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VOLUME 2 ISSUE 2
Evolution of the Legal Profession KEY FEATURES Law Firm Perspectives
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Contents
MSBA UPDATES 5 President's Message 6 MSBA in the Community 8 MSBA YLS Charity Event: Thank You To Our Sponsors! 10 Committee Update
VOLUME 2 | ISSUE 2
50 Legal Lion, Community Leader, and MBF President: Tom Lynch
123 Check on Your
130 Estate Planners Evolve to Serve a Wider Range of Clients
Younger Colleagues
54 Maryland Bar Foundation Supports Mid-Shore Pro Bono’s Elder Law Project 146 Fresh Faces 154 Staff Profile: Andrea Terry 156 Executive Director's Message INSIDE ANNAPOLIS 43 Legislator Profile: Senator Susan C. Lee 46 An Interview with Senator Ben Cardin HEALTH & WELLNESS 56 Your Body Holds the Secrets to Avoiding Burnout 58 Practicing Law on Their Own Terms: Snapshots of Lawyers Who Are Shaping the Future of Law and Well-Being 67 The Complicated and Messy Interface of the Law and Medicine in Matters Involving Mental Illness and Substance Abuse
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136 Beyond Langdell: Legal
MSBA Sections Provide Perspective on the Evolution of the Legal Profession
MEMBER FOCUS & CAREER HIGHLIGHTS
Education in a Post-Pandemic World
18 Firm Profile: Frost Law 30 Managing Partner Profile: Maryland Law Firm Leaders Working to Support Each Other 70 Past President: Edward J. Gilliss 72 Career Transitions: Debora Fajer-Smith 75 What I've Learned: Brian DeLeonardo 78 Off The Beaten Path: Dina Billian
127 The Last Frontier: The Promise
of AI-Powered Legal Analytics in Texas
Member Spotlights 22 Nicholas B. Hawkins 39 Kandace L. Scherr 84 Micah G. Snitzer
144 Remote 140 No Need to Panic: Online Dispute Resolution Works DISCOVER MORE
90 Tara Barnes Taylor 98 Carlotta Ann Woodward
Execution Present and Future of Estate Planning?
READ MORE ONLINE: Stay equipped and knowledgeable, every day. Visit MSBA.org for more exciting content.
MARYLAND BAR JOURNAL | ISSUE 2 2020
1
EDITORIAL ADVISORY BOARD (2019-20 BAR YEAR)
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 Eric Gershowitz Account Executive eric.gershowitz@mci-group.com Editorial Advisory Board Hon. Vicki Ballou-Watts, Chair MSBA Officers (2019-2020) President: Hon. Mark F. Scurti President Elect: M. Natalie McSherry, Esq. Secretary: Del. Erek Barron Treasurer: Jason DeLoach 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
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MSBA.ORG | ISSUE 2 2020
When you have to be right
Wolters Kluwer Legal & Regulatory U.S. Proudly Announces the Latest Supplement to
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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 100 Maryland Attorney General's COVID-19 Access to Justice Task Force 108 Funding for Civil Legal Aid in Maryland Faces Drastic Decline 109 Commissioner Profile: Michelle Lipkowitz 112 The Role of Mediation in an Integrated System of Eviction Prevention FOR YOUR PRACTICE 12 Leaders of Related Professions Provide Their Perspectives on COVID-19 25 Coronavirus-Related TM Filings Will Face Registration Hurdles 28 Highlights from the NLJ 500: The National Law Journal’s Annual Report on the Nation's Largest 500 Firms 33 Key Takeaways from U.S. District Court's First Post-COVID Maryland Trial 35 An Excerpt from Bright Insight: The 2020 National Legal Sector Benchmark Survey Results 41 “This is a Man’s World”: How Female Attorneys Face Implicit Bias in the Legal Profession and How Law Firms Can Change the Culture 82 Estate Planning for Maryland's New Elective Share Law in the Moderate Size Estate 86 Law Firm Automation Reducing Human Error and Increasing Efficiency 88 Deepfakes and the Courtroom 92 Crisis Communication: 5 Steps for Damage Control 94 Case Notes 96 Safe Execution of Estate Planning Documents During COVID-19 Pandemic 147 Updates from the Judiciary 149 Ethics Opinion
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3
EDUCATION COMMUNITY CONNECTION
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M A RY L A N D S TAT E BA R A S S O C I AT I O N
PRESIDENT'S MESSAGE
| INSIGHTS & UPDATES
Committed to a Successful Virtual Year
T
he COVID-19 pandemic has had a substantial impact on the legal profession and our daily lives. Throughout the COVID pandemic, the MSBA has and will continue to be here for you. We continue to provide top-rated CLE programs, platforms for our sections, our committees, our task forces to meet virtually, and to make recommendations to create the changes that are needed in our legal system. We have been, and will continue to be, the voice of Maryland lawyers with the legislature, the judiciary, and the governor's office. We have asked your questions regarding the administrative and the executive orders issued by Governor Hogan and Chief Judge Barbera for clarification and in some cases modified based on input from you. We are also focused and committed to deliver more relevant content and resources to our profession. Whether you join one of our many Legal Summit Series webinars live, attend the first annual 100% virtual Legal Excellence Week in November, or watch one of our many On-Demand courses, you’ll receive quality, timely CLE and webinars on emerging issues. Plus, delivering on our commitment to support our members, virtual CLE is free with your membership through December 31, 2020.1 We’re also delivering articles and updates relevant to you through our eWeekly Newsletter and Weekly Roundup email. Visit MSBA.ORG as even more content and resources are announced. In addition to our focus on content, during my term, we are focused on greater diversity and inclusion as well as access to justice. More so now, these overlap each other in many ways. We need to engage in the dialogue, listen, learn, and lead the way for change and reforms in our legal system. If not us, then who? We as lawyers, stewards of the law and protectors of our rights, need to stand up and speak out against injustice and exclusion. We should continue to celebrate the strides we have made, but we need to speak out now about the wrongs within our legal system so that we can be part of the solution. As part of that solution, I am honored to serve as the MSBA representative to Attorney General Frosh's COVID-19 Access to Justice Task Force as we look at ways to protect all Marylanders as we reopen our courts.
"We need to engage in the dialogue, listen, learn, and lead the way for change and reforms in our legal system. If not us, then who?"
Finally, I want to continue the trends and programs set in place by my predecessors, and ensure the MSBA truly represents all lawyers in Maryland. Although we cannot be together in person right now, I want the MSBA to be accessible to everyone. In that vein, we will be introducing monthly “Coffee Chats” where members can connect directly with me and MSBA staff to discuss a relevant topic and learn about available resources and programs through the MSBA. I thank all of our chairs and members of our sections, committees and task forces, along with our Board of Governors for all of their commitment to making this virtual year a success. I am truly honored to serve as your MSBA President, and I invite you to connect with me via email at President@msba.org.
Hon. Mark F. Scurti, President 1 Virtual (livestream or OnDemand) courses of 90 minutes or less
MARYLAND BAR JOURNAL | ISSUE 2 2020
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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.
O
n March 12, 2020, after considering the implications of COVID-19 and the health and safety of its members and staff, the MSBA instituted a moratorium on in-person events and meetings. The moratorium was recently extended to January 1, 2021. MSBA will continue to monitor the COVID-19 pandemic, and keep members apprised of when in-person events and meetings may return. Despite not being able to engage with each other in person, the MSBA has held numerous virtual events to provide needed resources and information about the COVID-19 pandemic, connect members from across the state with Section Coffee Talks, introduce new ways to stay fit and destress with our Fit Friday online classes, and has scheduled over 30 of our Legal Summit & Annual Meeting substantive sessions throughout the summer and fall as part of our Legal Summit Series. Attendance at these events has been overwhelmingly positive, and we would like to thank each and every legal professional that has tuned in.
FIT FRIDAYS. On Friday, May 29, 2020, MSBA introduced “Fit Fridays.” These complimentary virtual fitness classes, led by a number of MSBA members, provide opportunities to take part in a variety of fitness classes from yoga to zumba to full body power workouts. “Fit Fridays” are held monthly on Fridays from 12pm - 1pm. Visit MSBA.ORG/CALENDAR for details on the next session.
In addition, although we were unable to hold our Annual Business Meeting on Saturday morning in Ocean City to say goodbye to 2019-20 MSBA President Dana O. Williams, Esq. and welcome 2020-21 MSBA President, Hon. Mark F. Scurti, the MSBA held a Virtual Annual Meeting on June 30, 2020. Learn more about these virtual events below.
LEGAL SUMMIT SERIES. Although we could not be together in person in Ocean City, Maryland, the MSBA is working with a number of Sections and Members to bring you the Legal Summit Series. These 1-hour to 90-minute live-streamed CLEs have been scheduled throughout the summer and early fall, and encompass a variety of practice areas and topics from Corporate Law to Technology to Litigation & Trial Skills to Practice Management. Visit the MSBA.ORG/CALENDAR for more information and to register for one or more of these programs.
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COVID-19 WEBINARS. Beginning in March, the MSBA began hosting free 1-hour webinars on issues arising from and related to the COVID-19 pandemic. These efforts have continued throughout the summer and fall. Check out our COVID-19 resource page for more information on upcoming and recorded webinars.
ESTATE & TRUST STUDY GROUP. Beginning in April, the MSBA Estate & Trust Law Section Study Group, transitioned its monthly meeting from its in-person locations in Baltimore and Bethesda, to a completely virtual experience. These monthly webinars can be viewed on the MSBA YouTube channel at MSBA.ORG/ET-STUDY-GROUP-VIDEO.
VIRTUAL ANNUAL MEETING. On June 30, 2020, the MSBA held its Virtual Annual Business Meeting. As part of this meeting, we recognized the leadership of MSBA Immediate Past-President, Dana O. Williams, Esq., and welcomed Hon. Mark F. Scurti as the MSBA President for the 2020-21 Bar year. In addition, attendees heard updates from several speakers, including: AMA President, Judy Perry Martinez, who reported on the State of the Legal Profession; Hon. Mary Ellen Barbera and Hon. John Morrissey, who reported on the State of the Judiciary; and Hon. C. Philip Nichols who reported on the work of the Bar Association Insurance Trust. Attendees also observed a moment of silence as the names of member who have passed were displayed. The Virtual Annual Business Meeting was recorded and is available to view on the MSBA’s YouTube channel: MSBA.ORG/VIRTUAL-AM-VIDEO. MARYLAND BAR JOURNAL | ISSUE 2 2020
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MSBA UPDATES
| MSBA IN THE COMMUNITY
MSBA YLS Charity Event THANK YOU TO OUR SPONSORS!
O
n behalf of the Young Lawyers Section and MyLaw – Maryland Youth & the Law, allow me to say THANK YOU to the sponsors of the Young Lawyers Section’ Charity Event. Despite the fact that COVID-19 caused the cancellation of the event, these sponsors honored their financial pledge to support MyLaw, an organization that provides leadership, life skills and civic awareness to Maryland youth through law-related learning opportunities such as the statewide High School Mock Trial competition, Teen Court and the Law Links Internship. In addition, many of the individuals and organizations who bought tickets to the event also donated the price of their tickets to MyLaw. Their generosity in this time of uncertainty is a testament to the legal community’s commitment to the young people of Maryland. Like the rest of us, MyLaw will be dealing with the effects of COVID-19 for years to come. With the support of the people and entities listed here, they will continue to thrive and do good work for the young people of Maryland. Again, thank you and be safe.
Nate Risch, Esq. YLS Immediate Past Chair
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SPONSORS
Barry L. Gogel, Esq. Hon. Barbara Kerr Howe, Mediation & Arbitration Services Margie Wax and Brian Hochheimer
Wallace Kleid Law, LLC
Anna S. Sholl Esq., MSBA Deputy Executive Director
MARYLAND BAR JOURNAL | ISSUE 2 2020
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MSBA UPDATES
| COMMITTEE UPDATE
MSBA Governance Benefits from Multi-Year Review by Bylaws Committee IN THE 2017-18 BAR YEAR, then
MSBA President Sara Arthur convened a Bylaws Committee to begin a multi-year review and modernization of the MSBA Bylaws and governance structure. President Arthur tapped well known corporate law attorney, and active MSBA member, Marshall Paul of Saul Ewing Arnstein & Lehr and then Immediate Past President, Hon. Harry Storm as the cochairs of the committee. In its first year, the committee completed a structural reorganization of the Bylaws. The amendments focused on removing inconsistencies, reconciling provisions that had been added over the years, and placing the Bylaws in a more modern format. These amendments were approved by the membership vote at the June 2018 Annual Meeting. Second Phase of Bylaw Revisions Benefit from Section Feedback In the second phase of work, the Bylaws committee focused on reviewing provisions related to committee make up and selection, meetings, and removing policy based provisions. In doing so, the
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committee worked closely with the Policy Review committee convened by then MSBA President, Hon. Keith Truffer, and which was also chaired by Hon. Harry Storm. In addition, well regarded corporate law attorney, William Carlson, Esq. of Shapiro Sher, was added as a co-Chair of the committee. The second phase of recommendations were presented to and approved by the Board of Governors in June 2019. The recommendations were then presented to the membership at the mid-year meeting in February 2020. After receiving feedback from Section leadership, then MSBA President Dana Williams referred the recommendations back to the Bylaws
Land, Esq. and Danielle Cruttenden, Esq., the Solo & Small Firm and Estate & Trust Section Chairs. These new contributors provided valuable feedback to the Bylaws committee. This feedback was incorporated into revised recommendations that were adopted by the Board of Governors in May 2020, and presented to the membership at the 2020 Virtual Annual Meeting. Latest Bylaw Amendments and Policy Manual Revisions Reaffirm MSBA’s Commitment to Becoming the Home of All Legal Professionals The latest amendments to the Bylaws, adopted by the membership at the 2020 Virtual Annual Meeting on June 30, 2020,
The latest amendments to the Bylaws... reaffirm the MSBA’s commitment to ensuring all members of the legal profession can participate and engage with the MSBA. committee for further review. In addition, Dana Williams appointed two new members to the Bylaws Committee, Susan
and the revised Policy Manual, reaffirm the MSBA’s commitment to ensuring all members of the legal profession can par-
Meet the Co-Chairs of the Bylaws Committee MARSHALL PAUL, ESQ., is a Partner at Saul Ewing
ticipate and engage with the MSBA. One of the most significant updates was the transfer of the committee selection process from the Bylaws to the Policy Manual. Under the new process, a Governance Selection Committee is convened to assist the incoming President in the recruitment and selection of committee chairs and members to ensure diversity and representation of all legal professionals at the committee level. Bylaws Committee Continues its Work in 2020-21 The Bylaws Committee will continue its work in reviewing and modernizing the MSBA Bylaws throughout 2020-21. The overall goal of this work is to ensure that legal professionals from various sectors and practice areas, at any stage of their career, can participate in a leadership role at the MSBA. The Bylaws committee will work closely with and seek input from the Strategic Implementation Committee and Sections leaders, among others.
WEB EXTRA
READ THE BYLAWS The most recent copy of the MSBA Policy Manual and Bylaws can be found on the MSBA website at
Arnstein & Lehr, LLP. Marshall focuses his practice on counseling businesses, health care concerns and professionals with respect to limited liability company matters, general corporate matters, joint ventures, acquisitions and sales, fiduciary duty issues and financings. His clients include large-scale health care providers, technology companies, distributors, service providers and manufacturers of various sizes, as well as individual health care professionals and other professionals. Marshall is a co-author of the Maryland Limited Liability Company Act, and served on the American Bar Association committee that drafted the ABA's original Prototype Limited Liability Company Act. Marshall has lectured both locally and nationally regarding limited liability companies and other legal matters. In addition to his impressive legal career, Marshall has contributed to the legal profession as an active member as the MSBA and educator. Prior to serving as the co-Chair of the Bylaws Committee, he served as one of the founding members of the MSBA’s CLE committee following the MSBA’s absorption of MICPEL. In addition, Marshall has been an adjunct professor at the University of Maryland School of Law for over ten years, lecturing on partnerships, corporations and limited liability companies.
WILLIAM E. CARLSON, ESQ., is a Partner with
Baltimore-based Shapiro Sher. He also serves as the Firm’s president and chair of the Firm’s business department. He concentrates in corporate and securities law advising public and privately held clients in mergers and acquisitions, equity and debt financings, joint ventures, technology transfer and licensing, employment and consulting arrangements, and corporate governance issues, as well as general corporate planning. He also serves many companies as their “outside general counsel.” An active member in the MSBA, Bill served as chair of the Maryland State Bar Association Business Law Section Council (2012-2013) and since 2016, has chaired that Section’s Committee on Corporation Law, which proposes amendments to the Maryland General Corporation Law for consideration by Maryland’s General Assembly. In addition, Bill served on the MSBA Board of Governors in 2017-18 as a representative for the Business Law Section. Bill is also active in the community, having served on economic and community development task forces, including the Downtown Partnership of Baltimore Board of Directors, the Community Relations Commission of Baltimore City and the President’s Roundtable of the Greater Baltimore Committee (GBC).
MSBA.ORG/BYLAWS
MARYLAND BAR JOURNAL | ISSUE 2 2020
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FOR YOUR PRACTICE
| LESSONS FROM LEADERS
Leaders of Related Professions Provide Their Perspectives on COVID-19 The COVID-19 pandemic has impacted the legal profession in significant ways. Firms and organizations have spent the past six months transitioning employees to remote work settings and back again, attorneys have spent considerable time learning how to “Zoom” and then have spent considerable chunks of their days on Zoom for client meetings and connecting with co-workers. The Courts closed, and are now progressing through a long backlog of cases and matters according to their reopening plan. The legal profession is different today than it was six months ago, as are other related professions. We sat down (virtually of course) with leaders in the fields of accounting and arbitration to learn more about how the COVID-19 pandemic has impacted their professions, what they have done in response to the pandemic, and their perspectives on the future of their professions.
Interview with Bob Bunting, Former Chair of the American Institute of CPAs MSBA EXECUTIVE DIRECTOR Victor Velazquez held a virtual chat with Bob Bunting,
founder and principal at RL Bunting Consulting and a trusted voice in the accounting profession. Bob has spent over 40 years in public accounting and has consulted with large wealth management firms and regional CPA firms on strategies for new service development, growth, profitability, people development, mergers, and owner accountability. Victor and Bob discussed COVID-19's transcendent impact on numerous professions and businesses, high-level professionals, and other individuals, with a focus on how to use this time to evolve your business or career.
What are you thinking about during this pandemic, big picture? We are dealing with two issues from a business perspective: the impact on business and professional services, and the recession. There is no playbook for the pandemic--we are being asked to follow guidelines and laws being issued by multiple governments. Our job right now is just to cooperate. After the pandemic subsides, there will be a major business recession, and there are playbooks for that. Firms can learn a lot from each other as we go through the aftermath of the pandemic. The relevant question is, How do we reset our value proposition in a post-COVID world? Maybe employees won’t show up in an office every day and work as they have in the past, but they still have to maintain productivity, 12
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interact with clients, and give value for money. Creating value for clients will not be done in the same way as it was before.
What are your thoughts on COVID’s impact on technology? Technology is a huge winner in this event. I consulted with CEOs from upper/mid-size accounting firms who previously made commitments to technology. Those accounting firms that had already gone paperless and enabled people to act virtually had very small losses in productivity. Their tax and auditing services are all going well, and employees are working as groups even though everyone is at home. In contrast, a firm that had done a very poor job at going paperless saw its productivity fall by more than half.
You consult with CEO-level individuals: part of that is a people equation. What advice do you have for the existing workforce, as well as the pipeline of new people trying to come in? I tell people I advise that this is a tremendous opportunity to do base building. For example, the accounting profession is known for providing a variety of services. Some are flat and less valuable to clients, while others are growing rapidly, and are valued more by clients. During this period of turmoil, firms have an opportunity to build up the base of services that have appeal in the market and to wean from services that are no longer growing. The dislocation in the marketplace, the reductions in force, the Paycheck Protection Program--all of these may allow firms to finance to build new areas of service.
What role does the concept of “continuous learning” play in this environment? If [professionals] just maintain the core skill set obtained at the beginning of their career, they will eventually become unemployable. Professionals have to keep learning in order to get a paying job. Continuous learning gives a professional the potential to expand skill sets in order to continue meeting the needs of clients. To call it “continuous learning” is almost an insult to what really goes on; it is really continuous evolution—completely remaking oneself in order to be viable in the market.
There is always a contingent of those who are resistant to change. What are some of the signals already being sent as we transition into a COVID reset? I foresee an onslaught of regulation of business in general because of the pandemic. One emerging notion is that if you have a core of people who are working in “risky” circumstances during the pandemic, this will lead to new litigation and regulation of an employer’s responsibility to employees. There will be a lot of regulation and litigation around worker safety because of this.
There were retail and hospitality factions that within weeks could not pay their rent. Can you speak to the lack of strategic planning/foresight to deal with adversity?
ment. They take steps for risk reduction, then insure and finance risk that cannot be avoided. The hospitality industry would have discussed the chance of a pandemic where everything shuts down, and they probably would have assumed “that is unthinkable,” and stopped there.
What role should associations and consortiums play now and/or during the COVID reset? Professional associations should consult with members and advocate for the entire membership. They should also be a center of information sharing. There will be great ideas and best practices coming out as a result of the pandemic. Associations should synthesize the information coming in, determine what is appropriate and helpful to members, and disperse that information to those who have a need to know.
What should leadership of accounting firms—and derivatively, law firms— be thinking about to seize this as an opportunity to acquire firms, branch out into new services, etcetera? Every time there’s a massive disaggregation of the “normal” (pandemics, recessions), there is a process of capitulation of knowledge professionals who decide not to go through the changes again. A wise leader has to decide if it’s time to capitulate, or whether the firm can be the beneficiary of the capitulation. My advice is to decide whether your group, or just you as a practitioner, have a chance to be opportunistic and take advantage of the broadbased capitulation—do we admit we are really prey, or does this energize us as we realize we are natural predators who will grow and gain market share?
"It is really continuous evolution— completely remaking oneself in order to be viable in the market."
WEB EXTRA
LISTEN TO ROBERT TALK ABOUT A POST-COVID WORLD MSBA Executive Director Victor Velazquez sat down with Robert Bunting of RL Consulting to get his thoughts about how lawyers can adapt to a COVID-19 world. VISIT MSBA.ORG/BBUNTING
Accounting firms have teams for risk assessMARYLAND BAR JOURNAL | ISSUE 2 2020
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An Interview with Eric Tuchmann, General Counsel at the American Arbitration Association AS COMPANIES AND ORGANIZATIONS turn their focus to reopening safely, MSBA Executive Director Victor Velazquez had a virtual discussion with Eric Tuchmann, General Counsel at the American Arbitration Association, about the pandemic’s impact on the use of technology and how attorneys can expect their roles to change during the post-COVID pivot.
As a senior executive at American Arbitration Association (AAA), you have insight into the impact of COVID-19 on not only arbitrators but also business and the legal sector. What are you thinking about right now related to the COVID-19 pandemic and the macroenvironmental factors playing out? The main issue is uncertainty, as this situation came on relatively quickly. Because I manage an office in Singapore, I saw this evolve in more meaningful ways and could see the significant impact it would have on operations. Once the AAA closed all of its offices, my focus turned to questions like, How long will this last? How do we ensure our employees feel safe? How do we conduct arbitrations online? How long do we plan for? Re-emerging from the pandemic will not be clicking a switch and going back to normal. Every day is about understanding developments, and progress is not uniform across the country. The AAA has extended the closure of its hearing facilities through October because we want to plan ahead for that and let people know well in advance, because our hearings involve bringing together a lot of people, sometimes from different areas.
How has this pandemic affected or accelerated the adoption curve of technology? Do you consider this positive, negative, or mixed? The pandemic has accelerated the use of technology. We are comfortable now with video-conferencing; a few months ago, this [video conference] would have been a conference call. We will continue to use these types of platforms going forward, on an increased basis. Although the technology has been in place for many years, the adoption of it by parties and arbitrators has been slower than expected. Newer generations of lawyers will be more comfortable with it. It remains to be seen whether this acceleration of technology pushes us further toward artificial intelligence.
What role does continuous learning play in ensuring the competitiveness and viability of the practitioner and firms? This is a difficult time for a lot of lawyers. In terms of continuous learning, people are drawn to the law because of a desire for continuous learning. As a novel issue, this pandemic will present new facts and lead to the creation of laws. Lawyers by necessity are going to adapt.
WEB EXTRA
LISTEN TO ERIC SHARE HIS THOUGHTS ON HOW COVID WILL POSE A LEARNING CHALLENGE FOR LAWYERS MSBA Executive Director Victor Velazquez sat down with Eric Tuchmann of American Arbitration Services to discuss how continuous learning is important for lawyers. VISIT MSBA.ORG/ETUCHMANN
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MSBA.ORG | ISSUE 2 2020
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PotterBurnettLaw.com MARYLAND BAR JOURNAL | ISSUE 1 2020 Car Crashes • Nursing Home Negligence • Medical Malpractice
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"We all have to simply work through this and work hard. At the same time we have to be patient and stay energized. We have to be very aware of the human element."
How do you envision the regulatory environment reacting to the market stimuli currently being witnessed? What is the potential impact to an arbitrator? I think the primary burden right now is adapting to this short-term situation. But, some in the field are already saying that beneficiaries of assistance will be subject to after-the-fact oversight and review to make sure they properly spent the money they received. Contracts entered into in February and March were already including contingencies for pandemic; these contingencies will lead to arbitration and litigation. In terms of state, federal, and even international regulation, [legislators] have reacted with programs, incentives, and stimulus packages. After the fact they will be “looking over your shoulder” to make sure funds are handled appropriately.
How is your leadership role, and those who hold similar positions at other entities, evolving due to these circumstances or is impact minimal? From the perspective of general counsel, I need to be adaptive and continue to learn. I am spending a lot of time on operational issues, like making sure employees could work from home. We had business contingency plans that provided
SHARE YOUR
EXPERTISE & RAISE YOUR
PROFILE
for some staff to operate remotely but closing every single office, we had to ensure we covered all the issues. These were not issues that were part of the daily conversation [previously]. I’m spending time on standing calls with our senior team; monitoring state, federal, and international guidance and regulations regarding closures and communicating this to offices. A lot of employment issues have arisen. We are addressing benefits, and anticipating how we will support employees who get sick. I have spent a lot of time talking about technology and security. I’m talking about things that have nothing to do with arbitration but have to do with legal implications of the current situation. These experiences do inevitably allow a leader to build practices and knowledge that can be used in the future.
Do you have any parting words to the legal profession, or just broadly to business leaders? We all have to simply work through this and work hard. At the same time we have to be patient and stay energized. We have to be very aware of the human element. The pandemic affects arbitrators, lawyers, and the companies that are bringing cases to us. Everyone is working on some aspect of the same story. We need to be adaptive and proactive.
The MSBA is now accepting proposals for articles, programs and other content for the Maryland Bar Journal, eNewsletters, CLE Catalog, NEW Learning Library and Legal Summit & Annual Meeting.
Submit your idea today through the MSBA Content Portal // MSBA.ORG/CONTENT 16
MSBA.ORG | ISSUE 2 2020
LAW FIRM HAPPENINGS Member Spotlight : Frost & Associates (p. 18) Intellectual Property Problem Solver (p. 22) Coronavirus-Related TM Filings Will Face Registration Hurdles (p. 25) Highlights from the NLJ 500: The National Law Journal’s Annual Report on the Nation's Largest 500 Firms (p. 28) Maryland Law Firm Leaders Working to Support Each Other (p. 30) Key Takeaways from U.S. District Court'a First Post-COVID Maryland Trial (p. 33) Bright Insight: The 2020 National Legal Sector Benchmark Survey Results (p. 35) One Firm’s Story Moving to a Remote Work Environment (p. 38) “This is a man’s world" (p. 41)
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MARYLAND BAR JOURNAL | ISSUE 2 2020
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MEMBER FOCUS
| FIRM PROFILE
FROST LAW
Left to Right: Matthew Kraeuter, Glen Frost, Eli Noff. Photo courtesy of Beverly Funkhouser Photography 18
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FROST LAW:
A Foundation in Tax and Growing to Meet Client Needs Glen Frost, the managing partner at Frost Law, founded the firm in 2011. In the beginning, the firm was primarily focused on tax controversy cases given Mr. Frost’s background as a Certified Public Accountant. Since that time, the firm has grown considerably, to over 25 attorneys and other licensed professionals in more than 10 offices both inside and outside of Maryland. As the firm expanded, it remained focused on tax controversy matters and also added complementary practice areas such as business, bankruptcy, litigation and estate planning & administration.
WE SAT DOWN with Mr. Frost, along with his part-
ners Eli S. Noff and Matthew P. Kraeuter, to learn more about the firm, their take on the evolution of the legal profession, and the firm’s work in helping businesses, including other law firms, during the COVID-19 pandemic.
When did you start your firm, and what were your primary areas of practice? Glen Frost: I founded Frost Law in 2011. Back when I started, we were almost exclusively focused on tax controversy cases, utilizing my professional background as a Certified Public Accountant. Adding Eli Noff shortly thereafter in 2012, and then as a partner in 2015, were major turning points for Frost Law. Having another attorney and CPA alongside me with experience in the international tax arena, as well as his work with overall practice management, was critical for driving the firm’s growth.
How have you expanded the firm and your practice over the past few years? Glen Frost: The number of attorneys and other licensed professionals in the practice has grown to more than 25 since starting the firm, and our primary areas of practice have expanded along with that. Many of those attorneys are focused on tax controversy, with folks like Rebecca Sheppard and Nicholas Berger joining us from the Maryland Comptroller’s Office and Mary Lundstedt from Bloomberg Industry Group. Besides expanding and strengthening our tax controversy practice over the years, we’ve also diversified our operations – bringing on attorneys working in complementary practice areas and adding trusted partners we can turn to for matters involving business, bankruptcy, litigation, and estate planning & administration. Estate planning and administration was one of the first complementary practice areas we added – minimizing
taxes and other financial planning is an important part of practicing in that area so joining tax practitioners and estate law professionals was a very logical pairing. Leanne Broyles and Rob Owings have helped us grow that practice area and just this year we brought on Randy Fisher and Gary Altman as of counsel. Most recently, Matt Kraeuter joined our firm as a partner at the start of 2020. He’s helped round out our firm and tax controversy efforts by helping us expand into business transactional matters and support all our practice areas with his extensive litigation experience.
What is on the horizon for Frost Law? Eli Noff: Unfortunately, due to the pandemic and economic havoc it has wreaked, we expect that our tax controversy practice will be meeting the needs of individuals and businesses who are encountering significant tax debt for the foreseeable future. We have seen this before in the 2008 financial crisis on a different level. Our firm helped many clients navigate their difficult tax problems resulting from the 2008 financial crisis, and we’ll be here again to see them through to better times. What we’ll continue seeing more and more of now are issues related to the COVID tax deadline delays, along with countless questions about PPP Loans and how that’ll need to be reported next year. Tax law is an incredibly dynamic area. Our tax matters often end up intersecting with a range of other practice areas – business problems, domestic issues, you name it. And the tax industry has seen a tremendous amount of change recently when you look back at the ACA tax provisions from the Obama administration and the dramatic tax code revisions under the Trump Administration. There’s always something you’re looking out for and often it’s which way the political winds are blowing that directs those changes. MARYLAND BAR JOURNAL | ISSUE 2 2020
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Glen Frost: COVID obviously created a world of change. And with everything that’s happened this year, we’re continuing to make the firm more accessible for clients and our employees. Remote work thankfully wasn’t much of a hurdle for us.
barely more than a speed bump for us. Client accessibility has always been a priority for us—so much of the change that other firms experienced was little more than a blip for us.
But as a firm we’re constantly focused on improving the client experience because that ultimately drives a firm’s growth. The clients who have positive experiences–who get great results–they’re the ones who leave positive reviews and refer new clients to us. So, if you’re always working to refine that experience and make it better, faster, easier, and more accessible then you’ll undoubtedly be headed in the right direction. Adding Matt Kraeuter as a partner early this year also added new sights along the firm’s horizon. We’re now able to even better serve businesses by offering general counsel and assistance with any potential litigation or commercial transactions they’re facing. Matthew Kraeuter: The expansion of the business and litigation practice areas is off to a tremendous start. Given the broad base of current clients at Frost Law, providing our clients with these added services has been well-received. Moreover, with the addition of these new practice areas, Frost Law truly becomes a full-service business law firm and we’re better equipped than ever to help businesses with everything from formation to disputes to profitable exits.v
What sets Frost Law apart from other firms? Matthew Kraeuter: What won me over when joining the firm is the financial expertise and the credentials backing it all up. Every lawyer took the bar so we know how tough credentialing can be, so having CPAs, CFPs, MBAs, LLMs, and other professionals supporting you and bouncing ideas off is a luxury few firms have. Glen Frost: We’re a bit of a boutique firm with our matters often being focused on the numbers side of things. Taxes impact so much of the legal and financial world so there’s no shortage of questions and ways we can add value to clients, whether they’re individuals, businesses, or an estate. So, whenever somebody gives us a call – whether from a referral or because they heard about us online – we can help them quickly sort out their matter and get on the right path. And having dual-licensed CPAs and attorneys like myself, Eli Noff, and Kaitlyn Loughner handling those initial inquiries, we’re able to efficiently work through layered financial issues and then bring other legal professionals into the fold for the non-financial segments of their matter. Eli Noff: We also serve clients across the country and abroad – some for tax matters but others as a full-service law firm. And many of our attorneys are dual licensed certified public accountants, many others also have LLMs in taxation, and others are Certified Financial Planners®. And our early adoption of technology has also helped set us apart when working with clients domestically or internationally. COVID brought a lot of change to our lives very quickly, but remotely working with the team and with clients was 20
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In addition to his work as managing partner, Glen Frost is an active member of the MSBA and the Tax Law Section.
What are your goals for the Tax Law Section this year? Glen Frost: We’re bringing together the attorneys and accountants. To be an effective attorney, you need to work well with other financial professionals. So, my mission is to bring the Tax Law Section closer to the CPAs, accountants, and financial advisers in the area so that clients are better informed and end up with more options for the financial situations.
Why do you think it is important for attorneys to be involved with the Maryland State Bar Association and its various sections? Glen Frost: Make connections, get new leads and referrals, share resources, develop your individual brand, attend events, and have fun.
Evolution of the Legal Profession
In your opinion, what are some of the ways the legal profession changed over the past few years? Matthew Kraeuter: I think the legal profession has become more self-reflective and open to change. Legal technology has been catching up with other industries. The same kind of things that allow you to have a good experience at a retail store or on an online shop are being adopted by client-centric firms while others will be left with a shrinking client base, because new clients are expecting more. Glen Frost: Legal tech is also helping to make law more accessible by delivering services more efficiently as well as letting new entrants get involved – the Big Four accounting firms are knocking on the legal industry’s doors, so it’s going
The same kind of things that allow you to have a good experience at a retail store or on an online shop are being adopted by client-centric firms while others will be left with a shrinking client base, because new clients are expecting more. to be exciting to see how that forces positive changes to improve the client experience. And an eye-opening moment that I can’t help but see traces of throughout recent changes in the legal profession was the release of the 2016 ABA CoLAP/Hazelden Betty Ford Foundation's study of mental health. Self-care is tremendously important in an industry that often has you working with people through the worst times of their lives. Seeing such stark numbers from that study seems to have allowed our industry to reflect on areas for improvement that aren’t always easy to discuss. WEB EXTRAS
LISTEN TO THE PARTNERS FROM FROST LAW SHARE THEIR EXPERIENCE WITH THE PPP Lawyer’s from Frost Law helped conduct several learning sessions on the Paycheck Protection Plan as the new law as being rolled out. We talked to them about that experience. REPLAY THE RELATED WEBINAR Watch Glen Frost and Eli Noff discuss the changes due to COVID-19 in their April 8 webinar, The Paycheck Protection Program and Important CARES Act Benefits to Help You and Your Clients. READ THE FULL INTERVIEW For more information on the Frost Law and to read the full interview, visit the MSBA blog. MSBA.ORG/FROST
How do you think the legal profession will continue to evolve with increased adaptation of technology and the COVID-19 pandemic? Eli Noff: Well after seeing what one of our clerks went through with the bar exam, there certainly seems to be an opportunity to reassess how we can make a requirement like that better serve the profession. Versatility for professionals should also become more highly valued. The Delta Model is something we talk about at the firm – modern lawyers need to be trained with skills that go beyond the law, such as personal effectiveness and business operations. Personal effectiveness is knowing how to best work with your clients, colleagues, peers, and essentially anyone you interact with. The legal profession is built around adversarial interactions but not every encounter has to be centered on that; friendly relations go a long way in virtually every profession, law included. And with business operations, financial acumen should also become more highly valued as budgets become tighter, so you need somebody whose comfortable navigating those sometimes tough financial conversations. COVID
Your firm has been very involved in helping small businesses, including law firms, during COVID, can you give us an overview of some of the things you’ve done? Glen Frost: Well, first we were figuring out what all this meant for ourselves. We have a lot of business-oriented professionals who were able to keep the pulse of relief options and because of our focus on knowledge sharing – internally and externally. So, we’ve been able to quickly and easily relay that information to others who need it. Frequent webinars, in-depth articles, email digests, and monthly newsletters are all ways we have been able to support others who have experienced, and continue to experience, this particularly unpredictable year in Earth’s history.
