Maryland Bar Journal – Volume 2 Issue 1

LEADERSHIP • COMMUNITY • JUSTICE • ADVOCACY • ACCESS • TECHNOLOGY •

Maryland

YO U

BAR JOURNAL MSBA. HOME OF THE LEGAL PROFESSION.

VOLUME 2 ISSUE 1

FIGHTING for the

PROFESSION MSBA shifts gears from taxation of legal services to COVID-19 response

KEY FEATURES COVID-19 Response Law Firm Perspectives Voting Rights Interview with Hon. James K. Bredar

WWW.MSBA.ORG

Paper checks are notoriously unreliable.

They get lost in the mail, they get tossed in the laundry, and they carry a lot of sensitive information around with them wherever they go.

LawPay changes all of that. Give your clients the flexibility to pay you from anywhere, anytime.

Most importantly, we ensure you stay in compliance with ABA and IOLTA guidelines.

888-504-7264 or visit lawpay.com/msba

Proud Member Benefit Provider

Contents VOLUME 2 | ISSUE 1

120 REAL ID Has

115 Lessons Learned from the

Real Challenges

Suffrage Movement

MSBA UPDATES 5

President & Executive Director's Message 7 A Special Message about the 2020 Legal Summit & Annual Meeting 8 MSBA Responds to the COVID-19 Pandemic 18 MSBA Wins Taxation of Legal Services Fight 26 MSBA in the Community 62 The Museum of Baltimore Legal History Celebrates Improved Space and Exhibits 64 Emotionally Recovering from the Coronavirus Pandemic 66 Developing a Mindfulness Practice to Strengthen Lawyer Well-Being 106 Students 131 Fresh Faces 138 Staff Profile

112 Remember the Ladies

MEMBER FOCUS & CAREER HIGHLIGHTS 14 MSBA Speaks with Judge Bredar, Chief Judge for the U.S. District Court Of Maryland 36 Law Firms Across Maryland Respond to COVID-19 38 DLA Piper: International Firm with Local Roots 90 Breaking into the Law 92 Past President 94 What I've Learned 96 Career Transitions 98 Off The Beaten Path 100 What Are You Reading?

Member Spotlights

122 The State of Voting Rights

128 Partisan Gerrymandering: State Courts Come to Bat on the Free-Speech Issue of Our Day DISCOVER MORE

29 40 42 42 45

Scott Wilson Brett Ingerman Neill Thupari Darryl Tarver Guy Flynn 48 Ellen Dew 56 Damien R. Banks 60 Marisa A. Trasatti 104 Mary Ellen Flynn 107 Beverly L. Winstead

READ MORE ONLINE: Stay equipped and knowledgeable, every day. Visit MSBA.org for more exciting content.

MARYLAND BAR JOURNAL | ISSUE 1 2020

1

EDITORIAL ADVISORY BOARD

Published quarterly by the Maryland State Bar Association, Inc. 520 W. Fayette St. Baltimore, Maryland 21201 Telephone: (410) 685-7878

(800) 492-1964 Website: www.msba.org Executive Director: Victor L. Velazquez Editor: Anna S. Sholl Advertising Sales: MCI | USA Subscriptions: MSBA members receive THE MARYLAND BAR JOURNAL as $20 of their dues payment goes to publication.

Others, $42 per year.

Hon. Vicki Ballou-Watts, Chair

IN-HOUSE EDITORIAL COMMITTEE

POSTMASTER: Send address change to THE MARYLAND BAR JOURNAL 520 W. Fayette St. Baltimore, MD 21201 The Maryland Bar Journal welcomes articles on topics of interest to Maryland attorneys. All manuscripts must be original work, submitted for approval by the Special Committee on Editorial Advisory, and must conform to the Journal style guidelines, which are available from the MSBA headquarters. The Special Committee reserves the right to reject any manuscript submitted for publication.

Richard L. Adams, III

Robert D. Anbinder

Mary Beth Beattie

Anna Sholl

Alexa E. Bertinelli

Susan K. Francis

Peter A. Heinlein

Reena Shah

Hon. Marcella A. Holland

Louise A. Lock

Corinne M. Pouliquen

Andrea Terry

David Sidhu

Tracy Steedman

Gwendolyn S. Tate

Bill Hall

Advertising: Advertising rates will be furnished upon request. All advertising is subject to approval by the Editorial Advisory Board.

MCI | USA (formerly Network Media Partners) 307 International Circle, Suite 190 Hunt Valley, Maryland 21030 (410) 584-1959 Darlene Rives Account Executive darlene.rives@mci-group.com Editorial Advisory Board Hon. Vicki Ballou-Watts, Chair MSBA Officers (2019-2020) President: Dana O. Williams, Esq. President-Elect: Hon. Mark F. Scurti Secretary: Del. Erek Barron Treasurer: M. Natalie McSherry 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.

WEB EXTRA

WANT MORE? This issue of the Bar Journal is accompanied by 3+ hours of related video content.

VISIT YOUTUBE.COM/MDSTATEBAR

2

MSBA.ORG | ISSUE 1 2020

When you have to be right

Wolters Kluwer Legal & Regulatory U.S. Proudly Announces the Latest Supplement to

Maryland Corporation Law

by James J. Hanks, Jr., Partner, Venable LLP MARYLAND • CALIFORNIA • NEW YORK • WASHINGTON, DC • VIRGINIA • DELAWARE

Celebrating 30 years of Publication!

Maryland Corporation Law, including 2019 Supplement, #9780735545595, $796.

Cited by Judges and Lawyers in Maryland and Elsewhere

Maryland Corporation Law is the first fulllength book on Maryland corporation law in over 60 years. Since then, there has been a complete recodification of the Maryland corporation statutes, dozens of other statutory amendments, and many important cases decided by Maryland and other courts applying Maryland law. Maryland Corporation Law is the first and only work to survey all of these developments.

Written by one of Maryland’s most respected and experienced corporation lawyers, Maryland Corporation Law is based on the most thorough research ever undertaken for a book on this subject. Every volume of the Maryland Reports and Maryland Appellate Reports — as well as many other sources — was reviewed page by page to discover all cases dealing with Maryland corporation law issues since 1658.

The book contains many easy-to-use forms, including articles of incorporation, bylaws, organizational and other minutes, board and stockholder resolutions, articles of merger, articles of amendment, articles of transfer, and articles of dissolution. All are specific to Maryland. This Supplement also includes the author’s analysis of recent statutory and case law developments.

“The leading commentator on Maryland Corporation Law” Judge Robert W. Sweet United States District Court for the Southern District of New York “Scholarly, authoritative and practical ... the next best thing to a unanimous Court of Appeals decision!”

Max Stul Oppenheimer Professor of Law, University of Baltimore School of Law To order call 800-234-1660 or visit WoltersKluwerLR.com/store

Contents (continued)

ACCESS TO JUSTICE COMMISSION 69 Applying Lessons from Disaster Recovery Efforts to COVID-19 Pandemic 70 Commissioner Profile 72 Firm Profile 74 Distinguished Leader FOR YOUR PRACTICE Nuts and Bolts 84 The 10 Principles of Plain English Emerging Issues of the Law 32 Online Terms in Commercial Technology Agreements 86 How The U.S. Supreme Court May Affect The Interplay Between SexBased Discrimination In Employment Versus In Education Tech Developments 80 Incident Response Plans Come of Age Law Office Management 53 Unavoidable: Running a Law Firm is Running a Business!

58 Partners’ Survey Highlights Importance of Lateral Integration Building Your Brand 50 Regional Law Firm Design Recent Decisions 83 Rap Lyrics: When Art Ought Not Imitate Life 88 Court News 132 Attorney Grievance Update

SEND US A MESSAGE!

MARYLAND STATE BAR ASSOCIATION @MDSTATEBAR @MARYLANDBAR @MD_STATE_BAR Tell us your favorite part of the new Maryland Bar Journal on social media and using the hashtag: #MDBARJOURNAL MARYLAND BAR JOURNAL | ISSUE 1 2020

3

Together, we are

stronger

MSBA’s COVID-19 response efforts include: Advocating for the profession in state & federal judiciary as well as in the legislature

How does the legal profession deal with new challenges?

together.

On the heels of a legislative victory against sales tax on services, March 2020 presented a new challenge: a global pandemic.

MSBA exists to support and empower the entirety of the legal profession every day, even more so when it is facing unprecedented challenges.

M S B A . O R G / S T R O N G E R TO G E T H E R

Communicating with the Governor’s office on key orders, including remote notarization and remote witnessing Providing 20+ complimentary webinars, with over 15,000 participants (and growing) from across the profession Sharing resources and tools to navigate your practice during the pandemic Guiding firms in their transition to a remote practice, and helping plan for recovery and post-COVID business strategies Opening MSBA’s entire on-demand CLE catalog of 150+ titles, the Maryland Bar Journal, and other resources, to everyone at no cost Convening the state’s legal services organizations to guide the public and self-represented litigants during this unprecedented time Your MSBA has been fighting for you long before this pandemic, and will keep fighting long after. If you haven’t already, we would love for you to join the growing number of attorneys who call MSBA home.

Because together, we are stronger.

PRESIDENT & EXECUTIVE DIRECTOR’S MESSAGE

| INSIGHTS & UPDATES

Supporting and Fighting for the Legal Profession in Maryland

S

o far, events of 2020 have had an enormous impact on the legal profession in Maryland. Beginning in January, the legal profession was forced to mobilize to protect itself against a proposed bill that would institute the taxation of legal services. The MSBA led this fight on behalf of the entire legal profession, and was successful in its efforts to defeat the bill.

On the heels of that legislative victory, the MSBA has now shifted its focus to the COVID-19 pandemic, which is causing enormous consequences and disruption not only across the globe, but right here in Maryland.

We hope that you, your family, colleagues and employees are safe and hunkered down for the long road ahead as we navigate this stressful and unprecedented pandemic.

As leaders of your MSBA, we’re doing everything we can to help you through these challenging times. Below are just a few highlights of our efforts: Delivering Resources During this challenging time, we are ensuring that legal professionals across Maryland have access to important information and resources on how this pandemic has disrupted the practice of law, including resources on sustaining a remote practice, preparing for virtual meditations, and issues with force majeure clauses and remote execution of estate planning documents. We are delivering these complimentary resources in a variety of formats from articles to virtual CLEs. In addition to these resources, the MSBA is also providing information on recent federal legislation aimed at supporting small businesses.

Through webinars, articles, and other communications, the MSBA is working to provide guidance to firms on how to navigate this difficult and uncertain pandemic.

You can find these resources and more through our dedicated webpage, MSBA.org/COVID-19.

MARYLAND BAR JOURNAL | ISSUE 1 2020

5

Answering Questions The MSBA is also working around the clock to deliver the latest information on how the COVID-19 pandemic is affecting the Maryland Judiciary. Not only is the MSBA delivering the latest orders to our members through a variety of communication channels (email discussion lists, website, eWeekly newsletter, and social media), we are actively collecting feedback from practitioners and working with leaders of the Judiciary to answer questions and provide recommendations. To date, the MSBA has provided answers to 120+ frequently asked questions.

"We are proud to be part of your professional journey, and are here to ensure that you can continue to serve your clients."

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 latest information can be found on MSBA.org/COVID-19/courts.

Fighting for the Profession As we learn more about how the COVID-19 pandemic is impacting the practice of law, the MSBA is working with Maryland’s leaders in Annapolis to address the needs of the legal profession, including recommending new legislation, or Judicial or Executive orders that would toll statute of limitations, and allow for remote witnessing of documents.

We have also joined forces with the Maryland Chamber of Commerce to participate in a COVID-19 workgroup to ensure the interests of Maryland’s law firms are represented.

Accessing Justice Through its partnership with the Access to Justice Commission (AJC), the MSBA is also leading the response by legal service providers. The AJC is convening the various legal service providers to offer support, collect resources, and provide guidance for pro se litigants. Through its COVID Resources page, www.mdaccesstojustice.org/covid-19, AJC is providing a list list of civil legal aid providers offering services remotely and information

6

MSBA.ORG | ISSUE 1 2020

for the public related to court closures and COVID-related changes in due process and substantive rights affecting vulnerable populations.

Supporting Health & Wellness The MSBA also knows that this pandemic is taking a significant toll on individuals. Many legal professionals are balancing working from home, homeschooling children, and trying to protect their family from COVID-19.

This, of course, creates added stress and anxiety in a profession which is already strained.

With access to counselors around Maryland, an online support group, mindfulness webinars, exercise videos, articles and tip sheets, the MSBA Lawyers’ Assistance Program is here to help. You can learn more about all the health & wellness resources available at MSBA.org/COVID-19/wellness.

Thank You for your Membership The legal profession is needed more than ever. Your expertise and skills are invaluable to help mitigate and manage impacts from this crisis on individuals and businesses. We are proud to be part of your professional journey, and are here to ensure that you can continue to serve your clients. Your membership in the MSBA makes everything we do possible for you and the legal profession. We thank you for your continued support.

Together...we are the MSBA.

Dana O. Williams, President

Victor L. Velazquez, Executive Director

A SPECIAL MESSAGE ABOUT THE

LAST YEAR, WE ENJOYED connecting with 1,100+ participants from across Maryland at our signature event, the MSBA Legal Summit & Annual Meeting. We’ve seen growth in each of the last three years and this year was on track to have an even higher number of participants. In fact, over 350 people had already registered by mid-February with 550+ total participants and thus we projected to reach 1,300+ participants for the event this year.

There was clear excitement around our two impressive keynote speakers in former Secretary of State Madeleine Albright and NPR Legal Analyst, Nina Totenberg, along with 80 substantive law programs across eight learning tracks. The biggest annual meeting ever. The largest number of programs ever.

COVID-19 Impacts Everything

COVID-19 has resulted in unprecedented disruptions across the globe and our state for all activities and we are not immune from this reality. In a Special Meeting of the Board, the MSBA Board of Governors, after considering the health and safety of our members, invited guests, speakers, exhibitors, and staff, made the difficult decision to cancel the 2020 Legal Summit & Annual Meeting.

MSBA Continues Efforts to Support You & Profession‌

We are working tirelessly to bring members up-to-date information regarding the COVID pandemic and its impact on the practice of law. Working with members, we have delivered dozens of COVID related webinars to over 8,000 attorneys in just 6 weeks or so with more to come, all at no charge. In fact, we have now made our entire OnDemand CLE catalog of 150+ courses available to all legal professionals until June 30, 2020.

MARYLAND BAR JOURNAL | ISSUE 1 2020

7

MSBA UPDATES

| COVID-19 RESPONSE

MSBA Responds to the COVID-19 Pandemic On the heels of a legislative victory on taxation of legal services, the MSBA shifted its focus to providing its members information and resources on how the COVID-19 pandemic is affecting the practice of law.

As 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 how to manage your business remotely during this critical time. Below is just a sampling of the work by MSBA during the COVID-19 pandemic.

OVER 15,000 ATTORNEYS (and growing) have viewed our

20+ COVID-19 WEBINARS .

MSBA is providing instant updates for OVER 10 ENTITIES and across the 24 Maryland Counties/City, including Maryland Judiciary, Federal Courts, D.C. Courts, Bankruptcy Courts, Immigration Courts, and administrative agencies.

MSBA is now organizing the orders from these various entities in a searchable spreadsheet.

You can find that spreadsheet here: www.msba.org/courts-covid-19

We’ve answered 200+ FAQs from our members by communicating with the leaders of the Maryland Judiciary, Federal Courts, the Governor’s Office and more.

8

MSBA.ORG | ISSUE 1 2020

We’re ADVOCATING for the profession, and working with our Sections to ensure practitioners have the tools they need.

Executive Order No. 20-04-10-01

In addition to supporting the professional, we’re also supporting the person with a

WEEKLY SUPPORT GROUP,

health and wellness tips, and stress relieving webinars.

As we continue to strive to be a resource to all members of the profession, regardless of practice area, firm size or years of experience, from now till June 30, we’re offering FREE ACCESS TO 150+ CLE AND

NON-CLE ON-DEMAND WEBINARS to all 40,000+ Maryland

attorneys. To take advantage of this offer, enter the following coupon code at checkout: FREECLEMSBA or visit msba.org/FreeCLE to learn more information.

Connecting HUNDREDS OF

ATTORNEYS in various practice areas with morning Coffee Talks, allowing practitioners to share best practices, solutions, and maintain a sense of community.

MARYLAND BAR JOURNAL | ISSUE 1 2020

9

SAME VISION, ELEVATED VIEW Stein Sperling is moving in the summer of 2020 to our new headquarters at 1101 Wootton Parkway, Rockville, Maryland.

Reaching its largest size ever, Stein Sperling is excited to work with the Tower Company to occupy more than 40,000 square feet in the LEED Gold® and ENERGY STAR Certified Tower Building. When complete, this move will allow attorneys and staff to connect and collaborate with ease. The firm’s new location will allow continued close proximity to the Montgomery County Courthouses and will accommodate future growth of the firm.

Founded in 1978, Stein Sperling started with just four attorneys plus three staff in one small building at 23 West Middle Lane. The firm occupied that building for more than 40 years, expanding into four additional buildings in Rockville, as well as stand-alone offices in Wheaton, Langley Park, and Frederick in Maryland and Baileys Crossroads in Virginia. Since its inception, the firm has grown to 130 attorneys and staff.

Stein Sperling Bennett De Jong Driscoll PC · 301-340-2020 · steinsperling.com 10

MSBA.ORG | ISSUE 1 2020

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 questions 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. Below is a short timeline of events.

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 feedback@msba.org.

WEB EXTRA

The webpage is updated daily with new information, so please check back often for the latest resources.

MSBA.ORG/COVID-19

Timeline of MSBA response to COVID-19 Below is just a summary of what the MSBA has been doing to help legal professionals during this difficult time.

IT'S A VIRTUAL WORLD • Transfer of all in-person meetings to virtual meetings

WEEK OF

MAR 9

• MSBA launches MSBA.org/COVID-19 page • Judiciary announces Statewide Court Closures • MSBA staff moves to a 100% virtual (remote) work environment

MARYLAND BAR JOURNAL | ISSUE 1 2020

11

NEW LINES OF COMMUNICATION • MSBA launches special edition of Member eWeekly Newsletter

WEEK OF

MAR 16

• Launches a second digital newsletter, the Weekly Roundup to provide more frequent communication to members • Health & Wellness resources are added to COVID-19 page to help legal professionals manage growing anxiety & stress • MSBA conducts virtual town halls with Local & Specialty Bars and Section & Committee Leadership to share resources and provide guidance

ANSWERING YOUR QUESTIONS • MSBA communicates new Executive Orders regarding closure of non-essential businesses and begins open dialogue with Governor’s office to answer member questions • Working with the Maryland Judiciary, MSBA provides answers to over 100+ FAQs • MSBA launches “Learn from Home” initiative providing MSBA members with links to complimentary webinars on important topics related to COVID-19 • MSBA Lawyers’ Assistance Program launches a weekly virtual support group

MSBA AND MACPA JOIN FORCES YET AGAIN The MSBA and MACPA joined together to fight the taxation of professional services, and have now joined again to address the implications of COVID-19.

Recently, Tom Hood, CEO of MACPA was invited to speak to a collection of managing partners from Maryland's largest firms to discuss the affect of COVID-19 on the CPA profession and share his thoughts on the future of the professions.

12

MSBA.ORG | ISSUE 1 2020

WEEK OF

MAR 23

BRINGING YOU RESOURCES

WEEK OF

MAR 30

• MSBA communicates with the Governor’s Chief Legal Counsel to provide guidance to the legal community regarding the Governor’s Stay-at-Home Order • MSBA holds virtual Board of Governors’ meeting for the second time in MSBA history (the first was held in January 2020) • MSBA holds complimentary virtual webinars for all Maryland legal professionals on various topics, including “Surviving as a Solo or Small Firm,” and “COVID-19 in the Workplace: Your Questions Answered,” among others • Recorded versions of live webinars are made available through MSBA channels, including MSBA youtube channel

WEEK OF

APR 6 (and beyond)

CONTINUING TO CONNECT

WEB EXTRAS

Watch our COVID-19 webinars on at MSBA.ORG/WEBINAR-PLAYLIST.

• Additional complimentary webinars scheduled on topics including “The Paycheck Protection Program and Important CARES Act Benefits to Help You and Your Clients”, “COVID-related consumer fraud issues and law enforcement”, and “Force Majeure and Insurance Coverage Issues During the Pandemic;” • MSBA Sections begin holding virtual “Coffee Talks” to connect members during this difficult time • MSBA opens its 150+ CLE and non-CLE on-demand webinars to all 40,000+ Maryland attorneys

MSBA also recently teamed with the Maryland Chamber of Commerce and its working group focused on COVID-19 relief efforts to ensure the interests of law firms across Maryland are advanced and protected. Read more about the partnership between the MSBA and Maryland Chamber of Commerce's COVID-19 working group.

MSBA.ORG/COMMERCE-BLOG

MARYLAND BAR JOURNAL | ISSUE 1 2020

13

MEMBER FOCUS

| MEMBER SPOTLIGHT

MSBA Speaks with Judge Bredar, Chief Judge for the U.S. District Court Of Maryland 14

MSBA.ORG | ISSUE 1 2020

THE HON. JAMES K. BREDAR, Chief District Judge for the United States District Court for the District of Maryland

serves on the Federal Judiciary’s National Coronavirus Task Force. MSBA Executive Director, Victor Velazquez, and Director of Member Experience, Shaoli Katana, sat down with Judge Bredar to learn a little bit more about the Task Force, his role, and the Federal Judiciary's response to the COVID-19 Pandemic.

You currently serve on the Federal Judiciary’s National Coronavirus Task Force, where you are involved in the bench’s response to the COVID-19 crisis with other chief judges, department heads, and court executives from around the country.

Quite an honor. What does that involve? How has your Committee approached the emergency and coordination efforts?

I was asked to serve along with three other judges (two other chief district judges and one court of appeals chief judge).

To understand the role, you need to understand how the federal judiciary works. Governance in the federal judiciary is very flat. Most of the administrative authority or responsibility resides with individual chief judges in districts and circuits. There is a lot of vertical authority. Certainly the Supreme Court has authority when deciding cases.

We have a Judicial Conference that sets broad policies for the judiciary. But in terms of day to day operations, the chief judges and their respective courts have generally had the final authority. So when you have a crisis, it comes with a challenge for an organization with flat governance structures. We want courts to be independent, we want them to be independent of each other, in terms of their decisional processes in ordinary circumstances, but that’s maybe not ideal in a crisis. That is the arrangement that we have. So a committee like ours doesn’t issue edicts or directives to courts. It serves a coordinating role. It gives guidance, serves as a clearinghouse. The most valuable thing the Committee has done is that our internal computer system, that we have a page addressing Coronavirus issues and it’s essentially a bulletin board where we have hundreds of FAQs that are organized by topic, available for courts to tap into and see what other courts are doing, what the guidance might be from Washington, what the guidance might be from our committee. It’s also a repository for the myriad standing and general orders from courts.

Although clearly an honor to be asked to serve as a leader in this way, it must be taxing given everything else happening. How are you balancing this role amongst all your other responsibilities?

Many people are asked to do more in a time of crisis, I'm happy to jump in with everything I've got, and you can always do more than you think you can. One of things that is permitted - a lot of things evolve informally in a situation like this. Over the weeks there has been a coming together of a group of chief judges that bridge both sides of the Appalachians. I think there are 15 of us at this point.

We share thoughts and ideas on a daily basis. But I think it’s also been useful to the task force, I serve as a bridge

between the smaller group and the larger national group.

I have spent a lot of time communicating with colleagues in Pittsburgh, Cleveland, Cincinnati, Norfolk, Raleigh-Durham, Columbia (South Carolina), Charlotte, Charleston and Morgantown (West Virginia), where various different chief judges are operating from.

Is there a coordinated effort to set new deadlines and procedures across circuits? With the state?

There is a high level of communication that’s occurring.

We are communicating both through this committee and this smaller group that I just described (more regional).

I think we influence each other significantly, we benefit from the discussions among our group. Then we tailor our orders and arrangements to fit our local circumstances. For instance, in deciding whether to expand our suspension out until June 5 - that was a decision that I made last week in consultation with my colleagues on bench in Maryland.

As I was making the decision, I was in close consultation with colleagues in these other districts, seeing how they saw things, sorting out what issues and factors should be, that sort of thing. And in that regard, Chief Judge Barbera and I are also in communication. That’s clearly a level of coordination. There is no central authority obviously. The judge dictates what the answer will be. But if you can, it’s a strength - tailor it to local circumstances, along with an awareness of what colleagues in other districts are doing.

I have known my fellow chief judges from different districts, we meet annually, compare notes from time to time on issues of common interest and concern, but nothing comes close to the communication that is occurring now on a daily basis where I have colleagues’ cell phones, and I am speaking to them, texting with them, sometimes several times a day. This is particularly between me and Chief Judge Mark Davis of the Eastern District of Virginia and Chief Judge Mark Hornak in the Western District of Pennsylvania in Pittsburgh. We are in close contact.

Several court systems impact our members - state, federal, and specialized court systems, including immigration and tax. Policies regarding court closings and court procedures vary widely amongst these courts. Can you speak to what considerations the Federal Judiciary has taken in responding to COVID-19? What have been the highest priorities for the Federal Judiciary in the Orders the Court has issued?

This crisis has challenged us on many many levels. First of course, there is the principle that federal courts are always open, that citizens and others always have the right to seek MARYLAND BAR JOURNAL | ISSUE 1 2020

15

“

redress, to keep an indication of their rights by petitioning the federal courts. That’s an ancient principle, an extremely important one, and one for which we give very high priority. At the same time, the courts are like other entities of government, and when there’s a crisis of this type, there is a responsibility to bring your actions and activities in alignment with the request of public health officials, starting with the Governor of this state. That

How has the Federal Judiciary approached the issue of COVID-19-positive and vulnerable populations in jails, and any specialized detention and release procedures for these individuals? Has the Judiciary communicated with the Bureau of Prisons regarding this issue?

This is a particularly important but also very sensitive issue,

The courts are like other entities of government, and when there’s a crisis of this type, there is a responsibility to bring your actions and activities in alignment with the request of public health officials, starting with the Governor of this state. means slowing down your operations so that lawyers, parties, and citizens, witnesses, jurors, all these people are not required or incentivized to take actions, travel, or meet in such a way that is inconsistent with the directives of our public health officials and our Governor.

How do you reconcile these two fundamental obligations?

The first is keep courts open, that those matters that must be heard will be heard, and at same time, be a good citizen and get your organization into alignment with the very appropriate directives that our Governor and public health officials are issuing. We tried to reconcile that. Our approach - we slimmed down our operations tremendously. The court is open, we are able to hear emergency matters, matters that bear on fundamental issues, like life, liberty, public safety, public order. On the other hand, those matters that are important and before us but don’t meet that standard have either been postponed or pushed into a more online or virtual environment. Initially not much was happening with respect to non-emergency matters. Now I am happy to say we are able to do more with those portions of our caseloads.

That's a big broad picture, and the philosophy that I have tried to operate by, that my colleagues have been completely on board with, balancing those two important obligations.

As to particulars, Judge Barbera and I speak, I am aware of what she’s doing, she’s aware of what I’m doing. Our court systems are not identical. We have different needs.

State courts are so much larger, they have so many more courthouses and many more intricate details. She’s doing a fabulous job in my view in managing that far-flung system. In general though, we endeavor to be in alignment. I think our orders in the last week reflect that.

We are not reaching out to administrative courts like immigration or tax. Perhaps they are influenced by what they see Chief Judge Barbera and I doing with respect to the courts that we lead.

16

MSBA.ORG | ISSUE 1 2020

even in a crisis, where people may look to courts to become administrative agencies and issue directives or instructions that are outside of the scope of our function, which is to adjudicate cases and controversies. We are keenly aware of actions taken by administrative entities like the Bureau of Prisons, we are watching their interactions very carefully. We are speaking primarily through the opinions that judges issue to resolve particular disputes related to the detention and release of certain individuals and the circumstances.

We cannot avoid the fact, though, that there is an administrative dimension to all of this. In that regard we are communicating on a daily basis, sometimes hourly, with the U.S. Marshals Service. They are our primary pipeline into the Executive Branch with respect to prison issues. From an administrative level it’s not enough for us to say we just decide cases. We have to make sure that there’s a process that’s open and operating as part of our obligation to keep courts open.

So yes, we have had to extend way out into discussions that are not so common for us, to ensure that persons who are incarcerated have access to the courts. It’s been weeks since any defendant or charged person has been physically in a federal courtroom. We have been doing this virtual with video and audio links into the jais. Those links didn’t magically appear. They are the product of hours and hours of effort by administrative staff in the courts, the Marshals Service, the detention facilities themselves. Laying equipment, testing, to see if systems work, dealing with the fact that correctional facilities have thick walls that lead to dead spots, any wireless hardware issues. So we have been engaged on an administrative level and deeply so, but only as appropriate, and substantive decision making about whether or not someone is released from custody or not is still occurring as a result of a judicial process. The adversary process, where both sides have the right to be heard, and an independent judge makes the decision.

I’m thinking how daunting it must be to get accelerated technology and to adopt that technology. What if any potential do you see for the long-term impact of technology on court proceedings, post-COVID-19? And more broadly, on the practice of law in a post-COVID world?

My own view is it would be a mistake for us to start completely reconfiguring and redesigning how the judicial process works in normal times as a function of the necessities that were imposed on us by this crisis. Hopefully the crisis ends, we will enter a period of recovery, and after that a period of reflection. There are certainly many lessons to be learned, mainly in the area of preparation, hopefully people have that view across the government not just in the Judiciary. But I think it’s too soon to make projections about how systems have changed fundamentally or forever as part of the crisis.

My own view is that some measures have been totally appropriate in this crisis, but they should be viewed as temporary.

For example, seeing a defendant on a video screen in jail as opposed to live in the courtroom is in my judgement absolutely not a substitute for what should occur. Justice needs to occur in a three-dimensional environment. It’s an adequate substitute in a crisis, doing this work over screens, but it is by no means a replacement for how we have always done things.

“

Can you speak to any special considerations

We are very grateful to those members of the Bar who continue to work and work hard to make sure that litigants, particularly those facing an emergency or what appears to be an emergency to them, have a voice. That’s the tradition of what lawyers do in difficult times.

Practitioners have expressed concerns about meeting discovery deadlines and conducting depositions, given social distancing guidelines and Governor Hogan’s stay-at-home order. Last week’s Discovery Order instructed parties to meet and try to resolve any disputes, then file a joint letter with the Court if any disputes remain. Can you provide any guidance to practitioners struggling with discovery and deposition issues?

I think I gave pretty clear guidance. The general principles are these: proceedings in court except emergencies are generally suspended. Individual judges in individual cases can draft that particular proceedings go on, particularly by teleconference, sometimes teleconference on record. This is happening in non-emergency cases, it’s a good thing as it’s getting the wheels of justice going. That’s as to proceedings in general.

The starting point is that most proceedings won't occur.

With respect to discovery, try to create the opposite expectation, the expectation is that this will continue. The exception would be that it didn’t happen in a particular case. But in doing that, we wanted to be extremely careful, to respect

We are very grateful to those members of the Bar who continue to work and work hard to make sure that litigants, particularly those facing an emergency or what appears to be an emergency to them, have a voice. That’s the tradition of what lawyers do in difficult times.

by the Federal Judiciary about self-represented litigants during the crisis, including notice concerns and limited access to resources?

We do have deep concerns about this issue. As jails have struggled to manage the crisis, and some have done better than others for sure, but in some facilities they are concerned about whether incarcerated persons have access even to lawyers. We are attentive to any contentions that the communication process has broken down. To the extent it has, attempting to assist in the repair of that. But we also in doing so, also have to take into account, to some extent, the realities of the situation. Every time we draft an order, if a good judge you think long and hard about the practicalities of what you’re requiring. It doesn’t mean that you compromise, or compromise what the Constitution or federal law requires.

Judging requires the balancing of many interests and values.

Judging in a crisis is like no other experience I’ve ever had.

the broader directives of the Governor and public health officials. And again not incentivize anyone - lawyers, parties to do anything in conflict with the broader directions of our Governor and public health officials. If engaging in discovery would cause such violations to occur, then of course parties should agree to stop discovery and if they can’t agree about that, then either party can bring it to the judge. All of our judges are extremely sensitive to these issues, and to note if there is anything that causes parties to behave in a manner inconsistent with judges. If it’s an emergency relating to life, liberty, fundamental constitutional responsibilities and judicial process, then that hearing may have to occur.

You issued an Order extending the postponement of non-emergency hearings through CONTINUED ON PAGE 136 MARYLAND BAR JOURNAL | ISSUE 1 2020

17

MSBA UPDATES

| INSIDE ANNAPOLIS

MSBA Wins Taxation of Legal Services Fight Every year, the MSBA monitors hundreds of bills and maintains an extensive presence in Annapolis in support of individual practitioners, firms of all sizes, and the organizations supported by their in-house counsel. This year, the entire profession was faced with a significant risk related to the taxation of professional services.

The MSBA rallied thousands of members, engaged in a robust social media campaign, joined the Maryland Chamber of Commerce in opposition, held press events, met with key legislators including the Bill sponsor, and provided testimony along with other organizations representing segments of the legal profession.

The MSBA is proud to have advocated successfully on behalf of each of the 40,000 attorneys and thousands of firms in Maryland and beyond.

18

MSBA.ORG | ISSUE 1 2020

The MSBA Laws Committee is co-chaired by Meg McKee and Hon. Steven Salant

MSBA Campaign Against Proposed Taxation of Legal Services As outlined in several member communications during the session, the MSBA opposed HB 1628 which proposed to reduce the Maryland sales tax from 6% to 5% but expand that tax to include several businesses, such as legal services, accounting services, and realtors, among others. The text of the bill can be found at http://mgaleg.maryland.gov/2020RS/bills/hb/hb1628f.pdf. The MSBA’s work to oppose this bill included offering testimony, organizing a grassroots campaign and encouraging MSBA members from across the state to call or write their representatives, coordinating the efforts of Maryland’s largest law firms, and joining with other professions in a press conference to discuss the negative impact of the bill. Ultimately, in part due to the work of the MSBA’s leadership and advocacy efforts, the bill died in committee on March 4, 2020.

FEBRUARY 24, 2020

FEBRUARY 2, 2020 House Bill 1628 – Sales and Use Tax – Rate Reduction and Services Introduced

MSBA Laws Committee Recommends the Executive Committee to OPPOSE HB 1628, and to seek partnership in opposition with Maryland Association for Justice (MAJ), and Maryland Defense Counsel (MDC).

Legislative Alert Email to all MSBA Members Subject: Legislative Alert: Proposed Expansion of Sales Tax to Legal Services From: Maryland State Bar Association <info@msba.org> To: shaoli@msba.org Date Sent: Thursday, February 20, 2020 4:36:01 PM GMT-05:00 Date Received: Thursday, February 20, 2020 4:36:03 PM GMT-05:00

FEBRUARY 25, 2020 Executive Committee adopts Laws Committee recommendation to OPPOSE HB 1628, and partners with Maryland Association for Justice & Maryland Defense Counsel MSBA eWeekly Features Blog on MSBA Legislative Actions, including taxation of legal services

MSBA Opposes General Assembly Proposal to Expand Sales Tax to Include Legal Services

A bill introduced in the House of Delegates seeks to expand the sales and use tax to include legal services. House Bill 1628, Sales and Use Tax – Rate Reduction and Services, has not been assigned to a standing Committee yet, but is expected to be assigned very quickly to the Ways & Means Committee, which handles taxation matters.

Paramount among MSBA core issues is opposition to taxation of legal services. Click the button below to read the full text of the bill and learn more about MSBA's position on this legislation.

READ MORE

MARYLAND BAR JOURNAL | ISSUE 1 2020

19

FEBRUARY 26, 2020 MSBA meets with Bill Sponsor, Del. Eric Luedtke to explain MSBA/MAJ/MDC joint position in OPPOSITION to HB 1628

"CLIENTS WOULD LIKELY GO TO COMPARABLE SPECIALISTS IN OTHER STATES WITHOUT A LEGAL SERVICES TAX."

20

MSBA.ORG | ISSUE 1 2020

HB 1628 WOULD NEGATIVELY AFFECT THE LEGAL PROFESSION AND THOSE SEEKING LEGAL SERVICES IN SIGNIFICANT WAYS: The bill would discourage citizens from seeking legal advice, particularly for those who cannot afford paying an additional charge and are seeking legal advice on important issues such as the dissolution of marriage, bankruptcy, child support, and debt collection.

The bill would create an administrative nightmare for businesses that provide legal services in multiple states, including Maryland, as they would have to apportion the percentage of overall legal services provided in Maryland and collect tax on that portion of legal services.

Clients could easily cross the border and seek legal services in Washington D.C. or Virginia to avoid paying additional taxes for Maryland legal fees.

Maryland firms providing counseling and representation to out-of-state clients in specialized practice areas, such as patent and copyright matters, taxation, franchising, trademarks, cyber security, and data privacy, would lose business from the proposed tax, as out-of-state clients would likely go to comparable specialists in other states without a legal services tax.

MSBA Executive Director Victor Velazquez with MSBA Past President Henry Dugan

Dana Williams, Darren Kadish, and Kelly Hughes Iverson.

FEBRUARY 26 - MARCH 2, 2020 Behind the scenes, MSBA rallies Marylandâ&#x20AC;&#x2122;s largest firms to pen an open letter on the taxation of legal services and publish a series of ads against taxation of legal services Lobbying efforts continue in Annapolis, including arranging testimony by leaders in the legal profession

MARCH 9, 2020 House Bill 1628 receives Unfavorable Report by House Ways and Means Revenue Subcommittee

MARCH 2, 2020 National Federation of Independent Business / MD Chamber of Commerce Press Conference (morning); Dana Williams was a featured speaker Bill Hearing held on 3/2/2020 - Dana Williams testified for MSBA, joined by Dwight Stone, President of MDC, and Kelly Donohue, representing MAJ Email to MSBA Members on fight against taxation of legal services inviting members to take action

MARCH 5, 2020 House Bill 1628 â&#x20AC;&#x201C; Tax on Services is Dead

MARYLAND BAR JOURNAL | ISSUE 1 2020

21

ATTORNEY SECURITY PASS Dana O. Williams, Esq. CPF ID: XXX-XXX-XXXX

Delegate Erek Barron and Senator Chris West outside the state house.

WEB EXTRA

TRACKBILL MSBA introduced Trackbill during the 2018 Legislative Session to help keep MSBA members informed.

