny, this question may be more difficult than any contained on the bar exam. Bar applicants have the burden of proving their fitness to practice law. That That’s where we come in.
& X KCRAMER ONNOLLY THE LAWYER’S LAWYERS