What do you see as the top 3 challenges your clients will face post-COVID? Eli Noff: Reorganizations. Asset sales of all kinds. Tax relief. Half a year into this and there’s still tremendous uncertainty for all kinds of Americans and individuals around the globe. So, we expect that some of that uncertainty will eventually translate into those types of challenges for some clients.
What are practice areas that you think will be implicated because of this? Bankruptcy, business, estates, real estate, employment, and of course tax. Individual’s spending habits have changed, workplace habits have changed, and there’ll continue to be fast-paced change before we’re truly in a “post-pandemic” world.
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MEMBER FOCUS
| MEMBER SPOTLIGHT
INTELLECTUAL PROPERTY
PROBLEM SOLVER NICHOLAS B. HAWKINS Chair, MSBA's Intellectual Property Section Womble Bond Dickinson (US) LLP
Nicholas Hawkins began his legal career as an in-house attorney with the Baltimore-based sports apparel giant, Under Armour. Now an associate with Womble Bond Dickinson LLP, Nicholas works with companies of all sizes by assisting them with intellectual property management, private equity and venture capital financing, mergers and acquisitions, and general corporate governance. In addition, Nicholas serves as the Chair of the MSBA Intellectual Property Section (“IP Section”) for the 2020-21 Bar Year. We sat down with Nicholas to learn a little more about his career and what’s on the horizon for the IP Section.
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Why did you enter the legal profession? Honestly, I think the writing was on the wall when my grandmother told me that I was going to be a lawyer when I was around 10, probably because I enjoyed arguing. I generally enjoy finding creative ways to solve people’s/company’s problems and helping them achieve their desired result. I felt that being a lawyer was the best way for me to do that.
What is your fondest memory of your legal career so far? Not quite a single memory, but I generally enjoyed starting my legal career in-house at Under Armour and learning so much from the legal and business teams. I believe that starting in-house made me a better firm lawyer as I am able to efficiently spot client issues and anticipate how a specific course of action may affect the client’s bottom line.
Tell us a little bit about your current role. I am currently splitting my time in the IP and Corporate and Securities practice groups. On the IP side, I help clients with trademark portfolio management, clearance searches, trademark enforcement and maintenance, copyright filings and copyright enforcement. In the Corporate group, I help clients with private equity and venture capital financing, mergers and acquisitions, and general corporate governance. This is an interesting hybrid, but gives me the ability to continue the work I’ve done in IP over the years and also grow in M&A and corporate governance work. For tech and other IP heavy corporate clients, there are opportunities for cross-practice work, which benefits the client and helps me grow my practice. The two practice groups tend to overlap a bit with licenses and IP related agreements.
What’s a cause or charity that you are passionate about? I have a passion for the arts and enjoy working with the arts communities in Baltimore and beyond. I was involved with Maryland Volunteer Lawyers for the Arts for a while and am currently a Board Member of Baltimore Clayworks.
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I believe that starting in-house made me a better firm lawyer as I am able to efficiently spot client issues and anticipate how a specific course of action may affect the client’s bottom line.
What is the one piece of advice you would give someone in law school or considering a legal career? I would encourage anyone who is considering a law career to be open to new challenges and opportunities that may not seem so aligned with their “chosen” path. I started my law career as a plaintiff’s asbestos paralegal and now am an IP attorney with both in-house and firm experience in 5 years. You never know where the path may take you, but you have to be flexible to get the most out of the experiences.
What are some of the challenges you face in your current role? After being in-house for 4 years, I do miss having direct contact with the client and sitting in on strategic planning meetings. Being in private practice can sometimes be more of a “put out fires” role, than “prevent fires,” but I always look for ways to create added value for clients by being involved earlier in their planning processes.
What do you do to unwind/ de-stress? I exercise regularly. Yoga in the mornings and then weights at night. I also find time to read something non-legal to give my mind an escape.
What’s an interesting fact about you that no one would guess? I’m really into plants. I have a mini jungle in my house. Relaxing in my “jungle” helps me de-stress after a busy day.
You are the incoming Chair of the Intellectual Property Law Section for 2020-21, what are your goals for the Section this year? COVID has changed how many of us interact with each other, so our goal is to find ways to interact and connect with each other safely, and continue to share updates and best practices in the IP profession to help each of our practices. Why do you think it is important for attorneys to be involved with the Maryland State Bar Association and its various Sections? The MSBA provides many resources and opportunities for practitioners to be better lawyers, and provides a valuable network of practitioners, judges, law students, and friends of the legal profession. Join the IP Section and the Agriculture Law section for their upcoming webinar “IP Issues in Hemp” on Wednesday, October 14, 2020 at 10:00am. The webinar, which is part of the MSBA’s Legal Summit Series Corporate Law Track, will feature a panel discussion on the growing practice of intellectual property protections with hemp. For more information and/or to register, please visit: MSBA.ORG/IP-IN-HEMP
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COMMITMENT Nearly 15,000 attorneys have renewed their membership since we began our campaign. The firms and organizations below have already pledged to cover MSBA dues for all of their attorneys for MSBA’s ongoing work to support and fight for the profession.
Thanks to those who have already taken the pledge and renewed. We are inviting your firm/organization to join in pledging to cover MSBA dues for your attorneys, and to allow us to promote your visibility and standing in the Maryland legal community. At only $175, MSBA dues are lower than 48 other State Bars in the country. In addition, during this extraordinary year, even as MSBA experiences financial strain, we have expanded free access to online learning for all active members through the end of 2020.
Your support is essential to allow us to continue doing our work on behalf of your firm and the tens of thousands of Maryland attorneys that make up the Maryland legal profession.
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Please go to msba.org/renew or contact us at membership@msba.org MSBA.ORG | ISSUE 2 to 2020 take the pledge and renew your firm’s membership today.
FOR YOUR PRACTICE
| EMERGING ISSUES
Coronavirus-Related TM Filings Will Face Registration Hurdles BY NICHOLAS HAWKINS AND ROSE SMALLEY
IN RECENT MONTHS, despite seeing a general decrease in filings, trademark offices
across the world have received a considerable number of applications seeking to protect terms relating to the ongoing pandemic, namely "COVID" and "Coronavirus." Here, we look at some of the more interesting business opportunities represented by these pending applications in the European Union, U.K. and U.S. and forecast some of the hurdles these applications might face in the coming months and years. When did the applications begin? In the U.S., the earliest filings appear to be from early/mid-February, where one company filed applications seeking to protect "Coronavax," “COVID-19 Vax" and "Coronablok" for vaccines (somewhat unsurprisingly). The U.K. Intellectual Property Office received its first application days later for "Coronastop," interestingly for vitamin supplements. However, the earliest EU Intellectual Property Office application was not filed until midMarch, for a logo featuring "AntiCorona," filed by an individual residing in Bulgaria for various goods and services. Since the applications began, of these three territories, the U.S. has received by far the greatest number of "COVID" and "Coronavirus"-related filings. Our initial searches suggest over 200 relevant applications have been filed in the U.S., where there appear to be only around 35 in the U.K. and even fewer in the EU (as at the date of writing). What marks are being filed? As one might expect, the vast majority of these early applications are for marks indicative of medical diagnoses and treatments. In addition to those listed above, these include: "COVIDfree" (filed by an individual in the U.S. for various medical goods and services), "COVID-19 Rapid Test" (filed as a word and as a logo with the UKIPO by a Polish medical company for diagnostic apparatus), and "MediCOVID" (filed for various medicinal products and treatments by a Germany company at the EUIPO). These are accompanied by applications in respect of complementary goods and services, such as "Corona Kill" and "Coronacare" for
sanitizers (U.K.); "CoronaGard" for disinfectant products (U.K.); "COVIDCare" for crisis and emergency response software services (U.S.); "COVIDclean" for disinfection and cleaning quality management services (U.S.); "Coronaway" for various cleaning products (U.K.); and "COVIDFaceShield" and "COVIDCuff," both for protective clothing (U.S.). However, the disproportionately high number of filings in International Class 25 suggests that commemorative clothing may flood the market after the pandemic has overcome its peak. Applications for various apparel items include word and logo applications for "COVID Kids," "Coronababy," "Corona-Geddon," "I Heart COVID-19," "FXCK COVID-19," "Class of COVID-19," "coronacation," "Stronger than COVID" and "Sicker Than Corona" (notably, all of which are in the U.S., although a number of applications for clothing have been filed more recently in the U.K. and EU). It will also be interesting to see how the U.S. Patent and Trademark Office will decide to deal with the following applications, all filed in Class 25 by different individuals and entities, within the space of three days: (1) "I Survived Coronavirus," (2) "I survived the Coronavirus 2020," (3) "I Survived Coronavirus 2020," (4) "I Survived the Coronavirus 2020," and (5) "I Survived Coronavirus." There are, however, a few less predictable applications. One of the earliest applications filed in the U.S. was a logo for "Coronavirus"(stylized with black thorns) for prerecorded music and entertainment services. Subsequently, there have been further applications for entertainment services, in-
TM
Since the applications began, the U.S. has received by far the greatest number of "COVID" and "Coronavirus"related filings. cluding an application to the UKIPO for a rather retro, "DISCOVID"; more applications in the U.S. for "Club COVID" and "Novel Coronapalooza," while an applicant to the EUIPO has opted for "Corona Party" and "After Corona Party." The USPTO and UKIPO have received various International Class 16 applications for books and related items, for marks including "Coronavirus Survival Guide (U.S.)," "COVID Chronicles" (U.S.) and "Corona Diaries" (U.K.), and specifically for bumper stickers "Be COVIDgilant" (U.S.) In the U.K., an upsurge in lockdown activities has resulted in applications filed for COVID-19 for use in connection with game boards for trading card games, as well as for "CoroMARYLAND BAR JOURNAL | ISSUE 2 2020
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nayoga" for yoga instruction and training. Finally, notable mention (for many reasons) must be given to a USPTO application for the serving of food and drink for the mark "Sanitize Your Thirst with a Corona." What problems might these applications face? People may question whether anyone should be able to benefit commercially from a global crisis, and therefore whether the relevant offices should refuse to register these applications on the basis of public policy and morality, a ground under which such applications can be refused registration absolutely.
$
More emphatically, the U.S. Supreme Court last year in the case Iancu v. Brunetti struck down a section of the Lanham Act that
Firstly, the vast majority of the applicants are unrepresented, having filed in their own name, seemingly without the benefit of legal advice. Whether the draft specifications for goods and services will meet the standards required by the relevant offices will only become clear in the course of examination. Secondly, some of the applications have been presented as alternatives (i.e., "COVID-19 or Coronavirus," "COVID-19 / Coronavirus"), so the applicant may face queries about whether the representation of the mark is sufficiently clear and precise, which is required to achieve registration. Notably, as changes cannot be made to the representation of the
People may question whether anyone should be able to benefit commercially from a global crisis, and therefore whether the relevant offices should refuse to register these applications on the basis of public policy and morality, a ground under which such applications can be refused registration absolutely.
Nevertheless, in practice, this basis for refusing marks is used sparingly — at least, in the jurisdictions in question — and such refusals tend to focus on applications encouraging or promoting illegality or criminal conduct, not as a means to censure free speech, which might ( justifiably) cause some outrage or distaste. The UKIPO saw through the applicant's attempt to disguise an obscenity by the use of asterisks in a logo for "F**K the Game" and initially refused the application on grounds that it was contrary to accepted principles of morality. However, the applicant overcame this objection by limiting the scope of goods and services in targeting them specifically to adults. Notably, applications for the same mark also faced preliminary objections at the EUIPO (on similar grounds), while, interestingly, no objection on the basis of vulgarity was raised at the USPTO.
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The registration of an application for "Fack Ju Göthe" (the name of a famous German film franchise) was rejected in 2015 by the EUIPO on the grounds it infringed accepted principles of morality. Earlier this year, after numerous appeals, the Court of Justice of the European Union ruled that the mark is morally acceptable, emphasizing that an objective assessment is required on a case-by-cases basis taking into account the fundamental right of freedom of expression which must play a role in the trademark examination process.
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prohibited the registration of immoral or scandalous marks and allowed the applicant to register the mark "FUCT" (which stood for "Friends You Can't Trust"), for clothing. The Supreme Court had ruled previously in the 2017 case Matal v. Tam that the same statute's ban on disparaging marks, in this case an application for a band name called "The Slants," was also unconstitutional. In both cases, the court held that the ban on the registration of these types of marks was viewpoint discrimination, and therefore a violation of freedom of speech principles under the First Amendment of the U.S. Constitution. No clauses exist in the Lanham Act that would necessarily strike down marks named after a global crisis, but if morality is the bar, freedom of speech may nonetheless prevail, at least for U.S. applicants. Still, there are a number of other hurdles that these applications might face.
mark filed in any of the U.K, EU, or U.S., this may be fatal to the application progressing. Thirdly, although no such requirement exists in the EU (thereby possibly suggesting there is a lesser burden on potential applicants, which is interesting given it has seen the least number of applications), both the U.K. and U.S. require that — when the application is filed — there is at least a bona fide intention to use the mark in commerce, unless the mark is already in use. In the U.K., the assessment of whether a bona fide intent exists is not independently undertaken by the UKIPO, so it would require the intervention of interested third parties to challenge whether such intent existed by arguing that the application was made in bad faith by the applicant. This could be because the applicant has no intention to use the mark, or has filed a scope of goods/ services broader than the intended use and/ or simply in order to prevent others from using the mark.
If no third party intervenes and any of the applications successfully achieve registration, whilst third parties could challenge the registrations on those same grounds of bad faith (as above), the registrations cannot be challenged on the grounds of nonuse (if bad faith fails) for five years from the date of registration. This means that, if they pass the UKIPO's assessment, registrations could be granted and remain on the register (indefinitely, pending payment of renewal fees) if no third party wants to incur the costs of opposing the application, or invalidating or cancelling the registration. In the U.S., the analysis is the same. The USPTO does not evaluate whether the applicant has a good-faith-based intention to use a particular mark during the examination period. The verified statement of a bona fide intention to use a particular mark is sufficient. For marks used in commerce, the applicant's submission of an improper specimen (evidence that should show how the mark is used) may convince the USPTO that the applicant does not in fact have a bona fide intention to use the mark, but the USPTO will not inquire unless the evidence is clear. The only other time the USPTO will independently evaluate the owner's intention to use a mark is during the required declaration of use filing (whereby the registrant is required to show that the mark is being used as registered), which is due between the fifth and sixth anniversaries of the trademark's registration. Similarly, if the applicant signs the verified statement and produces a legitimate specimen, the registration rights continue for the duration of the trademark registration. In terms of third-party intervention, among other grounds, parties can petition to cancel a trademark registration at any time if the mark is or becomes generic of the goods or services, if the registration was obtained fraudulently, or if the mark has been abandoned. A party wishing to cancel a mark for abandonment must show nonuse of the mark for three consecutive years, therefore effectively making a mark not vulnerable to a nonuse cancellation until after the third year of registration.
Finally, there is possibly the biggest question looming over the potential registration of these applications: are any of these marks capable of being trademarks in the sense recognized by the relevant offices? According to trademark law (in the EU, U.K. and U.S.), a trademark must be capable of identifying the provider or originator of the goods or services being offered under that mark. Specifically, this means that the mark must be sufficiently distinctive, and not descriptive, so that it can identify the applicant over other parties offering the same goods and services.
Given the delays and disruptions caused by the pandemic for each of the offices, most (if not all) of these applications are still pending detailed examination, but the next few months will definitely be interesting for these opportunistic applicants. This article is reprinted with permission of the authors. It originally appeared on law360.com on May 8, 2020. See https://www.law360.com/ articles/1270581/coronavirus-related-tm-filings-will-face-registration-hurdles?copied=1
Although the threshold to be met varies between jurisdictions (at least, anecdotally) — particularly as to whether a mark is considered descriptive — this considerable uptick in applications, some of which are arguably very descriptive of their goods and services, means it is likely to be incredibly difficult for the relevant offices to determine that any COVID- or coronavirus-related filings can, and should, be easily and demonstrably associated with any specific businesses.
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
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FOR YOUR PRACTICE
| LAW FIRMS
Highlights from the NLJ 500:
The National Law Journal’s Annual Report on the Nation's Largest 500 Firms The National Law Journal1 completes an annual survey of law firm head counts along with insights into law firm growth at the top 500 firms nationwide. Highlights from this year’s results, published on June 23, 2020, are outlined below. Overall, the number of lawyers working at the country’s largest 500 U.S.-centric law firms increased in 2019 by 2.5% to 173,694, matching the same percentage growth seen in 2018. As for average firm size, it rose by eight lawyers last year to 347 over the year prior. Also, 80% of the top 10 firms on the NLJ 500 saw growth in 2019, the same percentage as 2018.
List of Top Ten Firms and their growth in Headcount over the Past Year 2
1 1.9%
5.2%
3
4 3.2%
5
7.1%
6 12.6% 0.2%
7
8 2.5% 0.1%
9
10 5.5%
1
28
2.4%
Source: The NLJ 500: The National Law Journal's Annual Report on the Nation's Largest 500 Firms Webcast, Thursday, June 25, 2020.
MSBA.ORG | ISSUE 2 2020
The mix of the Top Ten firms remains the same; however Latham & Watkins overtook Hogan Lovells, Kirkland & Ellis surpassed Jones Day, and Greenberg Traurig knocked Morgan Lewis down to tenth place.
Firms Who Had the Biggest Jump Into the Top 100
1
GOODWIN PROCTER (Boston-based) moved up to No. 26
2
DINSMORE & SHOHL (Cincinnati-based) moved up to No. 77
3
MORGAN & MORGAN (a national personal injury firm)
and added 135 new attorneys this past year
and added 84 new attorneys this past year
moved up to No. 94
Women in Law Scorecard The Women in Law Scorecard is calculated as part of the NLJ 500 firm headcount report, but only the largest 350 firms are eligible to be included. The Scorecard is calculated using law firms’ self-reported gender statistics for full-time employees. From this data, the Women in Law Score is calculated by adding the percentage of female attorneys and the percentage of female partners.2 The top two firms from this year’s Women in Law Scorecard are Berry Appleman & Leiden, and Fragomen. This is Berry Appleman & Leiden’s second year in the number one spot on the Scorecard.
WOMEN MAKE UP...
WOMEN MAKE UP...
• 59.5% of firm headcount
• 65.7% of firm headcount
• 60% of associates
• 70.2% of associates
• 63.6% of the partnership
• 52.6% of the partnership
• 42.9% of the equity partnership
• 48.7% of the equity partnership
COVID-19 Impact on Law Firms There is no doubt that COVID-19 is having a significant impact on the legal profession, and forcing firms to reevaluate their current business practices.
REAL ESTATE: Firms are taking this
opportunity to evaluate their commercial real estate needs. They are balancing the prevalence of potential long term remote work opportunities with the need to accommodate for social distancing in the workplace.
PERSONNEL: The pandemic also has had firms taking stock of their personnel. Personnel are the largest cost to law firms but also are its source of income. Firms are still hiring new attorneys but the trend has been to recruit lateral partners or experienced attorneys with a current book of business that will more likely lead to income to the firm.
WOMEN IN THE LAW: COVID-19 is
These two leaders in gender diversity were also leading in the field of minority women partners, with Berry Appleman & Leiden partnership made up of 13.6% minority women and Fragomen’s partnership made up of 15.8% minority women. The firms attribute their success to their targeted approach of giving women attorneys more opportunities, highlighting their successes both internally and externally, promoting women to leadership positions and championing non-traditional paths to partnership. Although more women are gaining leadership positions in law firms, it is still rare to find a woman as a managing partner of a firm. Overall, outside the firms recognized by the Women in Law Scorecard, there is still work to be done in creating a gender equitable legal workforce.
also impacting women lawyers, although it is too early to tell whether this will be a positive or negative impact. In some respects, the shift to a more flexible workplace and increase in remote work opportunities can have a positive impact on women in the law. However, as firms look to reopen, they may also return to less flexible remote work policies. Women, who are proportionally more responsible for childcare than men, may be negatively affected if daycare and schools do not reopen on the same time table.
Source: ALM Staff, The NLJ 500: The Women in Law Scorecard 2020, The National Law Journal, https://www.law.com/nationallawjournal/2020/06/23/the-nlj-500-the-women-in-law-scorecard-2020/ (Jun. 23, 2020 at 8:55am).
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MEMBER FOCUS
| MANAGING PARTNER PROFILE
Maryland Law Firm Leaders Working to Support Each Other In March, when the COVID-19 pandemic caused law firms across the state to move to remote work, three managing partners at three different Maryland firms found a way to come together in a time when we were all forced apart. Tom Dame, Managing Partner at Gallagher Evelius & Jones LLP, Sharon Krevor-Weisbaum, Managing Partner at Brown Goldstein & Levy, and David Shuster, Managing Principal at Kramon & Graham, P.A., organized a conference call for managing partners from law firms across the state to discuss the transition to remote operations and other logistical issues law firms face amidst a global pandemic. Since its inception, the call has grown to incorporate more law firm leaders, judges, and other leaders of the profession. WE TOOK A MOMENT to learn more
about the circumstances that sparked the need for the conference call and how it has evolved since that first phone call.
How has the role of managing partner changed since the onset of the pandemic? Tom: The job of every law firm managing partner has changed during the pandemic. It now involves a number of new components, including planning for an entirely remote workforce, preparing for the eventual return to the office, managing the risk of an economic downturn, finding ways to connect with people who are working in different places, and providing positive and honest communication about what is needed for the firm and individuals to succeed under difficult and unusual circumstances.
Photos courtesy of Beverly Funkhouser Photography 30
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TOM DAME
SHARON KREVOR-WEISBAUM How did the idea for a call between the managing partners of firms across Maryland come into being? Sharon: These calls were a result of the pandemic and came about because of a strong working relationship that three of us already had. Tom Dame, Dave Shuster and I had connected on how and when we were each pivoting from office to remote, given the pandemic. As we shared our respective plans, we quickly realized that there were managing partners state-wide who must be making the same types of very hard decisions that we were each making. We thought of a call to see if we could collaborate more broadly and support each other. Managing during such trying times is not easy to do alone.
“
Managing during such trying times is not easy to do alone.
What was the first call like compared to the calls that you are leading now? David: The first call had fewer people. The main focus of the discussion was the transition to remote operations and operational logistics. For example, people wanted to know how colleagues were handling such things as tech challenges, daily mail collection, skeleton crews, etc. Since that first call, the number of participants has grown dramatically. In addition to dozens of law firms, the calls now include judges, the law school deans, members of the Attorney General's Office, and representatives of the MSBA. During the calls, Chief Judge Bredar reports on the status of the operations of the federal court, and Dean Weich (University of Baltimore of Law) and Dean Tobin (University of Maryland School of Law) also provide updates from the law schools' perspectives. We have also invited guest speakers on COVID-19 topics. More recent calls have dealt with the logistics surrounding easing back into the office.
How did you get managing partners from other firms on board to participate in the calls? David: It wasn't difficult. Participants have joined the group by word of mouth. Friends and colleagues have reached out to other law firm leaders and, likewise, people started to hear about the group and requested to be included.
DAVID SHUSTER MARYLAND BAR JOURNAL | ISSUE 2 2020
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MORE ABOUT THE CONFERENCE CALL ORGANIZERS:
What is one thing you have learned from these discussions with other managing partners that you didn’t know prior to the calls? Tom: I have learned so many things about how law firms are dealing with the issues presented by the pandemic. However, what is most striking is the overall strong spirit of sharing and support among law firm leaders. The leaders have been quite open about offering help
Tom Dame is the Managing Partner at Gallagher Evelius & Jones LLP where he practices Health Law and Litigation. He has spent his whole career at Gallagher serving in several leadership roles including as leader of the litigation practice group from 2000 to 2014 and as administrative partner from 2015 to 2017 before becoming Managing Partner. His goal as Managing Partner is to lead the firm in building on its strong foundation, honoring and preserving its core values, as the firm moves forward into the changing future of legal services.
Sharon Krevor-Weisbaum is the Managing Partner at Brown Goldstein & Levy where she practices Disability Rights, Civil Litigation, Administrative Law, and Regulatory Law. She joined Brown Goldstein & Levy in 2000 and has served as the Managing Partner for over five years. Since becoming Managing Partner, she has set up various active committees made up of attorneys and nonattorney alike who bring their creative talents to various tasks.
“
What is most striking is the overall strong spirit of sharing and support among law firm leaders. and guidance to one another as we all face many of the same challenges. I have also learned a great deal of valuable information about the pandemic operation of the federal court as Chief Judge Bredar has faithfully provided a full report on the status of the Court’s operations and plans in each conference call. Sharon: That competition between firms does not stand in the way of strong, solid support when times are tough. David: From the calls and based on my own firm's experience, I learned that we aren't nearly as dependent on office space as we once believed. I think most in the professional-services business have reached the same conclusion. I am very interested to see how businesses rethink their space requirements.
Have you changed any of your practices as a direct result of these phone calls and discussions with other managing partners at different firms? David J. Shuster is the Managing Principal at Kramon & Graham, P.A. where he practices Commercial/General Civil Litigation. He joined Kramon & Graham, P.A. as an associate in 1999 and rose to Principal in 2003. In 2012, he took on the role of the Managing Principal. Before becoming the Managing Principal, he served on the firm's Compensation Committee and other ad-hoc committees to address specific projects or initiatives. His goal as Managing Principal is to uphold the firm’s culture of respect and collegiality and ensure that all important decisions are made by consensus.
Tom: We have implemented some of the return to office safety measures that other law firm leaders suggested. Also, our summer associates participated in a few of the educational programs that were planned by a subgroup of the law firm leaders. David: We did adopt certain policies or procedures implemented by other firms in connection with their efforts to ease back to in-office operations. Hearing how other firms are tackling these issues was very informative and helped us in developing our plans.
Will these calls continue after the COVID-19 pandemic? Sharon: We are continuing to have these calls until such time as managing partners do not find them helpful. It is possible that we will talk to the MSBA about some type of relationship that can be developed in the future.
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FOR YOUR PRACTICE
| FEDERAL LITIGATION
Key Takeaways from U.S. District Court's First Post-COVID Maryland Trial A topic at one of the recent managing partner calls included a debrief of the U.S. District Court for the District of Maryland’s first in-person, post-COVID trial. The attorneys and judges involved in the trial discussed the changes, accommodations and challenges associated with various aspects of the trial. Below are a few key takeaways from that call.
Voir Dire • Initial voir dire was virtual. Potential jurors were then brought before the judge one at a time. • Voir dire questions included whether potential jurors had personal health or safety issues regarding COVID.
Courtroom Set-Up • To accommodate CDC requirements, the courtroom was rearranged to support social distancing, including placing the trial tables sideways to face away from others. • The jury box was expanded and chairs were placed six feet apart in an L-shape. • Monitors were placed throughout the courtroom to allow jurors to see witnesses. • Plexiglass was utilized throughout the courtroom. • All those present were required to wear masks.
Client/Counsel Communications
Chief Judge James K. Bredar will wear a plastic face shield and sit behind plexiglass when jury trials resume in the U.S. District Court for the District of Maryland
• Plexiglass dividers were also placed at trial tables to prevent direct contact between counsel, co-counsel, and clients. • Individual listening devices were used by attorneys and their clients to enhance communication.
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Bench Conferences • When white noise came on, counsel stayed at the trial tables and whispered into a microphone which connected directly with the judge’s and counsels’ earpieces. This allowed for a private conversation without having to excuse the jury.
Introduction of Evidence • Physical exhibits were held up so a witness could identify without counsel approaching. • Displaying exhibits on the monitors was an option, but was time-consuming; if counsel wanted to display an exhibit, they had to ask the deputy to switch the monitor view. James K. Bredar, chief judge of the District of Maryland: “For over two centuries, the federal courts have always remained open.”
Challenges Moving Forward • The trial was a tremendous burden on the court’s IT capability. Numerous techs were assigned to one proceeding. As such, there are questions around the scalability of this effort and how many trials can be supported simultaneously. • Courtrooms and their size are an issue as the jurors require a tremendous amount of space.
WEB EXTRA
THE NEW NORMAL To read more on the efforts by operations in the Federal District Court following COVID-19, please visit: In a Baltimore courtroom, plexiglass divides the parties and court staff, and juror chairs are being kept at a safe social distance.
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MSBA.ORG | ISSUE 2 2020
MSBA.ORG/COURTS-COVID
FOR YOUR PRACTICE
| FUTURE TRENDS
An Excerpt from Bright Insight: The 2020 National Legal Sector Benchmark Survey Results Future Trends The following is the "Future Trends" excerpt from "Bright Insight: The 2020 National Legal Sector Benchmark Survey Results" published by Cushman & Wakefield in partnership with ALM Legal Intelligence and Law.com.
THE FUTURE OF THE LEGAL sector,
both in the U.S. and throughout the globe, is in greater flux than ever before. As the world looks to rebound from the current global health pandemic and economic impacts, there is great uncertainty around the near-term health outcomes (e.g., if / when a vaccine will be available). In addition, there are changes afoot for many sectors in how people work, what the office looks like and where to focus for business growth. Additionally, the legal sector is transitioning to a new model that is more in line with corporate America versus the more traditional law firm partnership models. Evaluating individual partner profit and losses - including line item cost analysis per partner that includes line item expenses for real estate and technology costs – is allowing firms to closely scrutinize partner, client and practice group accountability. With better metrics and information, firms are now able to be more strategic in their decision making, shifting the legal sector business model to a more progressive and business-driven environment. No doubt this will influence change across the board in the sector, as well as impact attorney movement, law firm movement (i.e., mergers) and streamlining client services to decrease operating expenses and increase profit margins. In fact, in five of the last six years, fixed fees/ fee compression has been the number one issue that will most impact the future of the legal industry. Most recently, however, survey results have shown a change in the next two issues impacting the future of the legal industry – “shift in client demands” and “attorneys young and old leaving the industry” being numbers two and three respectively.
Millennials, Gen Z & The Law Firm The oldest members of the millennial generation are now entering their 40s and have by now had broad impact on how law firms operate— both as associates and as young partners. As they continue to rise in the ranks and lead their firms, the younger generation will exert even more influence. Over two-thirds (70%) are adapting the firm’s business plan to integrate millennial attorneys and staff in the growth of the organization. Engaging millennials is now the norm. Just in time for the next generation—currently known
With better metrics and information, firms are now able to be more strategic in their decision making, shifting the legal sector business model to a more progressive and business-driven environment.
WHAT AREAS WILL MOST IMPACT THE FUTURE OF THE LEGAL INDUSTRY?
Respondents chose multiple options
78%
Fixed-fee/compression
72%
Shift in client demands
61%
Attorneys (young and old) leaving the industry
29%
In-house counsel departures
26%
Global competition
21%
Boutique firm growth US Government Other Global governments
16% 9% 8%
FIXED FEES/FEE COMPRESSION
is the number one issue that will impact the future of the legal industry MARYLAND BAR JOURNAL | ISSUE 2 2020
35
as Gen Z—to begin entering the legal sector. The oldest members of Gen Z are now in their early 20s and entering the workforce or in law school. It is too early to know exactly how this cohort will interact with and ultimately change the workplace, however, there are a few known characteristics about them that may come into play for law firms as they enter the workforce: • Due to 9/11, the Great Financial Crisis of 2008, and now COVID-19, the backdrop for Generation Z’s childhood is most in line with that of the cohort that preceded Baby Boomers (the Silent Generation, born between 1928 and 1945), a generation known for its frugality and desire for stability. • Raised by realistic (and often cynical) Generation X parents, growing up in the shadow of the Great Recession and being natives to the current, fast-changing world has led to Generation Z being driven and more competitive than their millennial peers. This attitude will make young workers an excellent addition and will also lead them to have high expectations of the firms for which they work. • Gen Z is the first generation to live their entire lives in a digital world. Having grown up surrounded by the internet, eCommerce, smart phones and social media, these young graduates will enter the workplace with a “phigital lens”—the experience that all of life is both physical and digital.
WILL NUMEROUS FIRMS IMPLEMENT A 100% VIRTUAL OFFICE?
Q1 2020
3% Yes 30%
Possibly
55%
No, not in the next 10 years
36
59%
We welcome millennial growth, and are adapting our firm’s business plan but on a modest basis
28% We welcome millennial growth but are not planning to adapt our firm’s business plan
10%
MSBA.ORG | ISSUE 2 2020
We welcome millennial growth and are adapting our entire firm’s business plan on the millennials and younger generation
2%
4% Yes
Q2 2020
17% No
12% No
HOW IS YOUR FIRM PLANNING FOR THE INTEGRATION OF MILLENNIALS GROWTH IN THE LEGAL SECTOR AS BOTH ATTORNEYS AND STAFF?
47%
33%
Possibly
No, not in the next 10 years
Other
The Virtual Workplace As noted in this report, the COVID-19 experience has led to an acceleration in firms exploring how to implement remote work and a distributed workforce. In many ways it has been a success, marked by an almost seamless transition in the midst of a health and business crisis. The number of lawyers who work remotely on a regular basis is going to increase from pre- to post-COVID. The benefits of hoteling will also be realized in more firms. However, the movement to a 100% virtual office is not more likely today than it was a year ago. The office layout may change drastically and portfolio sizes may drop, but lawyers want to be able to access offices for work, mentorship and connectivity to colleagues. In fact, the number of firms indicating that “no, firms will not go to 100% virtual office ever” increased from 12% in Q1 2020 to 17% in Q2 2020.
IMPLEMENT SINGLE SIZE OFFICES FOR PARTNERS AND ASSOCIATES ON A FIRM-WIDE BASIS
10%
No
Single-size Offices
90%
Yes
The office may change drastically and portfolio sizes may drop, but lawyers want to be able to access offices for work, mentorship and connectivity to colleagues. 32%
4-5:1
38%
6-7:1
21%
8-9:1
8% 1%
Timekeeper-to-Support Ratios The balance of timekeepers and support staff continues to widen as firms look to lower overhead costs and increase efficiency. A year ago, the expected future timekeeper-to-support ratio was 8:1 or higher for 23% of firms. In 2020, those higher ratios were more common with 30% of firms at 8:1 or higher. The proportion of firms with a 4:1 or 5:1 ratio dropped precipitously, as well, from 43% in 2019 to 32% this year. Slightly fewer (30%) expect this tighter ratio in the future. Other Changes to Real Estate Strategy Ninety percent of respondents expect that firms will implement single-size offices in the next decade. This percentage is up from 82% last year and just 70% four years ago. However, the perceptions of shared offices remain almost identical from a year ago. When asked, “Will a firm implement shared offices by two or more associates?” the breakdown is still approximately one-fourth who say “yes,” one-fourth who say “no” and the remaining half who are unsure (i.e., “maybe”), though this may change in the post-COVID environment. As the months have passed, however, both lawyers and staff are gaining productivity, so there will be a balance for firms to determine what is the right decision for their people to best support the firm’s culture, client services and overall longterm succession plans.
HOW DO YOU ANTICIPATE TIMEKEEPER TO SUPPORT STAFF RATIO WILL CHANGE?
10-11:1
More than 11:1
WEB EXTRA
READ THE ENTIRE REPORT HERE: MSBA.ORG/FUTURETRENDS
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MEMBER FOCUS
| FIRM PROFILE
One Firm’s Story Moving to a REMOTE WORK ENVIRONMENT
Photo courtesy of Beverly Funkhouser Photography 38
MSBA.ORG | ISSUE 2 2020
KANDACE L. SCHERR Partner, Frank, Frank & Scherr, LLC KANDACE L. SCHERR, ESQ., is the managing partner of Frank, Frank & Scherr, LLC, an Elder
Law and Estate Planning firm based in Lutherville, Maryland. Prior to the COVID-19 pandemic, Ms. Scherr was focused on modernizing the 30-year old firm’s operations and administration. The COVID-19 pandemic ultimately accelerated Ms. Scherr’s timeline, and pushed her to transition the firm into a mostly remote practice. We sat down with Ms. Scherr to learn a little more about the transition.