MSBA MEMBER

Expires: XX/XX/XX

Leaders in the Senate & House, West & Barron Focus on Standardized Security Procedures at Maryland Courthouses Senator Chris West and Del. Erek Barron, along with co-sponsors Del. Shoemaker and Del. Ivey, introduced bi-partisan legislation during the 2020 Legislative Session with the goal of creating standard security procedures at Maryland Courthouses in response to concerns raised by MSBA members and local attorneys. MSBA fully supported these efforts to address the patchwork of procedures that currently govern attorney access to District and Circuit Courts in Maryland. The proposed legislation in HB 1009 would allow attorneys, as officers of the court, to either bypass screening OR, as stated in compromise language, pass in expedited security lines OR get to the head of the awaiting line of entrants. The text of the bill can be found at https://legiscan.com/MD/text/HB1009/id/2127483/Mary��land-2020-HB1009-Introduced.pdf.

As with the numerous diverse layouts and configurations of airports all across the country, courts in Maryland are unique. However, a state-wide standard, aided by the use of a newly enhanced state-wide Attorney Security Pass issued by the MSBA, should allow all Maryland attorneys to move through security and enter the courthouse more quickly than currently occurs. If a standard can exist for the multitudes of airports, a standard can similarly exist for Maryland's courthouses.

VISIT MSBA.ORG/ADVOCACY

22

MSBA.ORG | ISSUE 1 2020

The MSBA is appreciative of the engagement on this issue by the Judiciary. Chief Judge of the Maryland Court of Appeals, Hon. Mary Ellen Barbera, Chief Judge of the District Court of Maryland, Hon. John P. Morrissey, and Administrative Judge for the Circuit Court of Anne Arundel County, Hon. Laura Ripken are committed to ensuring the safety of courthouses. They've also committed to engaging the MSBA on this topic. We applaud their leadership in the numerous areas of collaboration we routinely witness especially during the COVID-19 circumstances.

2020 Annapolis Summit & Inaugural Lobby Day The MSBA also expanded its presence in Annapolis with its continued sponsorship of the Annapolis Summit and Inaugural Lobby Day.

Annapolis Summit On Wednesday, January, 8, 2020, for the 3rd consecutive year, the MSBA served as the Presenting Sponsor of The Daily Record’s Annapolis Summit, hosted by Marc Steiner. The event is widely regarded as the premier kickoff event to the Maryland General Assembly session, which convened later that day at noon.

MSBA President Dana O. Williams kicked off the event, by providing a brief overview of what the MSBA’s advocacy work in Annapolis and MSBA’s role in the legal community at-large.

The event also featured an interview and question and answer session with Governor Larry Hogan. During his interview, Governor Hogan briefly outlined his budgetary and legislative policy priorities for the 90 day legislative session, and fielded questions from the packed Atrium auditorium of the Governor Calvert House on State Circle in Annapolis.

Immediately following his interview with the Governor, Mr. Steiner conducted a joint interview with the two incoming Presiding Officers of the General Assembly, Senate President-nominee (at the time, he had not been formally elected) Bill Ferguson, and House Speaker Adrienne Jones.

Lobby Day On Thursday, January 23, 2020, the MSBA held its first-ever Lobby Day in Annapolis. The event was a partnership between the the MSBA and the Access to Justice Commission (A2JC). MSBA President, Dana O. Williams, along with A2JC Chair, Ward B. Coe III welcomed a contingent of MSBA Members to Annapolis to meet with key leaders of the Maryland General Assembly on a variety of issues that will be considered during the 90-day legislative session.

The purpose of Lobby Day was to garner participation by MSBA members in the MSBA’s advocacy efforts.

MSBA members met face-to-face with key members of the Maryland General Assembly on selected issues that MSBA believes will be up for consideration during the 2020 Legislative Session.

The day began with a welcome breakfast at the Governor Calvert House, where President Williams and Mr. Coe outlined the inspiration behind their joint effort to enhance the visibility and influence of the MSBA and the Access to Justice Commission before the Maryland legislature. The contingent was led by President Williams, Mr. Coe, A2JC Executive Director Reena Shah, and MSBA Legislative Director Richard Montgomery. The larger delegation included volunteer representatives from the MSBA Committee on Laws, as well as the Sections on Alternative Dispute Resolution, Business Law, Correctional Reform, Criminal Law & Practice, Elder & Disability Law, Family & Juvenile Law, Litigation, Real Property, State & Local Government, and Taxation.

After the Breakfast, eight groups of MSBA members set out for pre-scheduled meetings with members of the Senate of Mary-

MARYLAND BAR JOURNAL | ISSUE 1 2020

23

WEB EXTRA

LOBBY DAY RECAP Missed MSBA's Lobby Day? See your fellow MSBA members in action at: MSBA.ORG/LOBBYDAYVIDEO

land, and the House of Delegates. Morning meetings were held with House Judiciary Chair, Delegate Luke Clippinger, and Judiciary Vice-chair, Delegate Vanessa Atterbeary.

After legislative floor proceedings had adjourned, the MSBA/A2JC met with Senate JPR Chair, Senator Will Smith and Vice Chair, Senator Jeff Waldstreicher. Additional meetings were held with influential members of Senate JPR and House JUD. After the MSBA/A2JC meetings with legislators concluded, the entire MSBA/A2JC assembly moved to the Prince Georgeâ&#x20AC;&#x2122;s County Delegation Room of the House Office Building for a joint MSBA/A2JC Lobby Day Luncheon. Attendees of the Luncheon were welcomed by MSBA President Williams, as well as A2JC Chairman Coe. Featured Speak-

24

MSBA.ORG | ISSUE 1 2020

ers at the Luncheon included, Chief Judge of the Court of Appeals, Mary Ellen Barbera, who spoke on the pressing need to eliminate contested judicial elections, and Attorney General Brian Frosh, who spoke on the ongoing need to protect and expand funding for civil legal services. Sen. JPR Chairman Will Smith and House JUD Chairman Luke Clippinger each spoke on themes consistent with those of CJ Barbera and AG Frosh. Del-

egate Emily Shetty, herself an advocate on Capitol Hill, spoke on the importance of vigilant advocacy before legislative bodies, both on policy and funding matters. Concluding the event was House Economic Matters Vice-chair, and A2J Commissioner Delegate Kathleen Dumais, who spoke on the significance of the partnership between the MSBA and the A2J Commission, both within the legal community, but also in Annapolis.

General Assembly at a Glance AGE 20-34 5% 35-49 36% 50-64 37% 65+ 21%

PARTY AFFILIATION Democrat 70% Republican 30%

GENDER Male 61% Female 39%

HIGHEST LEVEL OF EDUCATION High School 9% Associate Degree 7% Bachelor’s Degree 28% Master’s Degree 25% Ph.D 4% M.D. 2% J.D 25%

RACE Caucasian 65% African-American 29% Asian 5% Other 1%

Information cited is from Library and Information Services, Department of Legislative Services

MARYLAND BAR JOURNAL | ISSUE 1 2020

25

MSBA UPDATES

| MSBA IN THE COMMUNITY

MSBA in the Community Impacting every sector of the legal profession.

Visit msba.org to find upcoming events and section information.

Networking Across the State CALVERT COUNTY CONNECTIONS EVENT. On January 16, 2020 MSBA President Dana Williams, Esq. and Calvert County Bar Association President, David Wiegel, Esq., joined by President-Elect Amy Lorenzini, Esq., and MSBA Executive Director, Victor Velazquez hosted a networking event at the Calvert Marine Museum. Participants learned about the exciting things to come at the MSBA as well as the benefits of being a member.

D.C. CONNECTIONS EVENT. On March 4, 2020 the MSBA hosted a networking event in Washington, D.C. at The Partisan, blocks away from the United States Capitol. The event, attended by member and nonmember attorneys, was the first to be hosted in the District, as the MSBA continues to reach out to lawyers in the surrounding area to highlight the benefits of being an MSBA member.

HOWARD COUNTY CONNECTIONS EVENT. Members of the Howard County Bar Association gathered on November 19, 2019 at Xenia Greek Kouzina in Columbia for a networking event with MSBA president Dana Williams, Esq., Howard County Bar Association President, George Hermina, Esq., and MSBA Executive Director Victor Velazquez.

Learning Opportunities for All Segments of the Profession NEGLIGENCE, INSURANCE & WORKERS’ COMPENSATION. The Negligence, Insurance & Workers’ Compensation Section hosted an event featuring Hon. James R. Forrester from the Maryland Workers’ Compensation Commission, Patrick Tedesco, Esq. of Semmes, Bowen & Semmes, Erin H. Snyder, Esq. of Cohen, Snyder, Eisenberg & Katzenberg, and Sarah Cunningham from the Chesapeake Employers’ Insurance Company. The speakers discussed how the gig economy, independent contractors and teleworking have changed the worker’s compensation landscape.

SOLO & SMALL FIRM SUMMIT. On November 8, 2019, the MSBA held its Annual Solo & Small Firm Summit in Arundel Mills, Maryland.

Over 140 attendees learned how to Start, Run, or Grow their practices.

LOCAL TAX LUNCH SERIES. The Maryland State Bar Association’s Taxation Section co-sponsored a lunch highlighting the taxpayer advocate offices in the District of Columbia and Maryland. Speakers, Elena Fowlkes, Office of the Tax and Revenue’s Taxpayer Advocate, District of Columbia and Dana Frank Buker, Comptroller’s Ombudsman, Comptroller of Maryland shared that their offices can be resources for issues affecting corporate taxpayers or high-income individuals.

LAND USE AND OTHER ADMINISTRATIVE APPEALS. The MSBA’s Litigation, Administrative and Real Property Section hosted a program featuring a distinguished panel including; Hon. Brynja Booth, Court of Appeals, Hon. Andrea Leahy, Court of Special Appeals, Hon. Christopher Kehoe, Court of Special Appeals, Erin Girard, Esq., Miles & Stockbridge, Peter Sheehan, Esq., Nelson Mullins Riley & Scarborough, John Grimm, Esq., Harris Wiltshire & Grannis and Steven Klepper, Esq., Kramon & Graham. The panel discussed the hot topics in land use appeals and provided practical advice for attorneys on handling land use and other administrative appeals.

26

MSBA.ORG | ISSUE 1 2020

Health & Wellness MINDFULNESS. On January 28, 2020, Jennifer Dill, a mindfulness-trained attorney shared tools to manage the day-to-day stress that comes with being a lawyer. In the session, Lawyers and Stress â&#x20AC;&#x201C; Identifying it; Learning from it; Responding to it, Jennifer showcased the importance of identifying stress as it occurs; begin to understand the short and long-term effects of stress on your physical, emotional, and mental health; and how to better manage your stress response systems.

BENCH/BAR WELLNESS WEEK. Bench/Bar Wellness Week, September 16-19, 2019, focused on ways to improve health and wellness by making small changes in daily routines. Participants attended complementary events throughout the state on topics of mental health, meditation, and featured a wellness expo. Some Bench and Bar members even laced up their sneakers for a jog around town. Bench/Bar Wellness Week was the first of its kind but won't be the last as Bench/Bar members are committed to moving (run, power walk, jaunt, stroll, prance, or skip) to a healthier Bench/Bar!

Public Service OUR DAILY BREAD. The MSBA YLS Public Service Committee and the Public Awareness Committee celebrated the holiday spirit on December 7, 2019, by volunteering at Our Daily Bread to help feed the community in Baltimore.

WILLS FOR HEROES EVENT. On January 4, 2020 MSBAâ&#x20AC;&#x2122;s Young Lawyers Section, is an affiliate of the Wills for Heroes Foundation, and was proud to sponsor the Wills for Heroes program. Volunteers, during this day-long event, met with first responders and used HotDocs software donated by LexisNexis to draft the documents. Participants were able to have their documents, signed, witnessed and notarized at this event.

POLAR BEAR PLUNGE. On January 25, 2020, members of the MSBA YLS Public Service Committee and the MSBA Public Awareness Committee participated in the Polar Bear Plunge in support of 8,033 Special Olympics athletes who train and compete year-round throughout Maryland.

MARYLAND BAR JOURNAL | ISSUE 1 2020

27

MSBA UPDATES

| SOCIAL MEDIA

Social Media News Stories

Maryland State Bar Association – MSBA

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.

Connect with MSBA on social media to receive these updates and more. msba.org/linkedin • msba.org/facebook

Maryland State Bar Association – MSBA

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.

SMALL BUSINESS RELIEF: COVID-19 RESOURCES FOR STARTUPS

Maryland State Bar Association – MSBA

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.

WAKE UP CALL: NIXON PEABODY FURLOUGHS 25% OF STAFF IN VIRUS MEASURE

Maryland State Bar Association – MSBA

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.

REMOTE NOTARIZATION AND REMOTE WITNESS SIGNATURE

Maryland State Bar Association – MSBA

There seems to be no limit to the impact of Covid-19, as the disease caused by the new coronavirus is known. Litigation is certainly no exception, as courts across the country have begun issuing orders to address whether litigants and their counsel need to appear in court.

INTERNET WILLS: A PATH TO ENFORCEABILITY ANALYSIS: COURTS ISSUE RANGE OF ORDERS RESPONDING TO CORONAVIRUS 28

MSBA.ORG | ISSUE 1 2020

MEMBER FOCUS

| MEMBER SPOTLIGHT

PROBLEM

SOLVER

SCOTT WILSON Miles & Stockbridge, Chair of MSBA Business Law Section Scott Wilson is a principal at Miles & Stockbridge and is the Coleader of the Corporate and Securities Practice Group. Mr. Wilson currently serves as the Chair of the Business Law Section of the Maryland State Bar Association and the Vice Chair of the Committee on Corporation Law of the section. In his capacity as the Vice Chair of the Committee on Corporation Law, Scott regularly offers testimony on behalf of the Committee and Section Council in the Maryland General Assembly on legislation impacting the Maryland General Corporation Law and Maryland businesses.

â&#x20AC;&#x153;

I believe that the best lawyers exercise sound judgment and help clients solve their most difficult challenges.

Photo courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | ISSUE 1 2020

29

WE SAT DOWN with Scott Wilson to

learn a little more about his career and his role as Chair of the MSBA Business Law Section.

Tell us about your career and how you became interested in the law.

BUSINESS LAW SECTION The Business Law Section is one of the most active sections within the MSBA. The Section has a number of committees, including committees for Corporate and In-House Counsel, Consumer Credit & Financial Institutions, Corporation Law, and Representing Middle Market and Small Businesses. The Section maintains a blog highlighting important new Maryland cases from the Maryland Court of Appeals, U.S. Court of Appeals for the 4th Circuit, U.S. District Court for the District of Maryland, and cases from the Maryland Business and Technology Case Management Program. Visit the blog at marylandbusinesslawdevelopments. blogspot.com.

In addition, the Business Law Section works with the MSBA Department of Learning to produce high quality, relevant CLEs. Most recently, the Section sponsored “Software Licensing and Cloud Computing Boot Camp: Successful Contracting an Ever-Changing Environment” at the Universities of Shady Grove in Rockville, Maryland. One of the instructors, Ward Classen, contributed an article on a similar topic, which can be found on page 32 of this issue of the Maryland Bar Journal.

The Section’s Signature event, “Advanced Business Law Institute 2020” was originally scheduled for Thursday, April 30, but is postponed due to COVID-19. Learn more and look out for a new date in the Fall at msba.org/ABLI.

30

MSBA.ORG | ISSUE 1 2020

I've always considered myself adept at problem solving. When I was younger, I loved mathematics because there was a correct answer or answers. After college, I joined Teach for America because I believed (and believe) that the inequities faced by underprivileged students in public schools were solvable.

During law school, I found poker and paid my way through law school trying to solve for the optimal game theory associated certain poker variants (fortunate to do so at the height of the poker craze). Ultimately, I was attracted to the law because it was just another form of problem solving. With the law, I also appreciate that many of the questions that we confront do not have black and white answers. I find that challenging and rewarding.

I believe that the best lawyers exercise sound judgment and help clients solve their most difficult challenges. The ability to be creative and solve difficult problems is what brought me to the law.

What are some of the projects you work on in your practice area?

My practice generally falls into three buckets: middle market mergers and acquisitions, general corporate counseling and the offering of corporate governance and related advice to public companies formed or incorporated in Maryland. In a given year, my practice may tilt in one direction or another, but in the long run I enjoy the diversity.

What is something you are particularly proud of about your career?

Despite only being in practice for 4-5 years, I had the self-confidence to recognize that I preferred a different area of practice and made a significant change in my professional life. Changing at that point in my career carried with it a significant amount of professional risk. I had built a good reputation as a litigation associate within the firm and I gave that up to start over. Nevertheless, I worked hard and six years later became the co-leader of our 56-lawyer corporate and securities practice group. I am proud of that accomplishment.

What keeps corporate law interesting?

I very much enjoy the dynamic nature of deal work. No transaction is ever the same. The law changes with the decisions of the Delaware Court of Chancery and the Maryland appellate courts. The deal flow changes with the economy. The business terms of deals and the market in general change as new products are invented (e.g. transactional insurance). The problems are different deal to deal.

How did you get involved in the Maryland State Bar Association and are you involved in any committees or a member of any sections?

About five years ago my partner Topper Webb suggested that I join the Committee on Corporation Laws of the Business Law Section.

Michael Leber was the Chair of the Committee and I found the Committee and its work very interesting. In addition to continuing to learn from Topper, I had the opportunity to learn from Jim Hanks, Henry Kahn, Bill Carlson, Patsy McGowan, Ken Abel and a number of other lawyers at other firms for whom I have a tremendous amount of respect. I remain actively involved in the Business Law Section as its current chair and in the Committee on Corporation Laws as its vice chair.

Do you have any advice for up and coming lawyers or young lawyers?

I offer the same advice to all of our associates: be intellectually curious and do not be a two-handed lawyer. First, the best professional opportunities that I've encountered have grown out of my own intellectual curiosity; I was interested in a subject and then I became the expert within the firm. Second, one of my early mentors, Jefferson Wright, told me that our clients pay not for options, but my advice.

A two-handed lawyer offers legal options, but does not offer advice. A good lawyer explains options, but also offers clear and concise advice.

WEB EXTRA

FROM LITIGATION TO CORPORATE TRANSACTIONS Scott Wilson tells the story of how he became the co-leader of the Corporate and Securities group at Miles and Stockbridge.

VISIT MSBA.ORG/SWILSON

In response to the pandemic, MSBA's 150+ On-Demand programs are free to all attorneys in Maryland through June 30, 2020.

learn at

HOME MSBA's CLE programs are available on-demand at your convenience!

Our outstanding faculty delivers important, timely information and materials for your professional development. If you need credit with a surrounding MCLE state, these programs will meet those requirements.

FIND THESE COURSES & MORE IN THE CATALOG: Hot Tips in Family Law: A Multidisciplinary Approach to Your Practice Presented live on February 12, 2020 4.5 hours of MCLE credit This program consists of multiple topic-specific presentations: Bankruptcy, Elder Law and Estate Planning, Real Property, Tax, and Immigration. Each topic is offered separately or as a part of the program as a whole.

Software Licensing and Cloud Computing Boot Camp: Successful Contracting in an Ever-Changing Environment Presented live February 20, 2020 2.5 hours of MCLE credit Effective Mediation Of Commercial, Insurance And Other Multi-issue Disputes Presented live on March 5, 2020 3.5 hours of MCLE credit

Hot Topics in Adult Guardianship Presented live on February 19, 2020 4.0 hours of MCLE credit Basic Estate and Income Tax Planning in 2020 â&#x20AC;&#x201C; a New Way of Thinking Presented live on February 25, 2020 4 hours of MCLE credit Marylandâ&#x20AC;&#x2122;s New Elective Share Law: Adjustments and Opportunities Presented live November 2019 3.0 hours of CLE Financial Issues in Divorce - Taxation, Valuation, Equalization: Navigating Potential Asset and Income Obstacles in Divorce Negotiations Presented live January 30, 2020 3 hrs of MCLE credit

View the full online learning catalog at

MSBA.ORG/ON-DEMAND

MARYLAND BAR JOURNAL | ISSUE 1 2020

31

FOR YOUR PRACTICE

| EMERGING AREAS OF THE LAW

Online Terms in Commercial Technology Agreements

BY H. WARD CLASSEN INCREASINGLY, MANY TECHNOLOGY VENDORS are seeking to incorporate contractual terms reached through hyperlinks into their contractual agreements and the right to unilaterally amend such terms by posting any changes online.

The following paragraph is illustrative of this issue: Terms of Use. The licensing of the Software under this License Agreement is subject to the additional terms of use (“Terms”) available on Licensor’s website or by clicking the following link: http://www.licensorswebsite. com/legalterms.htm In a small number of situations, online terms or an online amendment may be appropriate allowing the parties to amend and easily distribute changes to the governing agreement. For example, a cloud provider may need to post changes to its acceptable use policy (AUP) as it would be impractical to execute a written amendment with every customer every time the terms of the AUP changed.

Validity of Online Terms and Amendments The use of a website or hyperlink to incorporate general terms and conditions is generally valid. See One Beacon Ins. Co. v. Crowley Marine Services, 648 F.3d 258 (5th Cir. 2011) (incorporation of terms posted on the Internet valid). See also Harold H. Higgins Realty, Inc. v. FNC, Inc., 575 F. Supp.2d 696 (D. Md. 2008) (unilateral modification of Web-based service contract upheld as prior agreements permitted modification at any time and provided modifications would be effective after they had been posted for 30 days) and Patco Construction, Inc. v.

Peoples United Bank, 2011 WL 2174507 (opinion of magistrate judge) (D. Me. May 27, 2011) upheld by the district court, 2011 WL 3420588 (D. Me. Aug. 4, 2011) (party

The incorporation of Web-based terms which may be unilaterally amended, creates a significant risk for the other party (usually the customer), as the other party must continually monitor the website for changes to the contractual provisions to ensure compliance with such provisions.

The incorporation of Web-based terms which may be unilaterally amended, creates a significant risk for the other party (usually the customer), as the other party must continually monitor the website for changes to the contractual provisions to ensure compliance with such provisions.

Unless it is notified of any changes by the other party, a party may never realize that the terms of its agreement have been modified. As such, a prudent party should seek to reject language allowing one party to unilaterally modify the terms initially agreed to by the parties.

WEB EXTRA

For an online amendment to be valid, the affected party must agree to be bound by such changes. Joe Douglas v.

U.S. Dist. Ct., 495 F.3d 1062 (9th Cir. 2007) (customer not bound by online modification where customer had not agreed to modification of agreement through posting of revised terms online).

MSBA CLE: SOFTWARE LICENSING AND CLOUD COMPUTING BOOT CAMP: SUCCESSFUL CONTRACTING IN AN EVER-CHANGING ENVIRONMENT For more on negotiating tech agreements, check out MSBA's 2020 on-demand CLE program.

VISIT MSBA.ORG/SOFTWARE-LICENSING

32

bound by online amendment where parties’ agreement provided the agreement may be amended at any time effective upon publication).

MSBA.ORG | ISSUE 1 2020

Limiting Risk and Practical Solutions Depending on the customer’s negotiating leverage, a customer may be able to negotiate some protections into the agreement to limit its risk from future modifications of any online terms. Set forth below are several potential negotiating positions a prudent customer should seek to incorporate.

• Notice of all Changes Required. The vendor should be required to notify the customer in the event of any changes to the online terms. See language to this effect in the following bullet point.

• Termination for Convenience. At a minimum, a prudent customer should seek to insert language to the effect that if the vendor’s changes would have a material negative impact on the customer, the customer may terminate the agreement for convenience without penalty. Model language to this effect follows: We reserve our right to amend or supplement this Agreement at any time, at our discretion. When we do so, we will do our best to provide you notice and point out what is different or new. If at any time you do not agree to the terms of this Agreement or any of the terms of any applicable Vendor Contract, please discontinue use of the respective service immediately and close your account. Your continued use of your Vendor Account, the use of www.ven�dor.com (the “Site”), the Vendor Hosting and any affiliated Vendor’s services that redirect or link to this Agreement constitutes your agreement to be bound by the terms of this Agreement and any other applicable Vendor Contract.

Notice of any change will be considered given and effective on the date that we update the Site with the change. Please periodically review this Agreement to ensure you are aware of any changes.

• No Modifications for X Years. Alternatively, a party may seek to have the vendor agree that the terms of the agreement will not change for X years from the date of the agreement’s execution.

• Only Specific Terms May Be Modified. Another alternative is to specifically identify those terms which may be modified through an online amendment and prohibit any other modifications. Model language to this effect follows: Any other provision to the contrary notwithstanding, Customer shall not be bound by any changes made by Vendor to the Terms and Conditions located at www. terms.vendor.com after the date of Customer’s signature on this Agreement. The foregoing sentence shall not apply to changes made by Vendor to its Acceptable Use Policy and Customer shall continue to be bound by such modifications as otherwise set forth in the Agreement.

• Require Amendments to be in Writing and Executed by A Specific Individual. The agreement should provide that any amendment must (i) be in writing, (ii) executed by an authorized executive officer of both parties, and (iii) refer explicitly to the agreement and the particular sections being amended. A party may want to identify by name the single person who has the authority to execute all agreements. See, e.g., National Auto Lenders, Inc. v. SysLOCATE, Inc., 686 F. Supp.2d 1318 (S.D. Fla. 2010) (licensee not bound by employee acceptance of license terms as licensee had previously notified licensor that only licensor’s executives could accept contractual terms.) Some companies (e.g., Oracle and Siemens) specifically provide that all agreements must bear two signatures, one being a member of the legal department, to defeat any ill-advised agreement or an unknown amendment to an agreement.

For a general overview of the validity of contractual terms posted to a website, see the ABA Cyberspace Law Committee’s “safe selling” website at http://safeselling.org/ (last visited December 21, 2019); Johnson and Tarleton, Enforceability of Online Terms and Conditions Incorporated Into A Written Contract, http://www.brookspierce.com/news-insights/enforceabili�ty-online-terms-and-conditions-incorporated-written-contract (last visited December 21, 2019.)

To be valid, the underlying agreement’s integration clause should provide that any online terms are incorporated by reference and specifically reference the terms to be incorporated. See Affinity Internet, Inc. v. Consolidated Credit Counseling Svcs., Inc., 920 So.2d 1286, 1288 (Fla. Ct. App. 2006) (refusing to enforce arbitration clause in online terms and conditions because written contract stated only that it was “subject to” the online terms and did not state that the online terms were incorporated by reference in the written contract). The underlying agreement should also set forth the complete Web address where the terms and conditions

may be viewed, Feldman v. United Parcel Service, Inc., 2008 WL 800989 (S.D.N.Y. Mar. 24, 2008) and clearly and conspicuously provide that it is governed by and subject to the terms and conditions set forth on the referenced website. To avoid claims of invalidity, a prudent party seeking to incorporate Web-based terms should capitalize the language referencing the Web-based terms. See Manasher v. NECC Telecom, 2007 WL 2713845 (E.D. Mich. 2007). Finally, if a party desires the right to amend the terms posted on the website, the underlying agreement should clearly reflect this intent.

MARYLAND BAR JOURNAL | ISSUE 1 2020

33

One practical challenge for both parties is to confirm which version of the agreement the parties agreed to as the referenced website may no longer reflect the terms previously agreed to by the parties. The party seeking to enforce the agreement should archive all versions of the

party of the change; and . . . .” Thus, in those states that have adopted UCITA (Maryland and Virginia), a party may be bound by a clause posted on the Web provided it is notified of the change.

One practical challenge for both parties is to confirm which version of the agreement the parties agreed to as the referenced website may no longer reflect the terms previously agreed to by the parties. website along with the time periods the archived terms were displayed on the website as well as any periods of time during which terms were not accessible on the Web. See Fu Da Int’l. Ltd. v. Kohl’s Dep’t. Stores, Inc., 2009 WL 151727 (S.D.N.Y. Jan. 21, 2009).

Online Terms Under UCITA and the UCC In mass-market licenses, UCITA requires that the licensee be given a right to terminate the license upon a change. Md. Com. Law. Code Ann. § 22-304 (“Continuing Contractual Terms”). In non-mass-market computer information contracts, Md. Com. Law. Code Ann. § 22-304 (b) provides “If a contract provides that terms may be changed as to future performances by compliance with a described procedure, a change proposed in good faith pursuant to that procedure becomes part of the contract if the procedure: (1) Reasonably notifies the other

The use of online terms and conditions to amend an agreement raises the possibility of a “battle of the forms” under Section 2-207 of the UCC. The posting of unilateral online terms and conditions that propose to amend the agreement between the parties clouds the issue of which documents control, as the fundamental issue is whether the online terms and conditions are incorporated into the documents governing the parties’ relationship. Thus, a trier of fact must evaluate the online terms and conditions along with the parties’ sales documents (i.e., purchase orders, invoices, and other sales documents) to determine the terms of the agreement between the parties.

MR. CLASSEN is Senior Counsel at Discovery Education, Inc. and an experienced expert witness in software licensing disputes. He is the author of A Practical Guide to Software Licensing for Licensees and Licensors, published by the American Bar Association.

We solve problems.

With over 30 years’ experience we p rov i d e a b ro a d d e p t h o f k n ow l e d g e in all family law matters. In our centrally l o c a t e d o f f i c e i n Greenspring Valley, we advocate for you with efficiency and a real “get it done” attitude.

The Law Offices of Julie Ellen Landau 1925 Old Valley R oad • Suite 2 • Stevenson, MD 21153 P. O . B o x 2 1 9 • 4 1 0 . 6 2 5 . 1 1 0 0 • F X 4 1 0 . 6 2 5 . 2 1 7 4

34

MSBA.ORG | ISSUE 1 2020

A L L FA M I LY L AW M AT T E R S L I T I G AT I O N APPEALS M E D I AT I O N N E U T R A L C A S E E VA LUAT I O N CO L L A B O R AT I V E L AW

LAW FIRM HAPPENINGS Law Firms Across Maryland Respond to COVID-19 (p. 36) Maryland Native Leads DLA Piper, No. 4 Global Law Firm (p. 39) Friendly Competition (p. 42) Real Estate Attorney by Day, DJ by Night (p. 45) Learning to Lead (p. 48) Regional Law Firm Design (p. 50) Unavoidable: Running a Law Firm is Running a Business! (p. 53) Leveling the Playing Field (p. 56) Partnersâ&#x20AC;&#x2122; Survey Highlights Importance of Lateral Integration (p. 58) Maximizing the Hours in the Day (p. 60)

MARYLAND BAR JOURNAL | ISSUE 1 2020

35

MEMBER FOCUS

| MARYLAND FIRM ACTIVITY

Law Firms Across Maryland Respond to COVID-19 Law Firms from across Maryland responded quickly to the COVID-19 pandemic to provide their clients, small businesses, individuals and other practitioners with resources on how to handle various issues arising from the pandemic. The jump to action was seen across firms of all sizes and throughout the state.

During MSBAâ&#x20AC;&#x2122;s ongoing effort to ensure that the legal profession received the tools and resources it needs during this time, we collected and highlighted many of these resources on the MSBA.org/Covid-19 page and through other MSBA communication channels, including the MSBA eWeekly Newsletter, Bar Bulletin, and social media.

This is just a sampling of some of the efforts by Maryland area firms.

36

MSBA.ORG | ISSUE 1 2020

WE ALSO FOUND COVID-19 RESOURCES FROM THE FOLLOWING MARYLAND FIRMS:

WEB EXTRAS

THERE'S MORE! Access these resources and more from Maryland firms on MSBA's blog.

MSBA.ORG/FIRMS-COVID

FROST LAW

MARYLAND BAR JOURNAL | ISSUE 1 2020

37

MEMBER FOCUS

| FIRM UPDATE

International Firm WITH LOCAL ROOTS Photos courtesy of Beverly Funkhouser Photography 38

MSBA.ORG | ISSUE 1 2020

MEMBER FOCUS

| MEMBER SPOTLIGHT

Maryland Native Leads DLA Piper, No. 4 Global Law Firm

BY WILLIAM ROBERTS

BRETT INGERMAN likes to joke that he was “destined” to become a lawyer and it’s probably true. Persistence and talent also played a role.

As the managing partner of the Maryland office of the DLA Piper, a storied local firm that has become one of the largest global law firms in the world, there can be little doubt the stars aligned for this Maryland native.

Ingerman comes from a family of lawyers. His grandfather was a lawyer in New York and his father was a lawyer in Baltimore for more than 40 years.

“I used to go to my father's office downtown on Saturday mornings when I was a young boy,” Ingerman recalls in an interview with the Maryland State Bar Journal. “He always worked Saturday mornings. He basically did personal injury and workers compensation law. And I would help him file things away. As a reward he would let me play on the photocopier. I was always fascinated with the issues he was helping people with back then.”

Ingerman has a vivid memory of learning about DLA Piper’s predecessor firm back then.

DID YOU KNOW

There is no city in which DLA Piper is headquartered.

“So, this is a true story. I remember when I was probably 11 or 12 years old and I was filing away papers. I remember coming across a letter from a lawyer at Piper & Marbury. I’ll never forget it. It was like this cream colored parchment paper with raised, embossed letters; `Piper & Marbury’ really big on the top letterhead. And back then, the left side listed every lawyer in the firm,” Ingeman recalls.

“I remember just being dazzled by the letterhead and saying to my father `I think I’m going to go work at Piper and Marbury one day.’ I didn’t know what I was talking about but he reminds me of that story often,” Ingerman says.

“I remember just being dazzled by the letterhead and saying to my father `I think I’m going to go work at Piper and Marbury one day.’

Ingerman joined Piper & Marbury, now DLA Piper in 1995. It didn’t just happen. He applied and was rejected three years in a row through law school.

But a clerkship on the Court of Special Appeals won Ingerman an introduction to the late Roger Redden, a partner at Piper who hired and mentored Ingerman.

“Roger was a tremendous lawyer and gentleman. I learned a lot from him as a litigation lawyer and as a person,” Ingerman says.

Ingerman made partner in 2002. He’s now in his third year as managing partner of DLA Piper’s Maryland office with 90 lawyers.

MARYLAND BAR JOURNAL | ISSUE 1 2020

39

DLA Piper ranked as the fourth largest law firm in the world by headcount and revenue in the American Law Journal’s 2019 survey. The firm has lawyers in offices throughout Asia Pacific, Europe, the Middle East, Africa and the Americas.

“What’s interesting about DLA Piper is we do not have a headquarters office. There is no city in which DLA Piper is headquartered,” Ingerman says.

“That speaks to the strategy of the law firm, which is that, in order to provide excellent client service, we do that on a local, regional, national and an international level.”

Instead of managing from or to a headquarters, Ingerman sits on the firm’s policy committee and on a committee of office

managing partners from all over the world that meets monthly.

Agenda setting rotates among different managing partners from DLA Piper worldwide.

“It has been a tremendous learning opportunity for all of us to be able to identify best practices across offices, to be able to discuss issues across offices and just make sure we are doing the best we can, both for our clients, and for our lawyers and staff, consistently, across what is a giant enterprise,” Ingerman says.

Indeed, today’s DLA Piper is a product of the mergers and acquisitions that transformed `Big Law’ in the last 20 years.

About Brett Ingerman As the Managing Partner of DLA Piper’s Baltimore Office, Brett Ingerman provided us with a look into DLA Piper’s history in Baltimore as well as some insight into its future. We also learned a little more about his practice and journey to managing partner.

He joined the firm in 1995 after clerking on the Maryland Court of Special Appeals. Although he started with DLA Piper’s Bond Finance Group, he slowly transitioned into a pure litigation role, as he always knew he wanted to be a trial lawyer. Five years ago, Mr. Ingerman expanded his practice to include compliance governance and investigations, and has since become the global Co-Chair of the Governance and Compliance practice at DLA Piper. A little over two years ago, Mr. Ingerman was promoted to the managing partner of the Baltimore Office.

Below are some other interesting facts we learned from our conversation with Mr. Ingerman.

WHAT IS ONE OF THE BIGGEST PROJECTS ON YOUR PLATE RIGHT NOW? The biggest project on my plate right now is managing this office and in particular, directing our move back to Baltimore City. It’s a significant undertaking to identify a place where a firm of this size is going to go. There are several complicated decision points along the way, including the decision whether we're going to build a new building or move into an existing building. And frankly, trying to achieve a vision for a new office that doesn’t just meet the needs of the firm and its people for the next 5-10 years, but for the next 20 or 25 years.

WHAT IS SOMETHING YOU DO TO UNWIND AND DESTRESS? The main thing is exercise. I have a couple of my colleagues here with me today who know that I like to run on the treadmill in the morning. Immediately following that treadmill run they will get an email from me titled “Thoughts from the Treadmill,” which contains my thoughts on our various cases and projects. The team normally receives this email early in the morning, much to their chagrin.

WHAT IS SOMETHING ABOUT YOU WE CAN’T FIND ON YOUR RESUME? I eat chicken wings and I fancy myself a chicken wing connoisseur. Not that I eat chicken wings competitively, although the thought of entering a chicken wing eating contest has crossed my mind. During trial, chicken wings are a staple food for me and anyone that is on my trial team.

WHAT ARE YOUR FAVORITE WINGS? There are a couple of requirements. They must be crispy. I prefer Buffalo, with Old Bay being my second choice. Barbeque wings are a non-starter for me.

Photos courtesy of Beverly Funkhouser Photography 40

MSBA.ORG | ISSUE 1 2020

In 1995, Piper & Marbury was one of the premier firms in Maryland with a regional practice and 250 lawyers. The main office was in Baltimore. It had small offices in Washington, DC, Philadelphia, the Eastern Shore, and was just starting to open a New York office.

Under the leadership of Frank B. Burch Jr., who was the managing partner at the time, Piper & Marbury merged with Rudnick and Wolfe, a Chicago-based firm with a pre-eminent real estate practice. The firm became Piper Rudnick.

Piper Rudnick picked off partners from Verner Liipfert in Washington, DC, and Hill & Barlow in Boston. It merged with prominent West Coast firms Gray Cary, and Steinhart & Falconer.

Leaders of the firm “had the vision to understand that regional firms and national firms were probably not going to succeed in the way that an international firm would and they pursued and created a merger with DLA, a prominent UK firm with offices around the world in Europe and Asia,” Ingerman recounts.

“We became DLA Piper and then there was tremendous interest from lawyers and firms to join what was a burgeoning global enterprise. And we grew very rapidly. We had a lot of people knocking on our door who wanted to be part of it.”

Currently DLA Piper has three offices in Maryland; a main office in Mt. Washington that will be relocating to Baltimore, a small office in downtown Baltimore that will be consolidating with the new main office and an Annapolis office where the firm’s state lobbying practice is located.

FROM THE ARCHIVES:

Global Markets, Local Talent Last Spring, MSBA Executive Director Victor Velazquez sat down with DLA Piper Thailand Managing Partner Peter Shelford in the firm’s Bangkok office to talk about how law firms are expanding in Thailand. An excerpt from the interview was featured in the Bar Journal's Volume 1 Issue 2.

HIGH QUALITY LEGAL WORK IN THAILAND Hear about the kind of work DLA Piper is doing in Thailand.