Please describe what challenges you may have faced during the transition. To make remote work successful, several technologies and processes had to be implemented. Our next priority was to make sure that all staff had computers, printers, supplies etc. to be able to work from home. We began using services including Zoom, Skype, Docusign, eFax, Dropbox and even stamps.com. We already had a Practice Management Program accessible from the Cloud, but our biggest challenge is that we still have 30 years of physical files. Our dream goal is to work towards becoming a paperless office, and a file review with a scanning plan has been put into place. While our attorneys and staff clearly miss the camaraderie of being together in the office, we communicate with each other by phone, email, texts and instant messaging. We hold Zoom meetings for the entire staff, unit meetings and individual coffee break calls. We’ve even brought entertainment into our Zooms including a motivational speaker, meditation class, cooking demonstration and live music. We’ve had several virtual Happy Hours on Friday afternoons.
What was the feedback from your clients on the switch to working remotely? We work mostly with elderly clients and were surprised to find how much they appreciate having consults by phone, FaceTime, Skype or Zoom. The new laws authorizing remote witnessing and notarizations have been game changers! Clients are so relieved that they don’t have to leave their homes to sign their documents.
What are the biggest factors in transitioning a remote office for the future (Post-COVID world)? Why should other firms consider a remote office? Fortunately, our lease is coming up for renewal soon and we are planning either a redesign with downsizing of our current space or a relocation to an office with half the space. All staff want to continue with a ‘distributed office’, where they can determine how much time they spend in the office and how much time they spend working remotely.
The real benefits of allowing remote work are that staff truly appreciate the flexibility and the office experiences a significant reduction in expenses. An added benefit is that the use of communication technologies allows us to see clients throughout the entire State, eliminating the need for travel time and physical satellite offices.
“
The real benefits of allowing remote work are that staff truly appreciate the flexibility and the office experiences a significant reduction in expenses. How do you see your firm and others in your practice area adjusting post-COVID? What are your predictions for the future of the practice area? All of our staff agree that having flexibility is a plus and they want to continue even after COVID. We envision continuing with remote consults and document signings. Elder Law is a much needed area of law and will only continue to grow as our population ages. The pandemic has made people of all ages see the importance of getting their estate planning done.
Do you have any advice for practitioners that want to make their office remote or downsize their current office space? Yes! Get rid of the preconceived notions that clients need to sit with you face to face and that interactions between staff should take place in a physical office setting. A ‘distributed office’ plan gives staff the flexibility they truly appreciate, and lessening your physical footprint will clearly cut overhead costs. Look into the many technologies out there to help you have a successful remote practice.
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PROFESSIONAL EXCURSIONS ESCAPE | ENGAGE | EXPLORE
PUERTO RICO FEBRUARY 14-20, 2021
Attend the MSBA Professional Excursion in San Juan, Puerto Rico and receive a week of learning, connections, noteworthy local speakers, and service opportunities and more for just $479.* The MSBA is taking a new approach to its annual Professional Excursion to provide flexibility and affordability. This year’s excursion will be to San Juan, Puerto Rico and will be focused on providing unique learning, networking, and service opportunities for attendees.
BOOK YOUR STAY AT THE CARIBE HILTON
Network with industry leaders Service opportunities Daily CLE
*Air and Accommodations are not included. Highly preferred rates with the Caribe Hilton have been negotiated.
BOOK WITH CONFIDENCE! The conference and hotel are fully refundable up to 30 days prior to the event. 40
MARYLAND BAR JOURNAL | ISSUE 1 2020 LEARN MORE MSBA.ORG/PROFESSIONAL-EXCURSIONS
MSBA.ORG | ISSUE 2 2020
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FOR YOUR PRACTICE
| LAW FIRMS
“THIS IS A MAN’S WORLD”:
How Female Attorneys Face Implicit Bias in the Legal Profession and How Law Firms Can Change the Culture BY ZOE RYDZEWSKI, LAW STUDENT AND MSBA SUMMER LAW CLERK
AS BOTH A WOMAN and law student, I am often told that I am entering a profes-
sion dominated by men. Yet, as I sat in my 1L doctrinal classes, I noticed something...I was surrounded by women. So why is it that the profession is still considered to be male dominated when I see more women in my law school classes than men? The legal profession was historically dominated by white men until the 1920s when women gained the right to vote and the right to practice law. Since then, women have been carving out their place in the legal profession. In 2018, the number of women attending law school outnumbered men for the third year in a row1 and in 2019, half of all the JDs awarded went to women.2 Women are entering law firms in equal numbers as men, with most summer associate programs at law firms hiring an equal number of men and women. Yet, only 20% of managing partners or equity partners are women.3 So, why are law firms seeing a higher attrition rate of female associates compared to males before they can rise to leadership positions within the firm? What types of bias do female attorneys face in the legal profession? Besides the common struggles that women face in the workplace including unequal pay and sexual harassment, women in the legal profession have to work against specific gender biases as well. In a study published in the Law & Social Inquiry Journal, which used both qualitative and quantitative data from a large sample of lawyers, researchers found that women of color are about 3 to 4.5 times more likely to perceive discrimination than men, and white women are also 2.5 to 3 times more likely to percieve discrimination than white men.4 The study also found that women across all races and ethnicities were significantly more likely than men to have a client request a different attorney because of their gender.5 Notably, the study found that working in the private sector versus the public sector also was a statistically significant predictor of perceived discrimination, with women facing less discrimination in the public sector.6 1
4 2 3
5
6
Enjuris Editor, Top 20 Law School Rankings by Female Enrollment, Enjuris (2018) https://www.enjuris.com/blog/news/fe�male-law-school-enrollment-2018/. A Current Glance at Women in the Law, 2019 A.B.A. Sec. Pub. Commission on Women in the Profession, 2. Id. Robert L. Nelson et al., Perceiving Discrimination: Race, Gender, and Sexual Orientation in the Legal Workplace, 44 Law & Social Inquiry 1051, 1063 (2019). Id. at 1064. Id.
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Women in supervisory positions also reported more perceived discrimination than white men in the same positions and women in lower positions.7 As women move up the ladder in firms, they are more likely to receive pushback from a subordinate attorney who believes a white male should be holding the leadership position.8 This data suggests that women are not just leaving firms because of a lack of opportunities for promotion, because even if promoted to a leadership position, they may still leave due to the resistance they get as a female in a position of power. In a study conducted by the American Bar Association Commission on Women in the Profession, women of color reported that they are mistaken for administrative staff, court personnel, or janitorial staff twice as often as white men, and white women reported that they were mistaken for these personnel 44% more often than white men.9 Women of all races report they feel pressured to look and behave in feminine ways and are often assigned more “office housework,” such as administrative work, than white men.10 As in many types of professions, women in the legal profession are often penalized for assertive behavior compared to white men exhibiting the exact same behavior. When surveyed, 56% of white male lawyers felt free to express assertive behavior compared to only 40% of female attorneys of color and 44% of white women attorneys.11
Women of color reported that they are mistaken for administrative staff, court personnel, or janitorial staff twice as often as white men, and white women reported that they were mistaken for these personnel 44% more often than white men.
to rationalize hiring the male lawyer but found the women lawyers who expressed anger to be “less competent, as well as shrill, hysterical, grating and ineffective.”12 Female attorneys are forced to walk a narrow path as they represent clients in front of judges, juries, and fellow attorneys plagued by implicit biases. What can firms do to combat these implicit biases? Berry Appleman & Leiden, voted the number one law firm for women by the National Law Journal for the second year in a row, attribute their successful retention of female attorneys to their large representation of women in leadership positions as well as their remote working opportunities and flexible scheduling, which are attractive to women who are trying to juggle their career and family responsibilities.13 Providing women with mentorship opportunities, an exclusive network for female attorneys to connect with other women outside of their practice area or office, and celebrating the achievements of female attorneys can also increase retention of female attorneys.14 Firms can also implement training programs for all staff to address implicit bias in the workplace. The American Bar Association issued a guide in 2018 on how to integrate bias interrupters into law firms in order to combat biases that research tells us still are rampant in the legal profession.15 How COVID-19 brings an opportunity to level the playing field for female attorneys The COVID-19 pandemic has forced attorneys to transition to remote work and has inadvertently normalized the concept of working from home. Cushman & Wakefield’s Legal Sector Advisory Group, in a report titled Bright Insight: The 2020 National Legal Sector Benchmark Survey Results, found that after several months of attorneys working from home “almost all respondents (90%) believe that more than 10% of attorneys will work remotely on a regular basis."16 Firms may use the pandemic as an opportunity to cut real estate costs and downsize on office space as they allow more attorneys to work from home. Although this may benefit female attorneys who rely on remote opportunities to balance childcare and their career, the law firm culture still must change to address the implicit biases women face in the legal profession.
These biases are not only prevalent in the workplace but are present in the courtroom as well. In a study conducted by Arizona State University, researchers found that after 700 participants watched videos of male or female lawyers delivering a closing argument for a murder case using an angry tone, the participants used positive aspects of the angry closings 7
Id. at 1072.
8
Id. Joan C. Williams et al., You Can’t Change What You Can’t See: Interrupting Racial and Gender Bias in the Legal Profession Executive Summary, 2018 A.B.A. Sec. Pub. Commission on Women in the Profession 8.
9
Id.
10 11
Debra Cassens Weiss, Showing anger can backfire for female lawyers, studies say; law prof suggests 'gender judo' response, A.B.A. Journal (Aug. 6, 2018) https://www.abajournal.com/ news/article/showing_anger_in_the_courtroom_can_backfire_for_women_lawyers_study_suggest. Id.
12 13
BAL: #1 Law Firm for Women in the Law for Second Year in a Row, B.A.L. Recognition (Jun. 23, 2020) https://www.balglobal.com/recognition/bal-1-law-firm-for-women-in-the-law-for-sec�ond-year-in-a-row/.
Miles & Stockbridge Women’s Network, https://www.mslaw.com/diversity/womens-network (last visited July 8, 2020).
14
Joan C. Williams et al., You Can’t Change What You Can’t See: Interrupting Racial and Gender Bias in the Legal Profession Executive Summary, 2018 A.B.A. Sec. Pub. Commission on Women in the Profession 14-28.
15
Legal Sector Advisory Group, Bright Insight: The 2020 National Legal Sector Benchmark Survey Results, Cushman & Wakefield (Jul. 14, 2020).
16
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INSIDE ANNAPOLIS
| LEGISLATOR PROFILE
Senator Susan C. Lee Senator Susan C. Lee is an attorney legislator representing District 16 - Bethesda - Chevy Chase. First elected to the House of Delegates in 2002, Senator Lee is now serving in her second term in the Senate of Maryland, after serving four terms in the House of Delegates. We spoke with Senator Lee to learn a little more about what influenced her to become an attorney and public servant. MARYLAND BAR JOURNAL | ISSUE 2 2020
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Tell us about your upbringing and early influences. I was born in San Antonio, Texas. My father was the son of immigrants from Southern China, and my mother was an immigrant who arrived in the U.S. when she was ten. Both of my grandparents owned mom and pop grocery stores and worked hard and long hours to support their large families. During World War II my father enlisted and served in the U.S. Navy at 17 years of age. After the war, he came home to finish high school and then used the GI Bill to go to college and later get a master’s degree in social work. My mother was the eldest of 9 children and left war-torn China on a boat at 10 years of age with her 6-year-old sister and met their anxious father in San Francisco. My father had become something of a leader in Texas in the areas of voting rights and civil rights, particularly in empowering the Latino community. In his earlier career, he was a clinical social worker at the U.S. Veterans Administration and also the President of the first integrated union in Dallas, Texas. As a kid, and with the phone being near my bedroom, I could hear my father’s hours-long evening phone calls to his union colleagues and was fascinated by all the strategies they discussed to protect, support, and uplift workers. My mother became an artist with the Washington Post. My two sisters and I are the proud product of the Montgomery County Public Schools. Despite their busy schedules, my parents were always active in community activities to help the Asian American, immigrant, and other communities. When we first moved to the Washington, DC area, my father took our family to see a sea of tents (Resurrection City) laid out on the National Mall grounds by leaders and participants in the Poor People’s (Campaign) March. The March was led by the Rev. Ralph Abernathy (shortly after the assassination of the Rev. Dr. Martin Luther King). I was inspired by those leaders, activists, and individuals, mostly African American and people of color, who had made tremendous sacrifices to journey to Washington to advocate for political, economic, and social justice. These collective experiences along with my parents’ emphasis on duty to give back to our community, to lead by example, to do what we can to make this a better world, and to make a difference - instilled 44
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"I was inspired by those leaders, activists, and individuals, mostly African American and people of color, who had made tremendous sacrifices to journey to Washington to advocate for political, economic, and social justice." in me that the highest calling is serving the community through public service.
How has your legal career influenced you as a lawmaker? My first job out of law school was with the U.S. Civil Rights Commission in Washington, DC, working on a variety of civil rights issues and hearings. I also worked as an attorney with the U.S. Patent and Trademark Office, later with private law firms, including Gebhardt & Associates with a concentration in intellectual property, civil rights, and employment law. Joseph Gebhardt, the founder and managing partner of the firm, was supportive of my political and community activities and later became my Treasurer and one of my top political advisors. Having volunteered for many presidential, Congressional, state, and local candidates, I was familiar with what it took to run and be elected to office. I was appointed to fill the House of Delegates seat held by Nancy Kopp when she was appointed State Treasurer in 2002. When I entered the House, I was grateful to have mentors such as former Delegate Marilyn Goldwater, Attorney
General Brian Frosh (whose seat I was elected to in the Senate when he ran for Attorney General in 2014) and other colleagues. By this point, I had made it to the “political table,” thereby better able to bring together all the stakeholders to pass important laws that could help empower and uplift countless people. I have brought to the legislature my knowledge and understanding of not only the issues of my District, but also those impacting the county, state, women, people of color, and those communities that have previously been underrepresented. Instead of being able to help just a certain number of clients, as a legislator, I am able to help countless individuals through the passage of good laws.
You have been the General Assembly’s leader on addressing human and labor trafficking, and a key leader on pay equity, LGBTQ rights, and domestic violence prevention. How did you hone your expertise in those subject areas? I have authored and led passage of numerous laws to help empower women, children,
families, hardworking individuals, and some of our state’s most vulnerable. Serving two terms as President of the Women’s Legislative Caucus (Women Legislators of Maryland), I led efforts to pass an aggressive agenda of laws to fight domestic violence and human trafficking, economically empower women, reduce health care disparities, and obtain funding for rape crisis centers. I am also the immediate past Chair and Co- founder of the Maryland Legislative Asian American & Pacific Islander Caucus and during my tenure as Chairman, worked closely with Maryland’s Legislative Latino and Black Caucuses on common issues of concern such as immigrant rights, bail reform, economic empowerment, and many other issues. Human Trafficking When I first came to the legislature, human trafficking was regarded by many of my colleagues as prostitution, and not as a serious crime. Many victims of this crime are children and treated as criminals, instead of victims. This perception often made it impossible for them to escape their downward spiral into further abuse and exploitation. Despite the shortened Session, this year I was able to lead the effort to pass a hard-fought bill, the “True Freedom Act of 2020.” The new law would allow victims of human trafficking to have a court vacate their minor, non-violent offenses committed as a result of being trafficked. This legislative goal was achieved through collaborative effort and consensus reached by advocates, survivors, state’s attorneys, and law enforcement. The new law will enable victims and survivors to escape the traffickers, break the cycle of abuse, get support services, housing, jobs, education, and rebuild their lives. Labor Trafficking The legislature also passed my bill, the Anti-Exploitation Act of 2019 which was sponsored in the House by Delegate Wanika Fisher. This bill created a new law to define and ban labor trafficking in Maryland.
Pay Equity I was honored to be the Senate Lead Sponsor of the 2016 Maryland Equal Pay for Equal Work Act, which was one of the strongest pay equity laws in the nation. The law bans wage differentials based on sex, gender, or other discriminatory policies, and promotes greater transparency by allowing employees to inquire or ask about wage information without fear of retaliation or being fired. LGBTQ and Transgender Rights In 2015, I was the Senate Lead Sponsor of a law to allow transgender individuals to have their birth certificates reflect the correct gender without a court order, surgery, or placing a marker on the certificate. When I was in the House of Delegates, I had cosponsored to include sexual orientation in our hate crimes law. I also cosponsored laws to ensure marriage equality and protect the rights of transgender individuals. Domestic Violence During my tenure in the House and Senate, I have been the Lead Sponsor of numerous laws to fight domestic violence and uplift victims and survivors, who are often trapped in a perpetual and vicious cycle of violence and abuse, and with the system unable to provide adequate assistance or relief. I believed we needed to overcome a culture of hostility, misunderstanding, and reluctance to address this serious issue, with the victim often being blamed for their predicament
You have developed “secondary specialties” in the General Assembly, and two of those are Access to Mental Health Services, and Remote Health Care: both are of significance now, in the midst of the COVID-19 pandemic. Could you share your thoughts on those issues?
riers. At the time, telemedicine (now called telehealth) was an emerging technology that would allow doctors to be able to diagnose and treat patients remotely and expediently. Telehealth has the proven ability to provide vital health care services to those in underserved communities, especially to those who are disabled, low income, or have to overcome tremendous obstacles to access transportation. Since that time, I was able to pass other bills to increase access to telehealth and now I am grateful to my colleagues who have introduced and passed numerous bills that have built on, expanded and made telehealth accessible to many more individuals, particularly in the area of mental health care. Telehealth is now even more important as we are in a “New Normal'' in the current coronavirus pandemic. As such, the use of telehealth will likely increase, thereby offering proactive diagnoses, improving outcomes, and saving lives. I am proud to have helped advance telehealth in its earliest stages.
"I am proud to have helped advance telehealth in its earliest stages."
When I was in the House of Delegates in 2012, I passed one of the first ever laws dealing with telemedicine. The law would allow doctors who used telemedicine to treat a patient to be reimbursed by insurance car-
WEB EXTRA
Read the full interview with Senator Lee at: MSBA.ORG/SLEE
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INSIDE ANNAPOLIS
| LEGISLATOR PROFILE
Senator AN INTERVIEW WITH
Ben Cardin
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Dana Williams: You have been a friend of the Maryland State Bar Association and, specifiThe MSBA continuously engages with members of local, state and federal government, including the Governor's office, State and Federal Judiciary, our Legislators in Annapolis, and Senators and Representatives in Congress. In that vein, in June, then MSBA President, Dana O. Williams, Esq., chatted with Senator Ben Cardin in a virtual setting to learn more about the Senator, his legal career, and his role in helping small businesses, including law firms, in the wake of the COVID-19 pandemic.
cally, the many causes we champion like access to justice, funding legal representation for homeless veterans and many others. Why are these issues so important to you?
Ben Cardin: It goes back to my law school days when it was instilled upon me that as a lawyer you really are charged with access to our legal system and the ability of our legal system to help all. That’s been a value that I’ve held strongly. So, when the opportunity presented itself for me to chair the Maryland Legal Services Corporation, I took on that challenge, and I saw firsthand just how many people in our state were not getting access to justice. That’s [ just] not right. As a lawyer, as a custodian of our legal system, I felt an obligation to try to do something about that. So we had a commission that looked into the legal services and one of their recommendations was to institute a clinical program in our law schools. I was very proud to have [the clinical program] implemented under Governor Schaefer. To me it really does instill upon lawyers their responsibility to make sure our system is accessible to all.
DW: The Maryland business community, large and small - as you know a lot of our lawyers are also small business owners - will need a robust federal response to help it recover from the COVID-19 pandemic. You've done great work delivering for Maryland in the past, what areas are you focusing on or anticipate focusing on to assist in that recovery?
BC: Well, as you know, the Congress passed the CARES Act. Part of the CARES Act was to [address the COVID-19 pandemic and] to deal with individual needs, including unemployment insurance and checks from the IRS, [and] dealing with our state and local government and their needs. The part that I was directly involved with was to help small businesses, and it's interesting most law firms are small businesses. The truth is that during this pandemic they're all hurting, and that in order to keep small businesses afloat we had to provide dramatic help. I was proud to be part of a group of four senators that crafted what's known as the Paycheck Protection Program (PPP) that provided substantial help to now over 4 million small businesses in our country, including a lot of professional associations, so that they could weather the storm, stay afloat and be ready when our economy returns. We're going to have to do more, we're going to have to help make sure that our economy is performing at a level when we are able to get past [this pandemic]. We have to adjust to the new realities. I intend to be very actively engaged in the United States Senate to make that transition as productive and smooth as possible.
All of us can make a difference. WEB EXTRA
WATCH SENATOR CARDIN TALK WITH PAST PRESIDENT DANA WILLIAMS Since the rise of the COVID-19 pandemic, MSBA has engaged the judiciary, the legislature, the Governor’s office, and our congressional delegation. Here are highlights of a chat with Past President Dana Williams and US Senator Cardin, an author of the Payroll Protection Program. VISIT MSBA.ORG/BCARDIN
I just urge lawyers to be active, be actively engaged in the bar association, be actively engaged in your community, you can make a difference. DW: We are living in, shall we say a polarized time? As a matter of fact, I think the country is in pain right now to some degree. What message would you share with the members of Maryland's legal community around what they can do to be helpful in this climate?
BC: All of us can make a difference. I just urge lawyers to be active, be actively engaged in the bar association, be actively engaged in your community, you can make a difference. I've always felt that what you do in pro bono, you're making a difference in an individual person's life by your service to our community. If you're unhappy about how things are going, get involved and try to change them. Do MARYLAND BAR JOURNAL | ISSUE 2 2020
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what Martin Luther King told us to do, and that is each one of us is here for a reason. We can make a difference in someone's lives, but when we join together we can bring about change. I just urge individuals, members of the bar, do what you can on your own, but join other people of like minds, so that we can make sure that we preserve the democratic institutions of this country, [and] the rule of law of this country. As attorneys, we should be proud to be the guardians of our legal system, [and] these values.
DW: Switching gears, any fond memories of the lawyering world? BC: Thinking back on my law school days, they really taught me to be prepared for anything. I got married in my first year of law school. Every one of my professors knew I was getting married over Thanksgiving break. We took a honeymoon, and I showed up to my classes on Monday, and every single professor called on me first. It taught me an important lesson, that you've got to be prepared for anything in life. That's being a lawyer, you have to be able to deal with whatever is thrown at you. To me, it's been a great skill for me as a legislator and a United States Senator. The hardest decision I ever had to make in my life was to run for the House of Representatives, because I knew that by running for the House of Representatives, I would no longer be able to practice law, and I love practicing law. To me, one of the great decisions I made in my life was to become a lawyer.
DW: That’s a great story, and is consistent with a lot of other law school professor stories I’ve heard.
DW: As an apolitical organization, the MSBA is interested in diverse perspectives. How have you found working with colleagues from across the aisle during these turbulent times?
BC: Well, first of all, I love being a legislator. I've been a legislator for a long time. Obviously, people have different views. Sometimes they go according to party lines. Sometimes it might just be a philosophical difference. Sometimes it's a geographical difference. But that's what makes legislating so challenging and so rewarding, [bringing] people together to get results [and] get things done. So I am proud that I worked, for example, with the late Senator McCain on human rights issues, and we are able to establish a global standard on human rights. More recently, I've worked with Senator Rubio, who is a chairman of the Small Business Committee. The two of us worked to get a $600 billion program passed on a bipartisan basis on the Paycheck Protection Program. I've worked with so many Republican Senators, in order to get things done, I worked with Senator Portman, a Republican from Ohio to get important pension legislation enacted. My message is that part of being a legislator is to figure out ways that you can reach people with different views, whether those views are based upon where you happen to live or your background or your party affiliation. We want to get things done for the benefit of people that we represent, the people of this nation. If you understand that you have a limited amount of time as a representative and you want to get things done, use that time wisely, and make friends with people who may not agree with you on all issues. CONTINUED ON PAGE 153 48
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INSIDE ANNAPOLIS
| MSBA ADVOCACY
MSBA Recognized Nationally for Fight Against Taxation of Legal Services The MSBA has been recognized by the national American Society of Association Executives (ASAE) by being selected for The Power of A Award for the association's efforts representing our members, firms, and the entire Maryland legal profession in defeating the proposed legislation earlier this year seeking to tax legal services. The awards ceremony will be held virtually on September 30, 2020.
WITH OVER 10,000 associations in the
The MSBA continues its legislative and advocacy efforts in Annapolis, with the federal delegation, and with the federal and state judiciary.
Upon learning of the introduction of House Bill 1628 – Sales & Use Tax – Services, which would have imposed the state sales tax upon legal services provided by Maryland attorneys, the MSBA launched a comprehensive campaign which included a significant social media campaign, meeting with the bill’s sponsors and members of the House Ways & Means Committee, testifying against the bill at public hearings, partnering with other organizations including the Maryland Chamber of Commerce, the Maryland Association of Certified Public Accountants, local and specialty Bars including the Maryland Association for Justice (MAJ), and Maryland Defense Counsel (MDC), and marshalling the support of thousands of attorneys and numerous firms including the largest within the Maryland legal landscape.
Thanks for the kind words of many members during this fight and for what MSBA continues to do.
United States, 60 were chosen as models for excellence in representing their constituencies and fighting for their interests.
“I’m proud of the MSBA and how it fought against this legislation. Thanks to all who made this victory possible.”
“I’m proud of the MSBA and how it fought against this legislation. It’s an honor to have served as its President when this was taking place only to be followed up by the response to COVID-19. Thanks to all who made this victory possible,” said Immediate Past President Dana Williams. “This was not a typical effort for MSBA because we understood the importance of protecting our members and ensuring Maryland firms were not at a competitive disadvantage versus law firms in other states not subject to taxation” said MSBA Executive Director Victor Velazquez. MARYLAND BAR JOURNAL | ISSUE 2 2020
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MARYLAND BAR FOUNDATION
LEGAL LION,
| MEMBER PROFILE
COMMUNITY LEADER, AND MBF PRESIDENT
Photo courtesy of Beverly Funkhouser Photography
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MSBA.ORG | ISSUE 2 2020
THOMAS E. (TOM) LYNCH, III Principal, Miles & Stockbridge P.C.
Thomas E. Lynch, III is a Principal at Miles & Stockbridge, P.C., and focuses his practice on Commercial, Business and Real Estate Litigation; ADR; Business Advisory; and Association and Non-profit representation. Mr. Lynch works primarily in his firm’s Frederick County office, where he is heavily invested in the community serving in various leadership capacities on local boards including serving as immediate past Chair and a member of the Executive Committee of the Community Foundation of Frederick County. In addition to his work in Frederick County, Mr. Lynch has been dedicated to other charitable work, including his work with Maryland Bar Foundation, assuming the role as President of the Maryland Bar Foundation in 2019. WE SAT DOWN with Mr. Lynch to learn a little more about his legal career, his goals for the Maryland Bar Foundation, and the man behind it all.
In your own words, summarize your legal career. My legal career really breaks down into two phases: a) Between 1977 and early 1988 in large offices of Venable (then known as Venable, Baetjer and Howard) and thereafter Miles & Stockbridge in Baltimore. My practice involved a broad range of litigation matters, including emergency practice and environmental litigation and advisory work for large corporate clients; and b) Moving to Frederick in March of 1988 to assist in the integration of our new Frederick office into the Miles & Stockbridge family. My practice in Frederick has been highly diversified and includes litigation, business counseling and advisory work, association and non-profit representation and ADR with an emphasis on mediation.
How did you transition to your current role? The move to Frederick in 1988 was life changing for me in so many ways not the least of which was to retool and develop a new practice in a new community. At first, I was not sure if I would be accepted here because, initially, I believe I was viewed as a big firm, city lawyer coming into an established historic practice in Frederick. In time, however, as I became more involved in the local bar and community, I learned
that Frederick is an amazingly accepting and giving community if you become part of and contribute to the community. Frederick is now my home and I
“
I applied to law school in the perspective that being a lawyer offered a wide range of possible career paths and, in addition, the capacity to make a difference in people’s lives.
would not live anywhere else. It has been immensely rewarding to serve the bar and on various non-profit Boards and to be part of making a real difference in this community, one of my primary objectives in accepting the challenge of coming in the first instance. MARYLAND BAR JOURNAL | ISSUE 2 2020
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What is the biggest challenge you are facing in your career right now?
“
Having been involved intensively in the practice of law for 43 years, I am now actively involved in formulating what the next stage of my life will look like as I transition from full-time practice to a reduced schedule while involving my younger colleagues more and more in serving and taking responsibility for clients that I have served for many years. What I view as being an ideal outcome would involve an effective transition from an intensive life as a successful lawyer to a life of even greater significance in terms of community involvement and service. That transition is well under way with my involvement with the Bar Foundation, the Community Foundation here in Frederick, serving on the Board of Trustees of our Community College and involvement with various other professional and non-profit organizations. Suffice to say that I consider myself a “work in progress� with, thankfully, the health and energy to take on new challenges. Whatever my new life looks like, I do expect to continue mediating because I love being part of the problem solving that brings combatting parties to a resolution of controversy.
What I view as being an ideal outcome would involve an effective transition from an intensive life as a successful lawyer to a life of even greater significance in terms of community involvement and service. Why is the work of the Maryland Bar Foundation important? The Foundation, first and foremost, is a philanthropic organization that provides grants each year to organizations involved in educating lawyers and judges, providing assistance to those in need to ensure equal and fair access to justice and a host of other causes of importance related to the law and the courts. The Foundation also makes annual awards to lawyers and judges who have distinguished themselves in some remarkable way warranting recognition in the eyes of their peers. We also bring together, through our Fellows program, lawyers and judges from throughout the State who have been nominated for that status due to their contributions to their profession and the communities they serve. I am proud to be a Fellow in the Foundation and be able to contribute financially and with my time to the important causes the Foundation promotes.
What are your goals as President of the Maryland Bar Foundation? I accepted the position as President of the Foundation with the expressed aspiration of leading the Foundation to grow the numbers of Fellows and to grow its assets so as to be in an even better position to provide enhanced financial support to organizations such as MVLS, Legal Aid and others whose mission is to provide legal representation to individuals who cannot afford legal counsel. To preserve the respect of our citizens for the Rule of Law, we need to ensure every citizen, regardless of his or her race, gender, financial or other circumstances, is afforded equal access to justice. The Foundation needs to play a critical role, with other financial support groups, to make available the resources to achieve what needs to be a fundamental objective 52
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for everyone involved in the legal process. The Foundation is now embarking on strategic planning to understand how it can expand its capabilities to provide the financial support so desperately needed by the service providers for those in need. The Foundation stands solidly in support of our brothers and sisters in the Black community and their need to be heard and we join them in seeking justice and change. We, the Foundation, see ourselves as an important piece of the puzzle that needs to be assembled, and quickly, to make equal justice for all a reality.
What do you do for fun to unwind? For 30 years, I have been somewhat of an exercise fanatic -- I find that exercise helps clear my head and keeps me active, energized and sharp. My exercise of choice these days is long distance road biking and there perhaps is no better place almost anywhere than Frederick County to get the mix of incredible beauty, hills, history and a large sociable biking community.
What’s an interesting fact about you that no one would guess?
“
We, the Foundation, see ourselves as an important piece of the puzzle that needs to be assembled, and quickly, to make equal justice for all a reality.
That I am an avid fan of music videos with a special emphasis on country music videos (they tell such amazing life stories of loves won, loves lost and so many other life lessons).
Do you know why thousands of law firms see their retirement plan in a different light? Because they’ve chosen a different kind of 401(k) provider. The ABA Retirement Funds Program (“the Program”) is an employer-sponsored 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.
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The Program is structured to provide affordable pricing whether you are a Solo Practitioner or a large corporation. 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 2020) 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
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MARYLAND BAR FOUNDATION
| GRANT RECIPIENT
Maryland Bar Foundation Supports Mid-Shore Pro Bono’s Elder Law Project MID-SHORE PRO BONO’S (MSPB) Elder Law Project provides elderly clients
with personal, confidential legal advice through free legal clinics. Clients can obtain wills, powers of attorney and advance medical directives free of charge. MSPB recently launched a new initiative to provide legal guidance for caregivers seeking to obtain guardianship of elderly or disabled adults in response to increased requests for this assistance. The Elder Law Project has been a cornerstone of MSPB’s services since 2015 and continues to be one of its busiest projects. The volunteer attorneys are committed to serving our area’s seniors and a majority of these volunteers are retired themselves. In January 2020, the Maryland Bar Foundation approved a grant request by MSPB to purchase two new laptops for us in its Elder Law Clinics. The grant could not have been more timely, because a short two months later, as a result of the COVID-19 Pandemic, MSPB was forced to shift to a remote work environment. MSPB responded immediately to the COVID-19 pandemic and shifted to remote work in early March. The Elder Law Project team, comprised of staff and volunteers, also realized that Elder Law Clinics needed to shift to a virtual environment. MSPB was able to quickly purchase two new laptops with the Maryland Bar Foundation funding to make this an almost seamless transition. As a result, MSPB’s Elder Law Project staff and volunteers were able to continue to provide critical services to its clients through phone and on-line meetings. Without the funding from the Maryland Bar Foundation, MSPB would not have been able to continue its Elder Law Project services!
ABOUT MID-SHORE PRO BONO: Mid-Shore Pro Bono was established in 2005 as the first regional pro bono organization in Maryland dedicated to connecting private attorneys with low income people in need of civil legal representation. Mid-Shore Pro Bono holds clinics for clients in need of family, elder, and consumer debt and housing assistance. Our vision is for all people on the Eastern Shore to be empowered to resolve civil legal issues and our core values are integrity, service orientation, compassion, professionalism, respect, dignity and collaboration. Mid-Shore Pro Bono was founded by a small group of dedicated and compassionate local judges and attorneys who recognized the overwhelming need for basic civil legal services for low income people. MSPB connects over 3,000 clients with legal representation annually, and our network of volunteer attorneys provided $1.83 million in legal services in FY2019 alone. Our longstanding relationships with the courts, attorneys, and community partners enables us to reach the most disenfranchised residents of the Eastern Shore. MSPB works hand-in-hand with community partners to break down cultural, geographic and economic barriers to the civil justice system for the area’s poorest residents. Mid-Shore Pro Bono became the first regional pro bono referral agency in the state of Maryland and remains the primary pro bono legal services provider on the Eastern Shore. MSPB serves low income people in six rural Eastern Shore counties (Caroline, Dorchester, Kent, Queen Anne, Talbot, and Wicomico) where access to the justice system is constrained by the limited number of attorneys and legal services options, lack of public transportation, and a large percentage of the population lacking resources to afford legal representation. Mid-Shore Pro Bono addresses these challenges by engaging its network of dedicated local attorneys and creating on-ramps to legal services through legal clinics in multiple locations across the Eastern Shore, providing one-on-one legal counseling, and direct representation to people who otherwise would have no access to the legal system.
Above: Volunteer attorney, retired Judith Showalter, with a client at our Guardianship Notebook Clinic.
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Above: Meredith Girard, Esq., our managing attorney, working from home with the new laptop purchased with MBF Funds.
Coffee Chats with MSBA President Hon. Mark F. Scurti
Join M BA
resident Honk Mark Fk
monthly Cofee
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a brief update, have a guest speaker each month, and a short #4Ak
Upcoming events October
7:30 am - 8:30 am, via Zoom October 7, 2020
February 3, 2021
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MSBA is planning something for its 125th Anniversary in 2020-21
Get Involved! Volunteer to participate on the 125th Anniversary Task Force. Submit your interest application today at
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HEALTH & WELLNESS
| WELLBEING
Your Body
Holds the Secrets to Avoiding Burnout BY ALICIA J. JOURNEY, ESQ.
This new professional landscape, which is changing every minute and forcing us to keep up, stay hypervigilant and quickly adapt, is a perfect recipe for burnout if we don’t become aware of the signs and symptoms before it’s too late. It can be tempting to just focus on what we can control, which for many of us is our work, and to pour ourselves into it without processing our mental and emotional stress. This can work in the short-term, but in the long-term, it is a recipe for burnout. If we do not heed the warning signs that our mind, body and emotions are sending us we risk another pandemic, mass burnout.