WEB EXTRAS

VISIT MSBA.ORG/DLAPIPER

No matter what time of the day it is in the local jurisdiction, we have a lawyer who’s available to help them,” Ingerman says.

“We have Baltimore lawyers that do purely local work. For example, we have tax and real estate lawyers that do basically Baltimore and Maryland work only. We have lawyers that do regional work. We have lawyers that do national work and we have lawyers that do international work,” Ingerman says.

“Number two, we tend to have fun practicing law so when the clients can enjoy their interactions with their lawyers, it makes it a better client experience. And so in addition to having really talented, experienced, sophisticated smart lawyers -- which most big firms have -- I think we distinguish ourselves with client service and likeability.”

“The thing that DLA Piper does really well, is building cross-jurisdictional teams. Most of the Baltimore lawyers are on teams with lawyers from other DLA offices across the country or around the world,” he says.

Ingerman grew up in Randallstown, Maryland. “What is now Northwest Hospital was my backyard, right off of Liberty Road,” he recalls.

Ingerman’s top goal as managing partner of the firm’s Maryland offices is to deliver excellent client service. Asked how he measures that, Ingerman deadpans, “repeat business.” His second goal is having fun.

“When a client comes to a firm like DLA they are going to expect that the lawyers are extremely smart, extremely sophisticated and extremely talented. Every big law firm has lawyers that meet those qualifications. What sets us apart really is the client service and being available 24/7 across the globe. That is a huge advantage for us, particularly when we are dealing with our international clients who have legal issues that come up in Asia, in Latin America, in North America, in the Middle East.

WEB EXTRA

Ingerman’s parents moved to Pikesville and he attended the McDonogh school, starting in fifth grade. He’s now on the board at McDonogh and has a son who plays lacrosse at McDonogh.

The Maryland native gives a shout-out to the value of the Maryland State Bar Association too.

“It’s critically important that the law firms in town stay connected with the state bar association. They are a tremendous resource for us and a great way to connect with our colleagues across other firms. We have been a longtime member and will be a member for a long time to come,” Ingerman says.

WORLD WIDE FIRM INSIGHTS Five DLA Piper attorneys share what's it's like to work for one of the largest law firms in the world.

VISIT MSBA.ORG/DLA-PIPER-VIDEO MARYLAND BAR JOURNAL | ISSUE 1 2020

41

MEMBER FOCUS

| MEMBER SPOTLIGHT

FRIENDLY COMPETITION

NEILL THUPARI & DARRYL TARVER Litigation Associates, DLA Piper

Photos courtesy of Beverly Funkhouser Photography 42

MSBA.ORG | ISSUE 1 2020

Darryl Tarver and Neill Thupari are both Litigation Associates at DLA Piper that joined the firm in April 2018. They are also self-described close friends, and have enjoyed growing up together in the legal profession from law school to their transition to DLA Piper. We sat down with both of them to hear a little more about their careers so far, and find out a little more about them personally.

What excited each of you about joining DLA Piper?

What are some challenges you faced in transitioning to a new firm?

Darryl: I was really excited to join DLA Piper because of the opportunities the firm provides in terms of gaining experience in a variety of different areas. The structure of the litigation department allows you to be involved in different types of cases. I have been able to do securities litigation, product liability litigation, and antitrust litigation, which has allowed me to grow as a litigation attorney. I have also been able to explore my own interests, including construction litigation.

The partners and firm management really encourage you to take on new challenges, and that really attracted me to the firm. That approach really stood out to me as I was evaluating the firm.

Neill: I think anytime you transition from one company to another there is a little awkward period or the time period where you are entering into an established place with people who have forged relationships. There was definitely a learning curve when it came to meeting the various partners and associates, and learning how best to work with them.

Neill: There are several reasons why I wanted to join DLA Piper, but one that really stands out is the types of cases that the firm works on. The cases really span the globe. The firm has a tremendous international presence in addition to the national work, and to be able to have the opportunity to work on those types of cases was really attractive and what drew me to DLA.

How is it that you both came to DLA Piper at the same time?

Darryl: For the record, we both made independent decisions to apply and interview for the litigation associate position. We both weighed the pros and cons of making the transition here. At the same time, we’re friends, and have been friends since the beginning of law school, and we were talking to each other about the possibility of making the transition. Even though our decisions were independent, it was a positive factor in my decision that Neill may be joining the firm as well.

Neill: During the interview process, we were always told there was only one available position. We knew the other was applying, and we were supportive of each other through the process. When we both wound up getting offers we were extremely excited. However, although we discussed it, we knew we had to make individual decisions based on what was best for us individually. When I told Darryl that I was going to accept, he told me he was also going to accept. It was exciting to learn that we were both taking this step together.

What was a pleasant surprise, is just how well the litigation group works. DLA Piper is one of the largest law firms in the world, but the litigation group really has a team mentality and works really well together. Any concerns I had about being the new guy, went out the window, as the team really takes you in, is very honest with you, which made the transition extremely worthwhile.

Darryl: One of the biggest challenges is actually one of the reasons I came here, the opportunity to work on a variety of cases. Prior to coming to DLA PIper, I had never worked on a securities case, so there’s a bit of learning curve. However, accepting these new opportunities and challenges has been part of my growth here at DLA Piper, and it's helping me to become a more well rounded lawyer.

One of the biggest challenges is actually one of the reasons I came here, the opportunity to work on a variety of cases.

How has your friendship helped you during the transition?

Neill: I don’t think there is a week that goes by that I haven’t called Darryl or gone down to his office to have lunch or just talk. Although we are working with different partners on different matters, it really helps to have one of your closest friends around to make the transition smoother.

MARYLAND BAR JOURNAL | ISSUE 1 2020

43

Darryl: We’ve helped each other grow here because we each have different personalities and different strengths. I’ve had the opportunity to learn from Neill and his approach to certain situations, and that’s helped me in my career and my practice. I hope I do the same for him. It’s also nice to have a relationship with someone where you can have a judgement free conversation, to have that type of support, helps you to do your best work.

What are your favorite hobbies?

Darryl: My hobbies are not that interesting. I really enjoy watching sports. I try to stay in shape.

I enjoy working out, but it is not something I go home and do automatically.

Neill: I do golf. I will clarify that by saying I’m in no way a great golfer, but it’s enjoyable to me to get to escape for a little bit while playing golf. In terms of other hobbies, I’m constantly disappointed by Maryland Terrapins Basketball, and the Baltimore Orioles.

What’s an interesting fact about you no one would guess?

Neill: Growing up I played a lot of chess with my Dad. Every Saturday morning,we would get up, and I would play chess. Sometimes my Dad would take me to tournaments, and hopefully I would come home with a trophy.

Recently, I asked my Dad why chess, and he told me that as a child I cried a lot. He said one day I was inconsolable, and he didn’t know what to do. Then he realized while playing chess on our computer, that everytime a chess piece moved it would beep and I would stop crying. So that was the genesis of my chess playing childhood. It wasn’t a Bobby Fischer moment where my Dad thought that I had an incredible talent for chess - just that the computer chess beeps stopped me from crying.

Darryl: I don’t know how to follow that story.

44

MSBA.ORG | ISSUE 1 2020

What’s the best piece of advice you’ve received during your legal career?

Neill: I’ve received a lot of great advice in my

Never stop listening, and to never stop being open to hearing from anybody, because everybody has a story, whether it’s a client, or opposing counsel. career, but one stands out. In my first year of practice, the late Judge Dana M. Levitz, Circuit Court for Baltimore County told me to never stop listening, and to never stop being open to hearing from anybody, because everybody has a story, whether it’s a client, or opposing counsel.

If you get to a point where you’ve done 10 or so product liability cases, you might think you know everything about a new case. But being able to remain open minded and really listen to what is going on, and how a case might be different, and allowing that to shape your perspective and your approach is really important.

Darryl: I agree. I’ve had so much great advice.

Where I am now in my career is really reflective of the great mentors that I’ve had. One piece of advice that has been on mind comes from Judge Russell III on the Federal Bench. He told me that one of the issues with young lawyers, especially those that have grown up in an era of technology and electronic communications, is that civility is dying out. He stressed the ability to talk to someone, even if you’re taking an adverse position, and still be polite and treat them with respect. I try to take this wisdom and perspective to heart where I can, and it has served me well. It has not stopped me from zealously advocating for my clients in litigation or other contexts, but has helped me receive the same respect that I’m giving and makes practice more enjoyable.

FUN FACT: During law school at the University of Baltimore School of Law, both Darryl and Neill dusted off their dormant lacrosse equipment to play on the University's undergrad lacrosse team during a game against St. Mary's. It was the first (and last) time they played on a college level lacrosse team. During our interview, they jokingly referred to themselves as "student athletes."

MEMBER FOCUS

| MEMBER SPOTLIGHT

R E A L E S TAT E AT T O R N E Y B Y DAY

DJ BY NIGHT GUY FLYNN Head of Maryland Real Estate Practice, DLA Piper

Photos courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | ISSUE 1 2020

45

GUY FLYNN JOINED DLA Piper as a summer associate in 1991, when the firm was still known as Piper & Marbury. In 1993, he started as a full-fledged associate working with Don McPherson, the head of the firm’s real estate practice. During our interview with him, Mr. Flynn recalled the tremendous growth of the local firm Piper & Marbury to being part of a fantastic global firm, DLA Piper. He noted though, that despite its growth, many of the attorneys that continue to walk the halls of DLA Piper have been with the firm for their entire career and are proud of their Baltimore roots.

Below are a few other things we learned from our interview with Mr. Flynn:

You are currently the chair of the real estate department here at DLA Piper’s Baltimore offices. Were you always interested in real estate transactions?

Real estate is what I’ve wanted to do since my second year as a summer associate here at DLA Piper. During law school, at UVA, that’s an entirely different story. Real Property is one class that I really detested in law school. It had less “pop, sizzle and relevance” relative to the burning questions of the day and constitutional law. When I was in law school, the Thomas Hill hearings were happening. The Gulf War was happening.

There were major national and global events that were real topics of conversation in many of my law school classes.

With real property, we were discussing old English common law and deeds and the rule against perpetuities, so it was not particularly interesting.

However, as a summer associate, I had the opportunity to work on a project with Don McPherson, who was the head of the real estate department at that time. Not only was he very knowledgeable about real property. More importantly, he was a terrific person and a wonderful mentor. So when I received my offer from DLA Piper, they asked what I would have an interest in doing, and I said real estate.

What’s more interesting is that at the time I became an associate here, the market was just recovering from the recession of the early 1990s and the savings and loan crisis. That meant that there was not a lot of hiring in the Real Property Department. In fact, when I arrived, the most junior person in the department was a seventh or eighth year associate, so there was a lot of opportunity for me to learn and gain experience, as I was utilized a lot by the more senior associates and the partners in the department.

Eventually, we came out of the recession, and it’s been a fun ride ever since.

As a transactional attorney, your practice area tends to be more dependent on economic ups and downs. How has that impacted your practice over the years?

There have been at least three recessions (and now with COVID-19, make that four) during my career. That’s just part of the cycle of economic activity. What I’ve come to realize is that there's always a lesson to be learned in each downturn.

If you take the Great Recession, as an example, we know that the housing market sort of led the economy into the ditch. In many respects, the Wall Street led activity that precipitated that downturn was just the result of people trying to find new ways to make money. That's always going to happen. That's natural 46

MSBA.ORG | ISSUE 1 2020

business activity and entrepreneurial spirit.

Prior to the current pandemic, this had been the longest economic expansion on record. The real estate industry had continued to sort of lead that expansion. We had been optimistic that it would continue. However, everything doesn't go up forever. The laws of gravity do apply to real estate.

In Maryland, we have a number of beneficial factors including our proximity to the Federal Government here in Baltimore, the “Eds Feds and Meds” as we call them. We also have a relatively affluent population as well as a relatively well-educated one. So there are a number of factors economically that insulate Maryland in many respects from economic headwinds. So put it all together, we're optimistic.

Thinking back over your 30 years of real estate practice, is there a particular project that you are particularly fond of or most proud of?

One does come to mind, as a young lawyer I had a chance to work on the Jack Kent Cooke Stadium, the Redskins’ Stadium.

I grew up in Columbia, and when you are from Columbia you get to choose which sports teams you are going to follow, either the Washington ones or the Baltimore ones. I was raised a Redskins’ fan because of my father, a physician who did his medical school training in Washington. As a Redskins fan, it was a great opportunity as a second or third year associate, to work with the Cooke family, the owner of the Redskins, and build a legacy stadium that would replace the old RFK stadium.

It was a very interesting project. I was working as an associate for one of the senior partners, Mark Pollak, and negotiating opposite a number of counterparties. The project brought forth so many of the dimensions of real estate law, including infrastructure, easements, and public finance among others.

What I’ve come to realize is that there's always a lesson to be learned in each downturn.

One of the things I love about real estate is that when you do the deal, unlike a paper transaction, the asset is there and lives before you. When I drive down 95 South around the Beltway, I see the stadium there, and I recall the interesting nature of the project.

What is something you like to do to unwind and destress?

Well, as some may know already, I’m a DJ, and when I say DJ, I mean vinyl records. I own 65,000 vinyl records. They’re all original pressings, original editions. The sweet spot is music from the late 60s to the early 80s, because that’s when the music was super funky and super interesting.

minutes or a couple hours playing some records. It’s a living, breathing part of my existence and an important one. I have to thank my beautiful wife for letting me get away with this stuff for all these years now. We've been married for 18 years, and she lets me keep my record collecting and DJ habit and she loves it as well.

I bought my first record in 1974 as a 6 year old, and DJ’d my first party in 1981 as a 13 year old. I formed a DJ crew, which is still together. We just celebrated our 36th anniversary, and we still throw about four to five parties a year. Recently, we’ve been doing them at the Center Club, where I’m on the Board of Governors. We host a vinyl night where members of the Center Club and their guests join us on the 16th floor and we turn it into Club 100.

DID YOU KNOW

I'm also very good friends with some of the founding fathers of hip hop. DJ Kool Herc, a founding father of hip hop, is a very good friend of mine. This past year was the 46th anniversary of the birth of hip hop. It started in a neighborhood in the Bronx in a park called Cedar Park. This past summer, Kool Herc and I DJ’d the 46th anniversary party in Cedar Park, and we made the local news in New York City.

Guy Flynn is known in the DJ Community as "DJ Fly Guy."

So usually at the end of the work day, and after dinner and doing some more work at home, I'll retire to my music room and spend 90

Do you know why thousands of law firms made it a point to be different?

Because they’ve chosen a different kind of 401(k) provider.

The ABA Retirement Funds Program (“the Program”) is an employersponsored 401(k) plan uniquely designed for the legal community. For over 55 years, we have been committed to our mission of providing the tools necessary for all law professionals to achieve retirement security.

What makes us so different?

Oversight:

Highest level of fiduciary oversight allowable through ERISA, saving your firm time and reducing your fiduciary risk.

Investments: Investment platform with options to allow for optimal choice and flexibility for your participants.

Getting started is easy. Contact us today!

A different kind of retirement plan

Service:

Fully bundled service model, custom designed to meet the unique needs of the legal community.

800.826.8901

The Program is structured to provide affordable pricing whether

www.abaretirement.com

you are a Solo Practitioner or a large corporation.

joinus@abaretirement.com

The ABA Retirement Funds Program is available through the Maryland State Bar Association as a member benefit.

Please read the Program Annual Disclosure Document (April 2019) carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@abaretirement.com.

Securities offered through Voya Financial Partners, LLC (member SIPC).

Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya, the ABA Retirement Funds, and the Maryland State Bar Association are separate, unaffiliated entities, and not responsible for one another’s products and services.

CN700696_0121

MARYLAND BAR JOURNAL | ISSUE 1 2020

47

MEMBER FOCUS

| MEMBER SPOTLIGHT

LEARNING TO

LEAD

ELLEN DEW Partner, Litigation, DLA Piper

48

MSBA.ORG | ISSUE 1 2020

Ellen Dew joined the Baltimore office of DLA Piper as an associate in 2008 following her graduation from law school. Recently, Ms. Dew was elevated to Partner in the litigation group, after spending her entire legal career to date with DLA Piper.

We sat down with Ms. Dew to learn a little bit more about her legal career, her recent elevation, and her life outside of the law firm.

How has your role in the firm changed since your elevation to Partner?

I’m still figuring out how my role has changed, but one of the differences that stands out is the expectation to lead. I was a senior associate before being elevated, so there was already an expectation for me to lead, but that duty to lead in terms of billable work, interactions with your colleagues and providing mentorship to more junior associates and members of the office team has become more pronounced now that I am a partner. In addition to that there is the expectation for me to build and expand my own book of business. That’s a key focus of all the partners here at DLA.

What are some of the challenges you have faced in your transition to Partner?

One of the biggest challenges is just navigating how to best approach the expansion of a book of business. Here at DLA, we do work all over the world and not just locally, so figuring out how to navigate that while maintaining the level of service that you are providing as a senior associate and still making time for family and friends is a challenge, but a manageable one that I’m excited to meet head on.

What have been some of your successes so far?

During this past year, we have expanded several client relationships, not just in litigation, but also encouraging those clients to utilize our team for other services and matters that may not involve litigation. We’ve also done an awesome job of retaining and recruiting a really great associate team. I think, right now, our associate team in the Baltimore litigation group, are the best we’ve ever had, including, perhaps, when I was a young associate.

You serve as a Delegate for the Baltimore office on DLA Piper’s Leadership Alliance of Women, can you tell us more about the Alliance and how it has helped you in your career?

The Leadership Alliance of Women is an affinity group within DLA Piper, and is a way to make the universe of our firm a little bit smaller and help women across the globe get to know each other. It’s a way that we provide mentorship to female attorneys in the firm. We learn from other women on how to navigate some of the hurdles women face in the legal profession. I think that it is a critical component of retaining talented women at this firm.

working on, or maybe when I’m facing personal stressors like balancing the 17 different things my kid has this week while managing deadlines on four different briefs. The Alliance also encourages us to pay that support forward, and be a resource for young female attorneys at DLA Piper.

Every 18 months to two years, we also do what we call a Global Women’s Leadership Summit. It’s held in Chicago, and we invite the Delegates from the various global offices, as well as leading women at our clients’ organizations. We have great speakers, and a chance to network with women from various industries.

What is the biggest project you have on your plate right now?

We are currently representing a client in a very complex piece of litigation that is pending in New York and the Federal Court System there. In that case, we are simultaneously Plaintiff, Defendant, and a third-party Plaintiff. It has been a really exciting challenge to navigate how to manage that case, how to manage the team, and how to meet the client’s needs in such a complicated environment.

You mentioned the need to manage stress around work life balance, what do you do to unwind or destress?

I love Orange Theory. It’s a high intensity interval workout that’s split between the rowing machine, treadmill, free weights, and body weight exercise. I go at least three times a week and it’s an hour that I can claim is all mine. There’s great music playing and I can just burn through the workout and get out all the nervous energy that I’ve built up.

What’s something about you that we couldn’t find on your resume or in our research before this interview?

Many years ago, I was a ballerina, and I trained with the Alvin Ailey Dance Center in New York. I trained there for one summer during high school, and was seriously considering going back there for college, but my mother had other plans.

Through the Alliance I have a support network of women in the firm I can reach out to when I have a professional question or a question about a specific matter I may be Photo courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | ISSUE 1 2020

49

FOR YOUR PRACTICE

| BUILDING YOUR BRAND

Photos courtesy of 2020 Susan Holt Photography, LLC

Regional Law Firm Design With offices in DC, MD, and NC, Alliance Architecture is a dynamic team of designers, architects, and industry thought-leaders. We provide clients with expertise in architecture, interiors, and project management, with a focus on commercial interiors and workplace design, adaptive reuse, and base buildings.

Over the years our firm has been fortunate to work with many leaders and firms in the legal profession. Weâ&#x20AC;&#x2122;ve designed the global headquarters and key offices of firms like Venable, Cooley, LLP, Kilpatrick Townsend and Stockton, LLP. As our architectural firm has offices in Maryland, DC and North Carolina, we have come to know and work with many large-scale international law firms. These practices are complex partnerships with the corresponding set of issues and that one expects in such enterprises. Much of the law firm design press focuses on these types of firms, their concerns and design drivers.

That is all well and good, but it overlooks a broad segment of law firms who experience a very different set of business and cultural factors for success â&#x20AC;&#x201C; local and regional law firms.

The size of these firms are intentional and they generally have an expressed desire to be closely tied to their client

50

MSBA.ORG | ISSUE 1 2020

base and community. These firms have a very different footprint and set of constraints. Recently we were able to spend time discussing design for regional practices with two leaders for their respective firms, James Yates, a partner at Wyrick Robbins Yates and Ponton, LLP and Michael Epperson, Executive Director and Chief Operating Officer for Ward and Smith, P.A. Both firms are North Carolina based, and are highly representative of the regional practices we see in Maryland, the DC Metro area, and beyond.

Our access to thought leaders within these firms is driven by the fact that we recently completed offices for both of them.

That experience led us to ask what makes a regional law firm design different?

An obvious factor is the cost of operating in London or New York versus Towson, Columbia, Durham or Raleigh.

Regional firms are offering more office space per employee than larger firms in higher cost markets The cost pressure of larger markets puts a corresponding premium on rent and real estate decisions.

The flip side of that, is in smaller markets one can afford to offer different policies and amenities with respect to real estate. For example, Michael Epperson shared, “Ward and Smith has a policy wherein everybody gets an office, all attorneys, legal support and all administrative staff, everybody. In addition, we often locate offices for convenience, easy parking, access to retail, things that make life easier.” These policies would be under serious pressure in Washington or New York where rents are significantly higher, and density is a primary means of keeping costs down. James Yates was more succinct, for Wyrick Robbins, “exterior offices matter, and you can still have it.”

flect a high level professional team or is it statement about opulence?”

The concept of balance is a strong one for regional firms. It is critical in signaling clients that the practice is about delivering first rate legal counsel at market rates. Design for these firms is based in practical concerns and finding the appropriate level of finish, be professional not lavish.

Space as a community asset An interesting part of our discussion centered on community outreach. Mike Epperson refers to it as, “space as a community asset.” The reality is for regional firms a majority of the client base is often local. In our experience business in smaller markets is often linked and networked through community organizations. Both firms placed an emphasis on opening their doors and conference facilities for use by local organizations. It is an excellent means for

"Everybody gets an office, all attorneys, legal support and all administrative staff, everybody."

This dialogue prompted a broad discussion on culture and its importance on building a cohesive team and recruiting. Both leaders emphasized the importance of space mirroring the culture. This is where design can really impact the success of a firm.

Michael Epperson expanded the topic to the concept of first impressions, “when you come off the elevator how you look speaks volumes about what it will be like to work here for the next twenty years.”

James Yates spoke to balance, “does the space re-

firms to build deep community roots and engage staff with local issues. In building culture it is a superb way for young attorneys to develop a network and learn about their community. It is an opportunity to be part of something bigger than the firm.

Coming back to culture, James Yates talked about how important the break room had become at Wyrick Robbins. “It’s the place where the whole firm gets together, not just at lunchtime, but

MARYLAND BAR JOURNAL | ISSUE 1 2020

51

throughout the day.” A similar experience is had at Ward and Smith where the break room and training room can be joined to form a large hall for an all hands meetings, seminars and social events.

offices and a concern for confidentiality. In larger markets some firms use expensive glass storefront systems to get the perimeter “opened up”. Regional markets rarely have budgets that will sustain those construction costs.

We are especially pleased with this outcome. In both cases our firm identified early on that using the break room as a key amenity to bring people together could be a basis for building culture.

The mix of daylight, coffee, food, diverse seating and easy to use facilities has proven to be a strong way to create interaction.

In both cases all team members use the space and mix easily between attorneys and staff.

At both Wyrick and Ward and Smith we designed the perimeter to use clearstory glass and sidelights, providing everyone access to daylight. At Ward and Smith we added skylights in the corridor and break room. In both cases the impact was tangible. Both spaces feel light filled with terrific sightlines out to the surroundings.

The impact of laptops in both environments has also made the break room an easy place to get away from your desk and still work. In fact, both offices have numerous lounge and informal meeting areas which are easily used with laptops.

Ward and Smith has multiple offices in the region. In fact, a stated goal is to be “North Carolina's Law Firm of Choice.”

As a means of connecting this constellation of offices through technology, senior leadership hosts informal digital happy hours monthly through video conference as a way to keep multiple offices linked together, and providing access for all members to senior leadership.

In all of our projects across many locations, we always design to bring in as much daylight as possible. It has been proven that access to daylight improves productivity and makes for healthier spaces. In law firms this is often compromised by perimeter

52

MSBA.ORG | ISSUE 1 2020

James Yates summed up the design approach with an emphasis on culture as, “more light, more openness, more energy.”

Selecting an architectural firm – the ‘Big picture’ Ensure that you’ve selected a design firm that understands both important trends in the legal industry as well as general corporate business. Regional firms want to pay special attention to firms that have done work locally, reflecting local sensibilities, while also benefitting from the leading-edge concepts in design, economics and other key considerations. Ask for examples of work that is similar to what you believe may be your future but be open to a creative process that results in something unique to your firm. Often firms do not even understand what is possible, be open to new ideas.

We at Alliance Architecture have benefitted from working with so many leaders of law firms. We know one thing is certain, good design drives business performance and outcomes.

FOR YOUR PRACTICE

| LAW OFFICE MANAGEMENT

Unavoidable: Running a Law Firm Is Running a Business!

BY: RONALD K. WILLS, REGIONAL PRESIDENT, CEO FOCUS

LAWYERS MINIMIZE RISK for their cli-

ents by helping them navigate through a maze of complicated business and legal issues. Unfortunately, not all lawyers invest the same level of care when it comes to operating their own firm.

It’s easy to understand why lawyers want to focus their full energy on the actual practice of law, but those who neglect the issues related to the management of their business can put themselves and those around them at risk.

Running a law practice is running a business.

Most lawyers understand the concept of the firm as a business entity, but not all understand the full scope of the responsibility when it comes to actually managing and nurturing a successful business. Managing operations can be much more complicated and time consuming than imagined, and the lasting ramifications of decisions can be far greater than expected. Lawyers who leap into practice without proper planning to run the firm like a business often make the same mistakes in five mission critical areas.

Brand and Vision Failing to define your personal brand or firm vision is often the first mistake law firms make.

It’s important to build a strong foundation for any new business, and the cornerstones of that foundation are your brand and values. Some firms begin operations without clearly defining who they are or who they plan to be. These are vital issues which should not be overlooked.

Failing to lock down these important concepts early may hurt you down the road. Without these definitions, you may be unable to find consensus on your goals or agreement on how to measure your firm’s progress. If you can’t define your brand or articulate your vision, it is likely your potential clients won’t be able to do so either.

The development of a vision statement will create your firm’s core values and will set the aspirational standards for your firm, both inter-

nally and externally. Similarly, when you create a brand identity you’re creating and signaling key points of value for your clients and community.

In the competitive legal market, it’s extremely helpful to be recognized for the expertise you can provide to a client. A strong brand will help you better connect with existing and potential clients.

The most successful firms have absolute clarity on these key points. They also ensure that the message is the same at all levels. It’s important for everyone at the firm to engage and embrace these issues, from the boardroom to the file room. Future plans and decisions will be much easier to handle when they can be aligned to a firm’s values and a clear vision for the future.

Scalable Operations Many new firms fail to create scalable systems.

Some will cobble together a patchwork of systems, tools, and policies. They manage each new issue with ad hoc decision making. While any one individual decision may produce a cost effective solution for the moment, over time that approach creates unnecessary complications.

Law firms which limit their investments into short term solutions often discover their systems lack scalability.

Law firms which limit their investments into short term solutions often discover their systems lack scalability. The tools and systems used in a solo shop won’t be sufficient in a larger operation. A piece of affordable software that works great for one lawyer might be a nightmare when a whole team of lawyers, paralegals, or even clients need access to the program or its MARYLAND BAR JOURNAL | ISSUE 1 2020

53

data. Initial savings may evaporate over time if the cost increases with additional access. If systems cannot be integrated with each other, complications can occur, and time efficiency can be lost.

Law firms must also be able to adjust to changing client demands. Years ago, many law firms dropped their preferred word processing programs when their corporate clients adopted a different, poorly compatible program. Those firms who resisted their client’s preferences soon found themselves with fewer clients. The plan for firm resources should be aligned to the expectations of the client.

Strong businesses continually invest in their systems and the tools necessary to be productive. At the same time, it’s important to plan for success. The adherence to established protocols should not obscure broader changes in technologies or client demands.

Constant vigilance is required to keep systems well-maintained and updated. Healthy growth requires some flexibility as demands and opportunities change. When building a business, it’s important to understand all firm decisions can have a cumulative impact. With defined systems and protocols in place, the risks are reduced.

line numbers won’t give you the full picture of a firm’s economic health. An incomplete financial analysis can even create a false narrative on the profitability of the firm.

It’s entirely possible for revenue to increase while the firm’s profitability is slipping. It’s important to understand what’s driving the numbers.

When questioned, many lawyers admit they do not know their firm’s exact profit margin.

Even fewer know what their margin should be. Fewer yet know the full extent of the issues which can impact a firm’s profitability. You can’t manage to the margins if you don’t know your margin goals. Managing operations with clear financial goals for the firm is the only way to create sustainability.

Good systems provide ongoing tracking and succinct analysis to ensure the firm is heading in the right direction. Any variances under a systematic approach are quickly dealt with and rectified.

Marketing Systems Build it and they will come is an insufficient marketing plan. In the early days of the American legal system, painting your name on a shingle and hanging it above a door might have been enough to launch your firm.

Managing operations with clear financial goals for the firm is the only way to create sustainability.

Mastery of Financials Failing to understand the financials of your business is the fastest road to ruin. You don’t need to have a CPA or MBA to understand the importance of financial metrics and reporting. Having access to reliable, accessible financial data is critical to the success of any profitable business. With proper accounting and an understanding of the data collected, lawyers can identify the strengths and weaknesses of their business and make better operational and strategic decisions. Firms lacking systems merely react to issues as they occur.

Many lawyers only pay attention to certain high-level productivity metrics, such as the hourly billing reports. Simply monitoring top 54

MSBA.ORG | ISSUE 1 2020

Later a focus on creating business connections through lunches, happy hours, and bar association events was enough to keep new client work flowing. While those activities may still help in today’s marketplace, the days of relying on one single method are long gone. Modern businesses require a more systematic approach to marketing and business development.

Marketing a modern law firm is more than just promotion or advertising. Successful law practices develop marketing and business development systems. These are designed to help secure the firm’s highest potential in their market. Client relationship management systems track interactions and can help identify opportunities for greater connection

with clients. Without marketing data, firms are forced to rely on opinion and assumption.

While it’s certainly possible to achieve some success without a system in place, replicating that success can be difficult without sufficient data to justify the right initiatives.

Commitment to the Plan A strategic plan is not a panacea, but it is an important tool. Not all firms will take the time to develop a comprehensive strategic plan. Skipping the planning process is like taking a road trip without consulting a map first. Others may work up a plan only to file it away without adequate follow-up. Having a plan gathering dust in a file cabinet can create a false sense of security. Failing to stick with a plan can produce the same results as having no plan at all.

Like any journey, the path is easier if you have a good map for guidance. Strategic plans should be discussed, challenged, and fully shared once implemented. Once a plan is drafted, it’s important to follow it. Progress should be continually monitored. The plan itself is a guideline, so firms should take caution not to simply follow the plan on autopilot. Good plans will test assumptions and produce observable results. These will help firm’s make modifications and improvements as they move forward.

Manage Your Business, Master Your Firm Good business planning and awareness is required to secure success in today’s competitive legal market. All businesses face the potential for risk and reward. Law firms may face additional challenges, but those who embrace business management as a necessary aspect of their practice are more likely to produce the results they hope for. Success in business does not occur by accident.

RON WILLS specializes in helping business owners make their small businesses operate more successfully, with lower stress and higher profitability. CEO Focus Members runs businesses with $1 million or greater revenues and work together to share the collective wisdom of a room full of fellow business owners. Ron is also President and Founder of the National Association of Business Owners & Entrepreneurs (NABOE) hosting owner breakfasts in Maryland and Virginia. Ron can be contacted at ronwills@ceofocus.com or by phone at 301-8730448.

A comprehensive database of legal research â&#x20AC;&#x201C; at your fingertips.

MSBA members receive unlimited FREE legal research as Fastcase access is included in membership.

GET ACCESS NOW AT MSBA.ORG

MARYLAND BAR JOURNAL | ISSUE 1 2020

55

MEMBER FOCUS

| MEMBER SPOTLIGHT

LEVELING THE

PLAYING FIELD DAMIEN R. BANKS Senior Attorney, Law Office of Peter G. Angelos

56

MSBA.ORG | ISSUE 1 2020

Damien Banks is a senior attorney at the Law Offices of Peter G. Angelos.

He focuses his practice on medical malpractice and catastrophic personal injury. In addition, Mr. Banks represents Baltimore City on the MSBA’s Board of Governors.

We sat down with Damien to learn a little more about him and his practice.

What do you love about your role at the Law Offices of Peter G. Angelos?

I love being able to help a family who is going through a difficult time. Most of my clients have either suffered loss of a loved one or a catastrophic injury themselves that has significantly changed how they live their life. I love being able to bring a family some closure regarding the situation.

What are some of the challenges you face as a Plaintiff’s attorney?

The healthcare and insurance lobbies within the State are very strong. Each year in the state legislature they consistently fight to take away the rights of victims of medical malpractice.

What are your goals for yourself in your current role?

I would like to grow the medical malpractice department here at the firm. We are typically known for our historical work in asbestos litigation. However, we have a strong medical malpractice group and are working to grow in this sector.

Tell us a little more about what drives you professionally.

I derive tremendous professional satisfaction from helping those who are less fortunate.

As a Spanish speaker, I have been able to help a number of Latino immigrants with cases of medical malpractice or serious personal injury navigate the complicated court system.

These individuals come from marginalized communities and some have very dangerous jobs.

Having an advocate that speaks their native language gives them a level of comfort with the entire judicial process. I enjoy working to help them achieve positive results which can greatly change their lives.

The desire to help others is really what drove me to become an attorney. The law can be a great level playing field for people to obtain justice.

What is your fondest memory of your legal career so far?

Winning my first medical malpractice trial as a first chair attorney. Many medical malpractice cases do not end in a trial, so it is always great to win the ones you have. The first will always be special, because the win validates all of the hard work and time I had put in to arrive at that point.

“

The desire to help others is really what drove me to become an attorney. The law can be a great level playing field for people to obtain justice.

What’s your favorite hobby?

I love to play golf. Playing golf allows me to unwind and de-stress after a long week of intense litigation stressors. Enjoying the sun and seeing my friends can do wonders.

What’s a cause that you are passionate about?

I am currently the Treasurer of the Baltimore Bar Foundation and formerly served as the Chair of Fundraising and the Secretary in prior years. We raise money to assist marginal communities in Baltimore City, including low-income seniors, homeless children and victims of domestic violence. I love Baltimore and feel that a stronger city would be great for the entire state of Maryland. While there are many people who feel the same way, we can always use more help.

WEB EXTRA

A VIEW FROM BOTH SIDES OF THE FENCE Damien Banks shares what he's learned from practicing on both sides of medical malpractice litigation.

VISIT MSBA.ORG/DBANKS

Photo courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | ISSUE 1 2020

57

FOR YOUR PRACTICE

| LAW OFFICE MANAGEMENT

Partners’ Survey Highlights Importance of Lateral Integration

BY RANDI LEWIS

Hiring and retaining lateral partners is integral to the growth strategies of major law firms. Ensuring lateral partner engagement and satisfaction is essential for retention of these new additions. Partners exploring the market and law firms courting them can make better decisions by understanding the keys to why lateral partners change firms and how they define satisfaction with their new firms.

MAJOR, LINDSEY & AFRICA has

been studying lateral partner satisfaction since 1996. In January 2020, we published our fourth Lateral Partner Satisfaction Survey, which examined a host of factors impacting lateral attorney moves and the likelihood of the attorneys’ success at their new firm.

Below are some of the key findings.

Key reasons partners leave their firms The top reason lateral partners cited for leaving their firms, particularly younger laterals, was a lack of confidence in firm management. Those who left for that reason were generally much happier at their new firm. Other top reasons partners reported for their departures were lack of support to build a practice, firm culture, concerns about the firm’s financial health and lack of leadership opportunities.

58

MSBA.ORG | ISSUE 1 2020

Factors most important in choosing their current firm The ability of the new firm to support their practice and take it to the next level was the No. 1 reason lateral partners cited for choosing their current firm. Firm culture was a close second reason, followed by the personalities of the partners, the new firm’s firm management and its financial health.

Interestingly, anticipated compensation was the sixth-most important factor for partners in choosing their current firm.

Impact of effective integration on lateral satisfaction One of the most important findings of this survey is that effective integration is the greatest single predictor of lateral success.

The most satisfied lateral partners largely viewed their firms as having been effective in

Effective integration is the greatest single predictor of lateral success.

cross-selling, communicating firm expectations, eliciting the lateral’s expectations and the firm’s efforts to integrate the lateral into the partnership. The firms with robust lateral integration plans are likely to have greater lateral partner retention.

Impact of firm candor on lateral satisfaction More than 90% of lateral partners who were satisfied with their new firms reported the firms had been very or somewhat candid in the courtship process. Conversely, more than two-thirds of unsatisfied lateral partners reported their firms were not very candid or not candid at all. This suggests that firms should integrate candor about their finances and other key information as a standard part of their recruitment process.

Originations Good news on originations for partners contemplating a move: Two-thirds of lateral partners reported their originations increased since they joined their current firm. Nearly 70% of those lawyers reported they were satisfied with their move. Only 23.7% of laterals reported their originations remained about the same, and 9.6% of laterals reported a decrease in originations.

Compensation Most of the lateral partners surveyed (82.3%) were either very satisfied or somewhat satisfied with their compensation. Lawyers who enjoyed the greatest increases in compensation, including over a three-year period, had a strong positive correlation with satisfaction.

On the other hand, those lawyers whose compensation decreased were more likely to report dissatisfaction. The survey also revealed that within three years after joining a new law firm, more than two-thirds of lateral partners continued to realize an increase in compensation.

Compensation guarantee About 74% of the respondents received some form of compensation guarantee.

Guarantees, or their absence, were not materially different for satisfied or unsatisfied lateral partners. Most lateral partners reported that their compensation was guaranteed either for the remainder of the year they joined the new firm or for the remainder of the year plus the following year.

Open vs. closed compensation systems Those lawyers joining firms with open compensation systems were more likely to report they were very satisfied with their compensation than those lawyers who joined firms with closed compensation systems. Not surprising, partners who moved to firms with closed compensation systems were less positive about how well the firm communicated about expectations.