I KNOW THE JOURNEY TO BURNOUT WELL, but
thankfully I also know the journey back. I am here to tell you there is hope and another way to not just survive but to thrive. In 2013, I had just gone through a divorce and had a 2-year-old and a 7-year-old at home. I had just left my job as a prosecutor and opened my own law practice. I have epilepsy and my seizures had started to become more and more frequent, but I chalked that up to giving birth and hormones. Then I started having panic attacks. I had no idea what they were. I truly thought I was going to die. Up until that point I had nerves of steel. I could walk into a courtroom, look a murderer in the eye and dismantle him on cross examination. I could walk into a prison armed only with my skirt, high heels and a notepad without even flinching. Nothing had ever fazed me, but now I was debilitated by panic attacks. I felt weak and stupid. I would ask myself “How could I let my emotions get the best of me? How could I be so weak minded?” and try to push through it with these all too familiar phrases “It was just a little stress. Pull yourself up by the bootstraps, Alicia. Suck it up buttercup. What doesn’t kill you makes you stronger.” I didn’t want to appear helpless or weak, so I kept pushing, kept grinding and kept ignoring the signs my body was giving me that something wasn’t working. I started to cope in the only ways I knew how to at the time. My occasional glass of wine turned into a couple of glasses of bourbon, my one cup of coffee a day turned into 6, I threw myself into my work, I started working out obsessively, I stopped eating regularly and I wasn’t sleeping more than 3 hours a night. I was truly miserable. I was not a present mom and a very distracted attorney. I felt completely dead inside. The only thing I actually felt during that time was stressed. At this point, the panic attacks and seizures ruled my life. I was at their mercy. I was also constantly sick. I had back to back strep throats and sinus infections. Steroids and antibiotics were consistently in my system. This lasted for about a year or so. My coping mechanisms were the band aid that kept everything from falling apart. Or so I thought. 56
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In 2015 I couldn’t ignore the signs and symptoms anymore. The day after a judge granted my restraining order against my former husband, it all started. I woke up the next day, got the kids off to summer camp, came home and started having grand mal seizures back to back. I was throwing up uncontrollably and had lost my ability to control my bowels. I was completely incapacitated. This continued for the next two years. I was having thirty grand mal seizures a day. My adrenals were completely shot. My nervous system was on hyper drive, which meant even wind felt like someone was holding a blowtorch to my skin. Taking a shower or brushing my teeth brought me to tears from the pain. I had two bell palsy strokes during this time which left me paralyzed on the entire right side of my body for weeks. I was terrified and confused. Doctors had no answers for me. So, when I was finally sitting in the doctor’s office in 2017 and he said the words, we found cancerous cells in your uterus. Alicia, you have cancer. I started crying and laughing simultaneously. I had a huge smile on my face. The doctor looked at me like I had lost my mind. He asked me if I was okay. I was fine. The laughter came from relief. I could finally put a name to my tormentor. At that moment I made a promise to myself. I was no longer going to betray my body. I was no longer going to ignore the secrets it held for me. I knew intuitively
attorney? In answering these questions, I found myself. The gift of nearly dying gave me my life back. We are in an identity crisis globally right now and individually. We are being forced to ask the deeper questions about who we are without outside influences. We are being forced to slow down. However, we are also experiencing unprecedented levels of stress. It doesn’t matter who you are, this global pandemic is impacting you. This is on top of the already high levels of stress that we as attorneys endure due to our profession. In addition, we are dealing with, remote work, homeschooling, isolation, constantly changing court procedures, the loss of loved ones or the fear of losing loved ones, racial inequity coming to a boil and navigating the unknown over an extended period of time. This is the perfect recipe for another pandemic, mass burnout. What can we do to act preventively during this time in order to avoid burnout? Spend time listening. Your body holds the answers. What is it telling you right now? Allow your body to tell you what it needs. Our bodies will whisper and wait for us to listen. If we do not heed the whispers, it will yell until we have no other choice. In these unprecedented times, we must allow ourselves to slow down. We must acknowledge our mental, emotional and physical needs. Then we must adjust accordingly. If we do not take radical action and
I had been feeding my body a strict diet of unrelenting stress for the last ten years and it had become toxic. that I had gotten here from stress. I had been feeding my body a strict diet of unrelenting stress for the last ten years and it had become toxic. The poison pill of stress that I had given myself daily through the thoughts I allowed in, the food I ate, the negative self-talk, the unprocessed trauma, had built up in my system and nearly had the last say. Since that time, I have dedicated myself to recovery and to understanding how I got to where I was so that I never have to go back there again. It has been a long winding road and I am still learning every day. But the lessons I learned during that period of my life were nothing short of a miracle. I went through an identity crisis. Who was I when I could no longer do or accomplish? Who was I if I was not achieving? Who was I if I wasn’t receiving accolades from others? Who was I if I wasn’t an
put our health and wellbeing first and foremost during this time, we risk being forced to through burnout or illness. It is my hope that everyone can benefit from the lessons I learned. This is why I share my story.
WEB EXTRA
HEALTH & WELLNESS PORTAL The MSBA provides many resources for legal professionals to ensure they continue to care for themselves while they fight for others. Visit the MSBA Health & Wellness portal for articles, tip sheets, workout videos, and more. MSBA.ORG/HEALTH-WELLNESS
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HEALTH & WELLNESS
| WELLBEING
PRACTICING LAW ON THEIR OWN TERMS:
Snapshots of Lawyers Who Are Shaping the Future of Law and Well-Being The legal profession can be an extremely rewarding career; however, the rewards come with a lot of stressors. Attorneys are subjected to long work hours and ruled by looming deadlines. In addition, law can be an adversarial, competitive, perfectionist field, which can negatively impact even the most seasoned and competent lawyers. Unfortunately, these stressors have resulted in the legal profession having a high prevalence of burnout, which manifests in many different ways, including drug and alcohol addiction and abuse, depression, and anxiety. However, a new generation of attorneys is now emerging, and they are blazing new approaches to the practice of law. In addition, they are working to improve the overall profession by emphasizing the need for attorneys to take care of their own well-being. Their efforts focus on the attorney as a whole, and take into consideration physical, emotional, spiritual, social, intellectual and occupational health. Many of them chronicle their efforts through social media, podcasts, and other outlets.
We caught up with a few of these trail blazers to find out more about their specific area of expertise and to learn more about their personal journeys, including how they have used their law degrees to develop a niche specialization in a way that allows them to be more fulfilled in their careers and more able to manage the changing times while continuing to help other lawyers.
KATHRYN M. LIPP, Esq. Owner, The Lipp Law Firm Owner, Law Practice Queen LAWPRACTICEQUEEN.COM KATIE LIPP In addition to running her own employment law firm, Katie Lipp operates Law Practice Queen, an attorney and law firm consulting brand. As a consultant, Katie helps lawyers attract their ideal clients and offers e-courses on how to start a law firm.
How would you describe your expertise and the message you have to convey? For my employment practice, I represent both employers and employees which makes me somewhat of a unicorn in the employment law realm. Representing both sides enables me to help any type of client operate or be a part of a safe and healthy workplace. I particularly enjoy the amount of psychology that goes into practicing employment law. For Law Practice Queen, I am skilled in branding and attracting clients and I like to pass that along to other attorneys. It is easier than you would think running a law firm and I think that if you have an inclination toward entrepreneurship, you should try it. It really is so much fun!
How is your expertise valuable to our 40,000 lawyers who will view this article? I want to foster a shift in the legal industry where lawyers actually enjoy their job. There are so many of us that have been miserable at one point or another in our legal careers. Clients benefit from happy lawyers helping them. I love seeing other lawyers decide to start their own firms and really craft the life they were meant to live. Change also doesn't have to be a massive shift like starting a new law firm. It can also be starting a new practice area, or trying a different type of networking. I hope through my work that others can know that our dream lives are available to us, right now, even with all of our imperfections. 58
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Jamie Jackson Spannhake is a partner in a small New York law firm, the author of The Lawyer, the Lion, & the Laundry: Three Hours to Finding Your Calm in the Chaos, and the founder of Lion Life LLC, through which she helps attorneys succeed personally and professionally by providing them with tools to manage their competing obligations – work, home, personal, relationships – without feeling overwhelmed and exhausted.
How would you describe your expertise and the message you have to convey?
JAMIE JACKSON SPANNHAKE, Esq. Attorney and Author Founder, Lion Life LLC JAMIE SPANNHAKE
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I’ve always been that person who does a lot, all at the same time. People have often said to me, “I don’t know how you have time to do all that!” So, back in 2008, I started thinking about why that is. What do I do differently that enables me to handle many things at the same time? That’s when I started presenting and writing about time management. As time went on, I realized that I had lots of tools, techniques, and tips that enabled me to manage many different aspects of life simultaneously. Indeed, I was managing it all: daily life, career, family, and social life. But I was so busy that I felt overwhelmed and exhausted. I wasn’t enjoying my life. That’s when I realized that time management tools alone are not sufficient for a successful and enjoyable life. I needed some kind of “mind management” as well
That’s when I realized that time management tools alone are not sufficient for a successful and enjoyable life. I needed some kind of “mind management” as well — a way to approach things differently to prevent losing my mind. — a way to approach things differently to prevent losing my mind. That’s when I discovered mindfulness and meditation; I’d discovered a better way. My expertise, which I share in my book, is what I’ve learned and practiced, and now teach to others: a system of two choices, two actions, and two thoughts that change the every day and allow time and space to create the life you truly want. It is not merely time management; it is a profound and practical mind management strategy that significantly improves attorneys’ lives, from the inside-out.
What have you learned from the changes you have made? How is your expertise valuable to our 40,000 lawyers who will view this article? I’ve found a way to have all the things that are important to me without feeling overwhelmed and exhausted. And I want to share it with other attorneys because the practice of law is hard and time consuming, and it can make us really unhappy and unhealthy. I’ve found a way to make it work, and to live a happier life. I want others to have all that they want in their lives too. I want them to enjoy their days, like I do.
How has this helped your practice, business and clients? Most importantly, it has given me the ability to really listen to my clients and to opposing parties to understand the issues and emotions underlying the talk and positions. I am able to act thoughtfully in stressful situations rather than reacting mindlessly. My mind is calm enough to consider and formulate creative solutions, and my body is healthy enough to give me the energy to do all the things that I want and must do. MARYLAND BAR JOURNAL | ISSUE 2 2020
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DINA EISENBERG, JD Founder, The Intentional Attorney.com Law Firm Leader Coach/ Ombudsman DINA EISENBERG JD
ANGELA HAN, Esq. Healthcare Lawyer Health Coach Podcast Host, “Fit to Practice” FIT TO PRACTICE ANGELA HAN Angela Han is a healthcare lawyer and health coach who suffered from bulimia for seven years until overcoming it through food and exercise. After law school, she became a certified health coach, personal trainer, and yoga teacher so that she could work with other attorneys who may have experienced similar struggles. Angela established the Fit to Practice Society, through which she offers free Tuesday workouts for lawyers and provides updates on how to take care of yourself and be a better lawyer alongside other lawyers.
What are the changes that you have made to better your life and practice? I began doing exercises that made me feel happier and stronger. Once I was able to experience the physical and mental health that came through the kind of exercise that I did, I was able to better focus on the work and life I had in front of me.
What have you learned from the changes you have made? I learned that it is possible to manage my mental and physical health without spending too much time on it and focusing on what works for me, not anyone else. For example, I focus on low-equipment workouts that do not require me to go to the gym, like squats, push ups, sit ups, and variations of all of that. For my workouts with the Fit to Practice Society, we have three circuits: legs/cardio, arms, and abs. For each circuit, we do two exercises, 40 seconds each. Repeat three times. The half hour goes by quickly.
How has this helped your practice, business and clients? When I shared my own health journey, I was able to secure my dream job as a lawyer in health care and be part of a community of lawyers who are also committed to their health.
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Dina Eisenberg became an Ombudsman after a stint as a prosecutor. She wanted to help more people feel satisfied and empowered at work. Eisenberg finds the focus fascinating because it requires her to learn about a variety of practices and wear multiple hats, from a coach to a mediator to organizational beacon
How would you describe your expertise and the message you have to convey? I believe that the future of law belongs to those who are willing to let go of old ways and embrace the new. Law firm leaders who want to succeed must master emotional intelligence, delegation, and the most effective management tools. I do that via my Leader/Associate Coaching and an Ombuds Program.
How is your expertise valuable to our 40,000 lawyers who will view this article? What could you achieve if you had an awesome team? When you work with me, you save time and generate new income streams by delegating. You save the costs of a bad hire (thousands of dollars) and the aggravation and time lost to retraining. You are able to maximize your time and efforts so you can focus on what’s important to you.
Who has been your inspiration? Dr. Maya Angelou is one of my greatest inspirations because she represents what’s good and hopeful in all of us.
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I believe that the future of law belongs to those who are willing to let go of old ways and embrace the new.
ALICIA JOURNEY, Esq.
Senior Litigation Associate, DiLeon Law Group ALICIA J. JOURNEY, ESQ. Alicia Journey is a senior litigation associate specializing in business, corporate, and family law. Alicia was previously a prosecutor and later opened her own law practice focused on helping women and men in business, family and estate planning law. After a personal health crisis, battling cancer, two strokes, seizures and adrenal failure, she found her mission to transform the way attorneys treat themselves, their clients and the law through the practice of mindfulness, balance and resiliency. She also works with organizations on leadership, diversity and inclusion within the workplace.
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My clients benefit from my ability to give them everything I have when I am healthy and filled up from within.
What are the changes that you have made to better your life and practice? The most significant change I have made to better my life on a personal level is establishing boundaries and listening to my body when it gives me the signs and symptoms I know from experience are burnout. I have released guilt from saying “I need a break.” I have found spending time in nature, connecting to my true essence and to what brings me joy in life fills my cup up so that I can be the best mother, friend and ultimately advocate for my clients.
What have you learned from the changes you have made? The changes I have implemented in my life have allowed me the freedom to choose health and wellbeing over being a slave to societal standards that demand inhumane demands. We were not built to be robots only meant to work, serve and die. In nearly losing my life to the pressures of outside influence I have found true freedom which allows me to stop when I need to stop, ask for help when I need it and serve from my overflow rather than from the very last drop. My clients benefit from my ability to give them everything I have when I am healthy and filled up from within.
How has this helped your practice, business and clients? The old cliché holds true…as you expand into a more grounded sense of self and are able to get out of your programmed stress induced brain…you truly can see the forest from the trees. I believe my clients benefit from this perspective as I allow them to receive a bigger picture of their situation, the opportunity it may hold long term for them, and it gives me the benefit of allowing responsive strategic decisions in their cases rather than reactive pressured responses. I am also able to assist them in stress and burnout reduction as I walk with them through some of the most stressful times in their lives. I am grateful for the lessons I have learned and the gift I get to share with those in my life as a result.
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Heather Pearce Campbell is on a mission to transform the way legal support is offered to the niche that she serves--largely service-based entrepreneurs who want to create sustainable businesses that provide them an opportunity to do work they love for a long time while also having an impact on the world through the clients they serve. After 12 to more than twelve years of legal practice, Heather decided to become much more intentional about the focus and impact of her legal practice, and the ways that she could provide value to her clients. She saw that this specific segment of the small business marketplace has a swath of legal needs that go largely unmet by the traditional legal industry - the barriers to entry have been too high for many entrepreneurs. So she set out to find new ways to meet their needs and to serve them based on their unique journeys.
How would you describe your expertise and the message you have to convey?
HEATHER PEARCE CAMPBELL, Esq. Pearce Law Services The Legal Website Warrior Podcast Host, “Guts, Grit & Great Business” LEGALWEBSITEWARRIOR.COM HEATHER (PEARCE) CAMPBELL HEATHER PEARCE CAMPBELL THE EXCEPTIONAL ENTREPRENEUR ALLIANCE™ FACEBOOK GROUP GUTS, GRIT & GREAT BUSINESS
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I have come to believe that we, as attorneys, have not only the opportunity, but the obligation to evolve the way that we practice law.
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In my journey I have come to believe that we, as attorneys, have not only the opportunity, but the obligation to evolve the way that we practice law, the way that we provide legal support to our various clients. Wherever there is a gap in the marketplace, where supply is not meeting demand, we have opportunities to improve. And there are currently many such gaps. We have the opportunity to do a better job of creating value and relationships with our potential clients, with those who need our services before they ever walk in the door. If we do it right, if we create opportunities to educate and serve before a client has paid us one cent for anything we provide, we also have the opportunity to actually help create the consumer of legal services that we can better serve, and that becomes a better, more knowledgeable and empowered consumer of legal services. I firmly believe this would also help transform some of the prejudices and attitudes held against our industry. But it requires changing the model--giving value first and frequently, and building our legal practices by thinking like a business rather than a lawyer.
How is your expertise valuable to our 40,000 lawyers who will view this article? I love helping attorneys think more creatively about their practice if that is something that they are wanting to do, and about ways that they can create more fulfillment for themselves and their clients. Though there are certainly outliers, we tend to be a group that values resourcefulness, hard work, equitable outcomes for our clients, and fighting the good fight, especially on behalf of those who need it most. But we can also be somewhat restricted in our ability to respond to a changing marketplace, often slowed down a bit by a long-time relationship with tradition. We also generally have an educational deficit in our legal training that does not include business fundamentals. However, I believe that many of us are currently sitting on a massive opportunity to evolve our responsiveness as an industry and meet some of the demand in the marketplace for legal services which has to date largely gone unmet or is actually on the rise. By really getting to know the client journey, meeting clients where they are, building systems and supports for outreach, utilizing automation tools to support relationship-building, and providing a greater array of services and resources to match the needs of those we serve, nimble attorneys can revamp their practices and increase fulfillment for themselves and their clients.
Who has been your inspiration? Entrepreneurs and innovators. Individuals with the guts and grit to create their own path in the world, lead themselves and others, and take considerable risk in order to be of service and fulfill a mission. Those who create more than they consume and support the economic engines of others. I believe that entrepreneurship is one of the greatest opportunities that people have to effect meaningful change, influence others, and create impact in their communities and the world. It is why I am so committed to supporting this inspiring lot on their business-building journeys!
CHARLOTTE SMITH, Esq. Lawyer-turned-Executive Coach DESIGN FOR LAWYERS CHARLOTTE SMITH Charlotte Smith formerly practiced law in the United Kingdom and is now a trained and certified Executive Coach for Lawyers--working with talented attorneys who are excelling in their career, yet feel overwhelmed and stuck or are simply becoming frustrated. They want to create a career path where they can place more emphasis on freedom and flexibility (while maintaining the status quo from an income standpoint). Charlotte helps her clients figure out what they actually want from life and career (which can be very different at 40 to what it was when we were fresh out of law school) and helps them step into the most energized and empowered version of themselves.
What motivated you to pursue this area of focus? I was drawn to this area of focus, because let’s be clear… this was me! I walked this exact path. I get it. As a Brit and to quote the Beatles, “I am he, as you are he, as you are me and we are all together.” I understand the shared experience – As lawyers we have all been on similar paths, we are all connected, and my goal is to be part of the change to create a more conscious sustainable way of practicing the law. To help my former colleagues create sustained career longevity without burnout. I believe there is a different way for us to exist as lawyers (we don’t all need to quit our jobs and move to Bali). We are all capable of consciously creating our own flexible and abundant reality when it comes to our lives, our careers and our practice.
How is your expertise valuable to our 40,000 lawyers who will view this article? I recall during my career transition wishing I had access to someone who knew what it was like to be a lawyer, understood what I wanted to cultivate. Who had a program to simplify and demystify the process of figuring out what I wanted from life and career! Whether that was pivoting to a new role within the legal industry that felt more aligned with my core values, or who could help with pivoting out of law entirely to start my own business, or simply who could help me make conscious mindset and lifestyle changes to achieve a more balanced and satisfying life. This is now my life’s work!
WENDY MEADOWS, Esq. Law Office of Wendy S. Meadows, LLC WENDY SARE MEADOWS Wendy Meadows is a family law solo practitioner in Baltimore County. She was a runner for years and in college, and then fell out of love with running; after her children arrived, she found she had zero time to get out and run. Four years ago she became a health and wellness coach with Beachbody and now helps other professionals become their most healthy versions of themselves. Her coaching is based on three components: (1) Nutrition; (2) Sweat; and (3) Community and Accountability. She adds a fourth component: being the leader. “When I lead others, it forces me to be the best me so I am a good role model for my challengers and coaches I lead.”
What are the changes that you have made to better your life and practice? I wake up early. Drink less wine. Ditched the Skittles and Cheez-its. Drink a ton of water. Stopped going out to lunch. Workout before work every day. Read personal development that helps me grow mentally.
What have you learned from the changes you have made? I have become more confident, efficient, and happy overall.
How has this helped your practice, business and clients? When I serve myself first, my clients will get the best version of me. I am also more efficient with time management because of how I approach each and every day.
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Annie Little realized she was unhappy in her fifth year of legal practice, even though she was a successful attorney by all outward metrics. After becoming frustrated that she could not find any career coaches that specialized in assisting attorneys, Annie herself became a career coach specializing in lawyer job search and career transitions. Annie now helps attorneys change the way they think about their legal career.
What motivated you to pursue this area of focus? When I got pregnant with my first child, I knew I didn't want her to know me as a lawyer. I didn't want to set an example for her that it's normal to stay in a job that is emotionally and physically draining even if you're good at it or it pays well.
ANNIE LITTLE, Esq. Attorney Career Coach, Founder, JD Nation ANNIE LITTLE
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When I was looking for resources on finding a new career, I didn't find support that was specifically targeted to lawyers. I hired a life coach to help me figure out my next steps, and I fell in love with the coaching process. I knew there were other lawyers like me who were unfulfilled in their careers, and I wanted to be the resource to them that I didn't have. That's when I founded JD Nation and started my coaching certification.
I knew there were other lawyers like me who were unfulfilled in their careers, and I wanted to be the resource to them that I didn't have. How would you describe your expertise and the message you have to convey? I want my fellow lawyers to know that they can do anything with their law degree (although I only recommend that people go to law school if they intend to practice law--long story for another time!). Whether it's changing practice areas or changing industries, every lawyer has transferable skills and experience to carry them through a successful career.
How is your expertise valuable to our 40,000 lawyers who will view this article? Too many lawyers think it's normal to hate their job. Or they think they're the only lawyer who doesn't like their career. But they're not alone. Not only are they not alone, but they also have so many options for making a change! Another misconception lawyers have is that they should be able to figure out their careers on their own--despite never having been taught how to write résumés, network effectively or even how to manage people as they rise through the ranks. It's not a personal failing to reach out for help. Just think of all the successful people in the world; not one of them got there without asking for help along the way.
Who has been your inspiration? This may sound cheesy, but I've been inspired by everyone I've come across who has cast aside the traditional definition of success in favor of a life that feels successful to them. These people have been clients of mine, high school friends, celebrities and even strangers standing next to me in line at the store (pre-pandemic, of course). I'm inspired by them because they have allowed me to consider how much is really possible and serve to remind me it's worthwhile to pursue my personal version of success.
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ALISON SCHURICK, Esq. Associate, Baker Donelson Spin Class Teacher ALISON SCHURICK
Please tell us about who you are and your journey to health and wellness. I really started to focus on my health and wellness during my first year of law school when time management was key. It was important to me that I get into a good routine, and the variety of fitness classes that my local gym offered made that easy to do. Once I found what I liked (which happened to be spin classes), it was pretty easy to stick with it!
What are the changes that you have made to better your life and practice? When I first started practicing, I always wanted to be the first one in the office in the mornings (which meant a lot of early mornings). But that led to me feeling pretty drained and hitting a wall by 3 or 4pm, and definitely not wanting to work out when I got home. So, I started taking advantage of being an “early riser” by using my early mornings to work out and get a healthy start to my day instead of rushing to be the first one in the office. I found that I was more productive during the day and had so much more energy throughout the afternoon. To this day, I try to stick with that same routine.
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I have learned that it is important to make your health and wellbeing a priority, even when your priority list feels like it’s already too long.
What have you learned from the changes you have made? I have learned that it is important to make your health and wellbeing a priority, even when your priority list feels like it’s already too long. Even if you only have 20 minutes to focus on yourself, that’s worth something. If you take care of yourself and maintain healthy habits, that will translate into other aspects of your life.
How has this helped your practice, business and clients? I think I definitely have more energy and motivation (at least most days), which makes for better productivity and a practice overall. I’ve found that it is much easier to focus on the day ahead when I walk into the office knowing that my workout is behind me and I’ve already started my day on a high note. It also allows me to socialize and engage with colleagues, peers and/or clients after the workday without feeling too guilty about not having worked out.
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Burnout.
S t re s s.
Su bstance A bu s e .
D e p re s s i o n .
Addiction.
LAWYERS: Get free and confidential support
MSBA’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
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Toll free phone: 1-888-388-5459
HEALTH & WELLNESS
| MENTAL ILLNESS & THE LAW
The Complicated and Messy Interface of the Law and Medicine in Matters Involving Mental Illness and Substance Abuse BY MICHAEL P. MAY, ESQ. & SENIOR JUDGE LOUIS A. BECKER Attempting to make sense of, much less developing a consistent approach to, dealing with mentally ill persons caught up in the criminal justice apparatus at times can amount to the functional equivalent of trying to catch smoke in a butterfly net. The best efforts of highly capable and competent medical and legal professionals, jurists and legislators have perhaps produced some optimism. Often, though, they can generate considerable confusion.
THE PREVALENCE OF ILLICIT and
illegal drugs has horribly and alarmingly exacerbated the problem. Naturally, substance abuse professionals approach these issues from different perspectives than mental health professionals, as do lawyers and jurists, from those addiction and mental health specialties. That divergence of approaches often produces conflicts as to whether mental health professionals, primarily providing psychiatric treatment for co-occurring disorders, or substance abuse professionals, who focus on screening, behavioral monitoring, and counseling, should prevail in individual cases. In addition, the subject defendant is suffering from a mental health condition and/or from addictions. He or she may not understand that
the law, i.e., aspects of protecting public safety, appropriate aspects of punishment for criminal acts, monitoring to alleviate recidivism, after a criminal conviction, or a commitment for dangerousness after a defendant is found Not Criminally Responsible. Health Care providers doing evaluations for sentencing and probation recommendations and/or involved in monitoring conditions of probation obviously are concerned with the clinical aspects from the medical standpoint. Thus, no easy answer exists; nor does an effective universal approach. Throughout Maryland, many residents bear the horrific emotional scars that to exposure to violence inevitably produces. Often traumatized persons react by engaging in
Throughout Maryland, many residents bear the horrific emotional scars that to exposure to violence inevitably produces. or be willing to comply with court ordered mental health or substance abuse evaluation or treatment. That can also produce confusion and conflicts with judicial and legal professionals in sentencing and/or recommendations for and monitoring of probation conditions. As that drama plays out continuously in courtrooms throughout the State, it affects findings of criminal guilt and criminal responsibility and terms of sentencing or release respectively. The need for incarceration, as opposed to hospitalization — or appropriate inpatient or out-patient treatment, comes into play. Judges and lawyers must also consider appropriate conditions for probation and/or release back into the community, from the standpoint of 67
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criminal behavior. Many jurisdictions have started problem-solving courts like Drug/ DUI, Mental Health and Veterans Courts to address those issues in order to overcome some of the procedural and legal/medical hurdles associated with the relationship of crime to mental illness and addiction. Like many residents of high crime areas, veterans, who willingly ran toward, not away from, threats and dangers to our country also deal with the repercussions of their exposure to violence in our wars. They suffer greatly from Post-Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI) and other conditions affecting their ability to function MARYLAND BAR JOURNAL | ISSUE 2 2020
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normally in society. Physical pain and mental anguish are constant companions. They lose friends; they lose family; they lose themselves. Desperate to obtain even a temporary respite from the pain, they often resort to drugs. Eventually, many tragically become criminal defendants. In Baltimore City, these veterans, who have sacrificed so much, do not become lost in the system. The Veterans Treatment Court, a 5-year-old problem-solving court created and presided over by Judge Hallee Weinstein, herself a veteran, with a committed team, strives mightily, often successfully, to assist the former military to recover and, once again, to become proud assets to the community. Competency of Criminal Defendants Generally Normally, criminal cases in which mental health is an issue began in non-problem-solving courts under Title Ill of the Criminal Procedure Article, Annotated Code of Maryland, with a determination of competency, i.e., whether a defendant can understand the nature of the charge or object of the proceeding and/or assist in her his or her defense, the standard set forth in Dusky v. United States, 362 U.S. 402 (1960). Pursuant to Md. Crim. Proc. Code §3-105(b) & (c), if, before or during a trial, the defendant appears to the court to be incompetent, the court makes that determination, which may include ordering the Health Department to examine the person, an examination that could occur on an out-patient basis, could occur in jail or could occur in a hospital. The court may also order confinement for safety reasons. Md. Crim. Proc. Code §3-105(d)(2) requires a report based on the examination to be submitted to the court within 7 days unless good cause to extend that period exists. Nonetheless, failure of the Health Department to send a complete report within that time is not, of itself, grounds for dismissal of the charges. Following a hearing, if the court commits the defendant to the Health Department on a finding of incompetency, the Department must commit the defendant to a designated health facility, not a correctional facility, within 10 business days. If the Department of Health fails to comply, the Department can then be charged with a sanction to include reimbursing the detention center for detaining the defendant past the designated 1
The Veterans Treatment Court, a 5-year-old problem-solving court created and presided over by Judge Hallee Weinstein, herself a veteran, with a committed team, strives mightily, often successfully, to assist the former military to recover and, once again, to become proud assets to the community. time periods. The next section of the statute, Md. Crim. Proc. Code §3-106, reads that once a defendant is committed, the court is required to hold a hearing to determine if the defendant continues to meet the criteria for commitment (1) every year, (2) 30 days after anyone makes a motion for a hearing or (3) 30 days after the court receives a report from the Health Department alleging new relevant matters. Id. Indeed, State v. Crawford, 239 Md. App. 84, 95, 196 A.3d l, 6 (2018) reiterates that standard. The law also provides for civil commitments. Unfortunately, for myriad reasons, a lack of resources, e.g., funding for hospital bed spaces, as well as bureaucratic misunderstandings and inattention to legal deadlines results in persons who are mentally ill unnecessarily languishing in prison, instead of receiving needed treatment. Lack of space engenders issues for courts and healthcare facilities. The law states that if, after a hearing, the court finds that the defendant is incompetent and, because of developmental disability,1 or a mental disorder is a danger to himself or herself or to the person or property of another, the court must order the defendant committed until he or she is no longer incompetent, is no longer dangerous or there is not a substantial likelihood that he or she will be restored to competence. Md. Crim. Proc. Code §3-106(c)(l)(i). For the developmentally disabled, the Health Department must require the Developmental Disabilities Administration, part of the State Department of Health and Mental Hygiene, to provide the care or treatment the defend-
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MICHAEL P. MAY, ESQ., Mentor, Baltimore City Veterans Treatment Court, Past Chair Veterans Affairs Military Law Section, MSBA; Past Commanding Officer, Judge Advocate Corps, Maryland Defense Court; Vietnam Veteran; Judge Advocate, National Fourth Infantry Division Association; Juris Doctor, magna cum laude, UB Law, 1980; Managing Editor U. Balt. L.Rev, 1980; Chief Justice Law School Honor Court; Heuisler Honor Society; Law Faculty Award; Retired Detective Sergeant, Baltimore Police Department (Line of Duty Injury). HON. LOUIS A. BECKER, Senior Judge, Circuit Court for Howard County; certified to sit throughout the State; Founding Judge, Howard County Dist. Drug/DUI Court; member, Judiciary Problem Court Committee & Workgroups; Adjunct Professor: Professional Responsibility & Trial Advocacy 2005-2014 & Graduate, UB Law, 1970; Past Chair, Veterans Affairs Military Law Section, MSBA.
WEB EXTRA
Read the full article on MSBA's blog. VISIT MSBA.ORG/MENTAL-ILLNESS-LAW
The statute uses the archaic "mental retardation" label instead of the term “developmental disability.”
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ant needs, a genuine conundrum in that there are few facilities to provide such care in these days of deinstitutionalization. The Health Department must admit a committed person to a health care facility as soon as possible, but not later than 10 days after the Department receives the order of commitment. There are also exacting and challenging requirements with respect to evaluation and treatment plans, particularly when, as indicated above, the Court may impose sanctions reasonably designed to compel compliance, including requiring the Health Department to reimburse a detention facility for expenses and costs incurred in detaining a defendant who should be committed. Md. Crim. Proc. Code §3-106(c).
Career Highlights Career Transitions
Past President Profile of a past MSBA President.
Attorneys sharing their experience of moving between legal sectors or advancing into leadership positions.
Off the Beaten Path What I’ve Learned Leaders in the profession sharing their successes and advice with the next generation of attorneys.
Professionals finding non-traditional ways to put their law degrees to work.
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CAREER HIGHLIGHTS
| PAST PRESIDENT
Edward J. Gilliss
ROYSTON, MUELLER, MCLEAN & REID, LLP
LEADING
THE PROFESSION Edward J. Gilliss served as President of the MSBA in the 2006-07 Bar year after many years of other leadership roles in the Association, including serving as Treasurer from 2003-05. Mr. Gilliss continues his service to the Bar and the legal profession, and currently sits on two high profile committees, the Bylaws Committee and Strategic Implementation Committee. As part of their work, both committees are charged with assisting the MSBA become a more modern organization from not only a governance standpoint but also in terms of its role in the legal profession in Maryland.
WEB EXTRA
HEAR WHAT ED HAS TO SAY ABOUT COMMUNITY INVOLVEMENT We spoke with MSBA Past President Ed Gilliss to learn more about how his firm is connected to their community. VISIT MSBA.ORG/EGILLIS
Photo courtesy of Beverly Funkhouser Photography
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OUTSIDE OF HIS WORK with the MSBA, Mr. Gilliss is a Partner at Towson-based Royston, Mueller,
McLean & Reid, LLP. His practice areas capitalize on his various professional experiences, civic participation, and firsthand knowledge of Baltimore County government. Civil litigation, including real estate development, title insurance, zoning and liquor licensing issues, as well as general representation of restaurants and other corporate entities, are a major part of his broad practice. Recently, we had the opportunity to conduct a virtual interview with Mr. Gilliss to learn more about his practice, his time as President of the MSBA, as well as a few other fun facts.
How has being involved in the MSBA helped your legal career? I gain much benefit from being active in my profession. I am a better lawyer and counselor for my clients because of my work with the MSBA. My years on the Budget and Finance Committee and on the Judicial Appointments Committee provided great background for serving as MSBA President. The MSBA affords the opportunity to meet and share
"I am a better lawyer and counselor for my clients because of my work with the MSBA." professional and personal time with others in the practice from across our great State. Time invested with others who share a common vision about the positive role lawyers play in our society is important.
What advice do you have for other MSBA members who might be interested in leadership positions within the organization? All lawyers should feel welcome to join in at any level of participation. Only good things will follow.
What's an interesting fact about you that no one would guess? I grew up in Baltimore City and graduated from Northern High School. I was a Good Humor ice cream man!
What's a cause or charity that you are passionate about? I have been fortunate to serve in many capacities, including Board Chair, of University of Maryland St. Joseph Medical Center. It is such an important part of our community and region.
What's your favorite restaurant? We enjoy CafĂŠ Troia and the Towson Tavern.
What memories do you have from your time as President? Describe a major issue that you tackled during your presidential year. In truth, I recall only good things from my term in office. The MSBA can do much good as a voluntary association and as the voice of the Maryland lawyer. Two issues that were prevalent during my term were bolstering continuing legal education (MICPEL) and ensuring an independent judiciary (Separation of Powers). What better missions are there than keeping lawyers well-trained and keeping the Courts independent.
MICPEL closed its doors in 2010, and was reborn as the MSBA Learning & Publications Department. For the first time since Learning became part of the MSBA's core business, CLE is now available as part of your membership dues through the end of 2020. CHECK OUT OUR BLOG FOR MORE DETAILS AT MSBA.ORG/BIG-NEWS MARYLAND BAR JOURNAL | ISSUE 2 2020
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| CAREER TRANSITIONS
Debora Fajer-Smith ATTORNEY AND OF COUNSEL TO JOSEPH GREENWALD AND LAAKE, PA CHAIR OF THE WORKERS' COMPENSATION AND INSURANCE GROUP
PILOTING
A SUCCESSFUL LEGAL CAREER Debora Fajer-Smith is an attorney in Prince George’s County, Maryland. She is Of Counsel to Joseph Greenwald and Laake, PA where she serves as Chair of the Workers' Compensation and Insurance Group. Ms. Fajer-Smith concentrates her practice on Personal Injury Civil Litigation and Worker’s Compensation. We sat down with Ms. Fajer-Smith to learn a little more about her and her legal career.
What do you love about your current role? I am enjoying being part of a big entity for the past 10 years and working files with colleagues. This firm consists of the cream of the crop trial lawyers and has been in Maryland for decades. I am truly humbled to be their partner. I see my career post law school divided in three different stages. The first three years, I was an associate where I had clerked in Prince George’s County Maryland, with Horowitz and Foran PA. The next 21 years, I managed a firm with associates based out of Bowie Maryland, named The Law Offices of Debora Fajer-Smith, L.L.C., and then the past 10 years, with our firm in Greenbelt Maryland.
What are some of the challenges you face in your current role? I have learned that there will always be challenges. One is with staffing and personnel. The key to retention is doing the best you can in the initial interview, keep great benefits, suggest opportunities such as continued education, but also instill a sense of pride and ownership with all members of your team. Remember that the practice of law is a high pressure one, and keeping a family atmosphere where folks know they are appreciated, makes a big difference.
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"Remember that the practice of law is a high pressure one, and keeping a family atmosphere where folks know they are appreciated,
makes a big difference."
Photo courtesy of Beverly Funkhouser Photography
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What is your fondest memory of your legal career so far? Not sure that I can assign favorite status to just one, since there have been many high moments in a career spanning 35 years, however I will never forget being assigned a case against Club Med when I was an associate right out of law school. I spoke French and the senior partner had a deposition in Marseille he had to take and had a fear of flying. My good fortune to have my first trip to France for work, but then I funded my portion of the trip and spent a week in Paris before returning with a great deposition that helped settle the case.
What is the one piece of advice you would give someone in law school or considering a legal career? I would pass along the advice given to me: you cannot be over prepared. However, I have mentored young lawyers throughout my career, both in my office and with programs such as the one Judge Battaglia started for young lawyers. I tell them to listen very intently to the client and
DID YOU KNOW?
Ms. Fajer-Smith’s legal career was chronicled as part of the American Bar Association’s book The Road to Independence,
which “is a collection of 101 letters from women who have taken the courageous and difficult step of creating a law firm of their own, either as a solo or with others. Focusing on the experiences, challenges, and opportunities of women-owned law firms, these women, in their personal voices, reiterate key themes: of becoming businesswomen; of choosing a practice area true to their passion and the high character they bring to the bar; of controlling not only their days but their destinies; of ambition in action.” The book is available at MSBA.ORG/ABA-INDEPENDENCE
"I would pass along the advice given to me: you cannot be over prepared." in court. Otherwise, you will miss what the client is really looking to achieve, or in court, you may be continuing to argue a point that your Judge already granted or opposing counsel already conceded. I also try to impart that besides being ethical, be civil and considerate.
What are some of the ways you give back to the legal profession? I have been involved with MSBA my entire career in different capacities as well as what was formerly MICPEL. Currently I have been asked to do my third editorial edition of the Maryland Automobile Handbook for lawyers, and I sit on the MSBA Judicial Nominating Committee. Serving the Bar, I sit on the Senate House Oversight Committee for Worker’s Compensation Benefits in the Maryland Legislature.
What do you do to unwind or de-stress? I have religiously attended a pilates studio for sessions with equipment and personal trainers for 30 years. Pilates is a brilliant way of strengthening not only your core, but cardio at the same time. It definitely relaxes me and makes me a bit taller the next day! I also love swimming in the ocean when possible. I never get enough of spending time with my sons! They make me happy just being together.
What’s an interesting fact about you that no one would guess? I am a private pilot. Well, my close friends know that when they all started playing golf on Wednesday afternoons, I took up flying single prop engine airplanes and eventually owned two PIPER airplanes.
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CAREER HIGHLIGHTS
| WHAT I'VE LEARNED
Brian DeLeonardo STATE’S ATTORNEY FOR CARROLL COUNTY
IMPLEMENTING
POSITIVE CHANGE
Photo courtesy of Beverly Funkhouser Photography
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BRIAN DELEONARDO IS THE State's Attorney for Carroll County, currently serving the second term in this elected position. In
addition to his role as State’s Attorney, Mr. DeLeonardo also holds many leadership positions in state and local organizations, including President of the Maryland State’s Attorneys' Association, Chair of the Governor’s Council on Gangs and Violent Criminal Networks, and Chair of the State Prosecutor Selection & Disabilities Commission. He is also a Board Member of the Maryland State Commission on Criminal Sentencing Policy. We sat down with Mr. DeLeonardo to learn a little more about him and his legal career.
What do you love about your role as State’s Attorney? I love that I have the ability to help implement positive changes in the community through law enforcement efforts as well as prevention initiatives. I also enjoy the ability to work with so many partners and colleagues statewide to address major issues impacting all of our communities from crime to drug overdoses. One aspect I particularly enjoy is that no day is the same. One day I may be addressing personnel issues or budgetary items, the next day I am in Annapolis testifying on important public safety legislation, and the following day I am presenting at a school program in our middle schools.
to educate and bring awareness to this issue through our yearly drug overdose vigil that provides an opportunity for people to have their loved ones remembered. While there has certainly been a decrease in the number of those that have lost their lives to drug addiction, there is still much work to be done and I will continue to expand education and prevention efforts as a result.
What is the best piece of advice you have received from someone in the legal profession? The best advice I received is to always strive to be the most knowledgeable about the case you are trying than absolutely anyone in the courtroom. The best trial lawyers not only know all of their best facts and legal arguments, but also know every fact and argument that will be used against their position before it happens.
"Always strive to be the most knowledgeable about the case you are trying than absolutely anyone in the courtroom." Tell us a little about your biggest project related to your professional career right now. The current biggest project is the design and building of a new State’s Attorney’s Office. For several decades the office has been located within the Circuit Court for Carroll County, but the growth of our office and the court has created a demand for a stand-alone State’s Attorney’s Office. This project has been my passion since first elected in 2014, and with full funding finally in place we have been working with a design team with the hopes of breaking ground later this year. This is very important because this building must be built to not only satisfy our current needs in providing service to the community, but also be designed in a way such that the office will be able to effectively carry out its work for many decades in the future.
What are your goals for yourself in your role as State’s Attorney? One of my overriding goals since being elected was to work to reduce the tragic loss of life from drug overdoses, and I continue with that mission. This not only includes law enforcement initiatives that my office has implemented, but we have taken great strides to provide treatment to those addicted through cooperative efforts with other local providers. I continue to seek 76
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I always pass that same advice on to younger lawyers - there is simply no substitute for preparation.
What is your fondest memory of your legal career so far? My fondest memory was having the chance to argue successfully twice before the Court of Appeals, both as a private criminal defense attorney and as the elected State’s Attorney. Having the ability to discuss the nuance of precedent and have your position tested before some of the brightest legal minds was an opportunity that I will always relish.
What is something about you that we can’t find on your resume? I like shooting pool, and over the years have competed in competitive leagues.
What’s an interesting fact about you that no one would guess? I was the first male in my extended family to graduate from high school, and the first person to graduate from college. I was very fortunate to have such a supportive family to help me get as far as law school as that was uncharted territory in my family when I was growing up.
HOME OF THE LEGAL PROFESSION IN MARYLAND
MSBA.ORG
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CAREER HIGHLIGHTS
| OFF THE BEATEN PATH
Dina Billian
DEPUTY DIRECTOR OF CAREER DEVELOPMENT, UNIVERSITY OF MARYLAND FRANCIS KING CAREY SCHOOL OF LAW
HELPING TO MOLD
THE NEXT GENERATION OF LAWYERS
Photo courtesy of Beverly Funkhouser Photography
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Dina Billian is the Deputy Director of Career Development at the University of Maryland Francis King Carey School of Law where she assists students with all aspects of career readiness, including one-on-one counseling, review of application materials, and interview preparation. Prior to her current position, Ms. Billian was the Director of Recruitment and Professional Development at Miles & Stockbridge, P.C. where she oversaw the recruitment of lawyers, law students, and paralegals.
How do you use your J.D. in your current position as Deputy Director of Career Development, a position that does not traditionally require a J.D.? My J.D. is critical in my position, as it shows the students that I have been through what they are going through, I understand, and I can assist. And it permits me to speak the language of the legal employers. With my Assistant Dean, I engage in employer outreach and seek out job leads for our students. I manage aspects of the school’s recruitment programs, which include on-campus and regional interview programs.
Other than assisting law students with their job search, how else do you prepare students to enter the legal profession? We are in the second year of a Career Launch Series at Maryland Carey Law. Four times per year, for an hour, we have a professional speak to our students in an intimate, seminar-type setting about a topic of interest. We have had speakers on the business of the practice of law, habits of mind and future-proofing, generational differences in the workplace, and thinking like an athlete when preparing for interviews. I love this series because it enables us 1) to be creative with programming, and 2) to engage alumni as speakers. We have had success with this program, and we look forward to continuing it year after year. This summer, we incorporated a three-part summer career launch series, again to help students fill in the gaps they may be missing through employment disruptions.
What are some challenges you face in counseling law students? I believe it is important to meet the students where they are. So, figuring out how to stay on top of trends – communication and technological – is a very important challenge. Also, I must balance DOING for the students with ADVISING the students how to accomplish something on their own.
COVID-19 has impacted the legal profession in many ways. How has the pandemic affected the way you approach your current role? I have approached my role during this time of COVID-19 by ensuring that I am as responsive and available as possible. Students are anxious. Motivation to seek employment is difficult when one is stressed about finances, family, health, etc. Empathy is more important than ever.
in interesting ways. When I had my solo practice after law school, I took advantage of the resources of the small firm section. When I worked as a legal recruiter, I would attend the Annual Meeting as a vendor (and I met my now husband at an annual meeting!). I was a member of the Young Lawyers Section, as well. Currently, the MSBA is a partner. It provides outstanding resources of which we encourage our students and alumni to take advantage, too numerous to mention, but I’ll try: membership for students in the MSBA permits students to interact with thought leaders; we have a partnership now with the MSBA wherein it provides free access to our students for CLE, which has been perfect during this time of COVID-19 when our students may have lost summer experiences, or have them diminished in some way. Plus, there are numerous networking opportunities and events I personally attend and encourage my students and alumni to do so, as well.
What is one piece of advice that you give your law students that you would like others who are considering a legal career to know? Take the long view. It could take years to get to your “perfect” position. But that’s okay. Take meaningful steps, such as CLE through bar associations, networking, blogging, etc., to develop skills that could lead to where you want to go.
"I have approached my role during this time of COVID-19 by ensuring that I am as responsive and available as possible... Empathy is more important than ever." What is something about you that we can’t find on your resume? I was a Certified Tourism Ambassador for Visit Baltimore in 2010 and 2011. I visited every tourist attraction in town and rated it for future guests to the city. I really learned a lot during this time about what makes Baltimore unique and wonderful.
How has the MSBA assisted you personally in your career? How has the MSBA assisted you in your current role? My MSBA involvement has evolved throughout my career
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FOR YOUR
practice
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FOR YOUR PRACTICE
| NUTS & BOLTS
Estate Planning for Maryland's New Elective Share Law in the Moderate Size Estate BY NAKIA GRAY, ESQ., AND SHAKISHA A. MORGAN, ESQ. In the 2019 regular session, the Maryland Legislature passed the Maryland Extended Real Estate Act House Bill 99. This Act aims to shield surviving spouses from disinheritance by allowing the elective share to come from the Decedent’s net estate, instead of that designated only under a Will. The new law goes into effect on October 1, 2020. What is the new law? To better understand the new elective share statute and how it differs from the old statute, we first need to define the two types of assets: probate and non-probate. Probate assets: These are the assets that are exclusively titled to a Decedent at the time of death, and distributed according to a Last Will and Testament or the laws of intestacy if the Decedent dies without a Will. Probate assets typically include bank accounts, real property, cars, or any asset in the decedent’s sole name, where there is no named beneficiary. Probate assets are distributed under the supervision of the Court. Non-probate assets: These assets are transferable by law, and therefore not
subject to probate. Non-probate assets typically include life insurance proceeds, retirement assets, jointly-titled real property, payable on death bank accounts, and irrevocable or revocable trusts. The Current Law Under the current statute, the spousal elective share only applies to probate assets. The statute allows a surviving spouse to elect against the provisions of a Will and get a share of the Decedent’s estate equal to onethird of the estate if there are surviving issues (children, great-grandchildren, grandchildren, etc.), and one-half of the estate if there are no living descendants. Roots of elective share statute: Historically, the elective share statute has its origins in dower and courtesy rights. The
surviving spouse’s right to inherit was designed to ensure that the person was taken care of for the balance of their lifetime. These old, universal law rights were ended by the Henderson Commission of 1969 and replaced by the current elective share statute. The reality of the current statute: Literally, the current statute does not protect surviving spouses from disinheritance. The statute only applies to inherited ownership through probate, so spouses can easily transfer ownership to a revocable trust or use other non-probate configurations that allow their estate to avoid probate altogether. The New Law The new elective share statute will apply to both probate and non-probate assets, creating the “Augmented Estate.” The “Estate Subject to Election” is calculated under §3-404 of the Estates and Trusts Article of the Annotated Code of Maryland. From the augmented estate, the surviving spouse may elect to get, outright, either one-third if the Decedent leaves issue or one-half if there are no living descendants.
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What’s included in the “Augmented Estate?”: The “Augmented Estate” includes: • The Decedent’s probate estate; • The Decedent’s revocable trusts; • Property in which the Decedent held a “Qualifying Power of Disposition”; • The Decedent’s “Qualifying Joint Interests”; and • “Qualifying Lifetime Transfers” made by the Decedent. How does this new law change the practice? • We may need to add elective share waivers to estate plan packages for married couples. • We will need to add include non-probate assets on our planning worksheets. • We should consider creating conflict waivers when representing both spouses. • We need to educate our clients about the
impact of jointly held accounts (e.g. Son is listed as a joint bank account owner with his Mother). • We need to be sure that we understand the impact of making the election when advising a surviving spouse to ensure that making the election yields more than what the spouse would be entitled to without the election. • Recognize that this new law is the perfect time to implement a new marketing campaign in October: "The law has changed, this is a great time for us to review your plan." The importance for us as practitioners is to understand how this law will impact our clients, so we can continue to provide the highest quality service. NAKIA GRAY, ESQ. owns and operates an online law firm, Gray Legal, P.C. - a modern and innovative law firm uniquely designed for digital
entrepreneurship. Gray Legal serves the legal needs of its clients by providing business, intellectual property, and legacy planning counsel to help them protect their brands and build a lasting legacy. Nakia is admitted to practice law before the courts of Maryland and the District of Columbia and is an active member of many local bar associations where she has held several leadership positions, including serving as Section Chair for the Entertainment & Sports Law Section of the MSBA and the Section Counsel of the Estates & Trust Section. SHAKISHA A. MORGAN, ESQ. (shakisha@ thegriffinfirm-pllc.com) is the Maryland Practice Lead for The Griffin Firm, PLLC – a company committed to creating equity and opportunities for individuals, companies, and communities through business planning, estate planning, and probate administration (www.yourestateplan�ningattorney.com). She is a Jamaican descend�ant, and proud graduate of Prince George’s County Public Schools, Stanford University, and Georgetown Law. Shakisha has spoken nationally on issues related to estate planning and serves on the Diversity and Inclusion Committee of MSBA’s Estate & Trust Law Section.
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 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
a real “get it done” attitude.
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MEMBER FOCUS
| MEMBER SPOTLIGHT
HELPING FAMILIES & THE PROFESSION MICAH G. SNITZER Associate, Pasternak & Fidis, P.C. Micah G. Snitzer is an Associate at Pasternak & Fidis, P.C. where he practices Estate Planning & Administration. He advises clients in the preparation of wills, trusts, powers of attorney, and advance health care directives, as well as premarital and postmarital agreements. He is also the current Chair of the MSBA’s Estate and Trust Study Group.
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Why did you enter the legal profession and what made you choose your practice area?
What do you like most about working at Pasternak & Fidis, P.C.?
I became a lawyer to help people through complex situations. My admiration for attorneys grew from a young age as I watched my mother’s attorneys help her navigate some very complex issues with a family business. Then in college, I learned how my grandfather’s estate planning attorneys helped create a trust that paid for part of my college education. The more I learned from my mother on how much she appreciated the legal help that she and my grandfather received, the more I wanted to become an attorney to help families.
I really appreciate that the partners at Pasternak & Fidis have created a uniquely collaborative and nurturing environment where everyone truly buys into a team approach, my opinions are valued and even sought out, I have received amazing mentorship from all of the partners, and I am able to pay that forward by mentoring the younger associates and paralegals.
What is one the most rewarding parts of being an attorney?
“
My most positive memory in my professional career was the first time a client thanked me for helping her through the
The more I learned from my mother on how much she appreciated the legal help that she and my grandfather received, the more I wanted to become an attorney to help families. administration of her husband’s estate. She told me that, in addition to being a great attorney, I was also a wonderful therapist because I helped her through the difficult time after her husband’s death. It was so fulfilling to know that I could help a family on so many different levels and that I would have a chance to be the kind of attorney I admired as a child.
How are you involved with the MSBA? I am the Chair of the MSBA’s Estate and Trust Study Group. My goal is to elevate, modernize, and expand access to the Study Group. I want attorneys, no matter where they are located, to feel like they have an opportunity to learn from experts. In addition to scheduling an entire lineup of well-regarded experts for the 2019-2020 season, for the first time we established online registration for presentations, offered the ability to watch recorded presentations, and live streamed our kickoff presentation. We continue to look for additional ways to minimize the financial and geographical hurdles that prevent attorneys from listening to or participating in the presentations hosted by the Study Group.
Besides being an attorney, how else are you involved in the community? I am very active with the local Jewish community. I am the co-chair of the Network’s Roundtable for the Jewish Federation of Greater Washington.
What do you do to unwind or de-stress from work? BBQing. I have an offset barrel smoker that I love to use to smoke delicious treats for my family and friends. I find the process to be very meditative. BBQing is a nice contrast from my job where I am always monitoring my time. With BBQ, you have to be patient and let the fire do its magic.
What’s an interesting fact about you that we can’t find on your resume? Actor Jeff Goldblum named his band, The Mildred Snitzer Orchestra, after my great grandma, Mildred Snitzer.
WEB EXTRA
Beginning in April, as a result of the COVID-19 pandemic, the Estate and Trust Study Group live streamed the remaining Study Group calendar via YouTube. Those sessions are available via the MSBA youtube channel at MSBA.ORG/ET-STUDY-GROUP-VIDEO
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FOR YOUR PRACTICE
| TECH DEVELOPMENTS
Law Firm Automation Reducing Human Error and Increasing Efficiency
BY ERIC S. STEINER, ESQ.
UNTIL RECENTLY, law firm automation was only available to
firms with dedicated teams of software developers who would write custom software to accomplish specific automation tasks. New advances in automation technology, widespread availability of highspeed internet and the proliferation of cloud-based solutions for law firms are now making automation possible for any law firm to implement with a few clicks and without the expense of a software engineer. What is Cloud-Based Software? To understand how automation can be utilized by any law firm, it is first necessary to have a basic understanding of what it means for software to be cloud-based. Prior to widespread broadband internet such as Verizon FIOS1 or Comcast High-Speed Internet,2 software needed by law firms such as Microsoft Office 3653 and law firm practice management software would be installed locally on one or several computers at each law firm’s physical location, or on a local server physically located at the firm. Broadband internet shattered this model because with its advent, software could be hosted online by the developer, and be accessed quickly by millions of users with high-speed internet. This change led to the development of cloud-based practice management 1
https://www.verizon.com/home/fios/
https://business.comcast.com/
2
https://www.office.com/
3
https://www.clio.com/
4
https://www.mycase.com/
5
6 7
https://www.cosmolex.com/
https://zapier.com/
8
https://www.google.com/gmail/
9
https://www.google.com/ https://www.google.com/docs/about/
10 11
https://www.google.com/sheets/about/ https://zapier.com/apps
12
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software specifically geared towards law firms, such as Clio Manage and Grow,4 MyCase,5 and CosmoLex.6 How Automation Relates to Cloud-Based Software Clio Manage and Clio Grow are two examples of cloud-based practice management software. One of the most important features for law firm automation, which is built into Clio Manage, is integration with other cloud-based software via a connector called Zapier.7 Think of Zapier as a translator between various cloud-based software: Zapier allows different cloud-based software to talk to each other and communicate “Triggers,” “Actions,” and “Searches” through “Zaps.” Gmail,8 which is the email platform developed by Google,9 and the rest of Google’s cloud-based systems such as Google Docs10 and Google Sheets,11 also integrate with Zapier, as well as Microsoft Office 365. A full list of integrations can be found on Zapier’s website.12
The combination of cloud-based practice management software and other cloud-based services allows a law firm to create automations that both reduce human error and increase efficiency by automating routine tasks and freeing up time for both attorneys and staff.
How Automation Can Reduce Human Error and Increase Efficiency The combination of cloud-based practice management software and other cloud-based services allows a law firm to create automations that both reduce human error and increase efficiency by automating routine tasks and freeing up time for both attorneys and staff. Automating Client Intake If a law firm wishes to reduce no-shows for new client consultations and increase efficiency follow up to clients after a consultation, it can utilize a series of automations to accomplish these tasks. A consultation can be scheduled using cloud-based Calendly,13 which can be set up to automatically sync with Google Calendar and Zoom14 if the firm is conducting video consultations. The firm can customize the details of the new client consultation, including the content, method and frequency of reminders that the client receives prior to the consultation. Clio Grow can be used to document any notes regarding the consultation, and the firm can set up workflows to automatically send a series of follow-up emails after the consultation. If the client decides to proceed with the firm, the firm can quickly prepare a retainer agreement or engagement letter in Clio Grow that can be emailed to the client for signature, and once received, the matter can be exported to Clio Manage in a few clicks.
ically be assigned to various attorneys and staff, and then be linked to a specific matter. A firm can create a Zap so that when a new Matter is created, a task list is automatically created and linked to the Matter, and the attorneys and staff will automatically receive their various assignments for that Matter. Without these automations, the firm’s staff would have to manually perform each of these actions, increasing the risk that the new client will confuse the date, time and location of the consultation and/or the risk that the welcome email will omit key information or documents. Additionally, the firm would have to devote time to each of these tasks, which decreases firm efficiency. Overall, if utilized correctly, cloud-based practice management software and other cloud-based software solutions can significantly increase law firm efficiency and reduce human error through automation, allowing attorneys and staff to focus on helping their clients, instead of devoting time to routine, time-consuming tasks. ERIC S. STEINER is the managing member of Steiner Law Group, LLC in Baltimore, and primarily practices in the areas of commercial and consumer bankruptcy and commercial litigation. He is a council member of the MSBA’s Consumer Bankruptcy Section, a trustee of the Baltimore Bar Foundation and the Treasurer of the LGBTQ Bar Association of Maryland.
Triggers When a New Matter Is Opened One of Zapier’s Clio triggers15 is “New Matter,” which means that the creation of a new Clio matter starts a trigger which can direct another cloud-based software to take a particular action. A law firm can set up automation so that upon the creation of a new Clio Matter, the client automatically receives a welcome email template already drafted by the firm for that specific kind of matter. Taking this a step further, Zapier can filter16 specific kinds of matters to only send automatic emails for those kinds of matters, which prevents incorrect emails from being sent to the wrong clients. Clio Manage also allows a law firm to set up Task Lists17, which are to do items that can be set up to automat13
https://calendly.com/
https://zoom.us/
14
https://zapier.com/apps/clio/integrations
15
https://zapier.com/apps/filter
16 17
https://support.clio.com/hc/en-us/articles/203220850-Task-Lists-Creating-and-Managing-Templates
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FOR YOUR PRACTICE
| LAW OFFICE MANAGEMENT
Deepfakes and the Courtroom BY WILLIAM SASSE, LAW STUDENT AND MSBA SUMMER LAW CLERK
THE ABILITY TO MANIPULATE or alter photos and videos has been possible for decades; however the ever increas-
ing prevalence of more advanced and easy to use software has made it possible for the average person to persuasively modify photographs and videos. These ‘deepfakes’ could test the faith society has in a court's ability to achieve justice and seek the truth. This test will require all attorneys to be more vigilant when a video or photograph is entered into evidence and to address any concerns with opposing counsel in a dignified manner. What is a deepfake? Deepfakes are synthetic media that alter a person’s image, speech or actions.1 Deepfakes come in many different forms; for an example of what a deepfake may look like, please see the video created by Jordan Peele and BuzzFeed entitled “You Won’t Believe What Obama Says In This Video!”.2 This is a professionally edited deepfake and demonstrates how truly believable they can be. It also demonstrates their potential for confusion and for the ability to potentially enter false evidence. With the increasing ability of machine learning and artificial intelligence to generate or manipulate media, it is now possible for amateurs to create video or audio that could fool a judge or jury.3 A simple Google search yields thousands of videos on how to make a deepfake and the software that is available for anyone to use. Some of these programs create videos that are easily spotted as fake, while other programs create deepfakes that are much harder to identify as false.4 These programs rely on videos and pictures to create fake material. With the ever increasing presence of Facebook, Instagram, Twitter and other social media platforms, along with the vast increase in video conferencing since the start of the COVID pandemic, there is now an immense amount of exposure of an individual's face from which these videos or images could be created. How will this affect the courtroom? In court, there are two situations when an attorney or judge should be mindful of deepfakes: 1. When a deepfake video is being used against a party, and 2. When a party claims that a legitimate video is a deepfake.5 An attorney must know how to evaluate the evidence to ensure it is authentic and how to defend against the suggestion or claim that evidence is a deepfake. In either situation, there could be a miscarriage of justice if attorneys and the courts are not wary and careful of the potential problems posed by deepfakes.6 When a video is being authenticated, a court relies 1
heavily upon a witness’s testimony and the media itself to determine if it is genuine. When a document, picture or video has clearly been edited, a judge may quickly exclude it; howev-
An attorney must know how to evaluate the evidence to ensure it is authentic and how to defend against the suggestion or claim that evidence is a deepfake. er, when a good deepfake is presented in court, it may not be immediately identified as fake. If the authenticity of a video or photograph is questioned or there is an accusation of the evidence being a deepfake, there may be a delay to verify the authenticity of the video. This may have an influence on the jury if they choose to remain skeptical of the video's authenticity even after a video has been verified. Already some defendants accused of possessing child pornography are claiming the videos in question are deepfakes.7 If a picture is worth a thousand words, then a video is worth a million. When a video is shown in court, a judge or a jury will often weigh this evidence more heavily than others; they believe what their eyes and ears are conveying to them. If the video is a deepfake and allowed as evidence, the jury may render an unjust verdict. What can we do? The classic solution to the problems deepfakes pose is to have the video authenticated by a specialist. Unfortunately, this will inevitably lead to the increase of litigation costs and an increase in litigation length while the videos are being authenticated. There is an ever-changing battle between software that creates deepfakes and software that identifies or prevents a deepfake
https://en.wikipedia.org/wiki/Deepfake
https://www.youtube.com/watch?v=cQ54GDm1eL0
2
Matt Reynolds, Courts and lawyers struggle with growing prevalence of deepfakes, A.B.A. Journal (June 9, 2020) https://www.abajournal.com/web/article/courts-and-lawyers-strug� gle-with-growing-prevalence-of-deepfakes
3
Id.
4
Matt Reynolds, Courts and lawyers struggle with growing prevalence of deepfakes, A.B.A. Journal (June 9, 2020)
5
Matt Reynolds, Courts and lawyers struggle with growing prevalence of deepfakes, A.B.A. Journal (June 9, 2020)
6 7
Kaveh Waddell, The deepfake threat to evidence, Axios (October 12, 2019) https://www.axios.com/deepfakes-evidence-law-f36e6538-f075-496d-bb56-64fcc29f21ef.html
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from being made.8 Watermarking is used to prevent a video from being altered as a preventative measure, while digital forensic experts analyze content for discrepancies after the fact.9 The average attorney does not have the skills to adequately analyze a video or photograph to determine if it is a deepfake; however, there are still things that attorneys and judges can do to identify potential deepfakes. First and foremost, ensure that you have a good reputation in the legal community. If you have verified the authenticity of the video and know it to be the real deal, then having an honest and reputable character in your field will ensure other attorneys trust your findings. They will not, necessarily, need to waste their time or client’s money with authenticating the evidence again. Many attorneys may still wish to verify the findings but by ensuring you have a trustworthy reputation, you could save others from additional work. When you first watch a video, keep an eye out for obvious flaws; things such as hair out of place, distorted pixels, or eye movements that are off.10 If there is a claim or even a suspicion that a video is a deepfake then lawyers must be ready to act. Attorneys should be vigilant of where a video or photograph is coming from; they should always ask probing questions when a client or opposing counsel presents them with a photograph or video. If you suspect your client is trying to offer false evidence, ask them where they got it from, how did they acquire it, or why they did not bring this forward sooner. If their answers suggest that it may be a sham, address your concerns with them directly or quickly investigate the answers to the questions. If you suspect an opposing counsel's evidence may be a deepfake, you can take your concerns directly to them or you may address them with the judge presiding over the case and the opposing attorney. Hopefully, a dignified resolution can be reached about the authenticity of the evidence.
HOW TO APPROACH A DEEPFAKE:
1.
Understand what a deepfake is and carefully evaluate videos offered as evidence.
2. Look for signs of manipulation such as: a. Individual hairs or flyaways out of place b. Eye movements that are off c. Facial profiles that are odd or skewed d. Pixels or items out of place (best done on a large screen)
3. Address your concerns with opposing counsel or your client.
If these processes have been exhausted, then an attorney should consider hiring a private investigator to look into the origins of the video or a digital forensic expert to analyze the evidence for inconsistencies.11 In a time where there is ever increasing cynicism in our country, attorneys and judges must work together to rebuild trust in the justice system. Everyday, we must continue to zealously advocate for clients in court and address all concerns that are brought forward with professional discourse. Deepfakes are not currently a serious threat to the legal community but with the continual improvement to deepfake software, there may come a day when they threaten the legitimacy of our justice system. When that day arrives, attorneys and judges must be ready to address the issues deepfakes bring and work to maintain the faith that so many still hold in our courts.
4. Bring your concerns to the attention of the Judge presiding on the case.
5. Have investigators look into the media and who produced it.
6. Lastly,
if necessary, hire a specialist to analyze the photographs or videos to understand whether they are deepfakes.
Henry Ajder ET AL., The State of Deepfakes: Landscape, Threats, and Impact (2019) Matt Reynolds, Courts and lawyers struggle with growing prevalence of deepfakes, A.B.A. Journal (June 9, 2020) 10 Natasha Stokes, How to Spot a Deepfake Video, Techlicious (October 21, 2019) https://www. techlicious.com/tip/how-to-spot-a-deepfake-video/ 11 Matt Reynolds, Courts and lawyers struggle with growing prevalence of deepfakes, A.B.A. Journal (June 9, 2020) 8
9
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MEMBER FOCUS
| MEMBER SPOTLIGHT
FROM PROSECUTOR TO P R I VAT E P R AC T I C E
TO PARTNER
TARA BARNES TAYLOR Partner, Rollins, Smalkin, Richards & Mackie Tara Barnes Taylor is a partner at Rollins, Smalkin, Richards & Mackie where she primarily practices insurance defense. A civil litigator, Ms. Taylor’s practice includes insurance defense, personal injury, contractual disputes, insurance subrogation, and professional negligence. Before turning to private practice, Ms. Taylor served as an Assistant State's Attorney in Baltimore City for seven years, where she investigated and vigorously prosecuted felony offenses in Baltimore City.
Photo courtesy of Beverly Funkhouser Photography
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WE CONNECTED WITH Ms. Taylor to learn a little more about her career and about how the COVID-19 pandemic has affected her practice.
What motivated you to become an attorney? Growing up in New York City, I was keenly aware of injustices and necessary changes in the criminal justice system. I realized early on that the most effective way to institute change was from within. I was taught that complaints are not enough, if I want a change, I must work for it. I am proud of my services as a Prosecutor and now as a civil defense attorney. It is my goal to continue working toward the same goals I set as a child.
What do you enjoy about working in private practice and at Rollins, Smalkin, Richards & Mackie? I am immensely proud of my firm and its rich history. We celebrated our centennial anniversary in 2019, which is a significant accomplishment and further demonstrates the legacy, reputation and strength of the firm. I plan to continue and assist in our growth and development.
What has been a defining moment in your career? How has this moment affected you and your career? I am proud to become the first African American female partner at my firm. I recognize the importance of my position and the opportunity to support, encourage and advocate for diversity in the law.
Switching gears, how did your firm respond to the COVID-19 pandemic? The COVID-19 pandemic required a sudden and thoughtful approach to ensuring the protection and safety of our attorneys and staff, while maintaining our dedicated defense and advocacy of our clients. Like many law firms, we instituted a remote work policy allowing attorneys and support staff to work remotely on a rotating basis. We continued to monitor the transition to allow for necessary changes and improvements.
Please describe any challenges you encountered transitioning to a mostly remote environment. Fortunately, in maintaining active communication with attorneys, staff and clients we were able to minimize challenges. This involved weekly attorney zoom meetings and regular email and telephone contact with clients. We worked closely with our IT department to ensure our remote system was able to handle the rapidly changing work environment. In doing so, we have been able to effectively adjust to this national pandemic.
What was the feedback from your clients on the switch to working remotely? Our clients have mostly also transitioned to a remote work structure. The overall feedback has been positive. Our attorneys have done a great job keeping clients informed and updated on every aspect of their case and the Courts.
What are the biggest factors in transitioning a remote office for the future (Post-COVID world)? COVID-19 has taught us that alternate options are available for the effective practice of law. In adjusting to remote work offices and court proceedings, it is imperative that client impact, technological related factors are considered. We must take an active role in maintaining regular contact with colleagues by way of virtual meetings and checkins. Everyone may not handle a remote work environment as
“
I am proud to become the first African American female partner at my firm. I recognize the importance of my position and the opportunity to support, encourage and advocate for diversity in the law. well as others. We must remain cognizant of the difficulties involved in the transition, so necessary adjustments may be considered and implemented.
How do you see your firm and others in your practice area adjusting post-COVID? What are your predictions for the future of the practice area? I predict the future practice of law will involve a significant increase of virtual case management and less in person contact.
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FOR YOUR PRACTICE
| LAW OFFICE MANAGEMENT
Crisis Communication: 5 Steps for Damage Control BY THOM FLADUNG, MANAGING PARTNER, HENNES COMMUNICATIONS
ATTORNEY ANDY PHILLIPS, like
many folks, looks back a bit wistfully at the “good old days.” “I wish it was back in the day where I could go home at 6 o’clock and sit down with the paper for a half hour,” says Phillips, whose practice at von Briesen & Roper, Milwaukee, includes government and school clients – people often in the public spotlight. “But that’s just not the way society works anymore. I wish I could go home at 6 o’clock and not have my phone ring all through the night or get emails through the night. It doesn’t work that way either.” How journalism and communications work today has undergone dramatic change in the past decade or so, with profound implications for anyone caught up in a news story, especially lawyers and their clients. The rise of iterative journalism, the dominance of social media, and the sheer speed 92
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of modern communications have placed an even greater premium on understanding and practicing the fundamentals of effective crisis communications. “It used to be you could control the story for a day and really form a message before it got out there,” Phillips says. “But now everything is so instantaneous and oftentimes you’re reacting. It’s difficult to be thoughtfully proactive.” 5 Rules for Damage Control How can a person plan to be thoughtfully proactive? At Hennes Communications, we tell every client about what we call the “damage control playbook” and its five simple rules: 1. Tell the truth. Even if you don’t believe doing so is the morally correct approach, it’s the pragmatically correct approach. If you don’t tell the truth, you’ll lose credibility, making all communications that
follow suspect. And the truth will come out. If you haven’t told the truth, you’ll now be accused of a cover-up. Remember, often damage from the cover-up exceeds the damage from the actual misstep. 2. Tell it first. If you don’t, someone else will – and then you’ll have lost control of your message. We frequently advise clients who know bad news is going to break to break the news themselves. Then, the story won’t be an “exclusive” broken by a reporter or revealed by a whistleblower or posted by a Facebook user. It’s your story. Tell it yourself. 3. Tell it all – or tell as much of it as you can. There are legal and legitimate reasons for withholding some detail. Privacy issues must be considered. The Health Insurance Portability and Accountability Act (HIPAA) and the Family Educational Rights and Privacy Act (FERPA) may come into play. You might not know many
of the details at the outset of a crisis. But you can count on the fact that details inevitably emerge. You know the context, history, and background behind your crisis. The more you can tell of your story, the more you’ll control it. 4. Tell it fast. The world moves at the speed of Twitter. To effectively practice crisis communications and protect your reputation, you must move with it. 5. Tell it to the people who matter most. A person or organization caught up in a reputation-threatening crisis should care most about the people who really care – employees, customers, business partners, board members, donors. They’re watching, wondering what’s going on – and waiting to hear from you. Writing for Right Now The evolution and widespread adoption of a practice called iterative journalism has been a game-changer – for the journalists who practice it and the people subject to it. Understanding iterative journalism is basic modern media literacy, and understanding what it means in a crisis communications situation is vital. Put most simply, iterative journalism means this: Stories are published online as they’re reported, in pieces, or iterations. Once basic facts are known, the story goes online. Calls are still made to key sources. But if you don’t take that call or return it fast, the story is going to be posted online without you. In its highest, best use, iterative journalism is dynamic, tailored to the immediacy and interactivity of the web. Readers’ questions and suggestions shape developing stories. Sources who in a previous age might have taken days or weeks to respond are flushed out. The very process of journalism is opened to everyone. Big, breaking stories can be reported in real time as important facts become known – perfect for the modern reader on a smartphone. A story published iteratively by one publication can be picked up on by others, which then do additional reporting and explore new angles, building toward a better
If you’re not in the first story, ask for a new story, with a new headline, with your point of view reflected. end for readers.1 A skilled iterative journalist can construct an investigative package, piece by piece, over days or weeks, right before the readers’ eyes. The process can yield great journalism. And for news outlets, speed is paramount: Being first with the breaking news means being first (or close to it) on that Google search page. That can mean thousands more readers – and additional revenue to the news outlet. What Might It All Mean to You? Remember the damage control playbook. If you or your organization is thrust into the news, be prepared to quickly respond and get your side in that crucial first story, which sets the tone for each of the follow-up iterations. Media-savvy news subjects know how to respond in a crisis and how to talk to a reporter to buy time. We suggest to clients that, if their point of view is not in the original online story, they should resist having it added as an “update” to that story. Why? Many readers will never see the updated version. When was the last time you went back to check if a story was updated online – especially stories you’re reading on your smartphone? The more effective course: If you’re not in the first story, ask for a new story, with a new headline, with your point of view reflected.