Randi Lewis has been a frequent presenter at MSBA events, including the 2018 Legal Summit & Annual Meeting and the 2019 Solo & Small Firm Summit.

Would you do it again An overwhelming number of lateral partners (79.8%) reported that, if they had to do it all over again, they would still move to their current firm. Very few lawyers regretted making a move, as only 3.4% of respondents reported that they wish they had remained at their former firm.

RANDI LEWIS is a Maryland-based managing director of Major, Lindsey & Africa, the world’s largest attorney search firm. She can be reached at rlewis@mlaglobal.com. The 2020 Lateral Partner Satisfaction Survey in its entirety, written by firm co-founder Jon Lindsey, can be found on Major, Lindsey & Africa’s website: https://www.mlaglobal.com/en/knowledge-library/research/2020-lateral-partner-satisfaction-survey.

This article was reprinted with permission from The Daily Record. It originally appeared on The Daily Record website on January 27, 2020.

MARYLAND BAR JOURNAL | ISSUE 1 2020

59

MEMBER FOCUS

| MEMBER SPOTLIGHT

MAXIMIZING

T H E H O U R S I N T H E DAY MARISA A. TRASATTI Wilson Elser Moskowitz Edelman & Dicker and General Counsel, Sciton, Inc. Marisa A. Trasatti has mastered the bicoastal workday. Early in the morning she’s a Partner at Wilson Elser Moskowitz Edelman & Dicker and by the end of the day, General Counsel for Sciton, Inc., a prominent medical and dermatological laser company based in Palo Alto, California.

WEARING TWO HATS comes with its challenges but

it also benefits Marisa’s teams across the country. She is able to bring in younger associates and expose them to different types of projects, something that wouldn’t happen if she were wearing just one hat. We sat down with Marisa to learn more about her bicoastal legal career and her passion for mentorship and helping the next generation of attorneys.

Photo courtesy of Beverly Funkhouser Photography

60

MSBA.ORG | ISSUE 1 2020

Tell us about your biggest project right now Working with Sciton, Inc., we navigated through a very thorny regulatory matter recently that threatened an entire product line and the entire industry offering this women’s health product. Having to understand all of the competing interests, motivations, and how best to balance them while trying to bring the inquiry to a swift close was one of the most challenging legal matters that I have managed. I would also add, that equally challenging, are the premises liability claims arising from human trafficking that I have handled. It is an evolving criminal enterprise that is hidden and difficult to spot. Knowing how and when to act is key.

Who influenced your legal career?

Ms. Trasatti presented on a panel for RIMS in Naples, FL on "What Every Risk Manager Should Know About Human Trafficking."

“

In law school I was a law clerk for Neal M. Brown and he was definitely influential in my development as a young lawyer. He always said that my head might go under water but he would never let me drown. He was a patient teacher who put my writing on a diet. I was fortunate to have many strong mentors thereafter who encouraged me to continue to hone my skills, because lawyering, after all, is a practice.

What is the one piece of advice you would give someone in law school or considering a legal career?

Always reach beyond your grasp and never be satisfied with mediocrity.

The practice of law is what you make it. It can be a continuous learning if you allow yourself to be immersed in your cases and your professional associations.

Most organizations are looking for and are incredibly welcoming to new and younger members as we want the new generation to help shape where we are headed.

How are you involved with the MSBA? I have presented at MSBA functions and serve on the Character Committee of the MSBA. Character Committee is a great way for me to connect with the new generation of lawyers and inform them about the organizations that helped shaped me into the attorney I am today and hope that they will join those organizations as well. Most organizations are looking for and are incredibly welcoming to new and younger members as we want the new generation to help shape where we are headed.

What are some things we can’t find on your resume?

I definitely inherited a car affinity from my Dad, I love Porsches!

MARYLAND BAR JOURNAL | ISSUE 1 2020

61

MSBA NEWS

| MARYLAND BAR FOUNDATION GRANT RECIPIENT

M A RY L A N D

B A R F O U N D AT I O N I N PA R T N E R S H I P W I T H M S B A

The Museum of Baltimore Legal History Celebrates Improved Space and Exhibits MSBA and the Maryland Bar Foundation Contribute to the $70,000 Renovation 62

MSBA.ORG | ISSUE 1 2020

THE MUSEUM OF BALTIMORE LEGAL HISTORY is located on the sec-

ond floor of the historic Clarence Mitchell, Jr. Courthouse in downtown Baltimore.

The Museum was established in 1984 in what has been called “the most beautiful courtroom in Maryland, combining the atmosphere of an English taproom with the delicate embellishment of a French drawing room.” For thirty-five years, this unique Baltimore attraction has offered tours to visitors from around the world, as well as to local students, clerks, attorneys and judges. This unique experience has recently been enhanced due to a $70,000 renovation to the Museum and its exhibits.

The Maryland Bar Foundation was excited to provide funding for the museum’s improvement, as well as other projects throughout Maryland.

The Maryland Bar Foundation provides hundreds of thousands of dollars in funding for projects related to the legal profession. Your membership in the MSBA is the first step in supporting these projects. If you are interested in doing more, please consider donating to the Maryland Bar Foundation at: MARYLANDBARFOUNDATION.ORG

WEB EXTRA

AFRICAN AMERICANS IN THE LAW IN MARYLAND You can learn more about the Museum, recent renovations, and the important legal history stored there in a series of videos VISIT MSBA.ORG/MUSEUM-VIDEOS

The Museum of Baltimore Legal History operates under the cooperation of both the Baltimore Courthouse and Law Museum Foundation (“Foundation’) as well as the Historical Committee of the Bar Association of Baltimore City (“Historical Committee”). In 2013, while serving as a Director of the Foundation and the Chairperson of the Historical Committee, Hon. William Dunn proposed a massive renovation to the Museum, which had not been updated in its thirty-year history. The purpose was two-fold - to assure the Museum was ADA compliant, and to offer visitors a more hands-on, interactive experience expected by modern-day visitors.

As a result of the overwhelming support from the legal community, the Foundation raised over $40,000 in contributions within a year, and the Foundation matched the first $30,000 raised, dollar-for-dollar. The Foundation hired Adler Display, Inc. to move all the content from the Museum’s old floor exhibits onto attractive, touch screen displays. Now, visitors to the Museum can experience Baltimore’s legal history in a fun and interactive fashion. New interactive exhibits include: The History of the Baltimore Courthouses; The African-American Legal Experience in Maryland; Women in the Law; and a Tour of the Courthouse and its Historical Courtrooms and Artifacts.

Other than being handicapped-accessible and interactive, an additional benefit to the digital displays is that they can be updated on a regular basis. The Historical Committee is working with Bar leaders to add new exhibits soon, such as LGBTQ+ Law and Latin-Americans in the Law. The Historical Committee also wants to work with State and Local Bar Committee Chairs over the next year to create additional displays which are of interest to the Bar community.

"Everyone stepped up to show their support for memorializing and sharing our rich legal history."

Sub-Committee Chairperson, Hon. William Dunn, expressed the Foundation’s gratitude toward all who contributed to the renovation project: “The support we received was overwhelming from the various Bar Associations, law firms and individuals.

Everyone stepped up to show their support for memorializing and sharing our rich legal history. We couldn’t have done it without the generous support of everyone involved. We are so grateful.”

MARYLAND BAR JOURNAL | ISSUE 1 2020

63

MSBA NEWS

| HEALTH & WELLNESS INSIGHT

Emotionally Recovering from the Coronavirus Pandemic

BY LISA CAPLAN, LCSW-C

AS THIS PANDEMIC CONTINUES, what might be the emotional effect? Feeling unsettled might be a good way to de-

scribe the effects of the Coronavirus Pandemic. Although we have been managing the crisis for several weeks now, the anxiety may still be present or even growing. The feelings that you might be experiencing may include; numbness, fear, and disbelief.

You might have a change in your appetite, energy level and have difficulty sleeping.

We are in uncharted waters when it comes to this situation, as well as our reaction and how long it will take us to feel settled. This may be especially true if you are managing a mental health or substance abuse disorder. You might have been managing your depression, anxiety or other disorder very successfully, and the pandemic may cause you to feel like you are not. Any life stressors can be challenging, but a crisis of this magnitude can really be difficult. The following strategies might be helpful.

Quiet your mind. Think of all the positive tools you have used in the past to help you decompress and feel stable and create a “toolbox” to help you cope. Whether it is reading, a hobby, reaching out to a friend, volunteering, exercise, gardening, or yoga, try it and observe how you feel while you are engaging in the activity and afterwards. Taking action helps to empower you and helps you feel grounded during difficult times. Recognizing that these tools have helped in the past is very likely to help you feel they will help again.

Continue with your treatment. We sometimes get so stressed that we stop doing what is helpful and feel that we don't have time. Be proactive by talking with your mental health provider as soon as you notice a change in your condition or if it is worsening. Whether you see a counselor, are in a support group, or take medication make sure you continue.

If you can’t, call your provider to discuss the situation and how to move forward.

Be patient with yourself and recognize that it will take time to feel settled again. Everyone is different and your reaction will be different. Speak kindly to yourself while working through your feelings. Think of how you would talk to a friend if they came to you with these concerns.

Get back into a routine as soon as possible. Having a routine, even if different than before, will help you feel more in control. Schedule in not only work but exercise, hobbies, socializing, etc. If you are having a hard time getting motivated and feel stuck, share your schedule with someone else who can help you be accountable and motivate you.

If you are working from home for the long haul, create a daily schedule to help you settle back into a routine. Work may feel overwhelming with all the tasks you now need to accomplish.

You may have 150 things to do but put three tasks on your schedule and work on those tasks. Break tasks into smaller tasks. Once you start you may find it easier to continue.

Stop multitasking. Multitasking adds to that chaotic, overwhelming feeling we have. The one where you feel you are not going anyway but just spinning your wheels. Although we think we multitask well we do not. Focus on one thing at a time and gently bring yourself back to what you are doing.

Reach out to others. When we feel down and unsettled we may feel like isolating, but it is important to stay connected to your support system. During uncertain times many find comfort in reaching out to family and friends. Find creative ways to connect with people who are positive (like google hangout meet ups, walking while talking on the phone) to help you move forward in a healthy way.

64

MSBA.ORG | ISSUE 1 2020

For assistance, please contact the Lawyer Assistance Program for free, confidential counseling. We have a network of counselors throughout Maryland. Lisa Caplan, LCSW-C, Director, (443) 703-3042, lisa@msba.org.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 at 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.

THE FOLLOWING RESOURCES MAY BE HELPFUL: The Maryland Crisis Hotline: Dial 211and then choose option 1 The Crisis Text Line: Text 741741 and a trained counselor will respond The National Suicide Prevention Hotline: 1-800-273-8255 The MSBA Lawyer Assistance Program: 1-888-388-5459

For more tips on wellness check out the Wellness Portal MSBA.ORG/WELLNESS-PORTAL

Bu rnou t.

S t re s s.

Substance A bu s e .

D e p re s s i o n .

Addiction.

LAWYERS: Get free and confidential support MSBA LAP hosts a weekly COVID-19 Support Group on Wednesdays from 2-3pm: LEARN MORE AT MSBA.ORG/COVID-19/WELLNESS

MSBAâ&#x20AC;&#x2122;s Lawyer Assistance Program serves all lawyers across the state for a broad range of personal issues.

If you are concerned about another lawyer you can make an anonymous referral to the Lawyer Assistance Program. Financial assistance is available for mental health and substance abuse treatment.

msba.org/health-and-wellness

Toll free phone: 1-888-388-5459 MARYLAND BAR JOURNAL | ISSUE 1 2020

65

MSBA NEWS

| HEALTH & WELLNESS INSIGHT

Developing a Mindfulness Practice to Strengthen Lawyer Well-Being

BY STEPHANIE LEWIS, ESQ.

IT IS NO SECRET that the well-being of the legal com-

munity is at a crossroads with studies indicating a significant number of attorneys suffer from substance use and mental health disorders and, for many others, a general lack of thriving overall. In its 2017 National Task Force Report, The Path to Lawyer Well-Being: Practice Recommendations for Positive Change, The National Task Force on Lawyer Well-Being stated that lawyer well-being issues can no longer be ignored. Among its recommendations are a range of educational topics to help lawyers manage stress and improve their well-being, including mindfulness.

Centuries of experience and modern studies indicate that mindfulness has many benefits that are valuable for lawyers, including reduced stress, worry, and anxiety, and improved focus and concentration. The clearest way to find out the benefits is to experience the practice for yourself.

Ever notice when you are reading something or listening to someone how often your mind shifts its focus? You may miss important pieces of the conversation or not comprehend what you are reading, affecting performance and productivity. Strengthening your ability to focus,concentrate, and build patience could begin with simply paying attention to the act and sensations around you.

A seated meditation is not the only way you can cultivate this non-judgmental, present moment awareness. You can engage in mindfulness through movement, such as yoga and tai chi.

A mindfulness practice can also be nurtured informally. You can be mindful when you are engaged in any activity, including brushing your teeth, driving your car, listening to or talking with a colleague, or dealing with a difficult boss or client. A gentle overall awareness helps you gain greater focus and respond to whatever is before you more consciously rather than on automatic pilot. There are many ways to get a mindfulness practice started depending on what resonates with you and fits best into your life.

So, how do you go about developing a mindfulness practice?

Be intentional. Give some thought to what type of practice(s) resonates most with you. And remember, the ideal practice is the practice you can actually do. I recommend you build your formal and/or informal practice into your life just as you build brushing your teeth into your day. If you only try to “fit it in” then your practice might not take root.

66

MSBA.ORG | ISSUE 1 2020

"Mindfulness means paying attention in a particular way: on purpose, in the present moment, and nonjudgmentally.”

-JON KABAT-ZINN, PH.D.

Explore the type(s) of practice and decide what resonates with you.

Mindfulness offers a variety of entry points. You can begin by engaging in a practice that focuses on the breath, body, or sound. You can start where I started with mindful movement – in my case qigong, sometimes referred to Chinese yoga. Tai chi is a form of qigong that is popular in this country. For others, it may be yin yoga or a walking meditation.

Keep in mind that not all forms of mindfulness practice are for everyone. If you are suffering from a mental illness or have experienced trauma, some or all forms of seated meditation,

for example, may be contraindicated, particularly at the beginning stages of a developing practice. Mindful movement, on the other hand, may resonate well.

Explore what works best for you, in consultation with a health care provider, if appropriate.

Get specific about when and where you will practice.

When getting started, give some thought to the flow of your day. If you are engaging in seated or moving mindfulness practice, you may decide you want to practice right after you wake up, before you go to bed, or in your car before or after work. The more specific you can get the better. It can be helpful to identify a specific place in your home, whether on a meditation cushion or a chair if you are sitting to meditate, or in the living room or basement if you will be engaging in movement. Ideally, it would be a quiet place and your family would know that this is a time when you do not want to be disturbed.

Signing up for a class you look forward to attending is another great way to develop a consistent practice.

If you are engaging in an informal practice, decide what you want to focus on. Perhaps you want to pay more attention to your eating habits. If so, to start, pick just a few meals during the week to really focus on eating more mindfully, reflect, and gradually build on that experience.

Find a support group or accountability partner.

“Mindfulness isn’t difficult. We just need to remember to do it.”

Let the practice come to you.

“I used to think that to become free you had to practice like a samurai warrior, but now I understand you have to practice like a devoted mother of a newborn child. It takes the same energy but has a completely different quality. It’s compassion and presence rather than having to defeat the enemy in battle.”

- JACK KORNFIELD, PH.D.

As attorneys, we tend to push hard at much of what we do. With that comes its own stress. The mindfulness practice though is best met with a light touch where we give ourselves a break and have mere curiosity about what comes up in our practice rather than an expectation about how things should be. Give less thought, for example, to how long you are meditating. If the best place for you to start is to focus for three minutes a few times a day on your breath, start there. As your practice develops, the amount of time is likely to organically lengthen. As another example, give less thought and energy to the extraneous chatter in your mind. Notice it is there with a gentle curiosity and understand you have the choice to primarily focus your attention elsewhere, such as on your breath or your body, or on listening fully to another person.

Most importantly, be patient with yourself. This is a lifelong practice and how you engage with it will evolve over time.

-SHARON SALZBERG

Our attention at work and at home is pulled in so many different directions. A mindfulness practice can get lost in the shuffle. For support in building and maintaining your practice, explore the options in your community at local community organizations, yoga studios, and wellness centers. Attend classes, find a friend to practice with, or hire a mindfulness guide or coach. Apps and other electronic tools are also available to help you stay accountable to yourself along the way.

Be kind to yourself when you get off track.

Life happens. There will likely be times when you have a consistent practice and then it drops. That is normal.

Just pick your practice back up and get going again.

Make being kind to yourself in the moments you notice you have dropped the ball a practice in and of itself.

STEPHANIE LEWIS, the founder of LiveWellFlow (livewell� flow.com), is a practicing attorney, certified wellness coach, mindfulness instructor, and Qigong Practice Leader. Her mindfulness training includes certification through WarriorOne, a mindfulness teacher training program for lawyers.

CHECK OUT OUR NEW HEALTH & WELLNESS PORTAL The legal profession is very exciting but often fast paced, and can take a physical and emotional toll. We envision a membership in which every lawyer of the MSBA is provided with the support and education needed to achieve optimal overall health and wellness. The new MSBA Health & Wellness Portal provides members with articles, videos, and other resources to help you succeed in your work and your life. We regularly update the Health & Wellness Portal to bring members the most up-to-date information on physical, emotional, and professional health issues.

MSBA.ORG/WELLNESS-PORTAL

MARYLAND BAR JOURNAL | ISSUE 1 2020

67

We recognize the importance of assisting individuals with disabilities regardless of age or disability.

For the Individual with disabilities we offer a Pooled Special Needs Trust to protect assets and preserve eligibility for benefits.

For the Individual’s family, we offer a Third Party Special Needs Trust to help you plan for the future.

• We facilitate case management and care for coordination as needed.

• We distribute funds to increase the Individual’s quality of life and enhance independence.

• We provide a corporate alternative to the Individual Trustee, for both Pooled Trusts and Individual Trusts.

68

MSBA.ORG | ISSUE 1 2020

ACCESS TO JUSTICE COMMISSION

| UPDATE

Applying Lessons from Disaster Recovery Efforts to COVID-19 Pandemic THE 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 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.

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.

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: • Communications • Convenings & Coordination • 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.

VISIT MDACCESSTOJUSTICE.ORG/COVID-19

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 attorneys, 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.

MARYLAND BAR JOURNAL | ISSUE 1 2020

69

ACCESS TO JUSTICE |

COMMISSIONER PROFILE

B R I N G I N G T H E C O R P O R AT E PERSPECTIVE TO

ACCESS TO JUSTICE MERYL BURGIN Executive Vice President, General Counsel & Corporate Secretary CareFirst BlueCross BlueShield AFTER PRACTICING LABOR & EMPLOYMENT LAW at Whiteford, Taylor, Preston fo three years, Meryl

Burgin moved over to CareFirst as its Human Resources’ Counsel 30 years ago. She’s since continued to take on more responsibility and has moved up the ranks to hold the top legal job at the company. A graduate of University of Baltimore School of Law, she serves as a Commissioner on the Access to Justice Commission (A2JC) and is on the Board of the House of Ruth of Maryland. She helped spearhead the A2JC’s Corporate Workgroup, which boasts corporate counsel from UnderArmour, Marriott & Allegis Corporations, and seeks to raise awareness and involvement of corporations in addressing access to justice challenges.

Photo courtesy of Beverly Funkhouser Photography

70

MSBA.ORG | ISSUE 1 2020

What’s a typical day like as General Counsel of a major corporation?

Tell us about your work on the Access to Justice Commission. What has been your focus?

I don’t know that there is a typical day – as every day is different. There are many meetings in the corporate world.

As a member of the executive leadership team, a significant amount of time is spent on developing, planning and executing on the company’s strategy and mission to provide affordable and accessible healthcare to the communities that we serve. In addition to the legal division, I oversee the company’s Compliance and Audit functions. I also serve as corporate secretary, and focus much of my time on corporate governance from a legal, regulatory and best practices perspective as well as provide support for a large Board of Directors.

I am on the Governance Committee and we have brought additional governance practices to the Commission over the past several years and I served on the Strategic Planning Committee which just completed a comprehensive strategic plan. In addition, we’ve formed a corporate counsel group to develop ways to bring more in-house counsel into this work. Every large company in the state has some percentage of employees who struggle with personal civil related matters that they could use legal assistance with and which in some way affects their work attendance, performance, morale and more.

Corporations are constantly under all kinds of threat. How does your corporate legal department prepare to face these threats?

Our legal, audit and compliance departments work cross functionally with other areas in the company to proactively understand, identify and mitigate risks and threats to the company. Our team stays informed of legal, legislative and regulatory changes and advises our various client areas of what is needed to protect the company. There are certain threats – such as in the IT area of cybersecurity – where we work closely with the subject matter technology experts to make sure we have the appropriate and required protections, policies, standard operating procedures, remediation and response plans in place to address threats - in a legally compliant manner. This also includes coordination with areas such as risk management on appropriate protections in the way of corporate insurance to reduce potential losses.

What skills do you think are most valuable for corporate counsel to have?

I can identify a long list of skills that I believe are valuable for corporate counsel to have, but I would start with the ability to build relationships, partnerships, mutual respect and trust with your internal clients – as they won’t seek proactive counsel or assistance if they believe the legal team is there to block, slow down or impede their ability to achieve their business goals. Subject matter expertise as well as business knowledge and acuity, flexibility, being innovative and creative are all important skills. The ability to collaborate and be a business partner – and not just say “No” - in addition to being a legal counselor are valuable and important skills. As with any attorney, the ability to research, analyze and write clearly – and succinctly – and the dedication to working long hours are skills and behaviors critical to success.

WEB EXTRA

What role do you think corporations and corporate counsel have in abating the access to justice crisis?

I think that corporations and corporate counsel – in conjunction with their Human Resource areas – can provide communications regarding volunteer and pro-bono legal services as well as offer legal service benefit plans to employees to assist them when they are in need. Education and communication are key to abating the access to justice crisis. Of course, financial funding and volunteering legal services is key as well.

People may be denied protective orders or get evicted or deported, not because they did anything wrong, but because they don’t have an attorney.

What do you think is the greatest access to justice challenge in Maryland?

This is a difficult question, but I think a basic lack of understanding of what remedies may be available and the potential implications of proceeding in certain matters without effective counsel. People may be denied protective orders or get evicted or deported, not because they did anything wrong, but because they don’t have an attorney.

What’s one piece of advice that has stuck with you as you have navigated through your career?

Wow, just one? Always be transparent and honest – and admit when you don’t know the answer – don’t make something up! You only have one reputation and once lost it’s nearly impossible to get back.

Read the full interview on MSBA's blog. VISIT MSBA.ORG/MBURGIN MARYLAND BAR JOURNAL | ISSUE 1 2020

71

ACCESS TO JUSTICE |

FIRM PROFILE

New Perimeter: A Global Law Firm’s Global Pro Bono Reach In 2005, DLA Piper created New Perimeter to push the boundaries - or perimeters - of domestic pro bono to expand to global pro bono. New Perimeter’s mission is to provide long-term pro bono legal assistance in under-served regions of the world to promote access to justice, sound legal institutions, and social and economic development. What sets DLA apart from other law firms is that we have a separate nonprofit with full-time legal staff dedicated to global pro bono. Last year, over 150 lawyers from 38 offices participated in over 35 projects through New Perimeter.

LISA DEWEY US Pro Bono Partner, DLA Piper; Director, New Perimeter Washington, D.C. WE SAT DOWN with Lisa to learn more about her work with New Perimeter.

What do you make of the fact that over 5 billion people worldwide face unmet justice needs?

It is a startling number. Often people have no idea that even in our own country, 80-90% of those with legal problems go without help. While the figures can be very discouraging, there are an increasing number of collaborative efforts, including the use of technology, that are being developed to have a greater impact on access to justice. The DC Affordable Law firm—created by our Firm, Arent Fox, and Georgetown University Law Center—is an example of an effort to meet the needs of people who may not qualify for civil legal aid, but who could still never afford a lawyer.

72

MSBA.ORG | ISSUE 1 2020

RECENT NEW PERIMETER PROJECTS INCLUDE:

Trainings New Perimeter partners with Vital Voices to deliver gender-based violence trainings in Asia, Europe and the Middle East; with Women Lawyers Joining Hands and the Nepal Bar Association to train on ethics and commercial law to women lawyers in Nepal; and with the University of Zambia Law School (UNZA) to implement multi-year program to teach legal writing and analysis to law students at UNZA.

Model Legal Framework on Consumer Financial Protection At the request of the Partnership for Responsible Financial Inclusion, New Perimeter drafted a model legal framework and extensive commentary on financial protection for clients of microfinance and other financial institutions.

Tell us more about yourself and your career path.

I am originally from Oklahoma, and came to Washington, DC, to attend law school at the Washington College of Law at American University. While I didn’t know any lawyers growing up, I was drawn to becoming a lawyer because I felt that you could use the law to improve people’s lives and affect social change.

After graduation, I clerked at the D.C. Superior Court, where I learned more about the city and the issues people were dealing with in court on a daily basis. One of the reasons I was attracted to DLA Piper was because it has a very strong culture and value system of doing pro bono and contributing to the community. I started as a general commercial litigator and white collar lawyer, and I immediately had the opportunity to work on impactful pro bono matters and join the firm’s pro bono committee. In 1999, I became the Firm’s first full-time pro bono counsel. The firm has grown and evolved since then, and now has close to 1,500 lawyers in the United States, and over 4,300 lawyers globally. My job now focuses on setting the strategic vision for the pro bono program – looking at project development while ensuring that all of our lawyers feel supported in doing the work. I also have the honor of working with legal service providers in our communities who are in the trenches working to provide access to justice for those who need it most.

Do you have any words of advice to young or upand-coming attorneys?

Yes, as you begin your career as a lawyer, immediately do pro bono and incorporate it into your work as a part of what you do

for your entire career. There is nothing better than witnessing how you can use your skills and time (and often not much time) to make a positive difference in people’s lives – whether that’s seeing the relief of a grandma taking care of her grandkids when you help her in a landlord-tenant matter so that she is not evicted and in danger of becoming homeless; or seeing the look of fear leave the face of a client who is a victim of horrific abuse, when she and her daughter are granted asylum in the United States and can stay here safely. The opportunity to do pro bono work is an amazing gift and you do not want to miss it.

WEB EXTRA

To find a comprehensive description of New Perimeter projects and a video describing New Perimeter, VISIT NEWPERIMETER.ORG

MARYLAND BAR JOURNAL | ISSUE 1 2020

73

ACCESS TO JUSTICE |

DISTINGUISHED LEADER

James Sandman President Emeritus, Legal Services Corporation; Head of the ABA Coronavirus (COVID-19) Taskforce

A LEGAL LION

PROMOTES JUSTICE FOR ALL James J. Sandman has been president of the Legal Services Corporation - the single largest funder of civil legal aid for low-income Americans in the nation - since 2011. He stepped down from this role in February, 2020. We were able to catch up with him weeks before his departure. Hear about his 30 year practice at Arnold & Porter, his many leadership roles, how he was open to risks and transitions to build a satisfying career and his tireless work in promoting equal justice for all.

74

MSBA.ORG | ISSUE 1 2020

You have had a storied career in the law and have worn many different hats and sought out many different experiences. Can you tell us about your career trajectory and what stands out?

I had no master plan to do all the different things I’ve done. In retrospect, I’d say I’ve been guided by three principles. First, be open to unexpected opportunities. For example, I had an unexpected opportunity to move to Arnold & Porter’s Denver office from Washington, and I took it. It was in a small office in Denver that I got my first law firm management experience, and that led to my becoming Managing Partner of the firm. Second, it’s important to take stock periodically to be sure that your work is aligned with your personal values. It was that process that led me thirteen years ago to leave the big law firm world to pursue a new career in public service. And third, if you find that you reach a point where you are no longer happy doing something, be willing to take a chance and make a change. I see too many lawyers stuck in positions they stopped liking years ago because they are so averse to making a change.

You have held many different leadership positions – from managing partner to general counsel to CEO. Tell us your thoughts on effective leadership.

Much of leadership is situational – what is appropriate and effective depends on the institution at a point in time. Being a managing partner requires a number of leadership skills that are different from those a general counsel or the president of a nonprofit needs. But there are some commonalities. Any effective leader requires the help and support of a team of people. No effective leader is a solo act. What I’ve learned is that leadership requires a lot of humility – the ability to recognize one’s weaknesses as well as one’s strengths, and to appreciate and value in others the skills that you will never have.

Strong organizations are led by teams that complement each other’s strengths and compensate for each other’s weaknesses. And good communication, both internal and external, is essential to effective leadership.

me about the opening at the Legal Services Corporation and encouraged me to apply. I realized that the position offered an opportunity to use my management experience to pursue a mission I felt passionate about – access to justice for low-income people.

Strong organizations are led by teams that complement each other’s strengths and compensate for each other’s weaknesses.

Who have been your key mentors and/or influencers? What did they model for you or what advice did they give you that still stands out?

The President’s Budget has zeroed out funding for LSC for the past few years. Yet, in that time, LSC has managed to get an increased appropriation from Congress. Tell us how you and the LSC accomplished that.

My first and most important mentor was the judge for whom I clerked immediately after graduating from law school, the late Max Rosenn of the United States Court of Appeals for the Third Circuit. He led the life of a lawyer as a public citizen. He was not only a superb judge – smart and diligent and a paragon of fairness, he was always giving back to his community. He used his talents of analysis, reasoning, expression, judgment, and persuasion for the good of society in many, many ways. He was proof that kindness and generosity need never be inconsistent with professional success. At the very beginning of my career, he gave me something to aspire to for the duration of my professional life.

We have been working for many years to build broad, bipartisan support for LSC in Congress. As a result of those efforts by many people over many years, members of Congress understand that providing access to justice is a fundamental American value, a value as old as the Republic itself. The understand that civil legal aid is a critical constituent service that brings proven economic benefits to their districts and states.

Our message has been reinforced by the Conference of Chief Justices and the Conference of State Court Administrators, by business leaders, by law school deans, by bipartisan state Attorneys General, by law firm leaders from all 50 states, and by the organized bar.

How did you come to be president of Legal Services Corporation?

The LSC Leaders Council is composed of exceptionally well-regarded professionals. You have a mix of lawyers and non-lawyers and some really surprising individuals, like Hank Aaron and Jim Harbaugh. Tell us about how that came about and why it’s important.

In 2010, when I was General Counsel of the District of Columbia Public Schools, the then-Chancellor, Michelle Rhee, decided to move on. Coincidentally, I was contacted at the same time by two friends who told

NEW HORIZONS Jim Sandman stepped down as the President of the Legal Services Corporation in February, 2020. He is now at the helm of the American Bar Association’s Coronavirus (COVID-19) Taskforce.

MARYLAND BAR JOURNAL | ISSUE 1 2020

75

We need to enlist new messengers to new audiences – unusual suspects – to educate the public about the need to improve access to justice.

The Leaders Council is the work of LSC’s remarkable board chair, John Levi, who has personally recruited all of the members. The Council’s composition reflects the fact that access to justice is an essential societal goal, and not just a matter for the legal profession. The biggest challenge we face in improving access to justice is widespread ignorance of the magnitude of the problem today. The National Center for State Courts estimates that in 74 percent of civil cases in state courts, at least one party does not have a lawyer. People don’t know that.

We need to enlist new messengers to new audiences – unusual suspects – to educate the public about the need to improve access to justice.

The demand for legal services and the access to justice gap are demanding and driving reforms in the legal profession. More effort is being made to give out free legal information, simplify legal processes to make them more accessible and user-friendly. But these moves can be perceived by private practitioners as threatening. What are your thoughts on that?

The Rules of Professional Conduct provide that “a lawyer should seek improvement of the law [and] access to the legal system,” so I think lawyers have an obligation to help provide access for people who cannot afford legal assistance. My focus is on low-income people. Increasing their access to legal information and resources poses little threat to the livelihoods of practicing lawyers

You have been a Commissioner on the Access to Justice Commission in D.C. What are your thoughts on the spread of Commissions across the country and the unique role they may play in the local legal landscape?

I believe there are now Access to Justice Commissions in 41 states. They have made a big difference in increasing funding for legal aid, both by the government and through philanthropy; in mobilizing pro bono resources; in enlisting new allies, such as public librarians and faith leaders in identifying legal needs and routing those who have them to appropriate resources; and in educating communities about the importance of supporting legal services. Their familiarity with their communities and local legal needs has been very important to their effectiveness.

76

MSBA.ORG | ISSUE 1 2020

What do you view as your greatest professional accomplishment?

I have accomplished nothing without the help and support of many, many other people. I couldn’t claim any accomplishment as my own.

What advice do you have for young, up and coming attorneys?

Personal character – integrity, kindness, generosity, and service to others – contributes to professional success.

Anyone who tells you that nice guys finish last is a cynic, a loser, and wrong.

The legal profession can be stressful. What has worked for you in terms of wellness and balance and having healthy outlets?

I think the best antidote to stress is human relationships.

The love and support of my family and friends have been essential to me. I benefit enormously from having routines and rituals with my family that keep me grounded. My hobby is being a volunteer. The friendships and relationships I’ve developed through many volunteer activities enrich my life and open a world to me outside of work.

What’s next for you?

I plan to continue to work. I’d like to remain involved in improving access to justice. I’d like to teach. I’d like to speak, write, and advocate more than I have been able to previously. I’d like to do things I’ve never done before.

Stay tuned!

WEB EXTRAS

LSC'S LONGEST SERVING DIRECTOR DISCUSSES IMPORTANCE OF ACCESS TO JUSTICE James Sandman shares his thoughts on the importance of the work done by Access to Justice Commissions across the country.

Read the full interview with James Sandman on MSBA's blog.

VISIT MSBA.ORG/JSANDMAN

Are you

up to

date?

Bring your library up to date with these new CLE publications!

N O W AVA I L A B L E

Maryland Divorce and Separation Law Tenth Edition John J. Condliffe, Esq. & Debra B. Cruz, Esq.

Practice Manual for the Maryland Lawyer fifth Edition MSBA Young Lawyerâ&#x20AC;&#x2122;s Section

Electronically Stored Information in Maryland Courts Available May 2020 Michael D. Berman; The Hon. Paul W. Grimm; Alicia L. Shelton; Diane P. Kilcoyne

JUDGMENT AVOIDANCE: EXEMPTIONS AND LIEN STRIPPING Available May 2020 Marc Robert Kivitz, Esq. & Jan Ingham Berlage, Esq.

Order your copies today at

msba.org/cle-catalog MARYLAND BAR JOURNAL | ISSUE 1 2020

77

FOR YOUR

practice

78

MSBA.ORG | ISSUE 1 2020

MARYLAND BAR JOURNAL | ISSUE 1 2020

79

FOR YOUR PRACTICE

| TECH DEVELOPMENTS

Incident Response Plans Come of Age

BY SHARON D. NELSON, ESQ. AND JOHN W. SIMEK © 2019 SENSEI ENTERPRISES, INC.

Why do Only 25% of Law Firms Have Incident Response Plans?

One of the most striking findings of the ABA’s 2018 Legal Technology Survey Report was that only 25% of law firms had an Incident Response Plan (IRP). In a world struggling daily against cyber incidents and data breaches, that is a piteous statistic. It is time law firms come to grips with the necessity of having an Incident Response Plan.

Let us be clear at the outset that we are zeroing in on solo, small and mid-sized law firms.

While large law firms will include all the elements we reference below in their IRPs, theirs will be far more complex and with many moving parts. As ever, we are trying to craft a solution that is reasonable and not financially overwhelming to meet the ethical rules which govern lawyers.

What Does an IRP Prepare you For? An incident response plan prepares you for data breaches and cyber incidents. And we’ll stop right there because we know many folks are confused by the difference. There are a lot of cyber incidents that are not breaches.

A common example is ransomware, where your data is encrypted, but not (in almost all cases) compromised. The whole point is to get you to pay a ransom, not to access and take your data.

ported (or exfiltrated, as the cybersecurity experts call it) to servers elsewhere. This is the ultimate nightmare, triggering all manner of legal and ethical requirements.

Another common cyber incident involves someone pretending to be a law firm managing partner (spoofing their email) and asking the recipient to buy iTune cards.

This happened to a local law firm on a new employee’s first week of work. Because the email promised reimbursement and appeared genuine, she bought the cards. She was out $1200.00. No, the law firm did not make good her losses. Hopefully, her job at the law firm improved from there.

23%

A true data breach is where your confidential data is actually accessed – and often trans80

MSBA.ORG | ISSUE 1 2020

A Statistic, a Quote and an Anecdote The 2018 ABA report referenced above showed that 23% of law firms have been breached at some point. In all likelihood, the percentage is much higher because many lawyers, especially in big firms, haven’t

of law firms have been breached at some point. the slightest clue that their firm has been breached unless the incident becomes public.

The truth is that most law firm breaches

never become public.

Some years ago, the authors attended a meeting in DC involving a number of AMLAW 200 law firms. While we were asked to keep all identifying details private, we can say that every law firm represented at that meeting had been breached, some more than once. It takes a lot to shock us, but we were shocked that day.

As for the quote, it is an oldie but a goodie – and by a man everyone knows today.

“I am convinced that there are only two types of companies: those that have been hacked and those that will be. And even they are converging into one category: companies that have been hacked and will be hacked again.”

Those words were spoken by former FBI Director Robert Mueller at the RSA Cybersecurity Conference in March 2012.

From our foxhole, that prediction has come true.

The Nuts and Bolts of IRPS There are certain things common to all IRPs and we will discuss them. But let us begin with a caution: Don’t just grab a template from the internet and call yourself done.

Templates can be useful starting points, but not more than that. Every law firm is unique in its structures, procedures, etc. Its IRP should reflect that.

Cybersecurity consultants can help with developing an appropriate IRP and so can data breach lawyers. It makes us chuckle to

think that, not many years ago, no one called themselves data breach lawyers. Now data breach lawyers are spawning like rabbits. A short visit to Google will produce one near you.

Who’s in Charge?

One of the first things to identify in the IRP is the person who will manage a cyber crisis.

You want a steely-eyed, calm individual who will keep a floundering ship steady in rough seas. Our experience is that such individuals exist, but are in short supply.

The person in charge is going to receive a lot of bad advice. That means they must be true leaders, able to sift the good advice from the bad and yet make everyone feel included in the process. No easy task.

Your First Five Calls Before disaster strikes, hopefully you have already established a relationship with a data breach lawyer and a digital forensics firm (often the lawyer will recommend a firm). Here, as ever, there is a difference between large firms and smaller firms. The large firms tend to select a large firm data breach lawyer with a hefty price tag. Smaller firms are better served by a data breach lawyer from a smaller firm with a smaller price tag.

That same reasoning applies to the selection of a digital forensics firm. In selecting both a data breach lawyer and a digital forensics firm, the best advice we can offer is to consult your colleagues for recommendations if you don’t already have these folks on board.

However, if you have cyber insurance coverage, the insurance company may designate law firms or companies.

There are arguments about whether to call the data breach lawyer or the digital forensics firm first. That’s actually a close call in our judgment. You want to get preliminary advice from your lawyer as soon as possible, but you also want the digital forensics folks to jump on board quickly because they may be able to take rapid measures to stop or limit the impact of the cyber incident.

Make sure these first two steps are in your IRP with contact info for the professionals you will be using.

Your data breach lawyer will advise you about whether it is necessary to call your regional FBI office or the FBI’s Internet

Crime Complaint Center (known as IC3) and located at https://www.ic3.gov/default. aspx. The IC3 has been particularly effective in cases involving wire fraud.

The next part of your plan will include calling your bank (if appropriate) to alert it in case there is any possibility that your funds are at risk – for instance, if the credentials to log into your operating or escrow account may have been compromised. Don’t let this unnerve you – banks are used to getting these calls today. They are happy to flag your account so that they are especially alert to suspicious activity. That’s a win-win.

Finally, you want to include contact information for your insurance company.

Hopefully, you have by now secured cyber insurance (if not, put that on your priority list!). Most policies require notice within a certain amount of time and you may lose benefits if your notice is not timely.

One of the first things to identify in the IRP is the person who will manage a cyber crisis. You want a steely-eyed, calm individual who will keep a floundering ship steady in rough seas.

Network Diagrams, Logging Etc. Your IRP needs to reference a number of things about your infrastructure. Attached to the plan should be a network diagram, a

Matt Grogan

WE REPRESENT INJURED WORKERS More than $10 million recovered for injured workers in 2019

www.warnkenlaw.com

Andrew Mazan Jim Lanier

Byron B. Warnken, Jr.

Rebecca L. Smith

MARYLAND BAR JOURNAL | ISSUE 1 2020

81

detailed inventory of your hardware, and all relevant logging information – critical to an investigation of a cyber incident. You should always log as much as possible to create an audit trail of what may have happened – greatly appreciated by your digital forensics investigators.

Data Breach Notification Laws All the states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands now have data breach notification laws.

Lucky you if you only practice in a single jurisdiction. Just make sure you’ve read the law and place a copy of it with your IRP. In all likelihood, the majority of folks reading this are practicing law only within the U.S. But beware, the laws vary widely – and carry penalties. Good legal advice is worth its weight in gold. Why don’t we have a national data breach law? A very good question to which we have no good answer. A national data breach law has been proposed many times only to die in Congress. We imagine it will come one day because it is terribly confusing and expensive to comply with the national patchwork of laws.

Communicating Data Breaches with Clients Since data breaches cannot entirely be avoided, Formal Opinion 483 says of lawyers, "When they do (have a breach), they have a duty to notify clients of the data breach under Model Rule 1.4 in sufficient detail to keep clients 'reasonably informed' and with an explanation 'to the extent necessary to permit the client to make informed decisions regarding the representation.'"

So yes, this goes on the list of things to do if you have a breach, rather than a cyber incident.

First, law firms must halt the attack, mitigate the damage and then make reasonable efforts to assess the data that may have been exposed and the duty of disclosure. This is not so easy. There is ransomware which infiltrates your data before encrypting your files (therefore a data breach) or ransomware which only encrypts your files and then asks a ransom for the decryption key (therefore not a data breach – and the much more common kind of ransomware). The opinion notes that your efforts in determining what happened and fixing it may be through qualified experts.

82

MSBA.ORG | ISSUE 1 2020

If you need to report an incident to a government agency, you are still bound by Rule 1.6.

There is some tension over trying to report and trying to maintain client confidential data. How do you know if the disclosure is “impliedly authorized?” Read the opinion fully to understand all the nuances of this dilemma.

What exactly are you supposed to tell clients in your disclosure? The opinion is a little vague, saying that “the disclosure must be sufficient to provide enough information for the client to make an informed decision as to what to do next, if anything.”

The opinion dodges a bit when it comes to former clients, finding no duty to notify former clients unless there is something mandating notification. The IRP cannot possibly cover every scenario so it must simply provide for an analysis of whether and what to communicate to clients – and possibly third parties which may also be impacted by your cyber incident or data breach.

Testing the Plan You don’t want a cyber incident to be your first test of your IRP. Annual tabletop exercises simulating a cyberattack are common and very useful. Adding and subtracting complications to a scenario is also helpful.

What if your data breach lawyer is unavailable? What if the power grid is down? If the attack is on your cloud provider rather than on-premise servers, how does that change the plan itself?

Beyond tabletop exercises, security assessments are always a wise precaution – and yes, annual ones are optimum even for smaller firms. Penetration tests are where a good guy – hopefully a Certified Ethical Hacker, certified penetration tester such as GPEN or someone with a similar certification- simulates being a bad guy and attacks your firm to discover vulnerabilities. As we tell folks, this is not for the faint of heart and it tends to be considerably more expensive than a security assessment. Under the “reasonableness” standards of the ethics rules, we believe that the security assessment will suffice for most small to mid-sized firms.

Final Words There is nothing magical about IRPs. They are “Plan A” and we all know that Plan A never survives first contact with the enemy.

What if your data breach lawyer is unavailable? What if the power grid is down? If the attack is on your cloud provider rather than on-premise servers, how does that change the plan itself?

But at least you have a roadmap when a cyber incident strikes. We have seen hapless panic and foolish steps taken in the wake of a cyber attack many times – not a pretty sight and not useful under dire circumstances.

Inevitably, the plan will morph over time.

There will be new threats, new defenses, new methodologies for investigating and recovering for a breach, etc. That’s why these plans need regular review. But if you are part of the 75% of law firms without an IRP, it’s time to roll up your sleeves and create one.

SHARON D. NELSON, ESQ. is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association and the Fairfax Law Foundation. She is a co-author of 17 books published by the ABA. snelson@senseient.com.

JOHN W. SIMEK is vice president of Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional and a nationally known expert in the area of digital forensics. He and Sharon provide legal technology, cybersecurity and digital forensics services from their Fairfax, Virginia firm. jsimek@senseient.com.

FOR YOUR PRACTICE

| RECENT DECISIONS

Rap Lyrics: When Art Ought Not Imitate Life

BY MSBA STAFF ATTORNEY

WHEN HE OBSERVED THAT “life imitates art

more than art imitates life,” Oscar Wilde could not have anticipated how significant this observation might be 100 years later when courts would be determining the admissibility of rap lyrics at criminal trials. In Montague v.

State (No. 2033, Sept. Term 2017, 12/23/19), the Maryland Court of Special Appeals concluded that lyrics composed by a defendant after the crime occurred - art allegedly imitating life - can be admissible when they mirror actual events. In reaching this conclusion, the court first had to distinguish several earlier cases in which lyrics written before the crime - life allegedly imitating art - were deemed to be unfairly prejudicial and, therefore, inadmissible.

Montague was charged with the murder of a drug customer who paid with counterfeit currency. The victim arrived at the crime scene in a pickup truck, was shot and taken by ambulance from the scene, where .40 caliber casings were recovered. While awaiting trial, Montague entertained a friend with a rap composition, introduced against him in the State’s case: Y.S.K. / I always let it spray/ And, if a n---a’ ever play / You know he’s dead today /...

There’s a .40 when this bitch goin’ hit up shit/ …

Like a pickup truck /But you ain’t getting picked up/ You getting picked up by the ambulance...

Balancing the competing interests of Maryland Rules 5-402 (relevant evidence is admissible), 5-403 (but not when its probative value is substantially outweighed by a danger of unfair prejudice), and 5-404 (character evidence is not admissible to prove action in conformity with that character), the court found that Montague’s lyrics, composed after the murder, bore a strong connection to actual events and thus were were properly admitted by the trial court. Montague’s lyrics indicated that if he was “played,” lethal retribution would follow. They referenced a .40

caliber, and noted that the victim left by ambulance rather than in his pickup truck. The verses were relevant, the danger of unfair prejudice did not outweigh their probative value, and they were not simply evidence of character.

Montague’s art arguably imitated his life.

The court discussed opinions in several other cases involving rap lyrics. Most of those had concluded that lyrics written before the crime was committed were inadmissible character evidence. In Hannah v. State, 420 Md. 339 (2011), for example, the State used lyrics composed two

The Maryland Court of Special Appeals concluded that lyrics composed by a defendant after the crime occurred - art allegedly imitating life - can be admissible when they mirror actual events. years before a murder to impeach a defendant’s testimony that he knew nothing about firearms. The court found that these were inadmissible works of fiction rather than “autobiographical statements of historical fact,” or life only arguably imitating art.

These determinations obviously depend on more than the temporal relationship between composition and crime.

While there should be nothing inherent in any genre that makes it more susceptible to evidentiary conundrum than others, the body of case law involving the use of rap lyrics as evidence is steadily growing. It will continue to inform the law in a digital age where art in all its forms can be created, instantly disseminated, and preserved for later use at trial.

MARYLAND BAR JOURNAL | ISSUE 1 2020

83

FOR YOUR PRACTICE

| LEGAL WRITING NUTS AND BOLTS

The 10 Principles of Plain English

BY DAVID HRICIK AND KAREN J. SNEDDON

THE PLAIN ENGLISH MOVEMENT, also known as the Plain Language Movement, is decades old but still is rich with insights into how

to improve your legal writing. The movement had originally focused on the writing of statutes and consumer contracts, but its foundational principles were found to apply to a wide range of legal documents. This article provides a primer on Plain English by presenting what are considered the 10 principles of Plain English.1 1. Include a Table of Contents, Outline, or Roadmap Good legal writing is organized. One Plain English principle focuses on providing up-front organizational information to the reader. In some documents, that can be contained in a table of contents or a summary, such as a summary of the argument or “executive summary.”

While that may satisfy a macro-level view of providing up-front organization, the principle applies within the document. For example, good organization can take the form of providing a roadmap paragraph within a section, and topic sentences to start each paragraph. Establishing and maintaining an organizational scheme throughout a document guides the reader and increases apprehension of information.

2. Use Descriptive Headings People are busy. While the ideal reader reads from beginning to end and a text should be structured with that in mind, headings can help readers looking for particular information. Headings help both types of readers. Descriptive headings help move the reader from one topic to the next and help the reader who needs to find a particular subject.

Using bold or italics ensures that the headings stand out.

3. Embrace Short Sentences Readability studies suggest that our brains best process sentences that are less than 20 to 30 words long. Short sentences are better, but the writer should include shorter and longer sentences to vary the rhythm of the text. With complicated concepts to convey and expert knowledge of commas, semicolons and colons, a writer might unintentionally present a series of long, dense sentences. Being attentive to sentence length thus will help the writer to present information in reader-accessible units of information, but also not have a staccato effect.

4. Leverage Subject-Verb-Object Sentence Constructions Each language has its own conventions about the sequencing of particular parts of speech. In English, we favor a sentence construction that begins with a subject, is followed closely by a verb and ends with an object. This is referred to as the subject-verb-object sentence construction. Consider the following examples.

Never have I written only one draft of an appellate brief.

When writers invert this typical word order, the writer may draw attention to the atypically constructed sentence. The writer can lose the reader or force the reader to re-read sentences if they continually invert the typical word order. The subject-verb-construction meets the expectations of the reader and often forces the writer to use active voice with shorter sentences.

5. Favor Active Voice Active voice requires a writer to align the actor in the sentence with the grammatical subject of that sentence. The writer also has to use a strong verb. The following sentence is an example of active voice. Erik wrote the email. Erik is both the actor in the sentence (i.e., the person who is performing the act of writing) and the grammatical subject of the sentence (i.e., the word that occupies the position in the sentence where subjects are typically placed, at the beginning). The verb “wrote” is also a strong verb.

In contrast, that sentence information in the passive voice would read: The email was written by Erik. Erik continues to be the actor in the sentence because Erik is performing the act of writing. But the grammatical subject of the sentence is now the object—the email.

“Was written” is also not as strong as “wrote.” As another example using passive voice, consider: The email was written. Now the actor of the sentence is missing. At times, passive voice can be appropriate—if you’re representing the defendant in a breach of contract case, “the contract was breached” may be better than “defendant breached the contract”—but active voice should be favored.

6. Feature Positive Forms Sentences are stronger and the information more accessible if written in the positive form, not the negative form. Negative words include cannot, do not and will not. Consider these two sentences: Do not use weak sentence constructions.

Use strong sentence constructions.

The positive form is a stronger sentence. It is shorter, more direct, and does not require the reader to mentally convert “not weak” to “strong.”

I have never written only one draft of an appellate brief.

1

84

See, e.g., George H. Hathaway, An Overview of the Plain English Movement for Lawyers, 62 Mich. B.J. 945, 945 (1983).

MSBA.ORG | ISSUE 1 2020

7. Use Parallel Constructions Being proficient with grammar is an important skill for all writers, legal writers included. Because a large part of our jobs consists of writing, lawyers are, relative to many other professionals, more proficient at using proper grammar. But parallel constructions can cause problems even for a grammar nerd.

The principle is straightforward: parallel ideas should be presented in parallel grammatical forms. The following sentence does not follow that principle: When calculating the appropriate child support award, the court considers the financial costs of maintaining, caring for and education of the child.

Below are two ways to provide that information using parallel forms: When calculating the appropriate child support award, the court considers the financial costs of the child’s maintenance, care and education.

When calculating the appropriate child support award, the court considers the financial cost of maintaining, caring for and educating the child.

8. Select Concise Phrasing Selecting concise phrasing is about more than adhering to word counts, line limits or page restrictions. Unnecessary wordiness and bulky constructions can bog the reader down. Below are a few examples of a wordy phrase and its concise counterpart. at that point in time

when

due to the fact that

because

despite the fact that

despite

for the period of

for

places emphasis

emphasizes

in order to

to

9. Choose Simple Words This principle does not mean to avoid words having more than a certain number of syllables. Instead, it reminds us to minimize use of jargon, confusing acronyms, and outdated legalese. Legal writers should not aspire to have their text read like Blackstone’s Commentaries. Eschewing use of words like “executrix” or “administratix” are examples of avoiding outdated legalese. Avoiding words like “eschew” may be good, too.

WANT TO READ MORE ABOUT PLAIN ENGLISH? HERE ARE SOME ARTICLES OF INTEREST. • Joseph Kimble, Lifting the Fog of Legalese: Essays on Plain Language (2006).

• Rachel Stabler, “What We’ve Got Here Is Failure to Communicate”: The Plain Writing Act of 2010, 40 J. Legis. 280 (2013-2014).

• Ian Gallacher, “When Numbers Get Serious”: A Study of Plain English Usage in Briefs Filed in the New York Court of Appeals, 46 Suffolk L. Rev. 45 (2013).

• Julie A. Baker, And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate, 80 UMKC L. Rev. 287 (2011).

• Kali Jensen, Note, The Plain English Movement’s Shifting Goals, 13 J. Gender Race & Just. 807 (2010).

• Wayne Schiess, What Transactional Drafters Should Know about Plain English, 39 Tex. J. Bus. Law 515 (2004).

• Joseph Kimble, The Great Myth That Plain Language Is Not Precise, 7 Scribes J. Legal Writing 110,110 (1998 – 2000).

• George D. Gopen, The State of Legal Writing: Res Ipsa Loquitur, 86 Mich. L. Rev. 333 (1987).

• George H. Hathaway, An Overview of the Plain English Movement for Lawyers, 62 Mich. B.J. 945 (1983).

10. Prefer Precise Words With more than 650,000 words in the English language, writers have a lot to choose from. Unfortunately, English also has a lot of words that look and sound the same but mean entirely different things. Consider the difference between counsel and council. Or the difference between affect and effect. Both pairs sound the same but have different meanings. They illustrate a principal reason why it can be hard to always follow Plain English principles.

Likewise, avoid the clutter caused by nominalizations. The following sentence uses a nominalization. The attorney made a recommendation that the client consider mediation. Removing the nominalization—a verb that had been turned into a noun results in: The attorney recommended that the client consider mediation.

Legal writing should be clear and accessible. These principles of Plain English serve as helpful reminders on how to do just that.

This article originally appeared in the October 2019 edition of Georgia Bar Journal, it is reprinted with permission from the authors and the Georgia Bar Journal.

MARYLAND BAR JOURNAL | ISSUE 1 2020

85

FOR YOUR PRACTICE

| EMERGING ISSUES OF LAW

How the U.S. Supreme Court May Affect the Interplay Between

Sex-Based Discrimination In Employment Versus In Education

BY JEFFREY J. SADRI, ESQ. On October 8, 2019, the U.S. Supreme Court heard oral argument in the matter of R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 2019 U.S. LEXIS 2846. The novel legal issue to be analyzed in this case is whether sex-based discrimination in the workplace, which is illegal under Title VII of the Civil Rights Act of 1964, prohibits discrimination against transgender people based on sex stereotyping or their status as transgender. The Supreme Court is expected to issue its decision in June of 2020.

In that case, the plaintiff-former employee was terminated from employment less than one (1) month after informing her supervisor that she intended to have sex reassignment surgery and would begin to dress as a woman so that she may transition from male to female. EEOC v. R.G., 884 F.3d 560, 568-569 (6th Cir. 2018). The supervisor admitted that he fired the plaintiff because “he was no longer going to represent himself as a man.” Id. The Sixth Circuit found that the defendant-employer engaged in “sex stereotyping” when it terminated the plaintiff for wishing to dress in a manner which they believed did not comply with male norms. Id. at 574.

The Court further found that the employer committed sex-based discrimination when they fired the plaintiff because of her status as transgender and thereby her gender identity. Id. at 575. The Supreme Court’s decision to either affirm or reject the logic of the Sixth Circuit will have profound implications, both in workplaces across America and in many other aspects of daily American life.

The Sixth Circuit found that the defendant-employer engaged in “sex stereotyping” when it terminated the plaintiff for wishing to dress in a manner which they believed did not comply with male norms.

Title VII is not the only federal law which prohibits sex-based discrimination in society. Title IX of the Education Amendments of 86

MSBA.ORG | ISSUE 1 2020

1972 protects individuals from sex-based discrimination in education programs or activities receiving Federal financial assistance. 20 U.S.C. § 1681(a). “Courts look to case law interpreting Title VII for guidance in evaluating a claim brought under Title IX.” Doe v. Bd. of Educ., 982 F. Supp. 2d 641, 651 (D. Md. 2013) (internal citation omitted); see also Ward v. Johns Hopkins Univ., 861 F. Supp. 367, 375 (D. Md. 1994) (“Title VII standards should be applied to a case of gender discrimination brought under Title IX.”). As such, the Supreme Court’s decision in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC will inevitably influence how Title IX is subsequently interpreted as well.

In fact, the lawsuit that brings this interplay to life may already be pending. On February 12, 2020, three (3) female high school students filed suit in the U.S. District Court for the District of Connecticut against the Connecticut Interscholastic Athletic Conference and various Boards of Education for alleged sexbased discrimination under Title IX. Soule et al. v. Connecticut Association of Schools, Inc. et al., Case No. 3:20-cv-00201-RNC (D. Ct. 2020). The students allege that they are being discriminated against as female track and field athletes because transgender high school students, “who are male in every biological respect,” and who are “claim[ing] a female gender identity,” can participate in the interscholastic girls’ track and field competitions.

See id., Compl., ¶ 2. The plaintiffs claim that, as a direct result of this, they are losing more track events and thereby suffering tangible harm, e.g., receiving less opportunities to acquire athletic scholarships for college. From the plaintiffs’ perspective, this violates “Title IX’s mandate of equal opportunity for both sexes.” Id. at ¶ 5.

Title IX does not specifically define what “sex” means. See 34 CFR §106.2 (“sex” is not defined in the “Definitions” section).

With respect to athletics, “a recipient [of federal financial assistance] may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” 34 CFR §106.41. The plaintiffs in the Connecticut Association of Schools, Inc. case maintain that the “differences in male and female physiology” cannot be ignored. See Compl., ¶¶ 41-46, 52 (“The sex differential isn’t the result of boys and men having a male

gender identity, more resources, better training or superior discipline. It’s because they have androgenized bodies.”) (Internal citation omitted). Per defendant, Connecticut Association of School, Inc.’s policy, eligibility to compete in sex-specific athletic competitions is solely based on the student’s gender identity.

Id. at ¶¶ 70-71.

Title IX does not specifically define what “sex” means.

There have been prior cases holding that transgender students have the right to use the bathroom matching their gender identity, thereby supporting the proposition that “sex” in Title IX includes “gender identity.” See, e.g., Adams v. Sch. Bd., 318 F. Supp. 3d 1293, 1325 (M.D.F.L. 2018). In the Adams case, the court found that the plaintiff-transgender student, who identified as a boy, using the boys’ restroom did not pose a threat to the privacy or safety of any other students. Id. at 1297. Contrary to the Connecticut Association of Schools, Inc. case, however, Adams primarily dealt with 34 CFR § 106.33 (“Comparable Facilities”), as opposed to “Athletics.” See id. at 1320.

Defining “sex” [e.g. does “sex” mean “gender identity” or “biological sex?”] shall certainly be a long battle between the parties in the Connecticut Association of Schools, Inc. case. I envision that the Supreme Court’s ruling in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 2019 U.S. LEXIS 2846, will be incorporated into the parties’ arguments and into the court’s analysis. It will be interesting to see whether the court in Connecticut Association of Schools, Inc. makes a distinction between “Comparable Facilities” and “Athletics,” and how the definition of “sex” has an impact on each. No doubt, this will not be the last time by which the Supreme Court is asked to define what “sex” means and refine the application of “gender identity” in civil rights matters.

JEFFREY SADRI is an attorney with Bennett & Ellison, P.C., where his practice includes employment & labor law.

MARYLAND BAR JOURNAL | ISSUE 1 2020

87

FOR YOUR PRACTICE

| UPDATES FROM THE JUDICIARY

Court News Since the publication of the last Maryland Bar Journal, the Maryland Judiciary has undergone significant change, mostly as a result of COVID-19. Beginning on March 12, 2020 the Maryland Judiciary issued a series of orders effectively closing the courts to the public through June 5, 2020. At the time of this publication, the Maryland Judiciary is actively working on plans to reopen Maryland Courts. The MSBA commends the Maryland Judiciary for its response to this unique and fluid situation.

New Custody Process Prior to the recent orders associated with COVID-19, the Courts had some happier news to report including the introduction of the new parenting plan process. On February 21, 2020, the Maryland Judiciary announced implementation of the new process “to ensure the parties involved in custody matters focus on the best interests of children and put them at the core of decision-making. Parents are now required to create a parenting plan, a written agreement that outlines how decisions about a child’s health, education, and welfare will be made and when the child will spend time with each party.”

Court of Appeals Chief Judge, Hon. Mary Ellen Barbera explains that “Parenting plans reflect recommendations made by mental health and child development experts to help insulate children from adverse effects of conflict between parents. The new process helps ensure the best interests of the child are the focus of and guide the development of the parenting plan for the child.”

The new process was effective beginning on January 1, 2020.

Towson District Courthouse Relocated Beginning on January 6, 2020, the Towson District Courthouse, formerly located at 120 E. Chesapeake Avenue in Towson, moved to the new Catonsville District Courthouse, located at 1 Rolling Crossroads in Catonsville. According to Hon. John P. Morrissey, Chief Judge of the District Court of Maryland, the move was necessary to facilitate HVAC system repairs in the Chesapeake Avenue Courthouse. Once repairs are completed, the Towson District Courthouse operations and staff will return to the Chesapeake Avenue location. Repairs are estimated to take six months.

88

MSBA.ORG | ISSUE 1 2020

WEB EXTRA

Find all court updates at MSBA.ORG/COVID-19/COURTS

Judicial Appointments On February 17, 2020, LaKeecia Renee Allen, John Anthony Bielec, Dolores Dorsainvil, Stacey Maria Cobb Smith, and Wennesa Bell Snoddy were appointed to the District Court for Prince George’s County.

In December 2019, Family Magistrate Bibi Berry and Michael McAuliffe were appointed to the Montgomery County Circuit Court. Richard R. Trunnell was appointed to the Anne Arundel County Circuit Court and James L. Tanavage will take a seat on the Maryland District Court in St. Mary’s County.

Also in December 2019, Governor Larry Hogan named Baker Donelson shareholder, Jonathan Biran to serve on the Maryland Court of Appeals. He was affirmed by the Senate in February.

Please join us in congratulating the newest members of the Maryland Judiciary.

Career Highlights What Iâ&#x20AC;&#x2122;ve Learned

Past President Profile of a past MSBA President.

Career Transitions

Breaking into Law Stories from lawyers who entered the legal field after other promising careers.

Leaders in the profession sharing their successes and advice with the next generation of attorneys.

Attorneys sharing their experience of moving between legal sectors or advancing into leadership positions.

Off the Beaten Path Professionals finding non-traditional ways to put their law degrees to work.

MARYLAND BAR JOURNAL | ISSUE 1 2020

89

CAREER HIGHLIGHTS

| BREAKING INTO THE LAW

Alejandra Morisi

SENIOR ATTORNEY, KIDS IN NEED OF DEFENSE MARYLAND

"Though I picked another career path, I always felt something tapping me on the shoulder to remind me of this experience and the call to do something bigger."

Alejandra Morisi is a Senior Attorney at Kids in Need of Defense (aka â&#x20AC;&#x153;KINDâ&#x20AC;?), an organization that provides attorneys to children facing immigration issues at no cost. Her work includes, representing children in immigration removal proceedings including children eligible for asylum, Special Immigrant Juvenile Status (SIJS), T visas and/or U visas. In her role, she supervises a team of direct representation attorneys, paralegals, law student interns and volunteers.

90

MSBA.ORG | ISSUE 13 2020 2019

Photo courtesy of Beverly Funkhouser Photography

ANSWERING THE

CALL

AS PART OF HER CURRENT ROLE, she mentors pro bono attorneys who support KIND’s work by representing clients. Ms. Morisi ex-

plains that “This aspect of my job is important to me because it exponentially expands our reach and allows us to represent more children than we could as an office. Their work allows us to get closer to meeting the great demand in our community. My goals are always to be as instrumental as I can in my mentoring to support the resolution of the children’s cases.”

Prior to joining the legal profession, Ms. Morisi was a licensed massage therapist in Florida. She did contract work for the resorts around the theme parks in Orlando and also did therapeutic massage for local clinics.

We asked her a few questions about her prior career, her motivation behind her transition into the legal field, and learned a little more about her personally.

What prompted you to explore a career in the law?

I was born in Chile and lived part of my childhood there during the dictatorship. Despite being small, I was greatly impacted by the accounts of people who went missing and human rights violations. I was also impacted by the work of those working to make sure those silenced had a voice. I never thought of the impact of that experience until I was older. Though I picked another career path, I always felt something tapping me on the shoulder to remind me of this experience and the call to do something bigger. I knew I’d want to be involved in a career involving advocacy, the law and human rights so, after a few years, I decided to make the jump and completely changed careers.

What challenges did you face when you decided to pursue a career as an attorney?

How has your prior career helped you in your new role in the legal profession?

My prior career was client-centered with a big emphasis on creating a space in which healing could happen. In my current role, this plays a big part in building rapport with victims. I believe this makes me a better attorney because it allows me to get key information from my clients which, in turn, helps me present their cases accurately and thoroughly.

What’s an interesting fact about you that no one would guess?

I planned to go to medical school when I was an undergraduate. I took all the courses necessary and have a minor in Chemistry.

What’s your favorite vacation spot?

So far, my favorite vacation has been to Portugal. It is breathtakingly beautiful and its people are genuine, humble and so hospitable.

What do you do to unwind/destress?

I've been doing CrossFit for eight years and workout at CrossFit Baltimore. I am very passionate and dedicated to my exercise routine and our community there. It provides a mental and emotional outlet from the heaviness of my work.

My prior career was so drastically different from my current role in the legal profession that I had to start from scratch. I was completely unfamiliar with the legal field so I decided to change jobs and I started working in a law firm to gain exposure to legal careers.

I worked full time, studied and took the LSAT. I did not know much about the culture of law school or the legal profession prior to applying to law school. That first year of law school was extremely challenging and pressured and so different than how I had experienced school before.

MARYLAND BAR JOURNAL | ISSUE 1 2020

91

CAREER HIGHLIGHTS

| PAST PRESIDENT

Mike Baxter PRESIDENT, BAXTER BAKER MSBA PRESIDENT 2013-14

S T R AT E G I C

LEADERSHIP Michael Baxter, of Baxter Baker, is Baltimore based attorney whose practice focuses on Medical Malpractice Defense. He served as the MSBA President from 2013-14.

We sat down with him to talk about his practice, his role as chair of the strategic implementation committee, and a little bit about him personally.

Photo courtesy of Beverly Funkhouser Photography

92

MSBA.ORG | ISSUE 1 2020

In your own words, please describe why you were active with the MSBA and what drove you to become President?

In the beginning of my career I worked at a law firm where Bar Association participation was embedded in the culture. It was a natural part of the job. But it never felt like work. It widened my horizons on a number of levels. I became friends with people I would never have had a chance to know. I had my eyes opened to issues I hadn't given much thought to, like access to justice, independence of the Judiciary, pro and low bono, and the legislative process in Annapolis. The more active I became, the more enjoyable it was. Being President of the MSBA was one of the most satisfying parts of my career as a lawyer.

Describe the major initiatives that you tackled during your year as President.

When I became President the job prospects for new lawyers were not promising. There were too many law school graduates and too few jobs. Lots of new lawyers were hanging out a shingle and, with little or no mentoring, they were having a hard time. So we created the Special Committee on Maryland Law School Graduates. It was a several year project that resulted in an Incubator Program for new lawyers. It basically was a law firm environment that provided mentoring and guidance on how to practice law. It was supported by the law schools, the MSBA and the Maryland Bar Foundation. When the market improved the program wound down, but it provided much needed help during a difficult time.

Another positive development during my Bar year involved the Bates Vincent Foundation, whose mission is to support Maryland lawyers and judges with substance abuse and other related problems. For years it was underfunded, and the MSBA had looked for ways to help. I continued that effort and with the help of many, including the Maryland Court of Appeals, we secured a substantial grant from the Attorney Grievance Disciplinary Fund. The Foundation is now fully funded and continues to provide rehabilitation resources to all qualified applicants.

How has being part of the MSBA helped you in your career?

Bar Association activity is, in my opinion, essential to a complete career as a lawyer. The benefits are not immediate or direct, but they are significant. The people you meet and the networking opportunities are a natural by-product of being active in the MSBA. If you get involved in a Section or a Committee, you have instant access to the leaders in your practice area and the profession.

After a few years you are one of those leaders. The MSBA is a volunteer organization. Practice enhancement is one of the proven reasons that thousands of Maryland lawyers belong.

WEB EXTRA

I had my eyes opened to issues I hadn't given much thought to, like access to justice, independence of the Judiciary, pro and low bono, and the legislative process in Annapolis. The more active I became, the more enjoyable it was.

What advice do you have for other MSBA members who might be interested in Leadership positions within the organization?

Pick a Committee or Section that interests you. We all do better at things we enjoy. Understand that your first assignment may not be the most glamorous one available. And when you do a good job, share the credit. The MSBA is built on personal relationships.

What is/are your most memorable moment(s) from your year as President?

One of my favorite memories was the President's speech that each incoming President gives at the Annual Meeting. As a trial lawyer I am comfortable with public speaking, but this was a little different. Fortunately, everything seemed to go well. I had lots of friends and family there. And they laughed at my jokes, or at least most of them. It got the year off to a nice start.

What do you do to unwind/destress?

I love the game of golf. I like running. Everyone in my family runs so we do a few low-key races. I enjoy fiction reading, maybe because it is a break from the reading I do in my practice.

BUILDING A STRONG PARTNERSHIP MSBA Past President Mike Baxter shares a little bit about the partnership he helped to build.

What's an interesting fact about you that no one would guess?

VISIT MSBA.ORG/MBAXTER

I don't have many secrets, although I did have a ponytail when I was in college.

MARYLAND BAR JOURNAL | ISSUE 1 2020

93

CAREER HIGHLIGHTS

| WHAT I'VE LEARNED

Tom Dolina

PRESIDENT, BODIE, DOLINA, HOBBS, FRIDDELL & GRENZER, P.C.

A LEADER

IN THE PROFESSION

Photo courtesy of Beverly Funkhouser Photography

94

MSBA.ORG | ISSUE 1 2020

MSBA MEMBER Tom Dolina is President of Bodie, Dolina, Hobbs, Friddell & Grenzer, P.C., in Towson, where

he focuses his practice on personal injury, employment litigation, and business litigation. He set his eye on being a lawyer early, saying it was his “dream job since the 4th grade, based on a sense of justice, community, a sense of doing right, a sense of helping others and the enjoyment of people.” As he shared his journey with the Maryland Bar Journal, he was preparing himself for senior status, after practicing for thirty-eight years.

Tell us about your current role.

My role is changing and I am attempting to spend a little more time recreationally as opposed to for-profit work. I feel far more relaxed, and there’s a sense of accomplishment, contentment and less restlessness than I felt in previous years. I am proud, particularly, of the people I work with. My goals are to gently move into the night, not to die at my desk, to accomplish as much as I can for the clients I work with, and to do right by the people that I work with.

The challenge generally is navigating through transition, and attempting to create whatever legacy might exist, and to keep a firm that has existed in one form or another for another decade. That requires regaining some balance I have lost in the course of my career, and planning new activities including mentorship and volunteering. Happily, the biggest project is getting ready for our granddaughter to be born in 2020.

What is your fondest memory of your legal career so far?

There are far too many to count. I have had some extraordinarily interesting cases that have taken me into subject matter that I would know nothing about unless I practiced law, including forensic psychology, international relations, and letters of credit. But my greatest memory is the society of lawyers that I have been able to meet.

I believe the law, by its nature, consumes you. I am learning now that that is not necessarily true, but my advice to those entering the legal profession is to be committed, treat the law with passion, and not as a job.

What’s a cause or charity that you’re passionate about?

My wife and I contribute heavily to Helping Up Mission. I’ve met people there from many walks of life that are thankful that their lives have been resurrected.

There was a young man who was a high school and college athlete; he became addicted to pain medication and found himself estranged from family and homeless.

The Helping Up Mission gave him an opportunity to rebuild his life, and reconnect with his parents. There really isn’t anything better than you can do to help those who, by some misfortune, find themselves in a situation where they are homeless and in despair. I take that very seriously.

What’s your favorite hobby, what do you do to unwind, and what’s little known fact about you?

I love anything active. I like to ski, bike, play squash, and tennis. I love baseball - even the Orioles. To unwind I like listening to music – I just bought a turntable and it’s gratifying that the music you listened to when you were young is still the music you want to listen to when you are old, and the kids listen to! A little known fact is that I speak Czech.

How are you involved with the MSBA and how has it impacted your career?

I am currently a co-chair of the Rules of Procedure Committee, and a member of Budget & Finance, Professionalism, and CLE, and served three terms on the Board of Governors and on the Executive Committee.

I understood the importance of building relationships and friendships, both in terms of progress through the organization as well as professionally. There is no question that the ability to resolve issues in your work career are made much easier because you are able to call on acquaintances and working relationships that you have created and nurtured in the MBSA. That society of lawyers and that partnership and friendship is important when you deal in an adversarial process.

What advice would you offer a new lawyer?

I believe the law, by its nature, consumes you. I am learning now that that is not necessarily true, but my advice to those entering the legal profession is to be committed, treat the law with passion, and not as a job.

MARYLAND BAR JOURNAL | ISSUE 1 2020

95

CAREER HIGHLIGHTS

| CAREER TRANSITIONS

Richard Lee Adams, III ASSOCIATE ATTORNEY, O’BYRNE LAW, LLC

FROM PARALEGAL TO ASSOCIATE, FROM MID-SIZE TO BOUTIQUE

Richard Lee Adams, III, is an Associate Attorney at O’Byrne Law, LLC, where he focuses on estate planning; probate, trust and estate administration; and elder law, all with a focus in LGBTQ issues.

He has been a practicing attorney for two years, and recently transitioned from a mid-size Baltimore City firm to a boutique practice in Baltimore County.

He previously worked as a paralegal for ten years and was an Associate Member of the MSBA during that time.

Photo courtesy of Beverly Funkhouser Photography

96

MSBA.ORG | ISSUE 1 2020

WE ASKED MR. ADAMS about his transition from a mid-size firm to a small firm, as well as his engagement with the MSBA throughout his career, first as a Paralegal and now as an Associate Attorney.

Please describe your recent career transition.

I recently left a mid-sized firm located in downtown Baltimore to join a boutique firm in Baltimore County. It’s quite a difference. I am most enjoying the entrepreneurial focus of the small firm, along with the opportunity to collaborate among professionals with depth in my fields of practice. At my prior firm, I continued to handle my paralegal duties while also growing my practice as an attorney. At my new firm, I work side-by-side with our paralegal and other staff members, giving me the ability to fully focus on the needs of my clients.

Describe why or what prompted you to explore a career transition?

I reconnected with Mary O’Byrne at a local pro bono event. I had met her over the years and was always impressed by her compassion, knowledge and reputation. A few weeks later, she mentioned she was looking to grow her firm and asked if I would consider joining her. I was very comfortable at my prior firm, and they had supported me throughout law school and the bar exam. However, my instinct told me that Mary was offering me an opportunity that would lead to refining and improving upon my skills as an attorney, especially in my primary practice areas.

How was your MSBA membership helpful to you during your career transition?

What’s an interesting fact about you that no one would guess?

I may not have become an attorney without my husband’s influence. When we met in my early twenties, I thought I was too old to go to college. He quickly convinced me that was not the case, and I am eternally grateful for his support and encouragement along the way.

"Before making any big career transition, I would recommend you speak to your mentors and peers within the MSBA." What’s a cause or charity that you are passionate about?

I am very passionate about the House of Ruth and their mission.

We often donate to their cause annually. I am also very interested in the LGBTQ Fund of the Baltimore Community Foundation, as they are working to promote and empower organizations that support LGBTQ youth in the Baltimore area.

My MSBA membership has been helpful throughout my entire career. I joined as an Associate Member years ago when working as a paralegal. I’ve found the networking events, CLE events, and other opportunities to meet legal professionals to be incredibly useful. I’ve met attorneys from different practice areas at the happy hours or other professional events, which is of great value.

The Annual Conference in Ocean City is one of the best networking events of the year, as people get together in a comfortable atmosphere, to learn, grow and support one another. During my transition to the new firm, the MSBA staff helped transfer my access to the Section listservs, which was very helpful.

What advice do you have for other MSBA members who are seeking a career transition?