“I’m trying to counsel my client to be mindful that there is a legal strategy in play here that we don’t want to jeopardize but at the same time the public has a thirst for information,” Phillips says. “The speed to the outward world is going to be very, very rapid. So, we want to control what information is going to be made public and make sure that [information] is not going to jeopardize our legal position.” THOM FLADUNG is managing partner of Hennes Communications in Cleveland, Ohio, one of the few firms in North America focused exclusively on crisis management & communications. From COVID-19, sexual misconduct and labor issues to social unrest and sensitive mergers and acquisitions, their entire practice is dedicated to working with C-level executives and their attorneys to prepare for, respond to and mitigate crisis situations quickly and effectively. They are staffed exclusively 24/7/365 by senior-level crisis consultants. Contact us at www.crisiscommunications.com or by calling 216-321-7774. Fladung worked for 33 years at newspapers, including stints as managing editor of the Detroit Free Press, The Plain Dealer in Cleveland, and the Akron Beacon Journal as well as editor of the St. Paul Pioneer Press in Minnesota. This article is reprinted with permission of the author and The State Bar of Wisconsin. This article originally appeared in the March 2020, Vol. 93, No. 03, edition of the Wisconsin Lawyer.
For lawyers and their clients, of course, the stakes include the looming legal matters.
WEB EXTRA
Read the full article for more crisis communication tips on the MSBA blog. VISIT MSBA.ORG/CRISISCOMM
1 Felix Salmon, “The Power of Iterative Journalism,” Colum. J. Rev. (Apr. 4, 2011).
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FOR YOUR PRACTICE
| CASE NOTES
Maryland High Court Recognizes an Independent Cause of Action for Breach of Fiduciary Duty The opening line of the opinion succinctly stated the question presented: “Does Maryland recognize an independent cause of action for breach of fiduciary duty?” Plank v. Cherneski (Misc. No. 3, Sept. Term 2019) (Md. July 14, 2020), Slip Op. at 1. That it might be difficult to answer the question was acknowledged in equally plain language: “[T]he muddled state of our jurisprudence has created inconsistent and irreconcilable conclusions by the Court of Special Appeals, federal courts, and state circuit courts.” Id. After wading through a score of state and federal opinions, the Court eventually answered the question in the affirmative, but hastened to add that “this does not mean that that every breach of fiduciary duty will sound in tort,” and the remedies available for such a breach “will depend on the specific law applicable to the specific fiduciary relationship at issue.” Id. at 2.
PLANK STARTED as a run-of-the-mill
shareholder derivative suit in which minority members of a limited liability company sued its president and CEO for breach of contract, breach of fiduciary duty, dissolution, and the appointment of a receiver. The trial court dismissed most counts at the end of the plaintiff’s case, but reserved on the breach of fiduciary duty claim, skeptical as to whether Maryland recognized such an action. Id. at 10. After the defense rested, the trial judge concluded that there was “insufficient evidence to show that there was a breach of fiduciary duty,” without squarely addressing the underlying legal question. Id. The Court of Special Appeals sought to tackle the issue head on, but after oral argument opted to certify the question to the Court of Appeals. The high court took the case to address, inter alia, whether minority members of an LLC may “bring a stand-alone cause of action for breach of fiduciary duty against the managing member of the LLC ….” Id. at 12. The court’s analysis of its prior cases revealed that it never expressly held that such cause of action did (or did not) exist in Maryland, but its opinions contained language that led oth94
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ers to conclude that it had. Its seminal case, Kann v. Kann, 344 Md. 689 (1977), concerned a dispute between a trust beneficiary and the trustee. The issue in Kann was whether the beneficiary could assert a common law claim for breach of fiduciary duty, with a right to trial by jury, and noneconomic and punitive damages. Slip Op. at 19-20. Finding that trust disputes are historically equitable in nature, the Kann court concluded that only equitable remedies were available to the beneficiary. It added that attorneys “do not have available for use in any and all cases a unisex action, triable to a jury” and that the court “would not ‘preside over the death of equity’ by adopting a universal tort for breach of fiduciary duty.” Slip Op. at 21 (citations omitted). Later opinions were similarly focused on remedies for breaches of specific fiduciary duties, rather than on the question of whether an independent cause of action existed. In one case, the court dropped a footnote to say that based on Kann, “Maryland does not recognize a separate tort action for breach of fiduciary duty.” Slip Op. at 25 (citations omitted). A footnote in another case said that the court assumed, without deciding, “that
After analyzing inconsistent results from other courts interpreting Kann and its progeny, the court turned to secondary sources.
breach of fiduciary duties is a cognizable tort in Maryland.” Id. at 29 (citations omitted). After analyzing inconsistent results from other courts interpreting Kann and its progeny, the court turned to secondary sources, including P. Sandler & J. Archibald, Pleading Causes of Action in Maryland (MSBA 6th Ed. 2018). There, the authors concluded that “Kann may be said to hold merely that not every claim for breach of fiduciary duty is a viable action at law for which a jury trial may be prayed.” Id. at 578. The court observed that “[i]n attempting to reconcile our jurisprudence, Sandler postulates that the footnotes in question may be dicta.” Slip Op. at 39. They were dicta, and the court expressly so stated in a section of the Plank opinion titled The Ripple Effect – How Two Small Footnotes Caused Big Confusion. Slip Op. at 41-42. The court found that its prior cases did, in fact, “demonstrate that we have recognized independent claims for breach of fiduciary duty in various contexts.” Id. at 30. Specifically, it had previously upheld fiduciary duty claims for damages against an insurance agent under agency principles, and against partners and corporate directors who breached other common law fiduciary duties. Kann, therefore, had been misinterpreted: “We hold that under Kann and our jurisprudence that followed, a breach of fiduciary duty may be actionable as an independent cause of action.” Slip Op. at 77-78.
tion, the count will be heard in equity. If the duty arises from contract, contract remedies will be available, and so on. How this will be applied to an independent tort for intentional interference with an inheritance or gift, recently recognized in Barclay v. Castruccio (No. 30, Sept.Term 2019)(June 30, 2020), remains to be seen. In Plank, the court agreed with intermediate appellate court precedent that “managing members of an LLC owe common law fiduciary duties to the LLC and other members based on principles of agency.” Id. at 17. Although the complaint properly alleged the existence of the fiduciary relationship, breach, and damage, the court affirmed the trial court’s conclusion that plaintiffs’ claim in this instance failed for lack of proof. Id. at 56. The court thus did not have to reach
the question of remedies, but otherwise did manage to “unmuddle” still turbid waters by expressly recognizing an independent cause of action for breach of fiduciary duty. Before filing such a claim, practitioners must still be guided by the court’s admonition in Kann: “Counsel are required to identify the particular fiduciary relationship involved, identify how it was breached, consider the remedies available, and select those remedies appropriate to the client’s problem. Whether the cause or causes of action selected carry the right to a jury trial will have to be determined by an historical analysis.” 344 Md. at 713.
The court said that “[t]o establish a breach of fiduciary duty, a plaintiff must demonstrate: (1) the existence of a fiduciary relationship; (2) breach of the duty owed by the fiduciary to the beneficiary; and (3) harm to the beneficiary.” Id. If those elements are properly pleaded, the breach of fiduciary duty claim may proceed, but “[t]he remedy for the breach is dependent upon the type of fiduciary relationship, and the historical remedies provided by law for the specific type of fiduciary relationship and specific breach in question, and may arise under a statute, common law, or contract.” Id. If the duty is one over which equity had jurisdicMARYLAND BAR JOURNAL | ISSUE 2 2020
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FOR YOUR PRACTICE
| NUTS & BOLTS
Safe Execution of Estate Planning Documents During COVID-19 Pandemic PREPARED BY SAGE C. HART, ESQ. & RICHARD LEE ADAMS, III, ESQ. OF O’BYRNE LAW, LLC
The ongoing Coronavirus (COVID-19) pandemic has brought estate planning to top of mind for many Maryland residents—and will continue to do so as we proceed through each phase of this pandemic. Clients are interested in creating Last Wills and Testaments, and other estate planning documents, such as Medical Advance Directives, out of concern that they may fall seriously ill with the virus.
EACH TYPE OF estate planning document—Last Will and Testa-
ment, Medical Advance Directive, Trust, and Financial Power of Attorney—has its own execution requirements under Maryland law. Prior to the COVID-19 pandemic, Maryland still required estate planning documents to be executed in-person, in the presence of a witness, and depending on the document, in the presence of a notary. Such in-person meetings conflict with social distancing guidelines during the pandemic and as a result, attorneys have made it a priority to determine how they can best assist their clients with executing estate planning documents, which are critical to have in place during this outbreak, while also protecting their client’s and staff’s safety. Attorneys in Maryland worked diligently to develop and advocate for Executive Orders permitting remote witnessing and notarizing of estate planning documents. On March 30, 2020, Governor Hogan signed Executive Order No. 20-03-30-04 (authorizing remote notarization in accordance with certain requirements) and on April 10, 2020, Governor Hogan signed Executive Order No. 20-04-10-01 (authorizing remote witnessing in accordance with certain requirements).
WEB EXTRA
LEARN MORE ABOUT REMOTE NOTARIZATION The Maryland State Bar Association produced valuable information and hosted a webinar detailing the requirements to properly notarize and witness documents remotely in accordance with these Executive Orders. VISIT MSBA.ORG/REMOTE-NOTARIZATION
To summarize, these Executive Orders require attorneys to use video conferencing programs to witness and/or notarize documents in real time. The participants to the document signing must follow many of the same procedures as if they are conducting the signing in-person. After conducting a remote document signing, the supervising attorney must create a certified version of the final document.
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In addition to the materials produced by the MSBA, our office has found the following tips and considerations helpful for remote signings: 1. Organization is key to conducting a smooth remote signing. If you are new to this process, outline the steps needed to properly witness and notarize a document remotely. A script for the supervising attorney to give specific instructions is also helpful, to keep everyone organized and following the necessary steps in order. 2. Practice, practice, practice! Practice the remote signing process with staff prior to your first remote signing to learn what kinks need to be worked out, for example, proper positioning of the camera and witnesses waiting to sign until they are directed to do so. 3. In preparing a client for a remote signing, make sure that the client has their identification available and visible to the attorney and that they have adequate physical space and proper technology to conduct the signing. It is necessary to be able to see the client sign the document through the video conferencing program. 4. Maintain a list of clients that are signing their document remotely and consider whether under your client’s circumstances, for example in a contentious family situation, you will ask the client to come back to your office to re-execute the documents in-person once the pandemic is over.
These Executive Orders require attorneys to use video conferencing programs to witness and/ or notarize documents in real time.
O’Byrne Law, LLC Document Signing Protocol 1. In response to the COVID-19 outbreak, O’Byrne Law, LLC (OBL) will modify document preparation and signing procedures.
These Executive Orders are temporary. Once the State of Emergency ends, the remote protocols under these Executive Orders will no longer be permitted under current law. However, remote notarization under certain conditions will be permitted effective October 2020 under the Maryland Revised Uniform Law on Notarial Acts (Md. Code Ann., State Government § 18-201, et seq.) which was passed by the Maryland legislature in 2019 prior to the pandemic. Alternatives to Remote Signatures As an alternative to remote signings, our office has had success during this period with hosting “drive-by” document signings for our clients. As outlined in more detail below, our “drive-by” document signings require the client to drive to our office parking lot. The client stays in their vehicle and we meet the client at their vehicle window maintaining social distancing as much as possible. We are also able to offer similar service to a client at but outside their home, such as on the front porch, patio or outdoor table, for those who are not able to travel to our office. Our document signing protocol has been a practical alternative to remote signings. It ensures statutory requirements are met while also maintaining the safety of our staff and clients. Our clients have responded favorably to our document signing protocol, as they are able to complete their planning during this difficult time without having to master new technology and while maintaining social distancing. If a client is especially concerned about exposure to COVID-19, we can conduct remote signings as discussed above or develop a different approach specific to the client’s circumstances. We have incorporated at the end of this article our office protocols for “drive-by” document signings. We share this guide with our colleagues, with the understanding that this represents our current practice. As circumstances change regarding the COVID-19 situation we may change our approach.
a. Only documents that require a notary stamp will now have a notary block, such as Financial Powers of Attorney, Trusts and Deeds. b. Clients will not be asked to initial and date each page of the documents during the signing. c. Attorneys will review documents with clients in detail by telephone or video call within two days prior to intended signing date. d. After reviewing documents with clients, if any revisions are made, revised/final documents will be sent to clients via e-mail at least one day prior to the actual review and signing, to ensure all questions have been answered. 2. Steps for signing in parking lot or outside home. a. Documents will be prepared for execution the day before the scheduled signing, using a sanitized surface, and will be placed on a clip board for each client. b. Notary log page will be placed on clipboard as the last page of the stack of documents. c. Witness signature and notary clause pages will be printed separately and placed on separate clipboard. This clipboard is held by staff during the review and sign. d. Documents on clipboard will be tabbed: i. at bottom with post-it notes identifying type of document: Will, Trust, POA, Advance Directive, notary log, etc. ii. at side with ”sign here” stickers. e. Staff interacting with client will wear face masks. f. Staff will hand clip board and new pen to client then step back a safe distance. g. Staff will give client time to review documents handed to them on the clip board. h. Attorney will ask client: •
Are these the [documents by name: Will, POAs, AD, Trusts, etc.] we have reviewed with you?
•
Do these documents accurately reflect your wishes?
•
Do you wish to sign your documents today?
•
Do you request that we witness your signing of these documents?
i. If the client answers all of the questions in the affirmative, staff then instructs client to turn to first signature tab and sign and date, then repeat for all documents, including notary log if any document is being notarized; client retains pen. j. After client completes signing documents, staff sign witness pages and complete notary clauses, as needed. k. Attorney reviews all documents to ensure the documents are properly executed. 3. Signed documents are placed in redwell file and stored in the office for two days. Following this period, documents will be processed according to usual post-signing protocol. 4. Alternatively, if a client wishes to handle the execution of the documents on their own, OBL can provide the means for them to do so. Clients are sent complete drafts ready for signing with detailed instructions for witnesses and notarization, enclosing stamped envelope to return originals to our office for further processing. An attorney may be available by phone to walk the clients and witnesses through the signing process.
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MEMBER FOCUS
| MEMBER SPOTLIGHT
A DA P T I N G T O A
VIRTUAL WORLD CARLOTTA ANN WOODWARD Chief of the Juvenile Division, Montgomery County State’s Attorney’s Office The current pandemic has had an impact on all attorneys and this is especially true for those who work as public defenders and prosecutors. Attorneys who choose to serve in these positions are often found in court but with COVID shutting down the courts for weeks, much of their work has been pushed back and stacked up.
Photo courtesy of Beverly Funkhouser Photography
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CARLOTTA ANN WOODWARD is an Assistant State's Attorney and Chief
of the Juvenile Division in the Montgomery County State's Attorney's Office. In addition to prosecuting juveniles who commit delinquent offenses, she also prosecutes all of the animal cruelty cases in the office. Like many of us, her office has undergone significant change as a result of the COVID-19 pandemic. Ms. Woodward shares some of her thoughts on the impact of COVID-19 and how the office transitioned to a remote setting.
How has your daily routine changed as a result of COVID-19? I work in the State’s Attorney’s Office in Montgomery County, Maryland, which is located in the Montgomery County Circuit Court. Once the courthouse closed down to the public, I still went into the office weekly to work and to take information home to work on. We do not have full remote access to all of the information contained in our juvenile paper files. Our county is not on MDEC yet, so that made responding to requests and hearings a little more challenging.
What challenges did you face during the transition? What steps did you take to mitigate those difficulties? My advocacy skills are best utilized in the courtroom. I believe for hearings that are not contested and do not require testimony, remote hearings work extremely well. As for contested matters, those hearings really should be held in the courtroom. I was able to implement new procedures to allow more information from our juvenile paper files to be able to be accessed remotely. This has proved beneficial for all those in my units handling hearings remotely.
Did you have any concerns about moving to a remote setting? I believe that there are a lot of things that can be done remotely; however, working remotely full time would not work for me.
How will this virus impact your current and future caseloads? My current caseload is not as high as it was last year; however, due to the virus and my position as Chief of the Juvenile Division, I have had more responsibilities during the shutdown and transition back to full time in the courthouse.
What was the feedback from your coworkers and those involved in your cases on the switch to working remotely? I think that most people understood the importance of working remotely and trying to keep everyone safe. I do believe people enjoy the ability to be able to work remotely; however, I find that litigators prefer to be in the courtroom.
What are the biggest factors in transitioning a remote office for the future (post-COVID world)? Why should other attorneys consider a remote office?
“
Having the information at an attorney’s fingertips is critical to an effective remote office.
I think some of the biggest factors in having a remote office is having all the equipment necessary, appropriate accommodations and access to information online. I believe having a remote office can be extremely beneficial in case we go through another crisis like COVID. Having the information at an attorney’s fingertips is critical to an effective remote office.
How do you see your office and others in your practice area adjusting post-COVID? What are your predictions for the future of the practice area? I think that we will get back to litigating in the courtrooms. I think that additional precautions will be taken in the future especially in the courthouses. Attorneys will be more prepared in the future if another pandemic happens, which I truly hope does not. MARYLAND BAR JOURNAL | ISSUE 2 2020
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ACCESS TO JUSTICE
| COMMISSION UPDATE
Maryland Attorney General's
COVID-19 Access to Justice Task Force
MSBA-supported Maryland Access to Justice Commission Chosen as Partner on Maryland Attorney General’s COVID-19 Access to Justice Task Force BY REENA K. SHAH, ESQ. In the midst of the coronavirus pandemic, too many hard-working Maryland residents face extraordinary challenges in virtually all aspects of their lives: health, food, employment, housing, finances, estate planning and family issues. Over 3300 Marylanders have died as a result of COVID-19; unemployment filings have skyrocketed from 2,090 in March to over 660,000 in July; and the Aspen Institute predicts over 330,000 evictions in Maryland before the year’s end. The health and economic crises have halted the economy and have led to conflicts that only the civil justice system can resolve.
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THIS WILL LEAD to a flood of new civil cases
into an already strained civil justice system. More Marylanders than ever will need civil legal help and most will be forced to navigate the civil justice system on their own. Even before the pandemic, only 20% of Marylanders received the help they needed, while national data showed that at least 71% of low-income households experienced at least one civil legal problem every year. The sheer scale and magnitude of the challenge in many areas of civil justice as a result of COVID-19 is unprecedented and overwhelming. The Maryland Attorney General’s COVID-19 Access to Justice Task Force (A2J Task Force), a partnership between the Maryland Attorney General and the Maryland Access to Justice Commission, was created to address these challenges. The broad goals of the A2J Task Force are as follows: • Ensure that Marylanders who face a civil legal issue know they have a legal issue and know where to go to get help; • Ensure that when people reach out to get help with a civil legal issue, there are lawyers available to assist them so they can receive the legal help they need; • Ensure that the civil justice system is accessible, fair and equitable; • Ensure protections to keep Marylanders housed, fed, safe, secure and connected to the civil justice system. The goal of the A2J Task Force is to ensure that when Marylanders encounter the civil justice system
during or after the COVID-19 pandemic, justice is accessible, fair and equitable and that Marylanders are kept housed, fed, safe, secure and connected to the civil justice system. The Task Force will address policy, systems and technology barriers to access to justice and develop proposals for reform. Here are the ways in which the Task Force will achieve its goals: Diverse and High-Level Representation: The Task Force has brought together over 300 high-level and diverse leaders from over 130 unique organizations with expertise in a myriad of sectors, including
The goal of the A2J Task Force is to ensure that when Marylanders encounter the civil justice system during or after the COVID-19 pandemic, justice is accessible, fair, and equitable. banking, disaster recovery, health and legal technology, as well as individuals with lived experience. An inclusive and representative task force with diverse viewpoints will inform and enhance our work to assure recommendations and reforms undo rather than exacerbate the effects of systemic racism in our justice system.
The A2J Task Force is working through 10 distinct committees to accomplish its goal:
Policy & Race Equity Committee Substantive Committees
Implementation Committees
Civil Legal Aid Funding Committee
These committees have their own charge, but also support substantive committees
Housing Security Committee Economic & Food Security Consumer Protection Surviving Abuse, Neglect & Exploitation Committee
Data & Legal Technology Pro-Bono & Reduced Fee Legal Services Public Awareness & Community Engagement
Life & Health Planning
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Policy Reforms in Different Substantive Areas of Civil Justice: The Task Force is focusing its efforts on key short-term solutions and long-term policy reforms related to civil legal issues created or exacerbated by the COVID-19 pandemic, with an eye to existing race equity challenges and how to actively disrupt them. These legal issues include eviction and foreclosure; consumer and medical debt, wage garnishments and car repossessions; unemployment and health insurance and food stamps; life and health planning issues including advanced medical directives, powers of attorney, wills and probate; and abuse and exploitation issues including domestic violence, child and elder abuse and more. How we resolve these critical issues will determine our collective health and economic recovery. Remote Operations: The Task Force will be examining and providing guidance on unique access to justice challenges raised by remote hearings, which raise new and novel concerns about access to justice, especially for Marylanders who may not have access to technology or wifi and would be representing themselves in court. Civil Legal Aid Delivery: Finally, the Task Force will identify opportunities to improve the civil
The Task Force will identify opportunities to improve the civil legal aid delivery system as a whole. legal aid delivery system as a whole, including gaining consensus on one centralized place for resources and warm referrals; building a triage system to provide targeted help; erecting an infrastructure for coordinated communications and implementing a robust public awareness strategy; constructing a civil justice database to enable data-informed decisions; engaging more pro-bono assistance; developing reduced fee projects; and addressing the chronic underfunding of the civil legal aid delivery system.
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Key A2J Task Force Initiatives: 1
ADVOCACY BEFORE THE JUDICIARY, GOVERNOR, AND LEGISLATURE • Sent letter to Chief Judges Barbera and Morrissey advocating for an extension of moratoria on evictions and consumer debt cases • Sent a letter to Governor Hogan advocating for an extension and expansion of moratoria on evictions and utility shut-offs • Conduct an analysis of the impact of remote court operations on persons with limited economic means and technology access • Deliver a final report in December, 2020 with data, race equity analysis and legislative proposals and other recommendations for decision-makers in all three branches of government on how to make the civil justice system accessible, fair and equitable for all Marylanders
2
PUBLIC INFORMATION CAMPAIGN • Develop educational materials, toolkits and videos to help Marylanders learn about their rights and how to navigate legal processes that have changed dramatically through the course of COVID-19 • Conduct a multi-faceted public information campaign to ensure that Marylanders who need help with a civil legal issue know where to go and get the help they need
3
INCREASE CIVIL LEGAL AID AND OTHER FUNDING • Identify and pursue additional streams of civil legal aid funding to fill the over 70% shortfall created by the pandemic • Advocate for additional funding for preventative measures, including rental assistance, to keep Marylanders from encountering the civil justice system
4
INCREASE PRO-BONO AND REDUCED FEE LEGAL SERVICES • Identify opportunities to create new or scale existing pro-bono and reduced fee programs to meet the growing demand for services • Deliver a call-to-action for all attorneys in Maryland to increase pro-bono participation to help meet the demand for legal services
5
DATA & MAPPING • Create a Civil Justice Data Dashboard to track key civil justice indicators in real-time • Create a Story Map to show the impact of COVID-19 on the civil justice system through a combination of statistics, visuals, maps and stories.
WEB EXTRA
For more information on the Access to Justice Task Force, visit MARYLANDATTORNEYGENERAL.GOV/PAGES/A2JC
ACCESS TO JUSTICE |
TASK FORCE
Maryland Attorney General's COVID-19 Access to Justice Task Force We are living in uncertain and turbulent times. The coinciding events of the COVID-19 pandemic and the unjust deaths of George Floyd and Breonna Taylor have brought into sharp relief the structural racial inequities within the health care and criminal justice systems - and laid bare disproportionate harms to the most vulnerable among us. The civil justice system is the next testing ground as the economic hardship caused by the business closures and illness has created and exacerbated conflicts that only the civil justice system can resolve, like missed rent payments leading to eviction notices; disputes over medical or consumer debt; or people being wrongfully denied public benefits necessary to keep their families afloat.
tise in a myriad of sectors including health, disaster recovery, business, government, housing, and more - who will lend their time, expertise and insight to ensure that when Marylanders encounter the civil justice system, justice is accessible, fair and equitable. Striving for this in the civil justice system will protect public health, spur economic recovery and growth, and reduce further harms to the most vulnerable among us.
The challenges to access to justice now are on a scale and magnitude not encountered before. This moment required us to bring together diverse leaders and out-of-the box thinkers with exper-
Meet the Task Force's leadership, members and Congressional Advisory Committee below.
Task Force Leadership
BRIAN E. FROSH Maryland Attorney General Chair
ANDRE M. DAVIS
Former Senior Judge, U.S. Court of Appeals for the Fourth Circuit Vice Chair
REENA K. SHAH
Executive Director, Maryland Access to Justice Commission Vice Chair MARYLAND BAR JOURNAL | ISSUE 2 2020
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Congressional Advisory Committee
BEN CARDIN
CHRIS VAN HOLLEN
United States Senator
ANTHONY BROWN
U.S. Representative, 4th Congressional District of Maryland
DUTCH RUPPERSBERGER
United States Senator
STENY HOYER
U.S. Representative, 5th Congressional District of Maryland
U.S. Representative, 2nd Congressional District of Maryland
KWEISI MFUME U.S. Representative, 7th Congressional District of Maryland
JOHN SARBANES
U.S. Representative, 3rd Congressional District of Maryland
JAMIE RASKIN
U.S. Representative, 8th Congressional District of Maryland
DAVID TRONE
U.S. Representative, 6th Congressional District of Maryland
Task Force Members FRANKLYN BAKER
J. SANDY BARTLETT
MERYL BURGIN
JILL CARTER
President & CEO, United Way of Central Maryland
General Counsel & Executive Vice President, CareFirst BlueCross BlueShield 104
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Maryland State Delegate Designee for Maryland House Speaker, Adrienne Jones
Maryland State Senator Designee for Senate President, Bill Ferguson
ROBERT M. BELL
Former Chief Judge, Maryland Court of Appeals
LUKE CLIPPINGER
Maryland State Delegate Designee for Maryland House Speaker, Adrienne Jones
PAUL CORDERMAN
KATHLEEN GALLOGLY COX
DANIELLE CRUTTENDEN
PAUL DEWOLFE
ROBERT C. EMBRY, JR.
SUSAN ERLICHMAN
BRANDON ETHERIDGE
CARNOT EVANS
General Counsel, Baltimore Ravens
Vice President & Senior Counsel, Law Department, Marriott International
GUY FLYNN
DORCAS R. GILMORE
JOSEPH HASKINS
TRUDY HENSON
THOMASINA HIERS
MICHAEL J. HOUGH
PASTOR PHILLIP HUBER
WILHELM JOSEPH
MICHELLE N. LIPKOWITZ
WARD B. COE, III Chair, Maryland Access to Justice Commission
Principal, McNamee Hosea
Executive Director, Maryland Legal Services Corporation
Partner-in-Charge, Downtown Baltimore Office; Head, Real Estate Practice
Public Health Program Director, UMD Center for Health and Homeland Security
President, Maryland Voluntary Organizations Active in Disaster (VOAD)
Maryland State Delegate Designee for Maryland House Speaker, Adrienne Jones
Maryland Public Defender
Co-Founder, Baltimore Action Legal Team
Vice President, Annie E. Casey Foundation
Executive Director, Maryland Legal Aid
3rd Judicial Circuit & Baltimore County Circuit Court Administrative Judge Designee for Mary Ellen Barbera, Chief Judge, Maryland Court of Appeals
President, Abell Foundation
Chairman, President & CEO, The Harbor Bank of Maryland
Maryland State Senator Designee for Senate President, Bill Ferguson
Partner, Saul, Ewing, Arnstein & Lehr
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THOMAS LYNCH
STACY A. MAYER
ROBIN MURPHY
PAMELA CARDULLO ORTIZ
ARNOLD “ARNIE” POLINGER
STEVEN H. SACHS
MARK SCURTI
WILLIAM “WILL” SMITH, JR.
ZAFAR SHAH
MATTHEW STUBENBERG
DONALD TOBIN
GUSTAVO TORRES
RONALD WEICH
JAKE WHITAKER
President, Maryland Bar Foundation
Director, Access to Justice Department, Maryland Judiciary
President-Elect, Maryland State Bar Association
Associate Director, Legal Technology, Access to Justice Lab, Harvard Law School
Dean, University of Baltimore Law School
Associate Judge, District Court of Maryland, District 8, Baltimore County Designee for Mary Ellen Barbera, Chief Judge, Maryland Court of Appeals
President, Polinger Company
Maryland State Senator Designee for Senate President, Bill Ferguson
Dean, University of Maryland Francis King Carey School of Law
Deputy Director of Government Affairs, Maryland Department of Health Designee for Maryland Governor, Larry Hogan
CARYN YORK
Executive Director, Job Opportunities Task Force
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Executive Director, Disability Rights Maryland
Former Attorney General of Maryland
Attorney, Human Right to Housing Project, Public Justice Center
Executive Director, CASA
MARCELINE WHITE
Executive Director, Maryland Consumer Rights Coalition
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.
ACCESS TO JUSTICE
| CHALLENGES
Funding for Civil Legal Aid in Maryland Faces Drastic Decline
MARYLAND LEGAL SERVICES CORPORATION –the
largest funder of civil legal aid in the state – is facing a funding decline of approximately $9.8 million, threatening the availability of crucial services. MLSC’s nonprofit grantees – who are also facing canceled fundraising events and decreased corporate donations – need support now more than ever as they continue their vital work safeguarding the basic human needs of low-income Marylanders.
Both of MLSC’s major funding sources have taken a hit due to the pandemic. Decreased filings during court closures led to a loss of more than $2.3 million from filing fee surcharges last fiscal year. “The services provided by MLSC grantees – including help with eviction, foreclosure, domestic violence and more – will be critical in helping Marylanders recover from the COVID-19 pandemic,” said Susan Erlichman, MLSC’s executive director. Both of MLSC’s major funding sources have taken a hit due to the pandemic. Decreased filings during court closures led to a loss of more than $2.3 million from filing fee surcharges last fiscal year. Even as courts have reopened, filings have not yet rebounded. MLSC’s filing fee revenue for July and August was down approximately 50% compared to the same time period last year, and the tremendous uncertainty surrounding the COVID-19 crisis means that this funding source could be volatile for some time. Meanwhile, the interest on lawyer trust accounts (IOLTA) program is heavily dependent on interest rates, which now hover near 0% and are expected to remain rock-bottom for years to come. These rate cuts
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translate to projected IOLTA losses of nearly $5 million – a drop of 78% from fiscal year 2020. “We saw similar interest rate cuts during the Great Recession, but the rapid drop in available funding is truly unprecedented in our 38-year history,” Erlichman said. “At a time when the need for civil legal aid has never been higher, we’re facing devastating losses.” Layoffs and furloughs will also radically increase the number of clients who meet income-eligibility requirements for services from MLSC-funded providers. Even before the pandemic, more than 22% of Marylanders – approximately 1.3 million people – were income-eligible for MLSC-funded services.
How You Can Help • Donate in support of civil legal aid at MLSC.ORG/GET-INVOLVED/CONTRIBUTE .
• Bank with an Honor Roll bank – these financial institutions pay favorable rates on IOLTA. Find the complete listing at MLSC.ORG/IOLTA/IOLTA-HONOR-ROLL . • Volunteer with a civil legal aid provider. Learn more at MLSC.ORG/GET-INVOLVED/VOLUNTEER . • Spread the word! Make sure your colleagues know the importance of civil legal aid – especially as Marylanders recover from the COVID-19 pandemic.
ACCESS TO JUSTICE |
COMMISSIONER PROFILE
AC C E S S T O J U S T I C E & L AW F I R M L E A D E R S H I P I N
UNCERTAIN TIMES
MICHELLE LIPKOWITZ
Managing Partner, Baltimore Office; Diversity & Inclusion Partner, Saul Ewing Arnstein & Lehr Member, Maryland Attorney General’s COVID-19 Access to Justice Task Force
Photo courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | ISSUE 2 2020
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Tell us about your personal journey to become Managing Partner of the Baltimore office of a large law firm. My personal journey to Office Managing Partner began with my demonstrating my commitment to our clients, our colleagues, and the communities we serve. Building on the foundation of years of demonstrating strong legal work, firm-mindedness, and business acumen, I have been able to highlight non-legal strengths and leadership skills through significant appointed and non-profit board work, bar involvement, and firm committee work. Through my external endeavors, I have also been able to expand my relationships and reputation outside of the firm and within the legal industry, the business sector, and our community at-large. All of the above contributed to my being selected to serve as the Managing Partner of our Baltimore Office, and concomitantly the face of our firm in Baltimore, and Maryland.
What does Access to Justice mean to you? Access to justice means that everyone, regardless of the color of their skin or how much money they have in their bank account, has equitable access to the legal information, resources, and support to which they are entitled in order
Access to justice is a fundamental principle of the rule of law, pursuant to which the rights of the rich and powerful, the poor and marginal, are equally protected. to protect and exercise his or her rights. Access to justice is a fundamental principle of the rule of law, pursuant to which the rights of the rich and powerful, the poor and marginal, are equally protected. I wanted to be involved with the Task Force so I could help make our civil justice system work for all, especially the most vulnerable.
COVID-19 has wreaked havoc on communities of color and people are protesting the injustices in the criminal justice system. How does your work with this Task Force and with promoting access to justice in the civil justice system link to this? While the recent protests have expressly focused on injustices in the criminal justice system, in doing so, they have also highlighted the shared root of race-based injustices in both the civil and criminal justice systems: systematic 110
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racism and racial bias. The Task Force will work to acknowledge and address the systemic racism and racial bias embedded in the civil justice system.
Most valuable skills of a Managing Partner:
What role do large law firms have in abating the access to justice crisis, which was not created, but certainly has been exacerbated by COVID-19?
Key piece of advice:
Judgment, emotional intelligence, listening skills, and the ability to build consensus and lead on a variety of different issues and in a number of different environments. And a good, thick skin. Hone your skills while seeking challenges outside of your comfort zone.
Lawyers, including those in large Maintaining health & balance: firms, have a special responsibility Less travel during the pandemic as a profession to contribute to means enjoying cooking and sharing meals with family. abating the access of justice crisis, and ensuring that our systems Greatest accomplishment: of justice operate in ways such Succeeding in this demanding, stressful profession while staying that they benefit everyone, not true to who I am and giving more just those with power and access than I take. to resources. At its most basic level, this responsibility includes supplementing and supporting the pro bono efforts of local organizations and public interest lawyers. But it does not stop there. Large law firms, with their extensive networks of relationships and expansive spheres of influence, have a duty and responsibility to use these relationships and influence to ensure the delivery of fair and equitable justice.
Tell us about the importance of Diversity and Inclusion and how you have worked to advance it during your career and what needs to be done in this moment? Fundamentally, diversity and inclusion is a moral imperative given the challenges diverse lawyers continue to face. Also, increasing diversity in the practice of law is inextricably tied to being able to provide a legal system that delivers equal access to fair and equitable justice. It is also a key business imperative because businesses that prioritize a diversity of voices and perspectives are more successful because they are better able to innovate, solve problems, rebound from failures, and turn challenges into opportunities.
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PERSPECTIVE
The Role of Mediation in an Integrated System of Eviction Prevention BY DEBORAH THOMPSON EISENBERG, TOBY GUERIN, AND DAVID SPINOSA
The fall-out from COVID-19 threatens to worsen our nation’s long-standing, intractable eviction epidemic. Prior to 2020, more than 2.3 million eviction actions were filed annually,1 equating to about four eviction filings per minute.2 The coronavirus pandemic has caused unemployment and financial strain for many tenants. As courts reopen, an unprecedented number of people will face eviction actions and potential homelessness, posing a significant threat to public health and community stability.3
THE LOOMING TSUNAMI of evictions
resulting from COVID-19 has renewed calls for innovative, comprehensive responses to eviction prevention.4 Early conflict intervention strategies and mediation, combined with legal and social services, can be important components of integrated eviction prevention programs.5 1
The looming tsunami of evictions resulting from COVID-19 has renewed calls for innovative, comprehensive responses to eviction prevention.
https://evictionlab.org/national-estimates/
https://www.npr.org/2018/04/12/601783346/first-ever-evictions-database-shows-were-in-the-middle-of-a-housing-crisis
2
https://evictionlab.org/eviction-tracking/
3
Talia Richman & Wilborn P. Nobles III, Maryland Families Fear “Tsunami” of Evictions When Courts Reopen and Federal Aid Dries Up at the End of July, Balt. Sun, July 2, 2020.