Before making any big career transition, I would recommend you speak to your mentors and peers within the MSBA. Reach out and get to know those that you work alongside or across the table from. Listen to their stories and see what might resonate with your own career path. Connect with these peers on social media platforms but also reach out in person - schedule a breakfast, coffee or lunch meeting. I’d had the pleasure of meeting professionals that connected over an MSBA article one of us wrote. This organization helps to bridge those communication gaps and brings us closer together.

MARYLAND BAR JOURNAL | ISSUE 1 2020

97

CAREER HIGHLIGHTS |

OFF THE BEATEN PATH

Aquanetta Betts

SENIOR EXECUTIVE DIRECTOR PLANNED GIVING, WORLD VISION, USA

Photo courtesy of Beverly Funkhouser Photography 98

MSBA.ORG | ISSUE 1 2020

C H A R I TA B L E G I V I N G A N D E S TAT E P L A N N I N G

WITH A GLOBAL IMPACT Aquanetta Betts traded in hostile estate administration cases to work with donors from Maine to Florida in making charitable giving options through the estate planning process with World Vision, USA. World Vision’s donors have a wide variety of causes they want to provide for - some examples of projects are providing a well for clean water access in a remote village in Honduras; or funding a maternal/child clinic in Zambia; or seeking to fund a child protection project in Bangladesh.

She leverages her prior legal practice and her regular involvement in the Estates and Trusts Section and MSBA Connects to help donors around the country make meaningful and lasting gifts to worthy causes. We sat down with Aquanetta to learn more.

How do you utilize your J.D. in your current role?

My experience as an estate-planning attorney is handy, because I am able to speak the language of wills, trusts and estates. I often make trips to visit donors discussing charitable giving options and estate planning ideas with those who have already made a planned gift commitment, and those who are considering the idea.

What are your goals for yourself in this role?

First, to create thoughtful new ways to steward our kind and generous donors. Second, to continue building strong collaborative relationships with our major gift officers and other co-workers. Thirdly, to stay unified with my immediate colleagues, the West and Central Region Directors – in our efforts to assist donors.

Tell us a little about your biggest project or passion project related to your professional career right now.

In December 2019, I completed the Chartered Advisor in Philanthropy designation (CAP®), conferred by The American College of Financial Services. It requires the completion of three graduate level courses - each ending with a two hour exam. I was asked by an attorney if the CAP® exams were as rigorous as the bar exam. I responded with a resounding no – though, they are very challenging. Earning the CAP® designation has equipped me with a broader understanding on what motivates people to give, especially high net worth individuals.

What we can’t find on your resume: I was a flight attendant for American Airlines for fifteen years. I worked my way through law school with that job. During my first year of law school, on Fridays, I would head out on a two-day trip. Upon arrival at our layover destination, my flight crew would go to dinner or check out local attractions. I, instead, would hole up in my hotel room studying Constitutional Law and Torts.

"My flight crew would go to dinner or check out local attractions. I, instead, would hole up in my hotel room studying Constitutional Law and Torts."

What’s an interesting fact about you that no one would guess?

My name is not an original. My mother met a student when she was in high school with the name, and held on to it for years - until I was born. I learned that the origin of my name goes back further than my parents thought. There was an actress named Acquanetta, who played in Tarzan movies in the 1930s and 1940s.

MARYLAND BAR JOURNAL | ISSUE 1 2020

99

CAREER HIGHLIGHTS

| WHAT ARE YOU READING?

Two Perspectives on

"The Women’s Hour"

by Elaine Weiss REVIEW BY CHARLENE WILLIAMS, ESQ.

IT WAS A PURE PLEASURE to read

The Woman's Hour, The Great Fight to Win the Vote by Elaine Weiss on this centennial anniversary of the ratification of the Nineteenth Amendment. This book is not a mindless comfort read. The work is fast-paced, factbased, richly detailed, and compelling. This narrative is the history of the climactic final battle between groups led by formidable women both for and against the ratification of the Nineteenth Amendment to the Constitution of the United States, granting women the right to vote. The book reads more like popular fiction than what it is, which is a well-researched work of political non-fiction.

The setting is 1920, President Woodrow Wilson is in his second term in office, and although slavery has ended, racism continues, the dust from World War I has barely settled, and the suffragettes a.k.a. "Suffs" are lobbying hard from soapboxes and stages for ratification of the Nineteenth Amendment.

The powerful foes of the Suffs, the anti-suffragists, or "Antis" market themselves as well dressed, defenders of womanhood, motherhood, and safeguards of White Democracy.

Ironically, the most active opponents to the ratification of the Nineteenth Amendment were other women.

The Woman's Hour also presents the genesis of what we know today as white feminism.

During this final battle for ratification, the Suffs actively distanced themselves from some of their most staunch supporters in the black community, the likes of which included Frederick Douglass and Sojourner Truth. The Suffs' explanation given for this unflattering behavior was that the difficulties faced by black women voters was a race issue, and not a woman's issue. In 1920, Suffs chose to turn their backs on the equal enfranchisement of people of color to secure their own.

100

MSBA.ORG | ISSUE 1 2020

Despite many parallels between the government and political climate in the United States in 1920 and 2020, I look to this new decade with hope. I feel that hope is the gift in reading Ms. Weiss's work. The hope is in

The hour in which all women, regardless of color or socioeconomic background, achieve true equality in all areas of life with white men in the U.S.—THAT—will be "The Woman's Hour." what educated women choose to do with the vote presently—knowing the facts that informed the decisions of our foremothers in the past.

The hour in which all women, regardless of color or socioeconomic background, achieve true equality in all areas of life with white men in the U.S.—THAT—will be "The Woman's Hour." For now, I say with cautious optimism, that time, is still to be determined.

CHARLENE M. WILLIAMS is a graduate of the University of Baltimore School of Law; she is a proud daughter to parents who believe that all persons are created equal and is a family attorney practicing in Montgomery County, Maryland.

REVIEW BY WARD B. COE, III

THE WOMEN’S HOUR by Elaine Weiss is a must read for

this election this year, the 100th anniversary of the ratification of the 19th Amendment.1 Ms. Weiss, a Baltimore native, writes this story like an accomplished dramatist and a meticulous historian. She also tells it with piercing social commentary and a sharp perspective of its relevance today, particularly with respect to what she describes as a deeply ambivalent attitude toward full participatory democracy and a conflicted stance toward universal suffrage. She writes:

In the actions of the forces aligned against suffrage, there is an instructive example of just how far some Americans were willing to go to protect their own careers, business interests, and entitlement by preventing others from obtaining their rights. . . .

Voting rights have been a contested issue from the very beginning of the American experiment. When the founders wrote, “We the People,” they really meant, “We the white, wealthy men.”

Despite much lofty rhetoric, all men were not created equal, and women didn’t count at all.

Ms. Weiss takes us to July 1920, when the passage of the 19th amendment hangs in the balance. Thirty-five states have ratified and one additional is necessary for passage of the amendment. Only North Carolina and Tennessee remain undecided, 1

2

3

4

with North Carolina certain to reject it. The main characters are the “Suffs,”2 “Antis,”3 and legislators, all of whom converge in Nashville at the “hive of commotion,” the historic Heritage Hotel, which serves as the stage where the drama starts to unfold.

The rhetoric of the Antis would be shocking to read if we lived in a different political era. A Presbyterian minister stated, “When she takes her ballot box, you’ve given her a coffin in which to bury the dignities of womanhood.” Suffs were accused of being modern Eves asking for the forbidden fruit of suffrage. Suffrage was predicted to cause divorce and was viewed as a menace to family life.

Antis also engaged in racist tactics. Speaker Walker quoted evidence in a speech to the House that, in states where women’s suffrage was legal, 99% of black women voted while only 20% of white women did. Despite the fact that early advocates of women’s suffrage were all abolitionists, the Suffs chose an unfortunate but expedient reaction to the racist tactics. They eschewed the broader objective of racial equality and distanced themselves from it, causing a rift in the Suff movement.4 Ms. Weiss expertly relays the drama in the Tennessee House after the Senate had passed the amendment. Antis and Suffs extracted pledges from representatives and, going into the vote, Antis counted 49 in their camp and Suffs 47 in theirs.

Through a nail‑biting series of parliamentary maneuvers, motions to table, miscounts, re‑votes, vote-switching, arm‑twisting, threats and motions to reconsider, the amendment was finally ratified by a one‑vote margin. Harry Burns, a 24‑year‑old freshman Democratic delegate from east Tennessee, defied his party’s leaders and cast the deciding vote. The Antis still tried for an injunction, but U.S. Secretary of State Bainbridge Colby executed the ratification, and the 19th Amendment became law.

Approximately ten million women voted in the presidential election of 1920.

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.

Congress shall have power to enforce this article by appropriate legislation.” United States Constitution, 19th Amendment.

Carrie Catt, president of the National American Women’s Suffrage League, was Susan B. Anthony’s anointed heir. At the age of 69, she had been fighting the suffrage battle for most of her life. Sue White led the more radical National Woman’s Party. At 33, she was a veteran picketer who had spent time in the famous Occoquan Workhouse for her efforts.

Josephine Pearson was president of the Tennessee State Association Opposed to Women’s Suffrage, a proud leader of the Tennessee Antis. She viewed the suffrage fight as an extension of a “holy war” where southern states endeavored to preserve their social traditions in the face of an evil federal government.

The very active suffrage movement in Maryland followed the same course. See Jonathan Pitts, “Telling Their Story,” Baltimore Sun, Jan. 19, 2020.

WHAT’S ON YOUR SHELF?

SHARE YOUR FAVORITES: What’s caught your interest lately? Send book, magazine, or article reviews to Anna Sholl, at anna@msba.org.

MARYLAND BAR JOURNAL | ISSUE 1 2020

101

Together, we are

stronger How does the legal profession deal with new challenges?

together.

On the heels of a legislative victory against sales tax on services, March 2020 presented a new challenge: a global pandemic.

MSBA exists to support and empower the entirety of the legal profession every day, even more so when it is facing unprecedented challenges.

MSBA’s COVID-19 response efforts include: Advocating for the profession in state & federal judiciary as well as in the legislature Communicating with the Governor’s office on key orders, including remote notarization and remote witnessing Providing 20+ complimentary webinars, with over 15,000 participants (and growing) from across the profession Sharing resources and tools to navigate your practice during the pandemic Guiding firms in their transition to a remote practice, and helping plan for recovery and post-COVID business strategies Opening MSBA’s entire on-demand CLE catalog of 150+ titles, the Maryland Bar Journal, and other resources, to everyone at no cost Convening the state’s legal services organizations to guide the public and self-represented litigants during this unprecedented time Your MSBA has been fighting for you long before this pandemic, and will keep fighting long after. If you haven’t already, we would love for you to join the growing number of attorneys who call MSBA home. Because together, we are stronger.

M S B A . O R G / S T R O N G E R TO G E T H E R

MEMBER FOCUS

| MEMBER SPOTLIGHT

INVESTING IN THE

NEXT GENERATION MARY ELLEN FLYNN President and Managing Partner, Andalman & Flynn, PC

MARY ELLEN FLYNN, the president and managing

partner of Andalman & Flynn and has been involved with the MSBA for decades. She credits her time as chair of the Solo and Small Firm Section as giving her the knowledge and confidence to create Andalman & Flynn in 1998. Recently, Andalman & Flynn invested in state of the art equipment, software programs and other support systems to help expand the three departments of law firm: disability benefits, family law and collections. We sat down with Mary Ellen to learn more.

Photo courtesy of Beverly Funkhouser Photography 104

MSBA.ORG | ISSUE 1 2020

Tell us a little about your biggest project right now.

In addition to providing our attorneys with the best technology available we are really proud of our newly designed logo and website, both of which help elevate our firms appearance. The website has been really great for everyone at the firm, people are now busy adding blogs and other material. I am especially proud of our tagline, “Listen with compassion. Fight with conviction” because it accurately describes the commitment of everyone at Andalman & Flynn.

What advice do you have for attorneys looking to get into your practice area?

Become more involved in the Maryland State Bar Association. The more involved you become the more experienced attorneys you meet. Often times these attorneys become mentors, which are invaluable in your career

What challenges have you experienced during your career?

The competing demands of having a trial practice while being managing partner of my firm, while also being involved in many MSBA activities and pro bono opportunities. Surprisingly, I always managed to find the right balance between work and personal life and that is primarily because of my amazing husband and awesome daughters supporting me in my work. I loved sharing my day and discussing my cases and what was happening at the law firm around the kitchen table. One might say those dinner conversations had an impact.

My other daughter, Bridget Cardinale, is in Atlanta Georgia practicing family law with a small firm, “Fox Legal” and is married to Nolan McKeever, an associate with Baker Hostetler.

What’s your favorite hobby?

Taking photographs, especially of family.

I enjoy organizing and creating calendars, scrapbooks and other gifts using photographs. However, to unwind I play the piano and take my dog (a loveable rescue pit-bull named Bella) on long walks usually with music blasting.

What’s an interesting fact about you that no one would guess?

I proposed to my husband, John Cardinale, on the day that I finished the Bar Exam. I was convinced that I passed the Bar Exam and I was ready to commit to John. The proposal completely took John, and me, by surprise but he said “yes!” We’ve been happily married for thirty years and going strong.

How do you give back to your community?

I’m always involved in a couple of probono cases and I often mentor attorneys with Maryland Coalition Against Sexual Assault (SALI) and House of Ruth. I am also very active with my church, Transfiguration Parish and their many ministries including the activities of The Colesville Council of Community Congregations which provides support to families in need of help.

“

I loved sharing my day and discussing my cases and what was happening at the law firm around the kitchen table.

One might say those dinner conversations had an impact.

Mary Ellen's daughter, Elizabeth Cardinale, is a second year law student at The University of Maryland Francis King Carey School of Law. Turn the page to read about her journey to a career in law.

MARYLAND BAR JOURNAL | ISSUE 1 2020

105

MSBA UPDATES

| STUDENTS

Family Time Leads to Family Traditions Liz Cardinale Law School: Second year law student at The University of Maryland Francis King Carey School of Law Expected Practice Area: Business Law, specifically Sports Law

"It’s not just the connections you make with people who are practicing attorneys, but it’s also about creating connections with your peers."

LIZ CARDINALE, a second year law student at the University of

Maryland, began to love the legal profession at a young age. Growing up, Liz spent time around the kitchen table, learning about her mom’s cases and enjoying, what she calls her, favorite restaurant - her father’s cooking. When Liz wasn’t spending time at the offices of Andalman & Flynn (her mom, Mary Ellen Flynn is the president and managing partner) she was reading up on Supreme Court Justices Thurgood Marshall and Sandra Day O’Connor. Now, a staff editor of the Journal of Business and Technology and student-attorney with the Intellectual Property and Entrepreneurship Clinic, Liz is stepping out in her own light. We sat down with her to learn more.

In addition to your clinic work and being a staff editor, what else are you involved in at school?

I am an Executive Board member of the Entertainment and Sports Law Society and qualified to be a participant for the 2020 Tulane NFL Negotiation Competition.

What do you see as the benefits of being involved in activities outside your course work?

The greatest benefit I have enjoyed is the networking opportunities.

Being involved puts me in contact with attorneys who provide valuable advice for the legal field I hope to break into; business and sports law.

It also has provided me the ability to connect with my peers who share common interests. Something people forget while in law school is that it’s not just the connections you make with people who are practicing attorneys, but it’s also about creating connections with your peers.

What is the best piece of advice you have received from someone in the legal profession?

Never turn down opportunities that come your way, even if it wasn’t originally a part of your plan.

What’s an interesting fact about you that no one would guess?

I am a bit of a foodie. Food helps tell the story of a culture and a community which is why I love to explore new restaurants and find out the best local cuisine of a new location. I think in another life I could have been a restaurant critic.

What’s your favorite vacation spot?

My favorite vacation spot is Loon Lake in Chestertown, New York. The lake is smaller than most, but it hosts my family’s annual family reunion where nearly 40 of my relatives come together every year to spend a week together. Our family commonly says, “even a rainy day at Loon Lake is better than any sunny one back home.”

106

MSBA.ORG | ISSUE 1 2020

MEMBER FOCUS

| MEMBER SPOTLIGHT

DEVELOPING LAW STUDENTS

A N D G R O W I N G

A P R AC T I C E BEVERLY L. WINSTEAD Director, Low Income Taxpayer Clinic Prince Georgeâ&#x20AC;&#x2122;s County

Winstead, Past Chair of MSBA's Taxation Section, with IRS Commissioner Charles Rettig.

Photo courtesy of Beverly Funkhouser Photography

MARYLAND BAR JOURNAL | ISSUE 1 2020

107

BEVERLY L. WINSTEAD CURRENTLY serves as the Director of the Low Income Taxpayer Clinic at the University of Maryland, Carey School of Law. The Clinic provides pro bono assistance to low income taxpayers who have federal and state tax disputes. As Clinic Director, Ms. Winstead advocates on behalf of low income taxpayers, to promote fair treatment of their unique issues. Secondly, she is also responsible for overseeing 10-12 students each semester and helping them develop advocacy skills needed to resolve federal and state tax controversies.

In addition to her work with the Low Income Taxpayer Clinic, Ms. Winstead also maintains a private practice. In her private practice, established in 2009, she has helped many individuals and businesses facing tax and debt problems. For example, her firm has helped clients negotiate settlements with the IRS and state of MD; file bankruptcy to get a fresh start; and obtain financial education.

We asked her a few questions to learn a little more about her.

What do you love about your current roles?

As Director of the law school clinic, I love seeing students grow and develop into more confident student attorneys.

In many instances, when students first begin their work in the clinic they are shy and many have not had much interaction with clients. Most of their work in law school has been in a classroom setting. By the end of the semester they are much more confident and able to interact with clients on a much more personable level.

The thing I like most about being an entrepreneur, is that there is never a dull moment. It’s always some new challenge that I’m facing or some new process that I need to tweak to make my business more efficient and profitable.

What is your fondest memory of your legal career so far?

My fondest memory of my legal career so far occurred last year when I was Chair of the Tax Section. I had an amazing Section Council who supported my initiatives as Chair: (1) Increase diversity and inclusion within the Tax Section; (2) Create resources for our members; and (3) create a mentoring program for young/inexperienced lawyers. My colleagues worked really hard to see that these initiatives were accomplished.

What is the one piece of advice you would give someone in law school or considering a legal career?

It’s worth it but figure out how you will pay for it prior to going. Create a plan A, B and C in case one falls through.

My plan A was to use the equity in my house to pay for law school but the market crashed and I was upside down in my house. Plan B was to build my business and earn enough money to pay off my student loans. Fortunately Plan B worked for me. Plan C was to marry rich. Lol. I never got to Plan C because Plan B worked out!

What’s a cause or charity that you are passionate about?

In 2017, my family started a 501(c)(3) organization to honor the life and legacy of my younger brother, who passed away with liver disease in 2011. Every year, we host a charity basketball game, which raises funds for our scholarship program. My brother was very passionate about mentoring and helping students who struggled in science, technology, engineering and math (STEM). Our scholarship program awards $1,000 scholarships annually to high school seniors interested in pursuing careers in STEM. We’ve awarded over $8,000 in scholarships since 2017.

108

MSBA.ORG | ISSUE 1 2020

UNLOCK

ALL-ACCESS MEMBERSHIP with the

NEW MSBA

ASSPORT Passport privileges, worth thousands, include:

FREE ADMISSION TO ALL MSBA SUMMITS including our Legal Summit & Annual Meeting

UNLIMITED CLE PROGRAMS including 40+ live programs and hundreds on-demand

MEMBERSHIP INCLUDED to both MSBA and your choice of 1 of our 30 Sections

FREE USE OF PLATFORMS like Treble, Fastcase, Connect and more

DOZENS OF IN-PERSON EVENTS including networking events, happy hours, and learning forums

Plus, every Passport purchased enables us to give back to the legal community by: Supporting thousands of students learning about the legal profession Helping hundreds access justiceâ&#x20AC;&#x201D;including pro bono services via our affiliates Aiding hundreds of attorneys with zero-cost, private one-on-one mental health and substance abuse counseling

ALL OF THIS AND MORE FOR ONLY

$695

*

Get access at msba.org/passport *MSBA Passport exclusions apply. See msba.org/passport for details.

M A RY L A N D S TAT E BA R AS S O C I AT I O N

110

MSBA.ORG | ISSUE 3 2019

MARYLAND BAR JOURNAL | ISSUE 1 2020

111

REMEMBER

the Ladies

BY: KENNETH A. VOGEL

WOMEN AND THE VOTE

For much of American history, women did not have the right to vote or other basic rights. In 1769, the colonies adopted the English system of law decreeing that women cannot own property in their own name or keep their own earnings.

In a letter Abigail Adams wrote to her husband John Adams in 1776, she urged him and the other members of the Continental Congress to “remember the ladies” when fighting for America’s independence from Great Britain.

The future First Lady wrote in part:

“I long to hear that you have declared an independency – and, by the way, in the new Code of Laws which I suppose it will be necessary for you to make, I desire you would Remember the Ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands.

Remember all men would be tyrants if they could. If particular care and attention is not paid to the Ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation.”

112

MSBA.ORG | ISSUE 1 2020

The ladies, however, were not remembered. By 1777 all states had passed laws which took away women’s right to vote and the Articles of Confederation (1777), maintained the states’ control over citizen voting rights. The U.S. Constitution, Article One, Section Two, continued the practice of leaving who could vote to the individual states.

Except where restricted by Constitutional amendments or by federal law, states still enjoy this right. Gradually, some individual states did give, or restore, some rights to women. For example, Mississippi granted women the right to hold property in their own names – with permission from their husbands of course – in 1839. In 1869 Arabella Mansfield was granted admission to practice law in Iowa, making her the first woman lawyer. That same year Ada H. Kepley became the first woman in the U.S. to graduate from a law school.

Others did not fare as well. The Supreme Court of Illinois in 1870 refused to grant Mrs. Myra Bradwell a license to practice law because, as a married woman, Mrs. Bradwell was neither bound by her express contracts or implied contracts. This meant that she could not create a contract, as between an attorney and a client.

On appeal, the U.S. Supreme Court in Bradwell v. Illinois, 83 U.S. 130 (1873) found:

"That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws.…”

The concurring opinion by Justice Joseph Philo Bradley reads, in part:

“Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The Constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”

Gaining the power of the ballot box was a critical step towards women obtaining additional rights, such as the right to work in professions of their own choosing. As Susan B. Anthony stated “It was we, the people; not we, the white male citizens; nor yet we, the male citizens; but we, the whole people, who formed the Union...

Men, their rights and nothing more; women, their rights and nothing less.”1 By the 1820s and 30s, most states had extended the voting franchise to all white men, regardless of how much money or property they had. However, women were still not permitted to vote. A group of abolitionist activists – mostly women, but some men – gathered in Seneca Falls, New York in 1848 and proclaimed in its Declaration of Sentiments that women should have the right to vote.

After the Civil War, the newly passed 14th amendment prohibited any state from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States.…”

The 15th amendment declared that the “right of citizens of the United States to vote shall not be denied or abridged…on account of race, color, or previous condition of servitude.” A number of activists at the time unsuccessfully tried to convince Congress to include sex as a protected class in the proposed 15th amendment.

However, even some suffragettes felt that race and sex should be handled separately. They did not want the argument over women’s votes to impair progress over racial voting equality.

Attempts to shoehorn women’s voting rights into existing law failed. Susan B. Anthony tried to vote in 1872. She was prohibited from voting and fined $100, which she refused to pay. Virginia 1

“ I T WA S W E , T H E PEOPLE; NOT WE, THE WHITE MALE CITIZENS; NOR YET WE, THE MALE CITIZENS; BUT WE, THE WHOLE PEOPLE, WHO FORMED THE UNION... MEN, THEIR RIGHTS AND NOTHING MORE; WOMEN, THEIR RIGHTS AND N O T H I N G L E S S .”

Minor was not permitted to register to vote in St. Louis, MO. She sued the election registrar, Reese Happersett, arguing unsuccessfully that the 14th amendment made no reference to sex or gender, only “citizens” and “persons.” Because women were not allowed to file lawsuits on their own behalf, however, her husband Francis Minor acted as the co-Plaintiff. He also represented her as her attorney. The Missouri courts ruled against Mrs. Minor. The U.S. Supreme Court unanimously affirmed, finding that the 14th amendment voting rights protection did not apply to women. The Court went on to opine that only legislatures could decide who should be entitled to vote. Minor v. Happersett, 88 U.S. 162 (1874).

Voting rights for women was a hard fought battle. Anti-suffrage views were dominant among men and women through the early twentieth century. While pro-suffrage organizations existed as early as 1869, in 1911 anti-suffrage activists formed groups including the National Association Opposed to Woman Suffrage. Arguments against women having the vote resonated with many Americans.

Anti-suffrage positions included the argument that because women took care of the home and children, they did not have time to vote or stay updated on politics. Some argued that women lacked the expertise or mental capacity to offer a useful opinion about politi-

https://www.historyplace.com/speeches/anthony.htm

MARYLAND BAR JOURNAL | ISSUE 1 2020

113

cal issues. Political cartoons of the day depicted wives who would vote as dominating their husbands. Some opponents asserted that adding more voters, women, would simply cost more money in conducting elections without adding any new value.

In 1912 Jeanette Rankin, organizer and speaker for the Equal Franchise Society, became the field secretary of the National American Woman Suffrage Association. She was among the organizers of the 1913 suffrage march in Washington, DC before the inauguration of Woodrow Wilson. Rankin was also active in the suffrage movement in her home state of Montana and was the first woman to speak before the state legislature. Montana gave women the right to vote in 1914, and elected Rankin to the U.S. Congress in 1916, making her the first Congresswoman and the first woman elected to a national legislature in any western democracy. A second suffrage march, led by Alice Paul, took place in 1917 during Wilson’s second inaugural. President Wilson, after previously opposing women’s suffrage, later adopted the cause. During World War One, Wilson said in a speech “We have made partners of the women in this war. Shall we admit them only to a partnership of suffering

THE FIRST MAJOR ELECTION IN WHICH WOMEN EXERCISED THEIR RIGHT TO VOT E WA S T H E 1920 PRESIDENTIAL ELECTION. and sacrifice and toil and not to a partnership of right?”

While some states had previously permitted women to vote (for example Wyoming in 1890), it was not until August 26, 1920 when the 19th Amendment was ratified that women could vote in all elections in all states. The Republican majority in the House mostly voted in favor, while most of the Democrats voted against it. Illinois, Wisconsin and Michigan were the first states to ratify the amendment. Georgia and Alabama rejected it. Thirty six states were necessary to ratify the amendment before it could become part of the US Constitution. That 36th state was Tennessee, which ratified the 19th amendment in the state legislature by only one vote - that of 24 year old Harry Burn who changed his position on the issue and voted in favor as his mother had urged him to do. Mississippi, which had previously rejected the amendment in March 1920, became the last of the initial states to ratify the 19th Amendment in 1984. (Alaska and Hawaii were not yet states at the time the Amendment was introduced).

2

https://www.historyplace.com/speeches/anthony.htm

114

MSBA.ORG | ISSUE 1 2020

The Amendment became law on August 26, 1920, which meant that the electorate was doubled with the inclusion of women. The first major election in which women exercised their right to vote was the 1920 Presidential election. Warren G. Harding won. To this day historians debate whether or not the women’s vote was the deciding factor. Harding, who was a U.S. Senator from Ohio in 1919, was absent when the Senate considered the amendment.

EQUAL RIGHTS AMENDMENT

A number of states have adopted their own versions of an Equal Rights Amendment in their state constitutions. The 1879 Constitution of California equal rights provision is narrowly written. It limited the equal rights conferred on women to "entering or pursuing a business, profession, vocation, or employment."

The Maryland constitution provides in its Declaration of Rights “Equality of rights under the law shall not be abridged or denied because of sex.” This language is typical of the constitutional protections of many other states, including, for example, Alaska, Connecticut Delaware, Hawaii, Illinois, New Mexico, Oregon, Pennsylvania, Texas, and Washington.

Wyoming gave women the right to vote as a condition of transition from territory to statehood. Utah, which did not ratify the ERA, first granted women the right to vote in 1870. However, the Edmunds-Tucker Act (1887) disallowed enfranchisement of women in the Utah territory. The goal of the Act was to prohibit women who were in polygamous marriages from voting. Women’s full legal rights, including the vote, was restored in 1896 by a change to the Utah Constitution, which provides “The rights of citizens of the State of Utah to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this State shall enjoy all civil, political and religious rights and privileges.”

Virginia’s constitution reads “That the right to be free from any governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin shall not be abridged, except that the mere separation of the sexes shall not be considered discrimination.”

The passage of the 19th amendment finally gave women equality at the ballot box. It also provided consistency amongst the states in their treatment of women’s voting rights. Voting matters.

Peaceful change through the use of the ballot box is the essence of American democracy. The importance of the vote harkens back to the phrase “No taxation without representation” generally, and to Abigail Adams’ admonition that women would not be bound by laws in which they have no voice. As Susan B. Anthony said, “It is downright mockery to talk to women of their enjoyment of the blessings of liberty while they are denied the use of the only means of securing them provided by this democratic-republican government: the ballot.”2 KENNETH A. VOGEL is a partner in the law firm of Bar-Adon & Vogel, PLLC. The author would like to thank his wife, Randi Vogel, for her love and support.

LESSONS LEARNED FROM THE

SUFFRAGE MOVEMENT

BY MARGARET E. JOHNSON, PROFESSOR OF LAW, ASSOCIATE DEAN FOR EXPERIENTIAL EDUCATION, UNIVERSITY OF BALTIMORE SCHOOL OF LAW

“Aye.” And with that one word, Tennessee Delegate Harry Burn changed his vote to one in favor of ratification of the Nineteenth Amendment after receiving a note from his mother stating “’Hurrah and vote for 1 suffrage….don’t forget to be a good boy….’”

MARYLAND BAR JOURNAL | ISSUE 1 2020

115

W

ith Burn’s vote on August 18, 1920, Tennessee became the thirty-sixth state to ratify the Nineteenth Amendment of the U.S. Constitution, paving the way for its adoption.2 The Nineteenth Amendment protects the female citizens’ constitutional right to vote.3 Prior to its passage, only a few states permitted women to vote in state and/or local elections.4

In 2020, we celebrate the Centennial of the Nineteenth Amendment’s passage. This anniversary provides a time to reflect upon lessons learned from the suffrage movement including that (1) voting rights matter; (2) inclusive movements matter; and (3) voting rights matter for, but cannot solely achieve, gender equality.

Voting Rights Matter As early as the spring of 1776, Abigail Adams requested of her husband John Adams, “[a]nd by the way in the new Code of laws . . . I desire you would Remember the Ladies.”5 John Adams responded to Abigail that her proposal was laughable because “we know better than to repeal our Masculine systems.”6 And, as we know, the masculine systems were not repealed and the U.S. Constitution did not address the equal rights of women, white or enslaved, nor did it provide for the equal rights of African Americans, male or female.

From the founding of this country through to the second half of the Nineteenth Century, women were either enslaved, such as African American and Native American women, and treated as property rather as the humans they were, or, if not enslaved but married, had their rights conscripted by coverture. As Blackstone explained regarding married women, “[b]y marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything….7 The wife had no legal identity outside of her husband’s for the civil law and no power to redress injuries in the civil judicial system without her husband. Others could not sue her without her husband as a defendant. Because the husband was liable for his wife’s transgressions, the husband had the power of restraining her (or their children) by corporal punishment. Such sanctioning of domestic violence is reflected in the 1874 North Carolina Supreme Court case stating, “If no permanent injury has been inflicted, nor … dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.”8 The women’s suffrage movement, working with the abolitionist movement, sought to change the status of women and African Americans by focusing on voting rights. An important moment of the suffrage movement was the adoption of The Declaration of

Sentiments by the Seneca Falls Convention on women’s suffrage in July 1848.9 The Declaration lists many of the results of tyranny by man over woman including: lack of a right to vote, submission to undemocratic laws, lack of rights, no representation in legislative bodies, civil death upon marriage, no property rights, morally irresponsible because not punishable in criminal law, subject to physical punishment and domination by husband, preferential treatment to husband in divorce and custody, taxation without representation, limited access to profitable employment, limited access to education and college, subordinate position in church and state, and undermining of her confidence and self-respect.10 To rectify these, the Declaration states that women should be given the “rights and privileges which belong to them as citizens of the United States”11 because without it “women do feel themselves aggrieved, oppressed, and fraudulently deprived of their most sacred rights.”12 Ida B. Wells-Barnett, an African American journalist and civil rights leader, argued forcefully for the importance of voting rights to dignity and civil rights. Wells-Barnett used voting as a “strategy of resistance to lynching and racism” to show that each individual African American was “worthy of respect and that as a group, they merited recognition in the body politic.”13 Wells-Barnett stated, “[w]ith no sacredness of the ballot there can be no sacredness of human life itself for if the strong can take the weak man’s ballot when it suits his purpose to do so, he will take his life also.”14 Wells-Barnett further stated that “African Americans have a ‘sacred duty’ to ‘use their political strength’ against segregation and racial injustice.”15 One key lesson from the suffrage movement is that voting rights matter.

Suffragists fought for voting rights to

1

Elaine Weiss, The Woman’s Hour: The Great Fight to Win the Vote 306 (2018).

2

https://www.archives.gov/education/lessons/woman-suffrage.

3

U.S. Const. amend. XIX (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation.”)

4

Hunter Schwarz, Where Women Could Vote in 1919, The Washington Post (Jan. 16, 2015), https://www.washingtonpost.com/blogs/govbeat/wp/2015/01/16/wherewomen-could-vote-in-1919/.

5

Bonnie J. Morris and D-M Withers, The Feminist Revolution: The Struggle for Women’s Liberation 13 (2018) (citing Alice Rossi, ed., The Feminist Papers: From Adams to Beauvoir (New Hampshire: UNEP, 1988)).

6

Id.

7

1 William Blackstone. Commentaries on the Laws of England 422-45 (1765).

8

State v. Oliver, 70 N.C. 60, 61 (1874).

9

Katherine T. Bartlett, Deborah L. Rhode, and Joanna L. Grossman, Gender and Law: Theory, Doctrine Commentary 12, 13 (6th ed. 2013).

10

1 History of Woman Suffrage 70 (Elizabeth Cady Stanton, Susan Brownell Anthony, & Matilda Joslyn Gage eds., 1889).

11

Id.

12

Id.

13

Patricia A. Schechter, Ida B. Wells-Barnett & American Reform 1880-1930 173 (2001).

14

Id. at 172-173.

15

Id. at 173.

116

MSBA.ORG | ISSUE 1 2020

obtain representation in the government and laws and policies that would provide equality to women. They knew that voting permits citizens to curtail government’s overreach into a citizen’s liberty and permits them to fully access their citizenship rights and responsibilities.16 Today, modern-day voting rights litigants echo these sentiments. They argue that when their vote is suppressed, they lose their right to influence the government’s laws and policies and are excluded from full membership in society.17

Inclusive Movements Matter Because of unequal rights for women and the continued enslavement of African Americans, “nineteenth-century American feminists made suffrage and the abolishment of slavery their twin goals, intent on reforming a country that owed fairness and freedom to all women.”18 But “the two civil rights movements born as siblings, out of abolitionism – one dedicated to achieving full equality for black citizens, the other for women – had a tense, ambivalent relationship.”19 Leading up to the 1865 ratification of the Thirteenth Amendment, which abolished slavery, and the 1870 ratification of the Fifteenth Amendment, granting African American men the right to vote, suffragists believed that universal suffrage for African Americans and all women was imminent.20 Leaders of the abolitionist movement supported women’s suffrage. But, when the right to vote came in sight for African American men after the Civil War, the abolitionist leaders recognized that “the nation could not swallow two immense reforms at once, and the black man’s very life depended upon his ability to protect himself with the vote.”21 Frederick Douglass justified the position of prioritizing African American male voting rights over women’s voting rights because “[w]omen were not despised by society as black people were.”22 And while this was true for Black women too, Douglass said it was true because they were black, not because they were female.23 Elizabeth Cady Stanton and Susan B. Anthony were outraged by Douglass’ change of position to seek one group’s rights over another. Their anger turned ugly and they urged women’s suffrage over African American men’s suffrage by using “vile racist rhetoric.”24 This rift between these two important civil rights movements and the decision to deride or subordinate the other leaves a terrible legacy. Following this rift, women’s suffrage leaders set about healing the divide with the abolitionist movement leaders. By 1873, suffrage leaders and Frederick Douglass, who was still an ardent supporter of women’s rights, were again working together to achieve women’s suffrage.25 However, the tension between race and gender rights resurfaced at critical moments leading up

to the adoption of the Nineteenth Amendment. Specifically, at times the suffrage movement leaders prioritized white women’s voting rights over non-white women’s voting rights in order to appease racist chapters within their own organizations.26 The suffrage movement drove home the lesson that when rights are at issue, groups may battle between each other and try to subordinate one group in an effort to further another. These strategies might appear to the dominant group to provide short-term wins, but they often leave legacies of long-term losses for the dominant and subordinated groups. For instance, after the passage of the Nineteenth Amendment, white women got and were able to exercise the right to vote; African American women, however, were unable to exercise their vote – as were African American men - because of ongoing racial violence and intimidation. As a result, not all women achieved true voting rights with the Nineteenth Amendment.

Even though the Nineteenth Amendment granted women the right to vote, not all women were permitted to exercise that right.

Voting Rights and More Needed for Gender Equality As stated above, even though the Nineteenth Amendment granted women the right to vote, not all women were permitted to exercise that right. Native American and Asian American women faced citizenship bans for many years.27 African American citizens, both

16

Richard Briffault, Three Questions for the "Right to Vote" Amendment, 23 Wm. & Mary Bill Rts. J. 27, 30 (2014).

17

James A. Gardner, Liberty, Community and the Constitutional Structure of Political Influence: A Reconsideration of the Right to Vote, 145 U. Pa. L. Rev. 893, 900–01 (1997).

18

Bonnie J. Morris and D-M Withers, supra note 5, at 13.

19

Weiss, supra note 1, at 132.

20

Id. at 132. It should be noted that religious restrictions were abolished earlier, with Maryland being the last state to do so when, in 1828, it permitted white Jewish men to vote. https://interactive.aljazeera. com/aje/2016/us-elections-2016-who-can-vote/index.html.

21

Weiss, supra note 1, at 133.

22

Id. at 134. As a case in point, see the access to power Tennessee Delegate Harry Burn’s mother had in the ratification vote for the Nineteenth Amendment identified in the introductory quote to this article.

23

Id.

24

Id. at 135.

25

Id. at 136.

26

Id. at 138.

27

https://www.nationalgeographic.com/culture/topics/reference/19th-amendment-womens-suffrage-voting/. In 1947, legal barriers to Native Americans right to vote are removed. https://interactive.aljazeera. com/aje/2016/us-elections-2016-who-can-vote/index.htmlIn 1952, McCarren Walter Act passed permitting Asian Americans, men and women, to vote. https://interactive.aljazeera.com/aje/2016/us-elec� -

MARYLAND BAR JOURNAL | ISSUE 1 2020

117

men and women, were subject to racial violence and intimidation for attempting to exercise their right to vote. In a speech at the 1964 Democratic National Convention, Fannie Lou Hamer, an African American woman and member of the Mississippi Freedom Democratic Party, argued against the voter suppression of and state-sanctioned violence against African-Americans exercising their right to vote.28 She spoke of how she and other African Americans were excluded from the Democratic Party through intimidation and violence.29 She recounted the story of how, after she had struggled and then succeeded in registering to vote in 1962 in Mississippi, her boss told her “If you don’t go down and withdraw your registration, you will have to leave.”30 She went on to tell how her life was threatened when sixteen bullets were shot into a house.31 She was forced to leave her job to exercise her right to vote.

supported by nonvoters will be less likely to be enacted. So, if persons who would vote for gender and racial equality are nonvoters due to voter suppression and other reasons, it is less likely laws and policies will be put in place to achieve that equality.

While all women may have been granted the ability to exercise their voting rights, voting rights themselves are not the same as full rights to dignity or citizenship. The Nineteenth Amendment does not guarantee equal rights, like the proposed Equal Rights Amendment would.39 Here’s one example of this issue. Although jury service is a citizen’s obligation and right, it was one from which African-Americans and women were excluded even after the passage of the Fifteenth and Nineteenth Amendments.40 In 1961, the Supreme Court in Hoyt v. Florida upheld the Florida law that exempted women from mandatory jury service, stating that

“In 2016, 4 percent of registered voters did not vote because of ‘registration problems’…. Many would-be voters face a range of barriers: voter ID laws, registration difficulty or criminal records.”

In 1965, Congress passed the Voting Rights Act protecting African American men and women and other racial minorities from discriminatory voting practices.32 Even with that law in place, African Americans – both men and women – were still subject to tactics of voter suppression.33 As NPR reported, “in 2016, 4 percent of registered voters did not vote because of "registration problems"….

Many would-be voters face a range of barriers: voter ID laws, registration difficulty or criminal records.”34 We know from census data that only 61.4% of U.S. citizens voted in the 2016 national election.35 In general, “[n]onvoters are more likely to be poor, young, Hispanic or Asian-American. Some research also indicates they are more likely to align with the Democratic Party.”36 While we do not know the reasons for each person’s nonvoting, one thing is clear: voters and nonvoters have different positions on policies.37 Because voting “ultimately influences which policies elected officials enact and whose interests candidates ignore and acknowledge,”38 policies

unlike men, who were mandated to serve, women were “the center of home and family life” and therefore, should not be forced to participate in public, civic life.41 This is despite the fact that serving on a jury is the quintessential right and exercise of citizenship.42 Denying women this opportunity limits the exercise of their citizenship.43 Fortunately, in 1975, the Supreme Court repudiated Hoyt and struck down a statute that exempted women from mandatory service.44 Thereafter, in 1994, the Court classified peremptory strikes of jurors based on gender as unconstitutional.45 Although women had the right to vote, it took over half a century for women to be able to fully exercise their citizenship right to serve on juries.

The example of jury service leads to the question of the current status of women’s full freedom and dignity. Strides have been made since the passage of the Nineteenth Amendment to protect all women’s rights. The Supreme Court interpreted the Fourteenth Amendment of the U.S. Constitution to include protection against

tions-2016-who-can-vote/index.html 28 29 30 31 32 33

https://timeline.com/hamer-speech-voting-rights-d5f6ddc7470a. https://timeline.com/hamer-speech-voting-rights-d5f6ddc7470a. https://timeline.com/hamer-speech-voting-rights-d5f6ddc7470a; https://www.tolerance.org/professional-development/fannie-lou-hamers-testimony-at-the-1964-democratic-convention-transcript https://timeline.com/hamer-speech-voting-rights-d5f6ddc7470a; https://www.tolerance.org/professional-development/fannie-lou-hamers-testimony-at-the-1964-democratic-convention-transcript.

52 U.S.C. §10101 (2019) et. seq. (protecting racial minorities from discriminatory voting practices).

See generally Gilda R. Daniels, Unfinished Business: Protecting Voting Rights in the Twenty-First Century, 81 Geo. Wash. L. Rev. 1928, 1930 (2013).

34

https://www.npr.org/2018/09/10/645223716/on-the-sidelines-of-democracy-exploring-why-so-many-americans-dont-vote.

35

https://www.census.gov/newsroom/blogs/random-samplings/2017/05/voting_in_america.html.

36

https://www.npr.org/2018/09/10/645223716/on-the-sidelines-of-democracy-exploring-why-so-many-americans-dont-vote.

37

https://www.npr.org/2018/09/10/645223716/on-the-sidelines-of-democracy-exploring-why-so-many-americans-dont-vote.

38

https://www.npr.org/2018/09/10/645223716/on-the-sidelines-of-democracy-exploring-why-so-many-americans-dont-vote.

39

The Equal Rights Amendment states that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” https://www.equalrightsamendment.org/.

40

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 131 (1994).

41 42

Hoyt v. Florida, 368 U.S. 57, 62 (1961).

Andrew G. Ferguson, The Joy of Jury Duty: Why Americans Should Stop Complaining and Learn to Appreciate this Constitutional Obligation, The Atlantic (May 3, 2013) https://www.theatlantic.com/ national/archive/2013/05/the-joy-of-jury-duty/275444/ (stating jury service is “an invitation to participate in the American experiment of self-government.”).

43

Id.

44

Taylor v. Louisiana, 419 U.S. 522, 537 (1975).

45

J.E.B., 511 U.S. at 145.

118

MSBA.ORG | ISSUE 1 2020

intentional gender-based discrimination.46 Additionally, laws protecting against gender discrimination have been passed. Here are a few examples: divorce and custody laws have eradicated vestiges of coverture; federal laws protect against discrimination on the basis of sex and race in employment, housing, and education; and protective order laws exist in all states addressing intimate partner violence.

But even with voting rights and the legislative strides discussed above, pervasive issues of gender discrimination in our society remain. For example, 1 in 4 women continue to be subjected to severe intimate partner violence.47 The gender pay gap persists. Latina women earn 58% of what white men earn; Black women earn 65% of what white men earn; white women earn 82% of what white men earn; and Asian-American women earn 87% of what white men earn.48 The problem of mass incarceration is increasingly impacting women. The female prison and jail population growth rate is twice as high as that of the male prison population.49 African American women are imprisoned twice as often as white women.50 As the #SayHerName campaign

But even with voting rights and the legislative strides discussed above, pervasive issues of gender discrimination in our society remain.

shows, African American women are subject to over-policing and unjustified police violence.51 The #MeToo movement shows that sexual harassment persists across all job classifications affecting women’s access to full employment.52 And women’s access to reproductive justice continues to be targeted.53 Therefore, as we celebrate the Centennial of the Nineteenth Amendment, let’s reflect on the strides for greater equality for all women. And let’s not forget the suffrage movement’s lessons that voting matters, inclusive movements matter, and voting rights and more is needed for women’s full freedom and dignity. Moving forward, greater gender equality will be obtained through voting for elected officials who will create and enact policies and laws focused on gender equality; engagement of nonvoters so they become voters for gender equality; and many more inclusive grass-roots movements like #SayHerName and the ever-diversifying #MeToo Movement that target societal change for gender and race equality.

MARGARET E. JOHNSON is a Professor of Law and Associate Dean for Experiential Education at the University of Baltimore School of Law. Her scholarship focuses on gender legal issues and lawyering, and her articles have been published in the U.C. Davis Law Review, the B.Y.U. Law Review, Cardozo Law Review, and the Temple Law Review, among others. She is co-author of the book Lawyers, Clients & Narrative: A Framework for Law Students and Practitioners. She teaches Family Law, Property Law, and Special Topics in Applied Feminism and is co-director of the Center on Applied Feminism, which applies the insights of feminist legal theory to legal practice and policy. She has had a leadership role in many feminist organizations and projects, including the Advisory Panel for the Feminist Judgments book series and the Board of Directors of the Women’s Law Center of Maryland.

46

See, e.g. Frontiero v. Richardson, 411 U.S. 677 (1973).

47

https://www.speakcdn.com/assets/2497/domestic_violence2.pdf

48

Lydia O’Connor, The Wage Gap: Terrible for All Women, Even Worse for Women of Color, The Huffington Post (April 12, 2016) https:// www.huffpost.com/entry/wage-gap-women-of-color_n_570beab6e4b0836057a1d98a?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAA016VbsQ6YeXDNTiPuclq9dEIOG1u3_XzzWXxTBV6a9r8KnfSDWJ1yq13MUYbNu1zogW76nV9P9roEdISVSCfYWX-z2msevaHn_TMh2vD-k28wAjAconeIX-wmLsOBqf1PTC7z2FzmziWYxPJISs_FXS5NWuSx55IZPxeuKAl3s.

49

https://www.sentencingproject.org/publications/incarcerated-wom� en-and-girls/.

50

https://www.sentencingproject.org/publications/incarcerated-wom� en-and-girls/.

51

http://aapf.org/shn-campaign.

52

https://theconversation.com/only-1-in-4-women-who-have-been-sexuallyharassed-tell-their-employers-heres-why-theyre-afraid-97436.

53

https://www.axios.com/abortion-restriction-states-passed-laws-8326c9aa6631-4bd1-b02b-c6ba6cd0a335.html.

MARYLAND BAR JOURNAL | ISSUE 1 2020

119

REAL ID HAS

REAL CHALLENGES MARGARET HENN, DIRECTOR OF PROGRAM MANAGEMENT AT MARYLAND VOLUNTEER LAWYERS SERVICE Your driver’s license or state ID is changing. The federal REAL ID Act was passed in 2005, following a 9/11 Commission recommendation on federal standards for identification (Pub. L. 109-13, 119 Stat.

302). Title II of the REAL ID Act creates strict federal standards for state driver’s licenses, which must be met for these IDs to be accepted as proof of identification by federal agencies. According to the REAL ID Act, an ID must include an individual’s full legal name, date of birth, gender, driver’s license or identification card number, signature, address, and photo. The new cards must also include physical security features designed to prevent tampering, counterfeiting, or duplication for fraudulent purposes.

T

hese REAL ID requirements can be a real challenge for certain vulnerable populations. To become REAL ID compliant, you must physically bring documents to the MVA that provide proof of your age and identity, social security number, and Maryland residency no later than October 1, 2020. To prove age and identity you must bring documents such as your birth certificate or passport. (www.MVA.Maryland.gov). To prove your social security number, you must bring documents such as your social security card or W-2 tax form. (Id.) For a low income person, just getting to the Motor Vehicle Administration (MVA) can be a hurdle in terms of transportation costs and inability to take off work. On top of this initial

prevents them from securing a job. (Id.) In some states, lack of ID even prevents people from being able to vote.

(Id.) One of the requirements for a REAL ID is that an individual’s name must match exactly on all of the different proofs of identification that they bring to the MVA. Those whose names do not match exactly will likely need to file for a name change or apply for a birth certificate correction. This requirement can be a hurdle for women who changed their names when they married or divorced, transgender individuals and immigrants whose names have been anglicized (Friedland, Joan. Name Variations in Proof Documents Create Major Headaches for Many

Many low income people, particularly those who are transient and don’t have a stable living situation, do not even have these documents in their possession. burden, people often have to go back multiple times due to lack of understanding of what documentation is required to get a REAL ID. Many low income people, particularly those who are transient and don’t have a stable living situation, do not even have these documents in their possession. (Wiltz, Teresa. Without ID, Homeless Trapped in Vicious Cycle, PEW, 15, May 2017.) They will have to go to multiple agencies to gather their social security cards, birth certificates, etc. before they can even begin the MVA process. Many are stuck in a vicious cycle because they cannot get their REAL ID without a social security card, and they cannot get a social security card without a valid ID. For those who are unemployed and trying to find work, lack of proper identification often 120

MSBA.ORG | ISSUE 1 2020

Low-Income Driver’s License Applicants, National Immigration Law Center, 11, May 2017.) Those who have married or divorced have to go through an additional process of obtaining marriage or divorce records to prove why their name is listed differently on their documents. This process can be cumbersome for low income individuals who may have difficulty getting to their local circuit court to obtain their marriage certificate or divorce decree.

Transgender people often face the additional burden of having to go through the court process to file for a name change. Those with names that have been anglicized may have their name listed differently on different documents that have been issued over time.

Many older citizens have encountered difficulties at the MVA when proving age and identity with birth records. Many seniors bring a certificate of live birth or certificate of birth registration to the MVA. However, the MVA cannot accept them for REAL ID purposes. Only a birth certificate issued by the Maryland Department of Health, Division of Vital Records will be accepted as valid proof of age and identity. Obtaining a birth certificate inserts a whole additional layer of challenges that must be overcome before the process at the MVA can proceed. Maryland has allowed some substitute documents for older residents, such as military discharge forms bearing a full name and date of birth or a Social Security Administration Benefits Summary bearing the name and date of birth of the resident.

Maryland has come under particular criticism in its efforts to institute REAL ID because of its initial failure to keep documents on file for licenses that were REAL ID compliant. (Povich, Elaine. Real ID, Real Problems: States Cope with Changing Rules, Late Rollouts, PEW, 6, August 2019.) Maryland started issuing licenses which were supposed to be REAL ID compliant in 2016, but didn’t keep the documents that proved age, identity and social security for these customers. (Id.) The U.S. Department of Homeland Security informed the MVA that its process was not sufficient, and the customers who had received these IDs had to return to the MVA to provide their documentation all over again. (Id.)

It is vitally important to educate all Marylanders about the process, particularly the most vulnerable, so that they do not lose the ability to drive, vote, travel or pursue their livelihood.

REAL ID has also come under real criticism nationwide because of the costs associated with implementing the measures described above. A Homeland Security cost analysis, estimated that only 75% of those eligible for a driver’s license or state id will get a REAL ID (Fuzzy Math and the Real Cost of Real ID, ACLU, https://www.aclu.org/ other/fuzzy-math-and-real-cost-real-id (last visited Dec. 17, 2019).

After October 1, 2020, IDs that are not REAL ID will be recalled and if a driver’s license, it will be invalid. Voter registration will also require the REAL ID after this date.

Many Maryland residents already have a REAL ID card, but still need to submit the documents. If you are not sure whether you have a REAL ID, you can check your status here: http://bit.ly/realidinfo.

Despite the challenges associated with REAL ID, this new system is likely here to stay. It is vitally important to educate all Marylanders about the process, particularly the most vulnerable, so that they do not lose the ability to drive, vote, travel or pursue their livelihood.

MARYLAND BAR JOURNAL | ISSUE 1 2020

121

THE STATE OF VOTING RIGHTS

BY GILDA R. DANIELS 1

“I…am an elderly semi-disabled citizen of Miami Gardens, Florida. A native of Columbus, Georgia, I remember the era when suppression was visible in many areas of life itself. I recall the marches, the violence, the cotton fields, the maids. I remember the black and white bathrooms and fountains. However, this last voting term [2018], I was taken back to what’s been embedded in the black culture: long lines, no assistance for elderly and even handicapped. I witnessed several people being turned away for several reasons. No matter how hard I tried to remember the song and believe in it, it would quickly escape me. And that is,

WE SHALL OVERCOME ONE DAY.” Annie Ruth Passmore, born March 31, 1936, a witness at the North Miami, Florida, People’s Hearing, May 2019.

122

MSBA.ORG | ISSUE 1 2020

Ms. Passmore embodies a common sentiment on the state of voting rights in the United States. Those who view our plight through the prism of history see distinct similarities in a time gone by and its restrictions on the right to vote. Those who value democracy must point out these restrictions and develop solutions to create numerous pathways to the polls whereby the widest swath of people can exercise the franchise.

It is important to understand the history of the right to vote in order to appreciate the current context and dilemma of voter suppression. To address this issue, we must understand our history, acknowledge the impact of suppressive laws and develop strategies to remove the barriers to the ballot.

HISTORY LESSON

The Founders proclaimed that “all men are created equal.”2 Yet, when we consider the right to vote, we bear witness to the ways in which this fundamental right has served as a source of inequality. At the outset of our country, the Founders reserved the right to vote for white, male, property owners. In those days, one did not have to be a citizen in order to vote. We created this paradoxical democracy where on the one hand “all men are created equal” and on the other, the three-fifths compromise3 enshrined the less than equal status of people of color.

Women and people of color including native, indigenous people were banned from the ballot box. For approximately the first century of this country’s existence, white men served as the only group who had unfettered access to the ballot box. Congress passed the Thirteenth, Fourteenth and Fifteenth Amendments in an effort, inter alia, to expand the franchise. Accordingly, the country attempted to course correct with the passage of the Civil War Amendments that freed enslaved persons, granted citizenship to those born in this country, provided equal protection under the laws and granted the right to vote. Even after passage of these tenets, native people were not considered citizens. Indeed in 1884, the Supreme Court determined that Indians were “not . . . citizen[s] of the United States under the Fourteenth Amendment.”4 Although Congress passed the Civil War Amendments, the expansion of the right to vote was dismantled in short order. The period of Reconstruction witnessed formerly enslaved persons 1

2 3

4 5 6

7 8 9

10

registering and voting in elections resulting in a change in the complexion of the electorate. This period has been called “a laudable experiment in interracial democracy.”5 This experiment in democracy would last less than 20 years.

After this unprecedented success, these new voters experienced an onslaught of disenfranchising methods that had as their sole purpose to remove the newly enfranchised black voter from the voter rolls. Indeed, they would succeed and perfect these discriminatory devices and negate any advances that were made in the very short period between passage of the Civil War amendments and the turn of the 19th century. Southern states, in particular, developed strategies and passed laws that prevented newly freed persons to exercise their right to vote. These states embarked upon constitutional conventions that enshrined racial segregation and discrimination.6 The Alabama constitutional convention, for example, proved very successful in achieving the goal of removing new voters from the franchise. Indeed, the registration rate for African American men, plummeted from 140,000 in 1890 to 46 in 1901.7 As a result of intimidation, violence, and racial discrimination in state voting laws, a mere 3 percent of voting-age black men and women in the South were registered to vote in 1940. In Mississippi, less than 1 percent were registered.8 The dramatic decline in voter registrations serve as a testament to the effectiveness of poll taxes, grandfather clauses, vouchers, felon disenfranchisement, economic terrorism and violence.9 Throughout the South, barriers to the ballot box were passed to ensure that men of color could not freely participate in the electoral process. Moreover, the exclusions were not limited to African Americans. Assuredly, native peoples, Asian Americans and Latinx communities also felt the brunt of voter suppression. In fact, New York State, had an English language literacy requirement from 1921 to the mid-1960s that disproportionately impacted the Puerto Rican community.10

Gilda Daniels is an Associate Professor at the University of Baltimore School of Law and Direction of Litigation at Advancement Project (National). She is a former Deputy Chief in the US Department of Justice, Civil Rights Division, Voting Section. Her book, Uncounted: The Crisis of Voter Suppression in the United States (NYU Press) will be available January 2020.

U.S.C.A. § DECLARATION OF INDEPENDENCE. US Const. art. I, § 2(The three-fifths compromise provided the following: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.)

Elk v. Wilkins, 112 U.S. 94, (1884).

Eric Foner, “Reconstruction”, Encyclopedia Brittanica, August 21, 2019, found at https://www.britannica.com/event/Reconstruction-United-States-history Rayford W. Logan, The Betrayal of the Negro, from Rutherford B. Hayes to Woodrow Wilson 91 (1997)(In 1900, Senator “Pitchfork” Ben Tillman of South Carolina announced, “We have done our level best. . . . We have scratched our heads to find out how we could eliminate the last one of them. We stuffed ballot boxes. We shot them. . . . We are not ashamed of it.”

Hanes Walton Jr., Black Republicans: The Politics of the Black and Tans, 84 (1941) Major v. Treen, 574 F. Supp. 325, 340 (E.D. La. 1983).

As a result of intimidation, violence, and racial discrimination in state voting laws, a mere 3 percent of voting-age black men and women in the South were registered to vote in 1940. In Mississippi, less than 1 percent were registered.

See, e.g., Katzenbach v. Morgan registered voters in New York City challenged the constitutionality of Section 4(e) of the Voting Rights Act. New York required voters to read and write English in order to vote. Under Section 4(e) of the VRA, “many of the several hundred thousand New York City residents who have migrated there from the Commonwealth of Puerto Rico had previously been denied the right to vote, and appellees attack s 4(e) insofar as it would enable many of these citizens to vote.”

MARYLAND BAR JOURNAL | ISSUE 1 2020

123

These Jim Crow laws and violent acts effectively eradicated the progress that was made in Reconstruction and started an almost 100-year span of disenfranchisement. From the Founders to Reconstruction to the middle of the 20th century, America has grappled with the ability to provide free and fair access to the right to vote. It would take almost 100 years before Congress would act to preserve this fundamental right.

VOTING RIGHTS ACT

After civil rights legislation in 1957, 1960 and 1964 failed to tackle the widespread disenfranchisement of people of color, Congress determined the need to implement the extraordinary measures contained in the Voting Rights Act of 1965.

Without question, the Voting Rights Act (VRA) is considered one of the most impactful pieces of legislation that this country has ever experienced. The VRA had two primary provisions: Section 2,11 a nationwide prohibition against discrimination in voting and Section 5, a temporary provision that required certain jurisdictions to seek approval of a voting change before implemented. Other important provisions included Section 203 which requires jurisdictions to provide all materials in covered languages and 208, which allows persons to have the assistor of her choice. The VRA made tremendous progress in voter registration, voter access and electing candidates of choice and has been very effective in eliminating generational voter discrimination. The VRA helped to eliminate barriers to voter registration and participation. However,

In January 2020, Gilda Daniels published her book, Uncounted: The Crisis of Voter Suppression in the United States (NYU Press).

Gi ld a R. Da ni el s

UNCOUNTED

You can learn more about Ms. Daniels, and her book by visiting her website: GILDADANIELS.COM

just as in other points in our history, this period of progress was met with a newfound period of regressive laws.

In 2013, the United States Supreme Court held in Shelby County v. Holder12 that the coverage formula contained in Section 4 of the Voting Rights Act of 1965 was outdated and constitutionally invalid.13 As such, the Court also immobilized Section 5 of the VRA, which required “covered jurisdictions” to obtain approval of any and all voting changes prior to implementation.14 Without Section 5, the Attorney General lacked the power to preemptively prevent implementation of discriminatory devices, receive notice of proposed and passed legislation, and send federal observers to jurisdictions within Section 5 coverage.

Without the prophylactic protection, previously covered jurisdictions are now free to implement changes without federal approval. In a typical year, the US Attorney General would receive approximately 5,000 Section 5 submissions that included between 14,000 and 20,000 voting changes.15 The elimination of Section 5 meant that those 20,000 changes will occur without the benefit of vetting them to determine if the changes will have a discriminatory effect on minority voters. In fact, hours after the Shelby decision, former Section 5 jurisdictions announced that they would implement changes that in some instances had previously been found intentionally discriminatory. As a consequence, today, we see restrictions to the ballot, inter alia, in widespread voter purges, restrictive voter id, and radical redistricting schemes. All of these mechanisms are used to preserve power not to ensure free access to the ballot.

MODERN DAY VOTER SUPPRESSION

Shelby County not only impacted those jurisdictions under Section 5 of the Act that were required to seek preclearance for voting changes, but it also provided an opportunity for jurisdictions across the country to seek to implement changes that suppress the votes of people of color. In Kansas, a proposed proof of citizenship law threatened to disenfranchise eligible voters due to the absence of a passport or birth certificate.16 The Brennen Center estimated that 7% of eligible voters lack documentary proof of citizenship and access to a passport or birth certificate.17 Polling Place Closures. An emphasis has been placed on polling place closures. According to Democracy Diverted: Polling Place Closures and the Right to Vote, a Leadership Conference

124

11

42 U.S.C. § 1973 (2006).

12

570 U.S. 529 (2013).

13

Other challenges to Section 5 had much less fatal results. See, e.g., South Carolina v. Katzenbach (1966) (challenged the constitutionality of Section 5; Court found that Congress appropriately gathered evidence of racial discrimination in voting and that its coverage formula “evolved to describe these areas [and] was relevant to the problem of voting discrimination, and Congress was therefore entitled to infer a significant danger of the evil” in the covered jurisdictions.); NAMUDNO v. Holder (2009)(challenged the constitutionality of Section 5; Court expanded the ability to seek release from Section 5’s requirements through use of the bailout provision.)

14

Covered jurisdictions included all or part of the following states: Alabama, Alaska, Arizona, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, South Dakota, Texas, and Virginia. It also covers select townships in Michigan. Section 5 Covered Jurisdictions, US Dep’t of Justice, http://www.justice.gov

15

https://www.justice.gov/crt/about-section-5-voting-rights-act

16

See, Fish v. Kobach, 189 F.Supp.3d 1107 (D. Kan. May 17, 2016).

17

See, CITIZENS WITHOUT PROOF: A SURVEY OF AMERICANS’ POSSESSION OF DOCUMENTARY PROOF OF CITIZENSHIP AND PHOTO IDENTIFICATION, Brennen Center for Justice, https://www.brennancenter.org/.

MSBA.ORG | ISSUE 1 2020

Education Fund report, nearly 1,700 voting precincts in 13 states have been shut down since 2012, many in black or Latino communities… [After Shelby,] Texas saw 750 polling locations closed, Arizona lost 320, and Georgia shut down 214…From 2012 to 2018, a total of 1,688 polling locations closed.18 The widespread elimination of voting polls suppresses the right to vote. Closures for financial reasons, cost communities the ability to transport individuals to polling places that are farther away from community poll locations.

Voter ID. States have passed restrictive ID laws that inhibit the ability of qualified voters to participate in the electoral process.

It is a myth that everyone has access to voter ID. In the We Vote, We Count report that I co-authored, Advancement Project and eight other organizations conducted “People’s Hearings” in states across the country to learn about the experience of voters since the Shelby decision.19 During those proceedings, we heard accounts of profound voter access issues that impacted communities of color. A young voter posted this account on the We Vote We Count website: I was standing in line at my local voting place in St. Louis, taking a selfie and hash tagging #rockthenativevote, …

• I'm Native and proud in a city that doesn't see me.

Coming from Oklahoma I never had to explain my heritage, how much 'blood' I had, or what the hell a CDIB card was (a complicated relationship with a piece of plastic #smh.) To vote in Missouri you just need your voting slip, or a federal photo ID. I handed her my CDIB card (because I can) and she immediately said, "that's not a real ID." I attempted to argue, the long line behind me became frustrated, and then I pulled out my driver’s license. For my local elections last year, I didn't even try to use it.

• The federal government demands that my particular ethnicity should carry around a card to be proven legit and then people who work for the same government do not even know what it is.

• For some Indigenous people this card is the only free piece of plastic with a picture on it. It's the key to recognition in a world that keeps telling us we're less than.

I should be free to wander around this whole damn country using it with[out] having to explain it. Especially when it comes time to vote...20 Additionally, Roger White Owl, Chief Executive Officer of the Mandan, Hidatsa, and Aridara Nation spoke about the impact of a North Dakota voter ID law on the native American community: “As you know, in 2017, North Dakota passed a law that was designed to reduce the tribal vote. The state law requires IDs to have the current residential street address. This goes beyond 18 19 20 21 22 23 24

the typical voter registration requirements. Our rural reservations and housing systems were not set up that way. Many of our members use a PO Box for their addresses. We recently began developing community streets and housing with residential addresses, but our reservation is mostly rural. The state knew this, and they used it to suppress tribal voters.”21 Likewise, in Alabama, the voter ID law adversely impacted approximately 300,000 voters. Alabama Commissioner Sheila Tyson stated “You have to drive four hours to get a driver’s license but you can’t vote without a driver’s license or some type of state ID. But then you turn around and close [the voter ID offices.]”22 The closure of driver’s license facilities and the lack of access to transportation exacerbate the problems of access to the ballot box.

Language Access. Section 203 of the Voting Rights Act requires certain jurisdictions to provide election materials in covered languages.23 The Asian American Legal Defense and Education Fund (AALDEF) conducts election monitoring for compliance with the Voting Rights Act’s language assistance and interpreter provisions as well as other voting rights legislation. AALDEF found that Asian voters were not allowed their assistor of choice and that election materials were not compliant with the federal regulations.24 Hillary Lee spoke at the Georgia People’s Hearings about her challenges in the 2018 election in Atlanta, Georgia. She reported that “[o]ne issue that I saw was language access at the ballot. And so, we met an elderly Korean man who approached our organization asking for help with interpretation at the polls because he was an American, is an American citizen, but doesn't speak English fluently, and he and his wife both identify as limited English proficient. And so, they needed someone who spoke Korean to help them vote in an informed ballot. And so, they reached out to us and a staff member from our organization went to the polls with them and actually faced a lot of confusion on the polls....”

In addition to these issues, there are an abundance of examples of felon disenfranchisement, redistricting, voter registration, voter purges, voter deception and unfortunately other modern-day mechanisms of voter suppression. The aggregation of these methods account for an overly suppressive system of voter disenfranchisement that must be addressed.

WHAT NOW?

The voting rights world continues to shift. The need to address voter suppression within the United States is paramount to the functioning of a credible democracy. A plethora of ways exist that will allow for improved access and ballot security.

Democracy Diverted: Polling Place Closures and the Right to Vote https://civilrights.org/democracy-diverted/ Gilda Daniels, Tyson King-Meadows, Loren Henderson, We Vote, We Count.

Jenifer Van Schuyver, “That's not a real ID,” November 2016. Found at www.WeVoteWeCount.org.

Gilda Daniels, Tyson Kin-Meadows, Loren Henderson, We Vote, We Count.

Id., Testimony of Commissioner Sheila Tyson, Alabama People’s Hearing.

42 U.S.C. § 1973aa-1a (Section 203).

Asian American Access to Democracy in the 2014 Elections, AALDEF, found at https://www.aaldef.org/uploads/pdf/2014AccessToDemocracyReport.pdf.

MARYLAND BAR JOURNAL | ISSUE 1 2020

125

On the federal level, the United States Congress has proposed H.R. 4, Voting Rights Advancement Act,25 which does the following: • Updates the coverage formula to include Alabama, Arizona, Arkansas, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina South Carolina, and Virginia.

Preclearance would expire after 10 years for states and local jurisdictions without violations.

• Requires public notice of voting changes that occur 180 days before an election.

• Expands a court’s ability to order preclearance as a remedy.

• Restores the federal observer program.

This legislation may pass the House of Representatives, but does not appear to have the necessary support to get through the Senate.

On the state level, states like Maryland are improving the right to vote. A 2018 ballot measure provided same day registration in Maryland. In addition to early voting periods and no excuse absentee voting, same day registration should expand the right to vote in the state. A Maryland delegate sponsored the initiative due to the overuse of provisional ballots. It was reported that “in the 2018 primary, as many as 80,000 provisional ballots went uncounted due to a computer glitch at the Motor Vehicle Administration.”26 A number of other efforts are under consideration in states across the country to increase voter participation. However, these efforts are met with a litigious response that threatens to stifle advances.

Jurisdictions that increase the opportunities to cast a ballot have higher turnout/participation rates. Alternative voting mechanisms, such as early voting and no excuse absentee ballots, helped raise participation levels. According to the United States Census Bureau, “[t]he three states with the highest percentage point increases in alternative voting rates … were Utah, Texas and Georgia. Alternative voting increased by 36 percentage points in Utah, 25 points in Texas, and 21 points in Georgia… States without the option to vote early and those that require voters to provide an excuse for voting absentee, had some of the lowest alternative voting rates in the country.”27 For example, Alabama, Pennsylvania, Kentucky, Connecticut, New York and Delaware had the lowest percentage of voters utilizing alternative methods such as early voting, same day registration, and no excuse absentee ballots.28 Clearly, expanding balloting procedures will assist in expanding access to the franchise.

25 26 27 28 29

30 31

126

In addition to improved voting procedures, we must also require a call to action. Governance is more than casting ballots. The electorate must do more than show up and vote on election day. In order to operate as a representative democracy, we must elect and hold accountable officials who represent our interests. One way to ensure that we have a diverse and inclusive democracy is to encourage a diaspora of people to run for office. The Reflective Democracy Campaign released a report that showed the racial demographics of elected officials.

It found that “[d]espite white men comprising only 31 percent of the population, 97 percent of all Republican elected officials are white and 76 percent are male. Of all Democratic elected officials, 79 percent are white and 65 percent are male. Men of color make up 3 percent of candidates and women of color make up 1 percent, according to the study.”29 Congress continues to become more diverse, with more people of color and women elected to the House of Representatives.30 This trend needs to occur on the state and local levels.

Since the Supreme Court significantly weakened the Voting Rights Act in the landmark Shelby ruling in 2013, states across the country have revived and implemented new restrictions on the right to vote. Today, we see restrictions to the ballot through a number of ways, including voter roll purges, restrictive voter ID, felon disenfranchisement and proof of citizenship laws. In Crawford v. Marion¸ the Indiana voter ID case that went to the United States Supreme Court, Justice Ruth Bader Ginsburg asked, “[Voters] do have a burden that, it seems to me, the State could easily eliminate if they want those people to vote, and that is to say okay, …we’ll make it easy for you and not send you away, send you off to the county courthouse to get it validated. Why—why, if you really wanted people to vote, wouldn’t you do it that way?31 Justice Ginsburg’s statement is profound. If we really want people to vote, then we must make it easier for them to do so. We can overcome voter suppression and eliminate modern day barriers to the ballot box. It takes a concentrated and focused effort to develop legislation and initiatives that remove voter suppression tactics. If we did make it easier to vote, remove suppressive measures that block the path to the ballot, it would also make it easier for Ms. Passmore to remember the words. Maybe just maybe, we can overcome the persistence of voter suppression and live a true democratic experience.

https://www.congress.gov/bill/116th-congress/house-bill/4.

Dominiqure Maria Bonessi, https://wamu.org/story/19/01/03/election-day-voter-registration-goes-into-effect-in-maryland/. https://www.census.gov/library/stories/2019/04/behind-2018-united-states-midterm-election-turnout.html.

Id. https://wholeads.us/wp-content/uploads/2019/08/The-Electability-Myth-_-The-Shifting-Demographics-of-Political-Power-In-America-8-1-19.pdf https://www.usnews.com/news/politics/arti�cles/2017-10-24/despite-diverse-demographics-most-politicians-are-still-white-men.

Kristen Bialik, “For the fifth time in a row, the new Congress is the most racially and ethnically diverse ever,” February 8, 2019.

Transcript of Oral Argument at 52, Crawford v. Marion Co. (Nos. 07-21, 07-25) (dated January 9, 2008).

MSBA.ORG | ISSUE 1 2020

Professional Liability Insurance for Lawyers The legal profession has a multitude of risks. Protect your firm with Professional Liability Insurance designed specifically for lawyers.

Professional Liability Insurance from Lockton Affinity covers the cost of certain legal fees, judgments or settlements resulting from claims and litigation brought against you for the services you provided.

When you partner with Lockton Affinity, you get more than insurance.

Lockton Affinity Lawyer also offers Cyber Liability Insurance that works in tandem with our Professional Liability Insurance. Because attorneys and firms store large amounts of client data, you have a higher risk of a privacy breach. Cyber Liability Insurance helps cover the cost of these breaches and disruptions.

MSBA credit

Innovative claims process

As a MSBA member, earn a 5% policy credit.

$25,000 of claim expenses are paid before your deductible applies.

Competitive pricing

Auto renewal

We strive to provide the most comprehensive coverage at the best pricing on the market.

Speed and ease Apply quickly with a short, bindable application.

Most firms can be automatically renewed each year.

Risk management hotline Information on best practices and advice to help your law firm.

FOR MORE INFORMATION: Visit LocktonAffinityLawyer.com/Maryland-Bar or call us at (844) 398-0465.

Products and services provided through TriBridge Partners, LLC on behalf of The Bar Associations Insurance Agency in conjunction with The Bar Associations Insurance Trust.

The Lockton Affinityâ&#x20AC;&#x2122;s Lawyer Insurance Program is administered by Lockton Affinity, LLC d/b/a Lockton Affinity Insurance Brokers, LLC in California License #0795478.

Coverage may not be available in all states and is subject to actual policy terms and conditions. Policy benefits are the sole obligation of the issuing insurance company.

Cyber Liability Insurance is provided by an excess/surplus lines insurer which is not licensed by or subject to the supervision of the of the insurance department of your state of residence. Policy coverage forms and rates are not subject to regulation by the insurance department of your state of residence. Excess/surplus lines do not generally participate in state guaranty funds and therefore insureds are not protected by such funds in the event of the insurerâ&#x20AC;&#x2122;s insolvency.

MARYLAND BAR JOURNAL | ISSUE 1 2020

127

Partisan Gerrymandering: State Courts Come to Bat on the Free-Speech Issue of Our Day

I

BY FRANCESCA LINA PROCACCINI

magine a state law that denied registered Democrats the right to vote. Imagine another that required

Republican voters to vote within a one-hour time slot on election day. Consider still another that discounted by half the votes of residents who voted for a third-party candidate in the last election. Of course, none of these would have the faintest chance of passing constitutional muster—to start, each clearly violates the Fourteenth Amendment as a denial of the right to vote and of equal protection of the laws. But there is another more basic, more visceral, reason for these hypothetical laws’ constitutional shortcomings: they unduly suppress political participation, unfairly discriminate on the basis of political viewpoint, and unjustly punish citizens for political speech. Such grievances fall within the constitutional province of the First Amendment. They also exactly describe the problem with partisan gerrymandering. Which is why partisan gerrymandering is the free-speech issue of our day.

The First Amendment stands against all attempts by government to silence political dissent and suppress unfavorable political participation. The Amendment’s combined protection against abridgment of speech, press, assembly, and petition aims to holistically protect democratic participation and government oversight. It ensures that the people remain not only sovereign in name, but informed, engaged, and active overseers of a democratic society; in short, that the governed retain control of their governors.

The protection of political speech is perhaps most integral to this endeavor, which is why it receives the highest constitutional protection.

128

MSBA.ORG | ISSUE 1 2020

It is for this reason that the “freedom of speech” protects not only pickets and protests but also political expenditures, silent sit-ins, and the wearing of arm bands. All these activities are means of advocating a political position, registering political discontent, or participating in bringing about social and political change. They are, in a word, critical means of self-government.