4
This article is based on a longer piece (written prior to the COVID-19 pandemic), Deborah Thompson Eisenberg & Noam Ebner, Disrupting the Eviction Crisis with Conflict Resolution Strategies, 41 Mitchell Hamline J. of Public Policy & Practice 125 (2020).
5
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Eviction Prevention Strategies Prior to the pandemic, jurisdictions across the country sought to prevent evictions in different ways. Some passed legal reforms designed to protect tenants, including caps on rent or security deposits, limits on rental increases, and “just cause” eviction laws.6 Some cities now guarantee a right to legal counsel for tenants defending eviction actions.7Other advocates have urged the need for increased affordable housing or the recognition of housing as a basic human right.8 In response to COVID-19, some states have provided greater rental assistance funding and moratoriums on evictions.9
81% of the cases referred to mediation reached an agreement, and perhaps more importantly,
85% of those respondents felt the agreement met their needs.
Although these reforms provide some temporary redress, the ongoing eviction crisis, intensified by COVID-19, teaches us that traditional legal approaches and isolated or temporary strategies are unlikely to create meaningful change. Maryland has a unique opportunity to enact bold, systemic reforms that fuse together a variety of social and legal services and conflict resolution options to prevent evictions and promote housing stability. Comprehensive eviction prevention programs that blend early conflict intervention, housing and rental assistance, legal advice, social services, and a variety of dispute resolution process options have shown promising results.10 For example, the Eviction Diversion Program in Kalamazoo, Michigan combines state health and human services, public assistance, tenant legal services, nonprofit charitable organizations, and the judiciary to form a network of resources to assist tenants both prior to and after an eviction filing.11 If early intervention efforts fail to address the problem, Kalamazoo provides additional resources for tenants on the day of trial. At the courthouse, legal aid and law school clinical students help tenants navigate the judicial process. Qualified tenants can get legal advice, assistance negotiating payment
plans and rent abatement with their property owner, bridge funds to pay their rent, or affordable housing resources. Importantly, judges and property owners are supportive of the program. This combination of early, collaborative intervention services with day-of-trial legal advice and mediation has decreased eviction judgments and reduced homelessness.12 Mediation and Dispute Resolution Options Some courts also have integrated mediation and settlement conferences as diversionary options during eviction dockets. In 2016, the District Court of Maryland, through its Alternative Dispute Resolution Office, piloted a day-of-trial mediation program in Baltimore City. The self-determined, participant-driven nature of mediation gives many parties a sense of voice and satisfaction with the process and outcome. A review of the pilot mediation program in Baltimore’s rent docket in 2016 found that the vast majority of participants: felt heard by the other side (83%); agreed that they had an opportunity to discuss all of the issues that brought them to court (88%); and did not feel pressured to reach an agreement (81%).13 In addition, 81% of the cases referred to mediation reached an agreement, and perhaps more importantly, 85% of those respondents felt the agreement met their needs.14 Similarly, a study of a day-of-trial eviction mediation program in Northampton, Massachusetts found that overall, tenants who took part in the program fared considerably better than tenants who went before a judge or negotiated without a mediator.15 Still, mediation is more than just a “feelgood” program – it can deliver positive outcomes by blunting the long-term ramifications of an eviction order. Eviction judgments can have devastating consequences for tenants. In addition to putting tenants on the brink of homelessness, eviction orders can stain tenants’ credit and limit their future housing opportunities. An eviction record has
8 9
https://evictioninnovation.org/innovations/ https://nextcity.org/daily/entry/is-tenants-right-to-counsel-on-its-way-to-becoming-standard-practice https://www.yalelawjournal.org/forum/the-socio-legal-case-for-the-right-to-housing For Maryland’s stay on evictions, see Order of the Governor of the State of Maryland, No. 20-04-03-01, Apr. 3, 2020 (staying residential and commercial evictions). For a full review of the policies each state has implemented to reduce evictions during COVID-19, see https://evictionlab.org/COVID-policy-scorecard/ 10 See Eisenberg & Ebner, supra 11 https://www.secondwavemedia.com/southwest-michigan/features/2lesshomelessness0517.aspx 12 The Eviction Lab reports a 50% decrease in evictions in Kalamazoo from 2011 (1,371) to 2015 (687). From 2013 to 2017, Kalamazoo experienced a 9% decline in homelessness. Kalamazoo 2017 Annual Count, at 7 13 https://www.courts.state.md.us/sites/default/files/import/district/adr/pdfs/rentcourtreport.pdf 14 Id. 15 https://scholarship.law.missouri.edu/jdr/vol1997/iss1/5/ 6 7
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been dubbed a “scarlet E,” harming tenants long after judgment.16 By providing an opportunity to negotiate self-determined solutions, such as payment plans, rent abatement, and housing repairs, some tenants, especially those who do not otherwise have cognizable legal defenses, can avoid the immediate and long-term impact of an eviction judgment. Upstream Conflict Resolution Strategies While day-of-trial mediation can be helpful for many, it is not a panacea. Just like a judicial hearing, mediation does not solve the underlying structural issues that led to eviction in the first place: poverty, racism,17 increasing rents, decreasing wages, vanishing affordable housing, and now, an economic downturn and unemployment resulting from a global pandemic. As Matthew Desmond describes in Evicted: Poverty and Profit in the American City, “[e]viction is a cause, not just a condition, of poverty.”18 Moving toward upstream conflict resolution options and rental assistance – long before the property owner files for eviction – offers the most promise in promoting housing stability and reducing eviction dockets. Some jurisdictions have developed early intervention programs that attempt to identify and resolve emerging issues at nascent stages to avoid later evictions. For example, the Bar Association of San Francisco offers a Conflict Intervention Service (CIS) that provides early mediation services to assist tenants with a variety of conflicts that could jeopardize their housing stability.19 Casting a wider net than traditional legal responses, CIS’s interdisciplinary roster of mediators also have backgrounds in psychology, addiction, and mental health.20 This provides a rapid response network of mediators to assist tenants with many different types of conflicts in their lives.
Addressing the Eviction Avalanche Arising from COVID-19 The eviction epidemic was a serious problem prior to COVID-19. In the wake of the pandemic, the crisis will be even more difficult to address, requiring an “all-handson-deck,” comprehensive response. The current environment requires capitalizing on technology and expanding communication methods while maintaining access to justice. The undeniable connection between housing stability and public health highlights the multifaceted problem that traditional court processes alone cannot address. COVID-19 presents Maryland and other states with an opportunity to examine the root causes of housing instability and devise
comprehensive systems to prevent evictions. In addition to greater rental assistance and affordable housing options, a triaged approach that brings together early intervention, social services, legal assistance, and dispute processing options may provide a path forward to reduce evictions and promote greater housing stability for all. PROFESSORS EISENBERG AND GUERIN co-direct the Center for Dispute Resolution at the University of Maryland Francis King Carey School of Law. David Spinosa is a Maryland Carey Law student with anticipated graduation date of May 2022.
COVID-19 presents Maryland and other states with an opportunity to examine the root causes of housing instability and devise comprehensive systems to prevent evictions.
Alieza Durana & Matthew Desmond, A Massive Wave of Evictions is Coming. Temporary Bans Won’t Help, Wash. Post, Apr. 9, 2020.
16
17
Evictions disproportionately impact people of color, particularly Black women. See https://evictions.study/maryland/report/baltimore.html. Matthew Desmond, Evicted: Poverty and Profit in the American City 299 (2016).
18
https://blog.sfbar.org/2018/09/26/conflict-intervention-ser��vice-how-an-innovative-mediation-program-prevents-evictions/
19
Id.
20
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of the Legal Profession
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MSBA Sections Provide
on the Evolution of the Legal Profession The theme of this Bar Journal “The Evolution of the Legal Profession” was selected long before terms like pandemic, COVID-19, Stay-at-Home Orders, and social distancing were part of our everyday vocabulary and life. The original goal of the theme was to highlight the ways in which technology has and will continue to impact the legal profession. Six months ago the articles throughout this issue, and more specifically in the next few pages, would have been very different. The articles may have been more speculation than reality, and, perhaps, the articles may have had a negative view of technology’s impact on the profession. We will never know what might have been, because COVID-19 has changed and continues to change the legal profession significantly. Technology, once a hurdle to some, has now been a constant companion. Attorneys are now conducting everything from client intake to hearings via video conferencing apps on their laptops, tablets, or phones. Remote access to files, cloud storage, and virtual assistants have become the new norm, as firms and organizations learn to work from home instead of the office. Nearly every practice area has been affected by the COVID-19 pandemic, some more than others. As we relaunched this issue evolve the theme from full focus on technology to how practice has evolved in this new global pandemic environment, we asked our Sections to provide a little detail on how time and/or the pandemic has affected their practice areas the most. A few of those excerpts are included here, followed by other articles regarding the Evolution of the Legal Profession.
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Ensuring the “Right to Be Heard” in the Age of COVID-19 BY MIMI TEAHAN, SENIOR COUNSEL: ETHRIDGE, QUINN, KEMP, ROWAN & HARTINGER, CRIMINAL LAW SECTION t was April 2020, and a spring rain was falling on the roof of the parking deck next to the Frederick County Courthouse. I was dressed for court, heels and all, but was not inside the courthouse. Six feet away from me, a medical mask covering the bottom of her face, was my client. As a nurse, who works in a long term living facility, she had screened out of the verbal health questions administered by the courthouse deputies. She could not enter the courthouse. And so, we were calling into the hearing. Since I was a child, I have always wanted to tell other people’s stories. Raised by two parents who were deeply involved in theatre and writing, storytelling held a high currency in my home. My father was a professor of literature at a local university. He had a flair for the dramatic. At holiday parties, he performed the entire script of Charles Dickens’ A Christmas Carol, assuring each character had a unique face and vocal inflection. The woods around our home in Appalachia seemed very likely to possess the spirits of the ghost stories that my sister and I read at slumber parties. Mine was a childhood rich in non-material things.
From an early age, I wanted to be part of the narrative. I wanted to be a storyteller. It is the main reason that I went to law school. Trial work is primarily storytelling. One of the main goals of a trial attorney is to clarify our client’s narrative to the court, be it judge or jury, to take the most confusing set of facts imaginable and distill those facts down into a presentation that can be followed, empathized with and absorbed. The Maryland Code of Judicial Ethics contains Rule 2.6 “Ensuring the Right to Be Heard.” This rule outlines a judge’s obligation in court to guarantee “that every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to the law.” This rule makes paramount the fact that the work we do is not about the lawyers or the judges but about the litigants. Although this rule applies to judges, I have always interpreted it to infer an obligation on counsel as well: our job as trial lawyers is to help the hearer receive the facts. If the events of the past few months have taught me anything, it is that the work of how we communicate a client’s narrative to the court is changing. I have done a number of hearings since COVID 19 arrived in Maryland: all of them were unique, novel and remote in one way or the other. During each hearing, I confess that I felt clumsy, awkward and less than eloquent. Each time, I longed for things to be back to normal, to return to the standards of this time last year, when the courthouse was full of people, everyone watching and waiting their turn. But, I recognize that the duty that attorneys have to our clients trumps any feelings that lawyers may have about the added protocols and challenges to the work. I don’t like talking in court with a mask on: who does? But, the fact remains that the justice system is not about lawyers. It is about our clients. We still have a duty to make sure that the client’s case will be heard. This duty remains paramount, regardless of the forum of the hearing. Just as stories can be told in songs, poems, plays and novels, we can communicate our clients’ positions in person or remotely, with or without masks covering our faces. The constancy of the obligation is both binding and reassuring. The “new normal” may be unpredictable, but our duty as attorneys remains the same.
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The Speed of Practice BY ROBERT FRANK, LAW OFFICE OF ROBERT L. FRANK, SOLO & SMALL FIRM SECTION or almost four decades I have watched the practice of law progress. Starting out was interesting but, in most ways, the same practice as today. The biggest change has been speed and, unfortunately, not quality. In the early 80s law was a business of 14-inch pads and files, IBM Selectric Typewriters, and, in some few cases, 8 bit computers. Facsimiles existed but were for the very few. The internet would have been a fishing net kept inside the boat. Offices were always in town "centers" be it downtown Baltimore or a county seat or other prime location. And offices were large with libraries with thousands of books. The Code. Atlantic Second. Shepherds. Really big offices would have Supreme Court Reporters and a collection of treatises. And of course, every office had one (or more) copy rooms with large, slow copiers. Today we have smaller offices, everyone has one (or 2 or 3) computers (not to mention a phone with its own internet access), and faxing is something done computer to computer. Most everyone has their own printer, frequently a high-speed laser printer, oftentimes paired with scanning capability that makes copying an almost instantaneous process.
And even before COVID, offices were dispersed throughout our communities. The internet puts us all together. The Maryland Code and virtually all legal research is available online. After four decades the practice of law as I know it is one where things happen faster. Writing is faster. Transferring documents is faster. Cases move from inception to completion faster. With all that said, the practice of law today is, while more harried, not appreciably better than in the last quarter of the last century. You still have to listen to your client. You still have to know your case before you stand to address the Court. And you still have to be an honest advocate even as you fight like heck to win the day.
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Remote Representation and Hearings: How Do We Address the Digital Divide Appropriately? BY DELIVERY OF LEGAL SERVICES SECTION s we continue to navigate challenging circumstances due to the COVID-19 pandemic, Maryland courts and lawyers continue to make adjustments to accommodate our new normal as well as maintain court efficiency. A variety of courts are considering online tools for virtual hearings or mediations for nearly all judicial proceedings. For pro se and/or low-income individuals this can be problematic, particularly when the courts will be experiencing higher dockets for legal issues such as eviction, foreclosure, debt collection, domestic violence and family law. As the MSBA’s Delivery of Legal Services Section, we remain concerned that low-income Marylanders who don’t have technology readily available to them may not be able to participate meaningfully in their own defense. Additionally, operating by remote hearings reduces the public's access to courtroom proceedings. While the judiciary will understandably prioritize acute issues like criminal matters and protective orders, it must account for the impact of other civil issues. The pandemic has exacerbated the existing disparate impact of financial devastation among those who suffer with eviction, debt collection and foreclosure matters. We implore the Court to extend the moratorium on evictions, foreclosure proceedings, and debt collection actions. Now is the time to have compassion for low-income Marylanders who are struggling to make ends meet. For proceedings that will move forward, here are a few suggestions to reduce barriers for pro se and low-income litigants navigating virtual dispute resolution. First, Marylanders in need of assistance need ready access to information about available free legal services. This will ensure that low-income Marylanders have the opportunity to speak with an attorney about their legal matter. Courts should be more proactive in making referrals to low-income Marylanders as they face their civil legal challenges. Second, Courts should consider that a variety of low-income Marylanders may need interpreters to ensure that they can fully participate in their defense. Having interpreters readily available with this online approach will allow those who have language barriers to seek the necessary assistance. Finally, this online approach should be an option but not mandatory for low-income Marylanders.
The Courts should allow low-income Marylanders to submit requests for in-person hearings when they don’t possess the technology necessary for an online hearing. If in person requests are not possible, phone options must be available.
Our profession must meet this unprecedented moment and heed this call to action to provide equal access to justice for all people regardless of their income.
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COVID-19 Impact on Real Estate Transactions BY SHAWN A. GOLDFADEN, ESQ., VICE PRESIDENT, LAND SERVICES USA INC., REAL PROPERTY SECTION
Aside from technological changes, how has your practice area changed in response to the COVID-19 crisis? s a commercial title company, we have had to become more nimble in our title insurance underwriting given the challenges associated with the pandemic. We have seen multiple deals extended due to the restraints on the ability to conduct thorough due diligence investigations by our clients/customers. Strangely the amount of transactions have increased at least a third from last year due primarily to the low interest rates and the fluid access/availability of equity. The
virus does not appear to have impacted the outlook of speculative investment opportunities by developers and the industry remains robust. What specific substantive changes have been made in your practice area to accommodate restrictions such as social distancing and court closures? Fortunately LSU has invested heavily in advanced technology tools. We have relied more heavily on the various land record web portals. Despite the courts and land record offices being closed, our web subscriptions and proprietary software have given us the ability to record our settlement documents almost instantly after closing; critical to our clients. We also have the capability of conducting remote closings for our customers.
What substantive changes have been made in your practice area to address issues that have arisen because of the COVID crisis or will arise post-COVID? Most of the title insurance practitioners have taken precautions such as requiring stronger indemnities and affidavits due to the inability to record or research land records.
Do you think the substantive changes described in your previous answers will be permanent, or will prior practices resume once the COVID risks restrictions have eased? I feel our reliance on technology to navigate through the commercial title industry will only become more profound. This is a permanent fixture in our industry and it will force many outlier jurisdictions to adapt.
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Check on Your Younger Colleagues COVID-19 is Affecting Us. BY JOSEPHINE M. BAHN, ESQ.
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What day of the week is it? Did I miss a hearing? Is she down for nap time yet?
where did the day go? This is the constant struggle in my house—for both my lawyer husband and me. Like many other young lawyers, we are both home full-time and working full-time. We are balancing nap times, the constant need for snacks or water, and the need for a present partner for tea parties with client meetings, Zoom hearings that go off the rails, the need to meet hour requirements, and a partner or boss who needs us all the time. We are lucky, though, because we have help from our family who stepped up to help us when our daughter’s daycare closed during the second week of quarantine and stayed that way for three long months. Even now, her daycare has reopened for recalled workers, we’ve needed help as we, and she, stay home, for some undetermined time. (By the time this is published, it’s possible that she may be back in daycare, as planned—but we’ve now started discussing, in mid-July, if that is the wisest course too, and begun preparing for other possibilities). We adjusted our work schedules; started working earlier, later, and on the weekends, too. We carved out nap time as work time, or time to meet with our clients, or writing time, and we used our normal commute time to go on family walks. We adjusted, but it has been hard for us and so many other young attorneys during this time.
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When I decided to write a piece on what the young(er) lawyer experience looked like in quarantine, I put a call out for comments on the topic. I reached out to a wide swath of folks in my network to get a diversity of opinions on practice—I knew the struggles I (and my family) faced weren’t necessarily isolated, but that there were countless other difficult stories from lawyers across the country—as well as bright spots that I needed to share. I did not expect the overwhelming response I received. Folks detailed the good, the bad, the uplifting, and the reminder that the legal profession still needs to evolve to be more welcoming, understanding, and patient. It started with a lot of lawyer moms in the Facebook mom groups I belong to, speaking about needing to quit their firm jobs because they just could not balance being a teacher, mediator, entertainer, parent, cook, reader, boo-boo fixer-in-chief, and lawyer. All of these new roles just left them with no time for their own work. Then I looked at the responses I received from some of my law school classmates. I’m completing my fourth year of practice, and my friends that now work at larger law firms described their constant inability to meet increasing billable requirements, the need to be available for clients and partners all the time with their own need to have a work life balance, positive mental health status, and desire to simply workout for an hour a day to stay sane. I heard from my own personal mentors and leading lawyers from across the country. Folks wrote stories about how they would visit their clients and what the “new” interactions were like. Michelle Behnke, of Michelle Behnke & Associates and the current American Bar Association Treasurer from Madison, WI, wrote to me about what her practice in estate planning looks like. She noted that “[s]ometimes when working with clients they specify what they want in a will but it is clear to me that they think they are immortal. They say things like ‘if I die.’ Since early April, as I worked with clients, many of whom are healthcare professionals, I saw fear in their eyes and they all said ‘when I die.’” Behnke, realized the severity of the situation her clients were in—and the jeopardy that front line workers faced when she herself would need to wear full personal protective gear to witness will signings.
Folks detailed the good, the bad, the uplifting, and the reminder that the legal profession still needs to evolve to be more welcoming, understanding, and patient.
Then, I heard from recent law graduates. Normally, I would expect to hear about a difficult job market or a call back interview that just didn’t materialize. These recent grads talked about if and when and how they would take the bar exam. I took the bar exam in New York City with three thousand of my closest friends—I still remember one person literally running from the front of the Jacob Javits Center to the rear of the room where the bathrooms were. The creaking of his shoes, the panic in his eyes that he had to leave during the essay portion, and what thousands of people typing all at once looked and sounded like. Can you imagine taking the bar exam with a mask on? Can you imagine the stress of doing it online, at home—with all the sounds your family members may make, or with unstable internet, or worse? As Katelynn Watkins described it, the effects of COVID-19 have effectively put her future legal career on hold. “I spent half of my last semester of law school working from my dining room table after my school canceled in-person classes. The job interviews I had lined up were canceled as potential employers instituted hiring freezes, including a promising second interview that was scheduled for May.” In the midst of trying to line up webcast job interviews, Watkins, a Baltimore, MD resident, MARYLAND BAR JOURNAL | ISSUE 2 2020
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is still attempting to study for the bar exam—in a non-traditional environment. “The bar exam has now been postponed until October.” Watkins notes that “studying for the bar exam from home is lonely and I miss the camaraderie and quiet of studying at my law school's library.” Watkins is still optimistic and continues to apply for jobs, even though, “there appear to be very few available now for law graduates who aren't yet admitted to the bar.” In all the unease, uncertainty, and change, there were some positive notes that attorneys wrote, too. Heather Krick, an attorney practicing in Linthicum, MD, took the virtual meetings and meetups as a way to meet people where they are—no matter how far. “Some groups took advantage of technology to adapt and start regular virtual meetups to stay social,” Krick noted, finding that, the technology “made up for the cutoff from social contact, and allowed a way to meet new people or keep in touch.” Some attorneys even took the opportunity to learn a new skill. John Leroy, Chief Counsel of the Tobacco Enforcement Unit in the Office of the Maryland Attorney General, tried his hand at sewing masks, and then taught his two sons, too. Leroy and his family have made countless masks for the medical staff at Johns Hopkins in Baltimore, but he said that it was a humbling experience. “My biggest issue is user error,” Leroy said. He had saved his grandmother’s sewing machine from the donate pile twelve years ago, but outside of a couple of high school courses, Leroy lacked the requisite skills to complete the masks. “So I had to teach myself how to use the machine. This involved a lot of
1
trial and error and tangled thread because I didn’t know how to thread it properly. I finally had to do some troubleshooting on FaceTime with one of the moms from my kids’ Sunday school class.” Leroy said that after the fifteenth or so mask he felt comfortable teaching his kids how to work the machine. “The oldest started from scratch - drawing the patterns, measuring the lines, cutting, folding, even ironing, which he does very carefully because I always remind him how much burns hurt.” Leroy notes that both of his kids really like sewing the “long thin ties - four feet of a single thin strip,” but that he hasn’t allowed either of them to work on the pinning, because, “I figure if anyone in the family is going to draw blood it should be me.” Inspired by a recent New York Times article, I set out to write a piece on the tragedies of working young(er) lawyers in the era of COVID-19.1 In the process, I heard from folks from coast to coast about all that they had encountered during quarantine. I don’t know what the future will hold for anyone that I spoke with for this article, but I am encouraged by the fight of Katelynn Watkins, the legal services that Michelle Behnke provides, the optimism that Heather Krick shows, and the selflessness that the Leroy family operates with. It’s true, younger(er) lawyers and law students are struggling during this pandemic, I encourage you to check on your colleagues, but also, think about how you can exhibit some of these qualities—fight, superior legal representation, optimism, and selflessness—in your practice and your lives.
The genesis of the article idea came from the New York Times article, Pandemic Could Scar a Generation of Working Mothers, available at: https://www.nytimes.com/2020/06/03/business/economy/coro�navirus-working-women.html
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THE LAST FRONTIER: THE PROMISE OF AI-POWERED LEGAL ANALYTICS IN TEXAS BY N I C O L E C L A R K
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As one of the last frontiers for big data, legal tech is still in its infancy. AI-powered legal analytics is working its way into every aspect of the legal industry. It has helped litigators sort through thousands of pages of discovery documents. It has also helped litigators gain strategic insights into the way a judge rules or an opposing counsel argues. When combined, the promise of AI-powered legal analytics is undeniable, offering litigators unprecedented tools for the development of case strategies.
HIGH-TECH LEGAL RESEARCH
The State of Texas is widely known as an electronics leader. Since the 1950s, Texas Instruments and other high-tech companies transformed the region into a key technology hub for the United States. It is unsurprising, then, to find legal analytics spread across the state, deployed throughout the offices of large and small law firms. Legal analytics is not new. Many litigators have used technology to conduct legal research in their day-to-day legal practice for years. This research has relied on electronic databases (think: Westlaw), a research practice that is not dramatically different from the kind of research conducted in law libraries. Things change, however, when these electronic databases align with new forms of artificial intelligence, softwares that can search for and extract data that is similar to a user’s inquiry. Consider, for example, MacKenzie Dunham, an attorney who operates Access Justice Houston, a “low bono” law firm in Texas. Dunham describes a challenging sexual assault case, one that required him to search through multiple sources of case law to locate an authoritative definition of reasonable grounds to believe. After unsuccessfully combing through secondary sources and utilizing conventional search methods, he eventually tried Casetext’s Case Analysis Research Assistant (CARA), an AI-powered legal research tool that uses latent semantic analysis to identify patterns in legal documents. In a matter of seconds, CARA provided Dunham with “a U.S. Supreme Court case analyzing what a ‘reasonable ground’ meant and comparing it to probable cause.” These powerful search platforms enable users to answer legal questions with incredible speed and accuracy. Jeff Price, a Dallas-based attorney with Quilling, Selander, Lownds, Winslett & Moser, reflects on his use of ROSS Intelligence. “I recently worked on a project to determine the best damages model for a trademark infringement case. With the help of ROSS, I quickly found several cases that had analogous fact patterns. It also identified cases that provided additional grounds for the recovery of damages that I hadn’t previously considered.”
SMARTER, FASTER DOCUMENT PRODUCTION
Legal analytics platforms can do much more than search. They can also build. Across the State of Texas, immigration attorneys have utilized automated technologies and natural language processing to make immigration services more accessible and more affordable. These products deploy “complex conditional logic to help people prepare the paperwork and documents they need for an immigration filing.”
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To give an example, Berry Appleman & Leiden, a global immigration law firm with offices in Austin and Houston, uses open-source software libraries like TensorFlow, PyTorch, and Tesseract OCR. Using its repository of immigration law data, the firm trains AI systems to spot patterns. The firm then uses artificial intelligence “to extract information from documents and draft responses to certain common government requests [they] frequently handle for corporate clients.” As one of its managing partners explains, “[w]hen the law firm receives a [government request for evidence], its systems can read the letter, interpret what it is requesting, search a library for potential responses, and then draft a response based on what was said.” Another firm, Ogletree Deakins Nash Smoak & Stewart, partnered with LegalMation, a legal tech company that provides a web-based AI tool that automatically generates litigation documents. An attorney uploads a PDF document into the website, which then translates the PDF into text, analyzes its contents, and generates a relevant draft response. According to the firm’s chief knowledge officer, the tool shrinks six to eight hours of work into two minutes, saving the firm time and money. The firm then shares these savings with their clients, charging a fee for the technology while also reducing the number of billable hours charged to the client. This equates to roughly $3,000 in savings per case. It also allows attorneys to be more strategic and less tactical, explains Ron Chapman, Jr., a Dallas-based shareholder at Ogletree.
A NEW LEGAL LANDSCAPE
Even with all of these advances, the adoption of AI-powered legal analytics has been slow. There are skeptics, with even its proponents acknowledging its limitations. Michael Smith, a patent infringement litigation attorney with Siebman, Forrest, Burg & Smith in Sherman, warns that predictive analytics can never tell you the whole story. Judicial analytics, for example, “many tell you more about the types of cases [in the dataset] than it does the judge’s predispositions. I repeatedly have to caution people that their opponent is not the judge’s tendencies or prior rulings, but the facts of the case.” These warnings are a reminder that legal tech may be a new, uncharted territory. It is, nevertheless, here. The attorneys who have embraced these new technologies are moving fast, helping them manage every aspect of the litigation process at incredible speeds and with incredible efficiencies. NICOLE CLARK is the CEO and co-founder of Trellis Research and a business litigation, labor and employment attorney. Trellis is an AI-powered legal research and analytics platform that gives state court litigators a competitive advantage by making trial court rulings searchable, and providing insights into the patterns and tendencies of your opposing counsel, and your state court judges. Reprinted with permission from the July edition of the “Texas Lawyer” © 2020 ALM Media Properties, LLC. All rights reserved.
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Estate Planners Evolve to Serve a Wider Range of Clients COMPILED BY SARAH KAHL, ESQ.
Estate planning attorneys have seen their fair share of change to the profession over the past few decades. We have seen the aging of the baby boomer generation, the practical elimination of the estate tax for all but a small minority of families, and the rise of electronic platforms promising a Will that bypasses a lawyer. The COVID pandemic has accelerated changes in the way all of us meet with clients and sign documents. We have survived as a profession throughout these changes because we have adapted not only to the changes in our profession but also to the changes in our clients’ needs. In order to keep thriving as client service professionals, we also need to expand how we think about estate planning as a service to meet the specific needs of a wider range of clients. Serving a wide range of clients means adapting to serve those diverse needs. In the following segments, three lawyers challenge their peers to think from an inclusive perspective to evolve in the profession.
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How Estate Planners Can Leverage Technology to Reach a More Inclusive Audience BY ELSA SMITH, ESQ.
“
In an era where we are dealing with a global pandemic and mandated social distancing, it is critical for estate planners to envision bold and non-traditional means of providing our services to those who need them. Regardless of demographics, estate planning is an effective method of transferring generational wealth. The focus of this section is to discuss how estate planning attorneys can leverage technology to reach a more inclusive audience. First, let’s look at what pre-pandemic data tells us about estate planning behavior among Americans. According to a 2016 Gallup poll, only 44 percent of U.S. adults surveyed reported having a will. Of that amount, 51 percent were White and 28 percent were Non-White, according to
However, both the Gallup and the Caring.com surveys reveal that, pre-COVID 19, an alarming number of minorities did not have estate planning documents in place to protect themselves and their legacies. the same survey.1 A 2019 Caring.com survey revealed that Hispanics are least likely to create an estate plan. “To that point, 26% of Hispanic Americans have a will, whereas 31% of [B]lacks and 45% of [W]hites reported having a will.2” Doing a deep dive into the cause of these disparities is beyond the scope of this article. However, both the Gallup and the Caring.com surveys reveal that, pre-COVID 19, an alarming number of minorities did not have estate planning documents in place to protect themselves and their legacies. Now that we’ve identified the problem, what tools do estate planners have to reach more diverse markets? By now, most Maryland estate planning practitioners are aware of Governor Hogan’s two recent Executive Orders authorizing remote notarization and remote witnessing of wills, powers of attorney and advance directives.3 The effect of these Executive Orders is to radically change the way in which estate planners provide their services during the pandemic. No longer do clients have to drive to their attorney's office for an execution ceremony. For now, signing ceremonies can be conducted under the supervision of an attorney via an approved video conferencing platform. As for the additional technology needed, all parties involved must have a good internet connection and a computer with a web camera. By utilizing the tools that attorneys already have (or can obtain), we can meet the urgent needs of a broader, more diverse population and do so safely.
1
Jeffery M. Jones, “Majority in U.S. Do Not Have a Will,” May 18, 2016, news.gallup.com/poll/191651/majority-not.aspx
“New Study Shows Nearly 60 Percent of Middle Aged Americans Do Not Have A Will,” May 9, 2019, www.caring.com/about/news-room/ caring-2019-wills-survey
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LGBTQ Estate Planning BY LEE CARPENTER, ESQ.
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Despite this progress, the LGBTQ community remains largely underserved.
Estate planning for the LGBTQ community has long been a special challenge. A turning point came in Obergefell v. Hodges,1 the Supreme Court’s 2015 decision that legalized same-sex marriage nationwide. Before then, estate planning for gay and lesbian couples consisted largely of trying to replicate the legal benefits of marriage. In the wake of the Court’s decision, however, relationship agreements and adult adoptions have given way to the more conventional tools of the practice area. As a result, today LGBTQ estate planning is simply good estate planning. Still, working with LGBTQ individuals often involves special considerations. For example, they may need in-depth counseling about the benefits of marriage. Married or single, they could be unduly affected by the Maryland inheritance tax, which applies to bequests left to a partner, friend, niece, or nephew. And their family structures are often unconventional and may include hostile relatives. But regardless of their legal needs, a couple must feel comfortable meeting with an attorney in the first place. To help put clients at ease, using the right vocabulary is essential. For example, out-of-date terms like homosexual and transsexual should be avoided in favor of gay and transgender. Some individuals will prefer they/them or other unusual pronouns. A couple may call each other their partner, spouse, husband/wife, or roommate and could take offense at any other term. The key is to follow the clients’ lead and ask if you are unsure. The good news for straight attorneys is that many LGBTQ individuals are comfortable looking beyond their community for legal services. This willingness represents a recent shift that is especially prevalent among the younger generation who grew up enjoying greater acceptance and inclusivity. Despite this progress, the LGBTQ community remains largely underserved. With a little initiative, however, an attorney can successfully work with this vital demographic. 1
576 U.S. 644 (2015)
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Using Estate Planning to Plug the Drain of Family Land Loss Through Heirs’ Property BY SHAKISHA MORGAN, ESQ.
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Heirs’ Property is property ownership whereby land is passed down without a will to the original owner’s descendants. It is considered to be the leading cause of Black land loss in the U.S.1, as thousands of acres were forcibly bought out from Black rural families by developers during the 20th century.2 Heirs’ property typically refers to Blackowned land in the South, but this is also a local issue. Our Firm has witnessed numerous Black families suffer land loss through forced partition sales. Unclear title for a house or land can jeopardize a family’s desire to use property as a wealth-building tool for future generations. As family entitled to inherit the land continue to die without a Will, land ownership becomes increasingly fractured as the number of heirs with an undivided interest in the property grows from generation to generation.
Unclear title for a house or land can jeopardize a family’s desire to use property as a wealthbuilding tool for future generations.
Black Americans have historically lacked access to the legal system, and were denied the opportunity to draft wills and to secure title to their property.3 Today, Black Americans still face income disparities, institutional discrimination, disparate impact of laws, and continue to lack access – and, sometimes, resources – to prepare estate plans. Nevertheless, these families have a significant need for estate planning, family ownership structures, and information on the impact of probate and laws that limit their rights regarding heirs’ property. When wealth vanishes from a family, it means that families are making everyday life choices without financial security. As attorneys, let us be duty bound to not only serve those with taxable estates, but to also serve families where estate planning allows for a shift towards a trajectory of wealth building through land preservation and development. Our estate planning skills can be used to decrease the disparity of wealth in the U.S. and increase financial security for more families. 1
Timothy Robustelli & Andrew Hagopian, “Black land was plundered for decades — this law can thwart more losses,” August, 12, 2019 https://thehill.com/opinion/civil-rights/457151-black-land-was-plundered-for-decades-this-law-can-thwartmore-losses
Leah Douglas, “African Americans Have Lost Untold Acres of Land Over the Last Century,” June 26, 2017. https://www. thenation.com/article/archive/african-americans-have-lost-acres/
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3 Robustelli & Hagopian, “Black land was plundered for decades — this law can thwart more losses”
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Beyond Langdell: Legal Education in a Post-Pandemic World BY BEVERLY PETERSEN JENNISON, ESQ., AND CHRISTOPHER STEVEN JENNISON, ESQ.
As the world deals with the COVID-19 pandemic, legal education institutions, and their Deans and faculty, are currently scrambling to influence where legal education falls in the new world order of academia and life. Being thrown into the realm of electronic lectures, Blackboard exams, and virtual clinics unexpectedly, and now seeing that the tenure of these alternative systems will most likely exceed the short time frame originally anticipated, law schools now must grapple with legal education in a post-pandemic world. An article published in 2013 in The Catholic University Law Review serves as a useful backdrop for the current decision-making and discussion process.1 That article served as a summary of legal education evolution in the United States, from Dean Christopher Columbus Langdell to the present day.2 Most lawyers are familiar with Langdell’s case method for teaching law, even if they did not know he was the one who first propagated it in 1870 at Harvard Law School. Most law schools still subscribe to his method of teaching staple and required courses, referring to it more colloquially as the “Socratic method” due to its emphasis on asking questions to elicit student responses purportedly leading to the ‘correct’ answer.3 The original Beyond Langdell article had a broader purpose, however. Its intent was to focus on the fact that the case method fails to prepare students to be “practice ready” – an essential part of lawyering in today’s world. Using models from medical school, business school, and policy school, the article posited that the legal academy should focus more on training “practice ready” lawyers, fully able to collaborate on cases and projects for their future clients, and less upon the terror-inducing Socratic method still largely employed in its hallowed halls. As noted in the original article, “the ‘case method’ as originally conceived and practiced has enabled generations of students to ‘think like a lawyer’ but it has stifled them in learning how to act and respond like a lawyer to real client situations.”4 To add to this lapse, in the pre-pandemic world, law schools were slow to embrace electronic means of classroom instruction or of conveying information from faculty to students or among students themselves. Even though there were several means in which to conduct group discussions or even classes online,5 few in the legal community utilized these methods prior to March 2020 when the COVID threat emerged. The world has changed. In a post-pandemic world, legal education needs to change, too.6 Any number of suggestions could be offered for that change, but it is useful to examine just a few options that the legal academy should consider now. 1
Beverly Petersen Jennison, Beyond Langdell: Innovation in Legal Education, 62 Cath. U.L. Rev. 643 (2013).