The ultimate means of self-government—of having a voice in politics—is participating in an election, either by running for office, campaigning, or voting. The First Amendment’s protection of the core means of self-government must extend fully to these

They unduly suppress political participation, unfairly discriminate on the basis of political viewpoint, and unjustly punish citizens for political speech. central forms of political participation. Voting is the most basic and accessible of these forms. Government abridgment of the right to vote, with the intent to suppress disfavored political participation, thus strikes at the heart of the First Amendment—it is an abridgment of the most consequential

political speech a citizen can exercise.

Yet this is exactly what partisan gerrymandering does. Partisan gerrymandering refers to the practice of states drawing electoral districts based on voters’ political preferences, with the intent of blunting the political impact of disfavored viewpoints.

In essence, citizens with favored views are assembled into districts in a manner most likely to ensure that their preferred candidates will prevail, while citizens with disfavored views are “packed,” “cracked,” or otherwise assigned to districts in ways designed to minimize the efficacy of their participation in the political process. The tactic has become highly sophisticated as computer software now enables legislators to calculate the partisan impact of redistricting voters in groups as small as a block1.

Thus, as if to add constitutional insult to injury, this tactic enables legislators to shape their own districts in a manner designed to ensure their own reelection to power—it uses unconstitutional means to accomplish undemocratic ends.

In a much-anticipated set of cases last Term, the Supreme Court took up the question of whether extreme partisan gerrymandering violates the Constitution.

One of the cases, Lamone v. Benisek, No. 18-726, challenged the 2011 redistricting plan adopted by Maryland’s Democrat-controlled Legislature, which used party registration and voter turnout data to draw districts that impeded Republican voters’ ability to meaningfully participate in the political process2. The Abrams Institute for Freedom of Expression at Yale Law School filed an amicus brief in the case making the argument that partisan gerrymandering violates the First Amendment for the reasons just summarized.3 The Court did not swing. Instead, it dropped the bat and walked off the field entirely. Justice Roberts, writing for a five-Justice majority, declared the issue a “political question” beyond the reach of the federal courts to remedy. The political

question doctrine is a rule of abstention that directs federal courts to refrain from deciding issues inappropriate for judicial resolution, such as those requiring a policy determination or lacking judicially manageable standards for resolving them. Justice Roberts held that partisan gerrymandering presented the latter challenge. Thus, for a man who famously self-identified with the role of Umpire, he here stepped into the role of Commissioner and called a stoppage on the game of federal courts’ involvement in remedying the problem of partisan gerrymandering.

With the federal courts now sidelined, the issue resumes its 50-state march through state legal systems. Fair election advocates are redoubling efforts to push through state legislative reforms, create independent redistricting commissions through referenda, and challenge extreme partisan gerrymanders in state court. These state courts have two options when the issue inevitably

reaches their dockets. They may review the legality of partisan gerrymandering under state law, or they may take up the question the U.S. Supreme Court ducked: whether partisan gerrymandering violates the First Amendment.

On option one, opponents of partisan gerrymandering have some cause for optimism. Most state constitutions guarantee the freedom of speech and assembly in some way, and some of these provisions provide much stronger and more complete protection for speech and political participation than the First Amendment.

For example, the highest state courts of New Jersey, Connecticut, Oregon, Arizona, California, and Colorado, among others, have all interpreted their state constitutional free-speech guarantees to provide greater protections than the First Amendment on major free-speech issues over the last several decades4. On the issue of partisan gerrymandering specifically, state courts

This tactic enables legislators to shape their own districts in a manner designed to ensure their own reelection to power—

it uses unconstitutional means to accomplish undemocratic ends.

1 Michael Wines, Just how Bad is Partisan Gerrymandering? Ask the Mapmakers, N.Y. Times (Jan. 29, 2018), https://www.nytimes.com/2018/01/29/us/gerrymander-political-maps-maryland.html.

2 348 F. Supp. 3d 493, 503-04 (D. Md. 2018); see also id. at 498 (describing undisputed evidence in the record demonstrating legislative intent to disfavor Republican voters). The other case, Rucho v.

Common Cause (No. 18-422), originated out of North Carolina and alleged that the Republican-controlled legislature in that state had done the same to Democratic voters there.

3 Brief of Amici Curiae Abrams Institute for Freedom of Expression, Rucho v. Common Cause, Lamone v. Benisek, 139 S. Ct. 2484, 2506 (2019) (Nos. 18-422, 18-726), 2019 WL 1275299. I authored this brief with several First Amendment scholars and exceptional students.

4 See Trusz v. UBS Realty Investors, LLC, 123 A.3d 1212 (Conn. 2015) (greater protection of public employees’ speech); Mazdabrook Commons Homeowners’ Assn. v. Khan, 46 A3d 507 (2012) (greater protection for speech on private property operating as a public forum); Bock v. Westminster Mall Co., 819 P.2d 55 (Colo. 1991) (same); Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899 (1979) (same); City of Eugene v. Lincoln, 183 Or. App. 36, 44 (2002) (protection of fighting words); Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm’n, 160 Ariz. 350, 358 (1989) (stricter prior restraint doctrine); Wheeler v.

Green, 286 Or. 99 (1979) (no punitive damages for defamation).

MARYLAND BAR JOURNAL | ISSUE 1 2020

129

have also made headway under state law: a North Carolina state court invalidated districting maps under several provisions of its state constitution, including the clauses guaranteeing free speech and assembly for “targeting certain disfavored speakers (e.g.

Democratic voters) because of disagreement with the views they express when they vote” and burdening “the associational rights of disfavored voters” by hindering their ability to elect representatives5. The high courts of Pennsylvania and Florida have also struck down partisan gerrymanders under their state constitutional provisions requiring, respectively, “free and equal elections” and that district maps not “be drawn with the intent to favor or disfavor a political party.6” On option two, state courts still have the opportunity to vindicate the core function and meaning of the First Amendment—and thereby provide a national blueprint for other state courts to follow. The Supreme Court did not hold that partisan gerrymandering is constitutional in all its forms. To the contrary, it lamented that “excessive partisanship in gerrymandering leads to results that reasonably seem unjust” and “is incompatible with democratic principles.”7 What it did hold was that this “does not mean that the solution lies with the federal judiciary,” because “partisan gerrymandering claims present political questions beyond the reach of the federal courts.8” The Court grounded its holding in the text of Article III, which “limits federal courts to deciding ‘Cases’ and ‘Controversies’. . . mean[ing] that federal courts can address only questions historically viewed as capable of resolution through the judicial process.9” But state courts are not bound by the jurisdictional limitations of Article III. State courts are courts of general jurisdiction, empowered with the authority and “the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States.10” Thus, state courts are the last institution left capable of threading this jurisdictional needle—they 5 Pa. Const., Art. I, §5; see League of Women Voters v. PennSylvania, 178 A. 3d 737 (2018).

6 Fla. Const., Art. III, §20(a); see League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015).

7 Rucho v. Common Cause, 139 S. Ct. 2484, 2506 (2019).

8 Id. at 2506-07.

9 Id. at 2493-94 (internal quotation omitted).

10 Robb v. Connolly, 111 U.S. 624, 637 (1884); see also Claflin v.

Houseman, 93 U.S. 130 (1876).

130

MSBA.ORG | ISSUE 1 2020

have the power to both remedy partisan gerrymandering and to do so under federal constitutional law. Indeed, if read carefully, the Court even seems to acknowledge the loophole it left behind, conceding that its “conclusion does not condone excessive partisan gerrymandering,” nor “condemn complaints about districting to echo into a void,” for the states “are actively addressing the issue on a number of fronts,” including through their courts.

representation. While state courts have numerous state constitutional tools at their disposal to remedy the scourge of partisan gerrymandering, they should not forget that they also still have free reign to vindicate voters’ federal constitutional right, under the First Amendment, to participate in the political process free from discrimination and retaliation on the basis of political viewpoint.

In their solemn capacity as co-equal enforcers of the Constitution and defenders of our federal system of representative democracy, state courts can and should recognize that governmental attempts to use political viewpoints, as ascertained through past political speech at the ballot box, are constitutionally suspect under the First Amendment. The use of political preference in districting is, therefore, only justifiable by a compelling governmental interest, such as creating majority-minority districts or politically competitive districts in the interest of equal and fair popular

FRANCESCA PROCACCINI is a Clinical Lecturer in Law at Yale Law School. She holds degrees from Barnard College and Harvard Law School. Most recently, she was an attorney in the Civil Rights Division, Appellate Section, of the Department of Justice. She clerked for Judge Jerome Farris on the U.S. Court of Appeals for the Ninth Circuit. During law school, she served as Articles Editor for the Harvard Civil Rights-Civil Liberties Law Review, and was the Executive Technical Editor for the Harvard Law & Policy Review.

MSBA UPDATES

| YOUNG LAWYERS

Fresh Faces Adam & Joseph Chandlee Firm: The Valente Law Group Title: Trial Attorney Practice Area: Personal Injury, Medical Malpractice, Criminal Defense Law School: University of Baltimore School of Law

Why did you choose law as a career?

Adam & Joseph: Our father was an attorney as we grew up and is currently the administrative judge for the Circuit Court of Calvert County. Everyone had a mountain of respect for him and he was the guy everyone called on when they needed help, legal or not, so I knew I wanted to follow in his footsteps as a lawyer from a young age.

What was your favorite law school class?

Adam: Trial Advocacy. I knew I wanted to argue in the courtroom for a living after taking this class with my friends.

Joseph: My favorite law school class was Evidence. I was lucky enough to have Judge Frederic N. Smalkin as my professor and he had a great wealth of knowledge. I knew that I wanted to be a trial attorney when I graduated, so I found interest in learning the evidentiary rules that I would one day put into real practice.

What’s it like to pass the bar exam together?

Adam: Very relieving. I don’t think my parents have ever been prouder than being able to tell everyone that we both passed the bar exam together.

Joseph: It was great being able to call our parents together to tell them the good news.

What are you looking forward to in the first year of your legal career?

"I don’t think my parents have ever been prouder than being able to tell everyone that we both passed the bar exam together."

Adam: We were both afforded an awesome opportunity at a one-of-a-kind law firm where I look forward to working hard for my clients and gaining as much experience as possible.

Joseph: I am very excited about finally being able to get into the courtroom, argue cases, and, hopefully, having a satisfied client in the end.

What legal trends are exciting to you?

Adam: Using technology in the courtroom and finding more effective ways to present cases to a jury.

Joseph: How self-driving vehicles will impact auto tort claims.

Favorite memory together?

Adam: Switching classes in high school.

Joseph: Going to Oktoberfest in Munich, Germany with a group of friends.

MARYLAND BAR JOURNAL | ISSUE 1 2020

131

FOR YOUR PRACTICE

| ATTORNEY GRIEVANCE UPDATE

Positive and Productive During Corona: “KonMari” Your Client Files!

BY BRITTANY L. STRICKLAND, ESQUIRE, ATTORNEY GRIEVANCE COMMISSION OF MARYLAND Of all my clients, the ones who had the hardest time disposing of papers were a couple, both of whom were lawyers. They kept asking, “What if this document is needed in court?” At first, they made very little progress, but in the end, even they were able to discard almost all their papers without experiencing any problems. If they can do it, so can you.

- Marie Kondo, The Life Changing Magic of Tidying Up

CHANCES ARE EITHER you or someone you know has heard of

Marie Kondo. For those of you who haven’t discovered the KonMari method of tidying up, it consists of separating items by category and paring down until only items that “spark joy” remain.1 Memorialized by two books and a Netflix series, Kondo’s art of tidying up grew into a prolific movement, even within the legal community.2 A quick Google search yields the “Marie Kondo for Lawyers” series, replete with suggestions for tidying up your law office, tidying up your clients, tidying up your legal marketing, and the list goes on.3 As many of us search for ways to remain positive and productive in the face of the COVID-19 pandemic, the KonMari method presents an opportunity to “spark joy” in our professional lives during Maryland’s stay at home order, with benefits to ourselves and clients that will remain in place long after the order is lifted.

The link between the art of decluttering and the practice of law has a lot to do with how we manage the paper generated in the course of our work, especially when it comes to client files. Even in this age of electronic file management, many attorneys continue to maintain some form of paper files. Of course, those who have practiced law in the years and decades preceding widespread use of case management software may still have a stockpile of closed paper files taking up storage space. Whether your hoard of client files reflects pride in your lifetime of achievement, the lack of time or desire to go through matters from bygone days, or simply avoidance, there is no better time to start cleaning out client files in a way that comports with Maryland law than right now. This article offers guidelines and insight for Maryland attorneys inspired to tidy up their client files.

How long should I keep my client files?

For Maryland attorneys, the short answer to how long a client file should be kept is “it depends.” There are no hard and fast statutory or ethical obligations for Maryland attorneys to retain client files for a specific amount of time. The Maryland State Bar Association Committee on Ethics (Ethics Committee) has routinely adopted the standards 132

MSBA.ORG | ISSUE 1 2020

promulgated by the American Bar Association regarding retention and destruction of client files.4 Maryland attorneys are advised to “exercise discretion” and consider that “[t]he nature and contents of some files may indicate a need for longer retention than do the nature and content of other files.”5 Limited guidance can be found within the Maryland Attorneys’ Rules of Professional Conduct.6 Rule 1.15(a), Safekeeping Property, sets forth an attorney’s obligation to maintain client “property” and mandates that: An attorney shall hold property of clients or third persons that is in an attorney's possession in connection with a representation separate from the attorney's own property.

Funds shall be kept in a separate account maintained pursuant to Title 19, Chapter 400 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the attorney and shall be preserved for a period of at least five years after the date the record was created.7 This Rule does not necessarily establish a five-year retention policy for the contents of all client files. Again, the nature of the practice and contents of the file must be considered in determining whether Rule 19-301.15(a) applies. For example, the Ethics Committee has opined that a law firm operating exclusively as a title insurance agency “must continue to retain any files for a period of five years after the termination of representation of your clients.”8 To the extent a the

records document the receipt and distribution of funds held in trust by the attorney on behalf of the client, the five-year retention requirement under Rule 1.15(a) is triggered.9 It follows that the practice area and outcome of a client matter may determine how long the contents of certain client files should be retained.

In contrast to the specific five-year records retention requirement of Rule 1.15(a), file contents such as attorney-client communications, pleadings, motions, discovery materials, court orders, legal research materials and work product fall within more of a gray area that is subject to an attorneyâ&#x20AC;&#x2122;s discretion. Original documents and other items turned over by the client in the course of the representation ordinarily constitute â&#x20AC;&#x153;propertyâ&#x20AC;? of the client that should be returned to the client upon termination of the representation.10 The Ethics Committee has suggested attorneys review the Maryland Annotated Code, Business Regulation Article, Section 1-304 when considering the length of time a client file should be kept.11 Pursuant

to Section 1-304, a business record generally may be destroyed three years after it is made.12 A client file is not expressly included in the definition of a business record under Section 1-304; however, given that the statute of limitations for malpractice claims against attorneys is three years, it is generally prudent to retain client files for at least that long after conclusion of the representation.13 Consultation with your professional liability insurance carrier is recommended and may provide additional guidance on file retention and malpractice claims.

Another helpful avenue is to look to how other jurisdictions approach client file retention. In Colorado, attorneys may destroy a client file at any time, as long as written notice has been provided to the client and there are no pending or impending legal proceedings. If no notice has been provided to the client, the attorney must retain the file for ten years, provided there are no pending or impending legal proceedings.14 There are different requirements for criminal matters, irrespective of notice to the client. Colorado attorneys are MARYLAND BAR JOURNAL | ISSUE 1 2020

133

required to retain criminal files for a period of time ranging anywhere from the life of the client to five years depending on the type of crime committed, the disposition, and whether an appeal was filed.15 Maine has an eight-year file retention policy, unless otherwise agreed by the client.16 There is an exception for records “that have intrinsic value in the particular version, such as original signed documents, which must be retained until they are out of date and no longer of consequence.”17 The Tennessee Board of Professional Responsibility recommends file retention for a period of five years after representation is terminated, but notes the five-year guideline may be altered depending on the type of representation. For example client files involving custody matters should be retained until all minor children reach an age of majority, bankruptcy claims and filings should be retained until the “discharge of the debtor or discharge of the trustee or receiver,” and criminal case files should be retained until “the date of acquittal or length of governmental control over [the] defendant.”18 There are also differences between jurisdictions as to whether the client file is the property of the client. Some jurisdictions clearly state that the client file belongs to the client and provide that the expense of copying the file is the responsibility of the attorney.19 The MSBA Ethics Committee has opined that, “[i]n the absence of a contractual agreement between the client and the attorney to the contrary, all documents are the property of the client.20” The Ethics Committee notes that in Maryland the ability to place a lien on client files for nonpayment of fees is recognized in case law and by statute, but such liens are “passive in nature” and secondary to preserving a client’s interests.21 Maryland Attorneys’ Rule of Professional Conduct 1.16(d), Declining or Terminating Representation, states: Upon termination of representation, an attorney shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of another attorney, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.22 While Rule 19-301.16(d) also allows the attorney to “retain papers relating to the client to the extent permitted by other law,” an attorney is ethically obligated to surrender the file to the client if doing so is necessary to protect the client’s interests.23 Regardless of the period of time an attorney decides to retain client files, it is imperative to develop a plan and strategy to tackle file management that considers both the needs of the attorney, such as storage costs, malpractice protection and compliance with ethical obligations and the needs of client, such as confidentiality, statutes of limitations and safekeeping property.24 In addition, as many of us are now painfully aware, another consideration is remote access to client files. Any file retention policy should take into account the nature of the attorney’s practice area and the contents of a particular client file. Your file retention policy may be easily incorporated into an existing retainer agreement or may be communicated to the client at the conclusion of the representation within a closing letter. The best practice is to do both.25 Addressing a client’s expectations regarding the contents of a client file, in writing, avoids many pitfalls and “what ifs” associated with how long a client file is kept.

134

MSBA.ORG | ISSUE 1 2020

Absent client consent to destroy, special care should be taken to preserve original wills, unrecorded deeds, settlement agreements, marriage certificates, birth certificates, or records from a foreign country.

I’m ready to “tidy up” my client files, now what?

In a perfect world, the authority to destroy any client file is obtained from the client in advance, all original documents are returned to the client at the conclusion of representation, and after the period of time specified in the written file retention policy has passed, the file is shredded in a manner that preserves confidentiality. Even Marie Kondo has learned that lawyers are inclined to keep papers and attorneys who have a destruction policy may not actually destroy client files pursuant to said policy. For those of us in desperate need of a decluttering intervention, “tidying up” client files can be broken into four steps: 1) Screening, 2) Consent, 3) Inventory, and 4) Destruction, and the bulk of these steps may be taken while adhering to social-distancing directives.

Practically speaking, screening is a hunt for original documents, anything that may be difficult to replace, anything that may hold intrinsic value for the client, while keeping in mind any applicable statutes of limitation. Absent client consent to destroy, special care should be taken to preserve original wills, unrecorded deeds, settlement agreements, marriage certificates, birth certificates, or records from a foreign country. In addition, even closed client files should not be destroyed until any and all statutes of limitations have expired, as a client may reasonably expect the attorney to preserve such items.26 Think of the stack of medical records obtained for that client who no longer returns your calls, but whose statute of limitations has not yet expired.

At the outset, all files should be screened before destruction in order to ensure that certain items are not destroyed.27 Screening the files is an especially crucial step for attorneys that have not obtained client consent to destroy files. Items to look for include: 1) original documents, unless the client consents; 2) items a client could reasonably expect to be returned, unless the client consents; 3) information the attorney knows the client may need in the assertion or defense of a matter, unless the statute of limitations has run; and 4) information not previously provided to the client that the client may need or reasonably expect the attorney to preserve.28

There is a bit of good news for attorneys that have yet to implement a file retention policy and are wondering what to do with original documents. The Ethics Committee has found nothing improper in sending a letter to a client’s last known address to obtain permission to destroy the client file or offer to return it.29 If attempts to contact the client fail, at least when it comes to wills, the Ethics Committee has opined that attorneys are obliged to hold the wills in their office safe, assuming that was what the client wanted at the time the will was executed.30 (But what happens to all those office safes full of wills? That is a topic for another day, for those of you who have not yet thought about succession planning.31)

1

See id.; Tidying Up with Marie Kondo, season 1, Netflix, www.netflix.com.

2

See e.g., George Khoury, Esq., Marie Kondo for Lawyers: Tidying Up Your Law Office, FindLaw:Blogs:Strategist (April 1, 2019) https://blogs.findlaw.com/strategist/2019/03/marie-kondo-for-law�� yers-tidying-up-your-law-office.html.

3

MSBA Comm. on Ethics, Ethics Docket No. 2005-01 (2005).

4

Id.

5

6

7

Lastly, it goes without saying that the ethical requirement to preserve confidentiality extends to the destruction of client files. Files should be shredded and disposed of in a manner that does not result in the unintended disclosure of confidential client information.33

Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct were renamed the Maryland Attorneys’ Rules of Professional Conduct and re-codified, without substantive changes, in Title 19 of the Maryland Rules.

Md. R. 19-301.15(a) (2019).

8

An attorney should create and maintain an index identifying any file slated for destruction.32 That inventory may include the name of the client(s), a list of any attempts to contact the client, the address to which the file was returned and the manner in which the file was returned, and/or the date of destruction. An inventory will be most helpful if it includes enough information to address any post-destruction inquiries regarding the final disposition of the client file.

See Marie Kondo, Spark Joy: An Illustrated Master Class on the Art of Organizing and Tidying Up (Cathy Hirano trans., Ten Speed Press 2016); Marie Kondo, The Life Changing Magic of Tidying Up: The Japanese Art of Decluttering and Organizing (Cathy Hirano trans., Ten Speed Press 2014).

MSBA Ethics Docket No. 2005-01 (2005).

The ABA has promulgated the following standard: “A lawyer should take special care to preserve, indefinitely, accurate and complete records of the lawyer’s receipt and disbursement of trust funds.” ABA Comm. on Ethics & Prof’l Resp., Informal Op. 1384 (1977). This standard predates Maryland’s adoption of the requirement to maintain such records for a period of five years under Rule 19-301.15(a). MSBA Ethics Docket No. 2005-01.

9

See MSBA Ethics Docket No. 1989-11 (1989).

10 11

MSBA Ethics Docket No. 1994-28 (1994).

Md. Code Ann., Bus. Occ. & Prof. § 1-304 (2019).

12 13

See Board of Prof’l Resp. of the Sup. Ct. of Tn., Formal Op. 2015-F-160 (2015).

Colo. R. Prof’l Cond. 1.16 (a) (2019).

14

Id.

15

Me. R. Prof’l Cond. 1.15 (f) (2019).

16 17

Id.

18

Shred Your Files!

You can clear your mind simply by discarding all unnecessary papers.

- Marie Kondo, Spark Joy Shredding is the inevitable final step in successfully “tidying up” any attorney’s stockpile of client files. Otherwise, all of the hard work spent exercising discretion in determining the appropriate disposition for client files, implementing a file destruction policy, culling original documents, attempting to contact clients, and creating an inventory will be for naught.

For some Maryland attorneys (you know who you are), the effort it takes to get to the point where you are actually ready to shred your client files may seem overwhelming and far from anything that could imaginably “spark joy.” For others, the realization that you have been practicing long enough that some files are ripe for destruction may be a career milestone of sorts. Whatever stage of the paper chase you currently occupy, shredding the files it is no longer necessary to retain should be at or near the top of your to-do list once the stay at home order is lifted. Somebody’s got to do it, and you, as the attorney with a keen ability to exercise reasonable discretion, are the best person to know what should happen to any one of your particular client files.

Whether your goal is to remain positive and productive during the COVID-19 outbreak by decluttering your mind, workspace, storage unit(s), or any combination thereof, or if you merely want to spare your loved ones from eventually having to go through your accumulated mountain of papers, remember that you can reach this goal (in the words of Marie Kondo) “simply by discarding all unnecessary papers.”34

Board of Prof’l Resp. of the Sup. Ct. of Tn., Formal Op. 2015-F-160 (2015).

Id.

19

MSBA Ethics Docket No. 1989-11 (1989).

20

Id.

21

Md. R. 19-301.16(d) (2019).

22

Id.

23

See Nebraska Ethics Op. 88-3 (1998).

24

Materials on Client File Retention, ABA Groups: Center for Professional Responsibility (February 17, 2011) https://www.americanbar.org/groups/professional_responsibility/services/ethicssearch/ materials_on_client_file_retention/.

25

Board of Prof’l Resp. of the Sup. Ct. of Tn., Formal Op. No. 2015-F-160 (2015).

26

ABA Informal Op. 1384 (1977).

27

Id.

28

MSBA Ethics Docket No. 2005-01 (2005).

29

MSBA Ethics Docket No. 1988-91 (1988).

30 31

Succession Planning, ABA: Center for Professional Responsibility (July 24, 2019) https://www. americanbar.org/groups/professional_responsibility/resources/lawyersintransition/successionplanning/.

ABA Informal Op. 1384 (1977).

32

Id.

33

Kondo, Spark Joy, supra note 1, at 241.

34

MARYLAND BAR JOURNAL | ISSUE 1 2020

135

MSBA Speaks with Judge Bredar, Chief Judge for the U.S. District Court Of Maryland CONTINUED FROM PAGE 17

June 5, 2020. The Maryland Judiciary extended court closures through June 5, 2020. Can you speak about the process for determining when to reopen federal courts? When do you envision reopening?

As you can imagine, this is one of the largest challenges that we face: making decisions for the future when so much about the future is unknown at this point. We've brought certain values to bear as we faced this. We were looking at a suspension order that would expire on April 24. The argument was that lawyers need time to plan and to react and it would be very inappropriate to wait until the end of that period to announce what happens next. My view was that lawyers should be given at least two weeks of notice. My intention, supported by my colleagues, was to get the word out no later than last Friday. We worked hard on this, taking into account data, national and local. We looked at: What is the state of the pandemic? What is the ability of people to function in any sense? What did the Governor say? What is the messaging from Washington? What do local institutions and local health care institutions that Maryland is so richly blessed with, what are they telling us about what this looks like in the coming 4-8 weeks? What role can we play as an institutional leader in helping to support this public health guidance coming from experts. All of those came into consideration. It was also our view that it would be hard for the bar, hard for the court if decisions are made piecemeal, like every two weeks and everyone has to wait for the next two weeks. It would be much better for planning purposes if you can know several weeks in advance.

This speaks to broader concepts, that you are doing your very best at balancing a lot of competing priorities while also considering the various parties and the impact of orders, lack of orders, communications, etc.

That’s absolutely true. Speaking for myself in my role as Chief Judge of this court, I do embrace the notion that while the damage from the large scale shutdown of the economy is very very serious, that public safety nevertheless must come first.

I understand there may be some debate out there with the wider community and country about that, but I think far be it from me to speak for the Governor. At a time like this, he has a critical leadership role to play. I think this is the position, these are priorities as he’s established them. I agree with them and I think it’s our responsibility to get into alignment with them to the extent we are able.

How has the Federal Judiciary implemented remote technology tools during COVID-19? Were any remote technologies in place prior to the emergency for court proceedings and court filings?

136

MSBA.ORG | ISSUE 1 2020

Have there been any issues in implementing these technologies during the emergency?

Unlike many state courts and some federal courts around the country, in the District of Maryland we previously had not embraced remote court proceedings, we had not conducted criminal proceedings from jails, we had never taken view that a TV court or virtual court was an adequate substitute for in person appearances.

Different courts have different views on that topic. Technology has evolved differently around the country. I have been quite impressed (not in a negative or positive way) - but it’s made an impression on me - how extensive the virtual court system in the state of Virginia was prior to this incident.

They evidently do a lot of proceedings that way. We have not embraced that previously for good reasons, I think.

Should we have that capability to address emergencies? Yes, that much has been taught. We have established it and it exists for the future, for the next pandemic, hopefully that occurs long after my term as chief judge. We have embraced technologies fully, with robust discussions. We have a fabulous information technology team in this district court and the U.S. Bankruptcy Court. We have an integrated IT team for those two courts. I can’t say enough about how quickly and how capably they have responded to the challenges posed by this incident.

It’s true across the board regarding our court administrators, clerks’ office staff in general, probation officers, deputy marshals. Our IT officials have been tested, they have worked 14-16 hour days, straight through the weekend chasing different solutions. Sometimes it seemed like a good idea, didn’t work out, couldn’t get the hardware, back up, plan B, plan C, and then ultimately came through with solutions that met our needs. We had a lot of ground to cover when this started but we are at a point now where we are taking guilty pleas from persons confined in Alleghany County Detention Center in Cumberland, Maryland. We are hearing countless petitions for release from vulnerable persons from a healthcare standpoint in the District of Columbia Central Detention Facility. From the northern neck of Virginia, to the Chesapeake Detention Facility in downtown Baltimore. All these far flung institutions where persons who are held on federal charges are confined. It’s just remarkable. None of that infrastructure, none of that capability existed a month ago. And now it’s up and operating hourly.

We are taking advantage of different video platforms. For now at least we have most vigorously embraced the Zoom platform. We are mindful of the security issues, we have studied them carefully. The system is not perfect. We are using a specific Zoom for Government platform, not the

general Zoom platform. The Zoom for Government meets the requirements as being appropriate for everything except the most secure proceedings. Yes there are some security risks, but most proceedings via Zoom would be conducted in an open courtroom anyway. People are usually in the court galleries, so Zoom Bombing could occur in a regular court proceeding, if you cause a disturbance, you’ll be removed and we carry on. Zoom, even with deficiencies from a security standpoint, is a good platform for our non-secure, non-secret court proceedings and we are moving in that direction.

What advice can you give to the 40,000 Maryland attorneys who are impacted both personally and professionally due to COVID-19?

How can they continue to safely practice law, given the Court Orders and the Governor’s Executive Orders?

I have no special wisdom. We are all in this boat that we never expected to be in in a million years. I don’t have advice other than to put your head down and go as best you can in the circumstances we find ourselves. The first priority is you don’t do anything to jeopardize the health, safety, or well being of another person, unless you yourself are in an emergency situation with no other choice. Overall I think this is the principle we all have to live by, and lawyers are included in that. The other thing is, our instincts as lawyers is sometimes to think independently, to go in our own direction, to take liberties that this wonderful Constitution of ours provides, and that’s what makes this such a rich, successful, capable country - that people think independently. But in a crisis though, getting around that fact, that there is a lot of value to people working together, linking arms, accepting common objectives, allowing leaders to lead, getting on board with what seems to be the program, the right way to approach it, get to work, get after it. This is the time for that. That doesn’t mean we don’t still have our courts open and we don’t still permit adversarial proceedings to try to get to the truth and the right answer in specific cases. We do, but that at the moment is more confined to emergencies. In the short term, to the extent there is leadership that you would credit, the public health advice that makes sense, get behind it. Help the community.

Do you have any advice for law students or young attorneys who are facing an unprecedented legal future, including employment concerns and uncertainty about upcoming bar exams? How can these younger attorneys and students spend their time as they navigate the emergency?

All crises are incredible learning opportunities. I think of the experience that my own three law clerks are having and how different it is than what their predecessors experienced.

They are being asked to research questions wholly differently from that which their predecessors faced. They are working extraordinarily long hours. They support me in my

“

People who are in every profession have responsibility in a time of crisis to look at the broad situation, see what the community needs, then pull back into their specific professional role and assess how they contribute without the specialty and special role that they occupy, the license that they hold, the clients that they have, the special role they’ve got.

administrative role and other judges as we sort out novel, new, complex problems.

I think young lawyers are being presented with challenges that are so fundamentally different but you know, that’s the great thing about being young. You’re flexible. Take full advantage. I have great sympathy for those who have uncertainty about employment or questions about when the bar exam will be held. I trust that our state leaders, Chief Judge Barbera, and her colleagues are doing their absolute best to sort out those issues and give guidance as soon as they are able.

Thank you for your time and answering these questions fully. Any final comments?

I think people who are in every profession have responsibility in a time of crisis to look at the broad situation, see what the community needs, then pull back into their specific professional role and assess how they contribute without the specialty and special role that they occupy, the license that they hold, the clients that they have, the special role they’ve got. If ever there was a time in this country, in this community, in the profession to pull together and be part of the solution and not part of the problem, it’s now. Thanks and good luck to you and your families, remain healthy, stay safe, and march forward.

Thank you, Judge Bredar. The MSBA looks forward to continuing to work with you.

MARYLAND BAR JOURNAL | ISSUE 1 2020

137

STAFF PROFILE

| JIM QUINN

So Long for Now...

Jim Quinn, MS, CCDC, NCGC, Director of the MSBA Lawyer Assistance Program (“LAP”), has served the legal community in Maryland for over 13 years. While at the helm of LAP, Jim has helped numerous individual attorneys struggling with addiction, stress, and other mental health issues. He has helped to expand the program so that attorneys throughout Maryland can access confidential counseling and services near them, regardless of their ability to pay.

Recently, Jim announced his retirement from the MSBA, and although his retirement will be effective before this profile prints, we wanted to take this opportunity to let our members know more about him and the work he has done.

The MSBA Leadership, LAP Committee, staff, and many attorneys throughout Maryland are grateful for your work and dedication, and wish Jim the best in his retirement.

Tell us a little bit about the Lawyers’ Assistance Program and your time here with the MSBA. What we brag about is that we were the first established Lawyer Assistance Program in the USA with paid full-time staff. Today most states have structured programs to assist lawyers struggling with complicated mental health problems. Our program started out as an alcoholism focused service but expanded in the 1980s to cover a wide range of mental health issues.

The important features of our service are: Confidentiality, Free, Easy Access anywhere in Maryland, and tailored to serve the legal profession. The thing that really makes it work are the dedicated committee members that volunteer their time to help their suffering colleagues. I will truly miss working with this special group of professionals. The MSBA leadership has been super supportive and ready to help whenever necessary.

138

MSBA.ORG | ISSUE 1 2020

How has LAP changed during your time with the MSBA? We have expanded and now have help available in every area of Maryland. In the old days lawyers had to come to Baltimore to receive assistance. Now, licensed therapists are within a short distance from an attorney’s home or office. The other big change has to do with our ability to offer financial aid to those who can’t afford treatment. The MSBA believes in taking care of its members and doesn’t want the lack of finances to get in the way of getting help.

What is one practice or habit you recommend to an attorney struggling with anxiety or stress?

Find someone you can trust and share what is going on. Lawyers are great at helping others but not always good at taking care of themselves. Remember, we can do together what might not be possible alone. The other advice I like to share with lawyers is: Don’t be so busy making a living that you forget to make a life.

In the old days lawyers had to come to Baltimore to receive assistance. Now, licensed therapists are within a short distance from an attorney’s home or office.

Advertising index ABA Retirement Funds PAGE 47

Dugan, Babij, Tolley & Kohler COVER 3

First Maryland Disability Trust PAGE 68

LawPay COVER 2

What have you enjoyed about working for the MSBA and serving as Director of LAP? What I enjoyed most were the lawyers I worked with and watching them make some amazing recoveries from some very complicated mental health problems. They are some of the most resilient and strong people I know.

What is one of your fondest memories from your time with the MSBA? Working with our LAP committee to successfully petition the Court of Appeals to award the Lawyer Assistance Program a large sum of money to set up the Bates/Vincent Foundation to assist lawyers in need of financial assistance to cover mental health treatment.

What is your favorite hobby or pastime?

Tennis & Golf

What are you looking forward to after retiring?

Spending time with family and friends. Not having to deal with rush hour traffic. Playing golf in the middle of the day and taking naps.

National Academy of Distinguished Neutrals PAGE 130

Stein Sperling PAGE 10

The Law Offices of Julie Ellen Landau PAGE 34

The McCammon Group COVER 4

Venable LLP PAGE 3

Warnken Law PAGE 81 Lisa Caplan, LCSW-C, the longtime Associate Director of the Lawyers Assistance Program has been promoted to fill Jim’s role following his retirement. Lisa is responsible for providing assessment, referral and short term counseling for lawyers, judges, law school students and their families for personal concerns such as stress, mental health, substance abuse, and overall wellness concerns. As part of her role, Lisa provides outreach and trainings, on a variety of wellness topics, for the legal community as well as writes the monthly Wellness Tip Sheets.

Lisa graduated from the UMAB School of Social Work with an MSW and a Specialization in Employee Assistance Programs. She is a Licensed Certified Social Worker at the Clinical Level (LCSW-C). She is trained in assessment, referral and counseling, as well as trauma interventions. Lisa 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, as well as managing an employee assistance program for the federal courts in six states.

Please join us in congratulating Lisa for her promotion, and wishing Jim the best in his retirement.

MARYLAND BAR JOURNAL | ISSUE 1 2020

139

Together, we are

stronger

MSBA’s COVID-19 response efforts include: Advocating for the profession in state & federal judiciary as well as in the legislature

How does the legal profession deal with new challenges?

together.

On the heels of a legislative victory against sales tax on services, March 2020 presented a new challenge: a global pandemic.

MSBA exists to support and empower the entirety of the legal profession every day, even more so when it is facing unprecedented challenges.

M S B A . O R G / S T R O N G E R TO G E T H E R

Communicating with the Governor’s office on key orders, including remote notarization and remote witnessing Providing 20+ complimentary webinars, with over 15,000 participants (and growing) from across the profession Sharing resources and tools to navigate your practice during the pandemic Guiding firms in their transition to a remote practice, and helping plan for recovery and post-COVID business strategies Opening MSBA’s entire on-demand CLE catalog of 150+ titles, the Maryland Bar Journal, and other resources, to everyone at no cost Convening the state’s legal services organizations to guide the public and self-represented litigants during this unprecedented time Your MSBA has been fighting for you long before this pandemic, and will keep fighting long after. If you haven’t already, we would love for you to join the growing number of attorneys who call MSBA home.

Because together, we are stronger.

Your Partner.

An Advocate for Your Clients.

Accepting referrals in the areas of birth injury, cerebral palsy, complex medical malpractice and catastrophic personal injury litigation.

Alison D. Kohler 1966 Greenspring Drive Suite 500 Timonium, Maryland 21093 Toll Free: 1.800.408.2080 Phone: 410.308.1600 Fax: 410.308.1742 www.medicalneg.com

Bruce J. Babij

Ellen B. Flynn

George S. Tolley, III

Maryland State Bar Association, Inc.

Nonprofit Organization U.S. Postage

520 West Fayette Street Baltimore, Maryland 21201

PAID

Maryland Bar Journal

Electronic Service Requested

The McCammon Group is pleased to welcome our newest Neutrals

Hon. Sally D. Adkins (Ret.)

Hon. Nelson W. Rupp, Jr. (Ret.)

Hon. Patrick L. Woodward (Ret.)

Retired Judge Court of Appeals of Maryland

Retired Judge Circuit Court for Montgomery County

Retired Chief Judge Court of Special Appeals of Maryland

Leaders in Dispute Resolution For a complete list of our services and Neutrals throughout MD, DC, and VA, call 888.343.0922 or visit www.McCammonGroup.com