See generally id. at 645 (and accompanying footnotes).
2
The methodology relies upon asking a series of questions based upon reading legal opinions on a particular issue and then having the professor pose hypotheticals related to the subject matter. As lawyers know, often the result in class was a terror-filled few minutes with no answer.
3
Id. at 672.
4
For example, the leading legal research platforms have had platforms for years to convey information to students and even to allow online student-to-student discussion. Additionally, many universities use systems for electronic communication with students, and university-based law schools have had access to those systems for a number of years.
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While “legal education” is often referenced herein with an eye towards legal educators and legal education institutions, we would be remiss for not also highlighting that legal education accreditors, like the American Bar Association, need to be flexible and grow from the lessons of the COVID-19 pandemic.
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1. Curriculum Change The first change law schools need to consider is a curriculum change – and along with that, a shortening of the time that students spend in obtaining their legal degrees.7 There are some basic principles of law all lawyers should be familiar with – but literally, these courses could and should all be taught within the first year of law school. This would more closely emulate the medical school model.8 Why should law schools teach these basic principles of law? Because when a client comes into your office to tell you their story, they do not preface it with “I have a contracts problem.” Practitioners need to first be able to identify the category of their client’s problem in order to help that client. 7
Some American law schools have gone to a two-year curriculum or to a 3/3 curriculum (with the first three years being undergraduate education and the last three being law school.)
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These are generally the courses that correspond to today’s Multistate Bar Exam multiple choice questions on the bar exam’s current version.
2. Online Classes The legal academy has already forded this river – now it’s time to do an assessment of how that could work in real life post-pandemic. Although legal academics bemoaned the loss of the Socratic method when classes switched to online formats in March, the reality is that the classes still went on and presumably students still learned the material that they had to learn. If the required course load was winnowed down, professors could focus on teaching those courses in a more practical, less Socratic way. Notwithstanding ABA accreditors,9 online formats can work with this practical instruction, and in fact, these courses can work synchronously or asynchronously in order to impart information to students which they can then master. It is the knowledge that students need – and the format can follow. Although the ABA accreditors looked the other way when the spring semester abruptly changed to electronic delivery of courses, no one knows what the future holds regarding law school standards with respect to online education. In a 2019 symposium, ABA Legal Education Managing Director Barry Currier did say that he expects the ABA might approve a fully online law degree program within 5 years. SU College of Law (@SUCollegeofLaw), Twitter (Apr. 26, 2019, 12:37 PM), https://twitter.com/SUCollegeofLaw/ status/1121815552551530496.
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3. More Internships Like the medical, business and policy school models discussed in Beyond Langdell, learning while doing is an incredibly effective way of teaching students.10 Yes, they need some basic information – and that could be solved as set forth above – but then they need the practical experience of learning how to solve a client’s problems, working with a client, and seeing the outcomes of their efforts. Of course, all of this should be done under some sort of supervision. What this does not require, though, is placing students exclusively in in-house clinics that may or may not reflect their interests for future practice areas. Internships outside of academia, in the real world, are extremely valuable experiences for law students because they are in the real world and students then get real world experiences.11 On a related point, there is still a place for traditional research internships for law students – those resembling more of what we would consider ‘law clerk’ internships. Students not only need to be able to deal with clients, they also need to be able to research in practice. Would any of us like to be seen by a doctor who simply relies on his or her memory to diagnose a serious medical condition? Probably not. Similarly, a client in serious legal hot water needs an attorney who can actually do real research on such a problem. Woefully, the amount of legal research training most law students receive is slim at best; this type of “traditional” internship could help improve those research skills.
10
Another possible change is that Career Placement offices could be pressed into service to assist students in obtaining off-campus internships. Part of what they do is communicate with prospective employers. Why couldn’t those offices be expanded or reconfigured to help students find real world (a/k/a outside of academia) internships during their academic careers?
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4. More Practical Exams12 The exam system in law schools needs some serious revision. Currently, it requires students to not only issue spot amongst the inserted “red herrings” but to have memorized large amounts of information in order to take an exam and get a decent score. What lawyer in this world relies upon memorized information? She would more likely figure out the area of law and then research the particular problem by analyzing statutes, regulations, cases, administrative decisions, etc. Similar to the Multistate Performance Test (MPT) part of the bar examination, where test takers are provided with a case “file” consisting of a set of facts and applicable law, law school exams could enhance student learning by moving away from memorization. This is so much more like real life in practice and would provide better training. While the authors argue that practical exams should be used more frequently during the law school process, that notion is not exclusive of the argument that the bar exam as a whole should be revisited to examine its practicality in developing lawyers, for the same reason. That is a topic for another article, though.
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In short, the post-pandemic world gives the legal academy the opportunity to do more, and to do it better. The legal academy still needs to get it right, and this imposed change to electronic learning and Zoom student conferences and Blackboard discussions should be viewed as a springboard for educational enhancement in the legal academy rather than as a temporary setback in the “fullness� of legal education. The legal academy is ripe for change. It was ripe for change before the pandemic. The pandemic can provide the academy with the ability to move ahead to better serve clients in the real world. BEVERLY PETERSEN JENNISON is a member of the Maryland and the D.C. bars. She practiced health care administrative litigation and transactional work after graduating from the Columbus School of Law of The Catholic University of America. She has just retired as a Visiting Associate professor from the University of Maryland Carey School of Law after a 25-year career teaching at area law schools. CHRISTOPHER JENNISON is a member of the Maryland and the D.C. bars. He practices employment and labor defense for the Federal Aviation Administration, in Washington, D.C. He is active in the Maryland State and American Bar Associations, having served as Chair of the MSBA's Section of Legal Education and Admissions to the Bar and as a member of both bars' Board of Governors.
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No Need to Panic Online Dispute Resolution Works BY JEFF TRUEMAN, ESQ., CECILIA B. PAIZS, ESQ., AND JOHN GREER, ESQ.
Who knew six months ago “Zoom� would be a verb? The legal profession, as well as the dispute resolution community, have adapted to the coronavirus pandemic in creative ways, doing in a few weeks what otherwise might have taken years. Even though dispute resolution professionals are seeing cases settle online, not all lawyers and clients are interested; not yet, at least. Some believe online dispute resolution (ODR) is not as good as doing it in person. The three of us are using ODR successfully in our practices and we believe it will continue to be a viable option. This article dispels prevalent myths about ODR and suggests best practices for its effective use.
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Myth #1: You Cannot Have Private Conversations. False. Video-conferencing platforms (e.g., Zoom, Bluejeans) have virtual “breakout rooms” where conversations cannot be heard or seen by other participants. The host (i.e., the neutral) can move in and out of these breakout rooms for discussions as needed. The host can also move participants in and out of breakout rooms. Once in a breakout room, conversations are completely private as between each breakout room, as well as between the breakout rooms and the main session. Some neutrals use phones to go back and forth between the parties in private session, but breakout rooms in the platform provide a smoother, and therefore better, experience for participants.
BEST PRACTICES:
• The neutral should offer a video-conference platform that permits breakout rooms and enable them in advance of your session. • For cases with multiple parties or complex issues, the neutral can create breakout rooms for each party and rename them by party to avoid confusion (e.g., “Plaintiff’s and attorney’s breakout room”). For less complicated matters, breakout rooms can be created and named after the parties join the session. • The neutral can create and label extra breakout rooms. For example, it may be helpful to have just the attorneys meet with the neutral.
Myth #2: Video-Conference Platforms are Not Secure. False. Despite bad press about security (you have likely heard about “Zoombombing” in which uninvited persons invade a session to post objectionable material), video-conferencing platforms are reasonably secure if configured properly. No platform is 100% secure. Most security breaches are due to user error. This is a big issue because attorneys working from home may not have configured their home computer as securely as their office network. It is, therefore, extremely important for attorneys to assure themselves that the neutral has a thorough understanding of the security settings for the platform and, in cases where a higher level of encryption may be appropriate, adjusted the settings properly and taken steps to manage the session to prevent compromises to information security or confidentiality.
BEST PRACTICES:
• Make sure you and your clients have the most current version of the platform’s software. • Do not share the meeting log-on information with unauthorized persons and advise your client likewise. • You and your clients should not participate using public wifi because it can be hacked easily. If possible, hardwire your Internet connection with an ethernet cable. This also helps prevent bandwidth issues, such as children in the home using online streaming services. • Ask the neutral if she has enabled a virtual waiting room. This enables the neutral to screen who has access to the meeting. • Once the session starts, if appropriate, the neutral can “lock” the meeting so that no one else can enter. • Civil cases may involve sensitive information needing special protection. If so, let the neutral know. Specifically, tell her if there is information you would not feel comfortable sending via email. Many email providers, as well as video-conference platforms, use a level of encryption that provides adequate protection for most information. If your case involves especially sensitive information, such as trade secrets or other intellectual property, perhaps the mediation, arbitration, or other dispute resolution session should occur on a platform that offers a higher level of encryption known as “end-to-end” encryption (e.g., GoToMeeting or WebExMeeting).
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Myth #3: Non-Verbal Clues Are Insufficient With Video-Conferencing Technology. Only partially true. Many lawyers prefer to see their opponents in person in order to read body language and other non-verbal cues of participants (although we note the irony that many civil attorneys want to bypass joint sessions and go right to separate caucus sessions). Yet, in this pandemic environment, facial expressions are limited when everyone wears a mask. With video-conferencing, multiple participants may be on screen at one time, meaning everyone’s facial expressions are viewable simultaneously. This also eliminates participant cross-talk and interruptions, permitting greater clarity in what someone says and how they say it. Many parties participate from the comfort of home. We have found that ODR sessions are often less emotional and more solution-oriented because people have a higher comfort level and feel less need for posturing. BEST PRACTICES:
• Position your camera at a flattering angle, preferably showing your head and shoulders. This may mean putting your computer or phone on a stack of books to raise it up. • Arrange your background so it is not distracting to other participants. • Speak clearly and slowly so that participants understand what you are saying. • The neutral may need to ask a participant to mute himself to block excessive background noise that makes it hard for others to hear.
With video-conferencing, multiple participants may be on screen at one time, meaning everyone’s facial expressions are viewable simultaneously.
Myth #4: You Need to be Tech Savvy. False. Most video-conferencing platforms are fairly simple to use. We often hear from attorneys that their clients cannot participate in an ODR session because they do not have a computer or access to the Internet. However, most people have a smartphone that can be used on the platform. This an issue for discussion between all parties and the neutral if a concern about access is raised. BEST PRACTICES:
• Familiarize yourself and your clients with the platform recommended by the neutral. There are many instructional videos available online. • Practice, practice, practice! The technology should improve efficiency, not frustrate it.
Do not discount the power of technology to change institutions and the ways in which we conduct the business of law and dispute resolution.
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Myth #5: Someone Other Than the Neutral Can Host the Session. Bad idea. Mediators are ethically obligated to ensure confidential communications, mediator competency, and party self-determination. Permitting a party to host a video-conference mediation makes it difficult, if not impossible, for the mediator to ensure compliance with her ethical obligations. For example, the mediator cannot ensure confidentiality of all mediation communications when one of the parties is in control of the platform. Mediators who cannot explain how the platform works impede the parties from exercising their self-determination to make an informed choice about which platform to use. Third parties who host online mediations are not bound by the same ethical rules as the mediator. It is our opinion that the mediator, not someone else, should be accountable to participants for an ethical process.
BEST PRACTICES:
• Expect the neutral to host the ODR session. • Ask the neutral to explain the advantages and disadvantages of using the platform, including how it preserves confidentiality. • Expect the neutral to get everyone to sign so-called online protocols or “ground rules” for using the platform. These might be in a stand-alone document or incorporated into the Agreement to Mediate. Ground rules should include the following agreements: − The participants will be in a private location for the duration of the session with no one else off-camera or within earshot; − The session may not be recorded; − Participants will be free from distractions; and − A specified backup plan will be used in case of technical glitches.
OVERALL ASSESSMENT OF ODR
In some ways, ODR may be better than in-person sessions. No one has to leave early to catch a plane or beat traffic. With the assistance of other communication media, confirmation of terms and deals get done more efficiently. Pre-session documents may be signed virtually and payments may be made online. Drafting and editing settlement documents is easy by sharing screens virtually or through email. Quick ideas can be shared via text. Confusion or frustration can be ironed out the old fashioned way: by phone. At mid-day, everyone makes their own lunch so dietary issues are better managed. ODR settlement rates remain high. Of course, ODR will not be appropriate in every case. Whenever travel and social restrictions ease, some disputes will justify in-person meetings. There is a lot to be said in favor of taking the time and expense to “show up” in person and investing energy into addressing the dispute with others across a table. CONCLUSION
Do not discount the power of technology to change institutions and the ways in which we conduct the business of law and dispute resolution. Few thought the Internet would affect brick and mortar retailers, grocery deliveries, journalism, the music industry, or taxicabs in the ways it did. Similarly, the technological tools that help people solve legal problems outside of court will only get better. Someday, we may look back and notice that our reaction to ODR is similar to the way we reacted to new technologies in the past. Recall the chief engineer of the British Post Office affirmed that his country did not need the telephone because they had “plenty of messenger boys.” The president of Western Telegraph in America predicted the telephone “has too many shortcomings to be seriously considered as a means of communication.” Do not get left holding yesterday’s phone. JEFF TRUEMAN is a private commercial mediator in Baltimore and the past director of Civil ADR for the Circuit Court for Baltimore City. He may be reached at jt@jefftrueman.com. CECILIA B. PAIZS is a private family and civil law mediator and trainer. She may be reached at ceecee@paizslaw.com. JOHN GREER is a private civil mediator and arbitrator and the former Senior Counsel for the National Security Agency. He is also an adjunct faculty member at the University of Maryland King Carey School of Law teaching dispute resolution and negotiation. He may be reached at johngreer@patuxentmediation.com. All three are former members of the Alternative Dispute Resolution Section Council of the Maryland State Bar Association’s Alternative Dispute Resolution Section.
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Remote Execution Present and Future of Estate Planning? BY CAILIN J. TALBERT, ESQ., KATELYN E. HOLBROOK, ESQ., AND CLAIRE KRETSCHMER
Proper execution of estate planning documents is critical for validity and the successful implementation of your client’s final wishes. As such, Trust and Estate attorneys employ ritual-like execution protocols to ensure that state-specific requirements are met for each document being signed. Under current Maryland law, such formalities typically require in-person meetings and “wet” signatures before a notary and/or two disinterested witnesses.
C
OVID-19 has shut down in-person meetings, leaving us to wrestle with meeting the current requirements for executing estate plans. This has forced both attorneys and lawmakers to consider remote execution and notarizations as both a viable and attractive alternative to in-person meetings and executions. Remote notarization is not an entirely new concept for the State of Maryland. During the 2019 legislative session, the General Assembly enacted the Maryland Revised Uniform Law on Notarial Acts (MD RULONA), scheduled to take effect on October 1, 2020, which sets forth the circumstances required for the performance of certain notarial acts for remotely located individuals. Explicitly excluded from such acts, however, is the application of remote notarization to Wills and Trusts. To bridge the gap, and in the interest of protecting public health, welfare, and safety, Governor Hogan issued Executive Order Number 20-03-30-04 on March 30, 2020. This Order does not change the terms or effective date of MD RULONA, but it does disregard the limitation on remote notarization with respect to Wills and Trusts until the termination of the state of emergency now in effect. In addition to the long-standing legal requirements for performing notarial acts, Executive Order 20-03-30-04 further requires Maryland notaries to (1) notify the Secretary of State of the intention to perform remote notarizations and identify the communications technology vendor or platform to be used; (2) use a technology that allows for identification of the remotely located individual via real-time audio-video communication; (3) create and retain an audio-visual recording of the act; and (4) indicate on the notarial certificate that the act was performed remotely using audio-visual communications technology.
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The General Assembly also addressed the issue of remotely witnessing the execution of a Will during the 2019 legislative session. House Bill 1140 took effect on October 1, 2019, and affirmatively prohibits a person from qualifying as a witness in the presence of the testator if the witness is in a different physical location at the time of the execution. Proposed by the MSBA Estate & Trust Law Section, this prohibition was passed by the General Assembly on the basis of safety concerns of the time, such as undue influence. Under the new light of a pandemic and the consequent stay-at-home order, however, consideration must also be given to the enormous barrier current law places on the execution of critical end of life documents in the midst of a health crisis. As a result, Governor Hogan issued Executive Order Number 20-04-10-01 on April 10, 2020, temporarily waiving the in-person witnessing requirements for wills, powers of attorney, and advance directives provided certain conditions are met. In addition to the legal requirements already in effect for witnessing the execution of documents in-person, another executive order was issued to address growing concerns. Executive Order Number 20-04-10-01 requires that (1) the witnesses be residents of the State of Maryland; (2) all parties execute under attorney supervision; (3) all parties execute concurrently in one another’s electronic presence; and (4) the supervising attorney create a certified copy of the document in accordance with subsection III(e) of the Order. These recent developments have left us to ask: What is the best avenue for estate planning? Will remote executions be the way of the future for Maryland? Should they be? And will remote executions withstand challenge? The good news for clients is that they do not have to wait until the COVID-19 pandemic comes to an end—
effective estate planning can still be implemented. Maryland residents certainly can execute documents now. Once the COVID-19 crisis has calmed down, it may be wise to re-execute them to prevent any disputes in the future and ensure the validity of all documents. CAILIN J. TALBERT, ESQ. is a senior associate, KATELYN E. HOLBROOK, ESQ. is an associate and CLAIRE KRETSCHMER is a summer law clerk with JDKatz, P.C. – a tax litigation and estate planning law firm in Bethesda, Md. and downtown Washington, D.C.
These recent developments have left us to ask: What is the best avenue for estate planning?
WEB EXTRA
A BRAVE NEW WORLD: REMOTE EXECUTION OF ESTATE PLANNING DOCUMENTS Watch a replay of MSBA's webinar on the basic requirements for executing estate planning documents under Governor Hogan's Executive Orders permitting Remote Witnessing and Notarization, including a demonstrative video. VISIT MSBA.ORG/BRAVE-NEW-WORLD
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MSBA UPDATES
| YOUNG LAWYERS
Fresh Faces Zoe Rydzewski 2L, University of Maryland Francis King Carey School of Law MSBA Summer Law Clerk
What made you want to pursue a legal career? I originally thought the law was very black and white. You either violated a law or you didn’t. Then, in undergrad, I took a constitutional law course as part of my Philosophy, Politics, Economics, and Law (PPEL) major. I learned all the ways that the law is nuanced and how creative lawyers can be by taking a law and then applying it to so many different fact patterns. I found myself drawn to the creative aspect of the law.
What area of law are you learning towards after law school? I am leaning toward practicing environmental law after graduating law school. Environmental law really combines my passions for environmental studies and the law. I am excited to be an advocate for the environment and improve our planet in ways that benefit us all.
What is one piece of advice you would give someone considering law school? Law school is both a challenging and rewarding experience. You will certainly work hard and yes, there will be pages upon pages of reading, but you will also find that you are capable of more than you thought. I learned throughout my first year in law school that there is no one certain way to do law school “right.” Everyone has different reading and study methods that work best for them. If you choose to go to law school know that you are capable of succeeding and know that you are capable of succeeding in your own way.
William Sasse 3L, University of Baltimore School of Law MSBA Summer Law Clerk
What made you want to pursue a legal career? I wanted to be a part of the legal system for a long time and I decided that being an attorney would provide me the most options and abilities to do the most good and also provide me the most stability.
What area of law are you learning towards after law school? Litigation. Preferably criminal (prosecutor) but I would like to take a year to clerk and learn more about our justice system.
What has been your biggest challenge during law school? The biggest challenge was adjusting to the study habits of being a law student. Putting in the hours of reading to be ready to answer a 5 minute cold call and to take the exams. And then after getting into a pattern having it thrown out the window by COVID and having to adjust to a new study System and class system.
What is one piece of advice you would give someone considering law school? It’s hard. It will drain you, test you and push you past your limits. But it is possible and will be one of the best choices you have made. Believe you can and you're halfway there. 146
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FOR YOUR PRACTICE
| UPDATES FROM THE JUDICIARY
Court News Since the beginning of the pandemic, the MSBA has advocated on behalf of our members and the entire profession by posing questions and obtaining clarifications from the Judiciary regarding court procedures and Administrative Orders. Here is a summary of two recent Administrative Orders that may impact your practice: Amended Administrative Order on the Progressive Resumption of Full Function of Judiciary Operations (June 3, 2020): The Judiciary outlines a gradual five-phased reopening plan to full operations due to the COVID-19 emergency, encouraging remote hearings when possible and describing safety measures. The Order notes it may be necessary to retreat to an earlier phase or adjust phases in specific jurisdictions based on the effects of the pandemic. 1. Phase I began on March 16, 2020, and limited court operations to those emergency and urgent matters listed on pages 1-3 of the Order’s attached Exhibit. 2. Phase II began on June 5, 2020, and expanded the scope of matters heard remotely and in-person. Included matters are listed on pages 4-9 of the Order’s attached Exhibit. The Court of Appeals and Court of Special Appeals are fully operational with most hearings occurring remotely. Clerks’ offices remain closed to the public with limited exceptions. 3. Phase III began on July 20, 2020. Court clerks’ offices reopened to the public and courts began to hear additional matters, including some contested matters. Included matters are listed on pages 11-14 of the Order’s attached Exhibit. Courts continue to use technology for remote proceedings with variations by court location. All individuals seeking access to courthouses must answer screening questions, take a temperature check, wear a mask, and practice social distancing.
4. Phase IV began on August 31, 2020, with continued expansion of court operations to include non-jury trials and other contested criminal, civil, family, and juvenile matters. Included matters are listed on pages 16-17 of the Order’s attached Exhibit. Non-MDEC counties (Baltimore City, Montgomery and Prince George’s Counties) are permitted to use available virtual drop boxes and to use MDEC for appellate filings through the end of Phase IV. 5. Phase V begins on October 5, 2020. Courts will resume full operations including jury trials. Administrative Order Clarifying COVID-19 Health Measures (July 31, 2020): Provides additional requirements on wearing of face masks inside courthouses and judicial branch facilities including: 1. requiring face coverings during all court proceedings, 2. requiring the mask to cover both the nose and mouth completely, and 3. providing disposable masks for those who don’t have them (or providing alternative means for remote access if appropriate).
WEB EXTRA
MSBA will continue to provide you with important updates regarding new Orders and directives from the courts on our COVID-19 website. MSBA.ORG/COVID-19
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ETHICS
| ETHICS OPINION
Maryland State Bar Association, Inc.
Committee on Ethics MSBA ETHICS OPINION 2020-01
SUBSCRIPTION PLANS FOR LEGAL SERVICES
AS A SMALL FIRM practitioner rep-
resenting businesses and their owners, you have requested an opinion on the propriety of offering your clients a periodic “subscription” for clients who envision the need for legal services and would find it helpful to secure the availability of counsel in a cost-effective manner. Following what you see as a trend toward “subscription” plans in other industries, you would offer a package of legal services in exchange for a set monthly, quarterly or annual fee. Although you have yet to formulate the details of these plans, you would envision
writing a certain number of letters, reviewing a certain number of documents or taking a certain number of telephone calls as part of the “package.” Should clients require work beyond the scope of their plans, you would bill for these services at a specified hourly rate under a separate retainer agreement. You ask our opinion on whether such fees must be placed into your client trust account, on the extent to which portions of this fee must be refunded to clients who do not avail themselves of your services, and on a dollar amount that would be considered “reasonable.”
To the extent that this arrangement guarantees your availability to serve the client, it incorporates elements of an “engagement fee.” An “engagement fee” is a fee for the attorney to accept a case, to be available to handle it, and not represent another party. See Docket Nos. 1993-20, 1993-24, and 1992-41. Originally used in a litigation context, engagement fees were once used to ensure an attorney’s availability by precluding the lawyer from representing an adversary. Unlike a retainer for actual legal advice and services, clients paid this fee to ensure that the lawyer refrain from working for anyone adverse to that client.
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Since there is no requirement that the attorney provide any additional legal service, true engagement fees are earned upon receipt and should not be deposited into a client trust account. Id.; see also Docket No. 1987-09 (upfront payments are “ethically proper so long as the amount involved is reasonable”); Docket No. 1988-21 (upholding earned retainers in such circumstances). So long as this “availability fee” is reasonable, it may be placed in the attorney’s operating account as earned when received.
service model, the material risks may be difficult to foresee, and such is good reason for attorneys to approach this model cautiously and modestly. At a minimum, the subscription plan must fully inform the client of the following:
• The circumstances under which subscription fees must be refunded to the client, including a provision that fees would, at a minimum, be refunded if the attorney fails to render some or all of the services requested; and • The client’s right to cancel the subscription at any time, subject to the refund policy specified. • A disclosure that subscription fees will be deposited into the attorney’s operating account upon receipt, subject to refund of the entire subscription fee if the attorney was not available to provide the specified services upon request.
Unlike a traditional engagement fee, your subscription plan would compensate you not simply for your availability, but also for offering clients a discrete menu of services available upon request at no additional cost. Those who foresee the need for certain assistance may welcome an opportunity to pay a modest fee to reserve the services of an attorney who will provide them upon request without additional charges. It is conceivable that you could take on two subscription clients who had no conflict when their subscriptions started, but developed a conflict during the course of the subscription period. As such, you cannot guarantee your availability to a client in the same manner as an engagement fee arrangement would.
• The specific services to be provided in exchange for the subscription fee and any limitation on the client’s use of these services within a particular service period; • The method by which a subscribing client may request such services and the time frame within which such services are to be provided; • The benefits of a subscription which would reserve your availability for representation, but which would also compensate you for providing the specified services upon request and without additional charge; • The risks associated with this form of representation. Although it may be hard to predict all risks associated with this plan, you minimally must inform the client that conflicts of interest and other legal issues may later arise which could preclude you from rendering some or all of these services; • The situations in which additional charg-
Considering the potential benefit to clients who may not be able to afford traditional fee arrangements, we believe that there is merit to subscription plans which promise availability (absent an unforeseeable conflict) and some services. However, there was considerable debate among members of our committee on whether one may place these fees into a firm’s operating account prior to rendering services for the applicable period.
Considering the potential benefit to clients who may not be able to afford traditional fee arrangements, we believe that there is merit to subscription plans which promise availability and some services.
Under MARPC 1.15(c), one need not place retainers into trust if “the client gives informed consent, confirmed in writing, to a different arrangement.” Under MARPC 19-301.0(f), “informed consent” requires that “the attorney has communicated adequate information and explanation about the material risks of and reasonable alternatives to the proposed course of conduct.” Given that subscription service plans are a new and evolving fee and
es would apply for any of the services listed, and whether additional retainer agreements would be required for more extensive work; • Since these fees will be earned irrespective of whether the client actually requests such service, you should advise subscribers that the plan may not work to their advantage if they do not use available services;
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Beyond the parameters of the plan itself, your subscription plan must inform subscribers of reasonably available alternatives, including the option of placing their fees into a trust account until earned at the end of the service period. Although subscribers may qualify for refunds regardless of where these fees are deposited, you must explain that funds held in an operating account are subject to greater risk, which may make it more difficult to get a refund in the event of your death, bankruptcy or other event which may impair the liquidity of your assets. Finally, your subscription plan should expressly affirm the client’s right to
consult with other counsel before entering into it. See DC Bar Opinion 355. Although this Committee has, in some circumstances, upheld what we called “nonrefundable” retainers, we have only used this label in situations where such retainers are both reasonable and truly “earned.” See Docket Nos. 1987-09 and 1988-21. Other ethics committees that have approved of plans similar to yours would prohibit attorneys
from labeling fees as “nonrefundable.” See, e.g., DC Bar Opinion 264, NYC Bar Ethics Opinion 1996-5 (permitting prepaid legal services so long as fees are refundable). Recognizing the heightened scrutiny that courts have placed upon alternate fee arrangements, see, e.g., Attorney Grievance Comm’n v. Stinson, 428 Md. 147, 50 A.3d 1222 (2012), you should avoid the “nonrefundable” label and draft your subscription plan to specify those circumstances in which fees will, in fact, be refunded. Regardless of the manner in which legal services are arranged, attorneys may only earn fees to the extent that they are “reasonable.” “An attorney shall not make an agreement for, charge, or collect an unreasonable fee” under Rule 1.5(a) of the Maryland Attorneys’ Rules of Professional Conduct. To determine whether a fee is reasonable, MARPC 1.5(a) establishes the following factors: 1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the attorney; 3. the fee customarily charged in the locality for similar legal services; 4. the amount involved and the results obtained; 5. the time limitations imposed by the client or by the circumstances; 6. the nature and length of the professional relationship with the client; 7. the experience, reputation, and ability of the attorney or attorneys performing the services; and 8. whether the fee is fixed or contingent. The rule does not expressly address subscription plans. But, regardless of whether a given client takes advantage of these services in a given period, we believe that plans which make legal services more affordable when aggregated among a larger group of clients may be “reasonable.” Like prepaid legal services plans (or legal “insurance” products),
a subscription model enables the attorney to reduce the cost of legal services by spreading it among a larger group of clients. Because the profitability of a subscription plan increases as utilization decreases, we would caution you to consider the means by which you would meet the needs of your clients if things do not go according to plan. Hence, if a larger number of subscribers take advantage of your services than you anticipated, we would question whether you overextended your availability and promised more service than you can reasonably and competently deliver. Despite the reduction in the overall cost of legal services, a subscription model should not reduce the quality of
Recognizing the need for innovative approaches to the delivery of legal services, our committee spent several months reviewing the merits and the mechanics of your proposed model. Lacking ethical rules which expressly address these approaches in Maryland, we cannot guarantee that the Court of Appeals would share the views expressed in this opinion and would encourage you to proceed with caution. Given the importance of alternative fee arrangements to the profession and to the public at large, we hope that the Court’s Standing Committee on Rules of Practice & Procedure will promulgate appropriate rules to meet this growing need.
Recognizing the need for innovative approaches to the delivery of legal services, our committee spent several months reviewing the merits and the mechanics of your proposed model. representation provided and each subscriber is entitled to the same level of professionalism, competence and diligence as any other client. Subscription fees must meet the reasonableness requirements of MARPC 1.5. Given the factors listed in MARPC 1.5(a), reasonable dollar amounts may vary in relation to the customary charges in your region, the nature of the services offered, your level of experience and a variety of other considerations. Thus, rather than express an opinion on what dollar amount would be reasonable, we must defer to your market research and adherence to MARPC 1.5 to establish appropriate fees Whether a given plan meets these and other ethical requirements is a highly fact-dependent inquiry. Indeed, we must caution attorneys who choose to implement such plans to anticipate potential pitfalls, to incorporate indicia of reasonableness in their engagement agreements, and to ensure that each client is fully informed regarding every aspect of the arrangement. MARYLAND BAR JOURNAL | ISSUE 2 2020
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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.
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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.
An Interview with Senator Ben Cardin CONTINUED FROM PAGE 48
DW: Since many law firms received PPP funding, what can we expect for the looming efforts to have recipients seek forgiveness?
BC: Just recently, we made a modification to the program. When it was enacted, you had to spend the money over an eight week period in order to get maximum forgiveness. We've now changed that to 24 weeks. I worked again with my counterparts on the Republican side of the aisle to make that a reality as quickly as possible, and that now has passed the Congress. [Unfortunately], that's not going to be enough. When we passed the bill, we thought in eight weeks our economy would be back, performing at a level that would not need government assistance, but that's not the case. We're now looking at what the next round will look like. What I am trying to do is to make sure that in this
I think we do have the best system in the world. I think we have the strongest democracy in the world. It's been tested, I must tell you under this current administration, but it is a system that really does respect different views and respects the fact that we are going to fight to preserve American values. That's what brings us together in Washington. Yes, we'll have our fights, we'll have our partisan divisions, but the members of the Senate, the members of the House are there because they believe in our system, and they want to do good for our country. We work more together than apart. As I said, earlier, I've made friends with Republicans on so many different issues. I was told when I was first elected to the House of Representatives, by then the Majority Leader Dick Gephardt, that if you want to get things done, find a Republican and become friends with a Republican. That's how you get
We work more together than apart. You get things done by listening to other people and being willing to compromise, and that happens every day in the United States Congress. next round, we deal with those small businesses that really need the help. Originally, we wanted to get money out quickly, and we did that in order to preserve small businesses. Now I hope that we'll look at those small businesses that are the smaller of the small businesses, those that have had dramatic revenue reductions, and those that are in traditionally underserved communities and target our assistance to help those small businesses in need.
DW: What should our members be aware of that they may not be hearing in news of coming out of Washington?
BC: I think most people feel that all we do in Washington is fight amongst ourselves, and that we don't like each other and that it's dysfunctional. I serve on the U.S. Helsinki Commission, I've been chairman and Ranking Member of it, and the commission works on human rights globally. It's interesting how many parliamentarians from other countries have come to me and said “we want to see how you do things in the United States because you have the best system in the world.”
things accomplished, and that's very true. You get things done by listening to other people and being willing to compromise, and that happens every day in the United States Congress.
DW: That is my list of questions. Is there any other wisdom that you would like to pass on to our members today? I did want to thank you for your time today. I want to thank you for your leadership because we need leadership right now because the country is being challenged. You are one of those leaders, and I know you’re working hard for the best of our citizens.
BC: Thank you for that. I just want to tell you, I'm a proud member of the Maryland State Bar Association, and I thank you for what you do for our lawyers. It is an incredible responsibility being an attorney, and I just cherish my education and I cherish the relationships I've had in Maryland.
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STAFF PROFILE
| ANDREA TERRY, ESQ.
Continuing Lawyers' Education ANDREA TERRY, ESQ., MSBA DIRECTOR OF LEARNING
Before joining the legal profession, what did you do? I was a reporter before going to law school. I worked in three different markets for NBC affiliates, and covered courts, and state and local government. Covering those institutions in very different communities instilled a clear understanding of the importance of knowing how to navigate within them, and helped spark my interest in law school. I learned that what appeared to be minor zoning decisions for example, can have a significant, long-term impact on a community, and that the same holds true of course for court decisions.
As a reporter, I covered a lengthy trial in another state that ended with a judgment notwithstanding the verdict, and almost no one in the community (including me) even knew what that was or that it could happen. It’s a dramatic outcome, and its significance wasn’t lost on me. Almost everything I covered, from the mundane to the major events were interwoven with, and impacted by the law and legal process, and it helped cement my interest in law school. The original goal was to be a better legal reporter, but I spent a year in litigation clinics in law school that enabled me to make a significant impact in a series of cases, and I followed that path immediately after law school instead.
Tell us a little bit about your legal career. I practiced in Harford County for three years after graduating from the University of Baltimore Law School, but after completing my first 40 hour mediation training, I began to focus on alternative dispute resolution. In addition to being obviously less adversarial, it permitted a more family friendly schedule. That time period also happened to coincide with then Chief Judge Bell’s convening of the Maryland ADR Commission, and I was asked to participate as a result of my role in starting the Harford County Community Mediation Program. It was a very exciting time to be on the ground floor of a movement in Maryland’s courts to integrate ADR into their case management systems, as well as in communities to try and avoid escalation of conflicts to the courts in the first place. I actually ended up working for the new District Court ADR Office to help launch and expand the integration. That role included recruiting and training volunteer lawyers to serve as mediators and settlement conference facilitators across the state, which was the start of my 20 plus years of delivering continuing education for lawyers.
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Advertising index ABA Retirement Funds PAGE 53
What is your current role with the MSBA? I’m the Director of Learning for the MSBA, and I work with a terrific team to provide educational content in a variety of delivery formats across all practice areas. I also collaborate on multiple association-wide initiatives at any given time related to marketing, tech, special events or whatever is needed.
What is your favorite part of your work? Collaborating with the smart and generous lawyers who volunteer their time and expertise to help keep their colleagues current and knowledgeable. Our faculty and authors are some of the state’s top jurists and lawyers, and it’s remarkable
It’s tremendously gratifying to work with smart, talented lawyers who see continuing education as a clear and necessary path to bettering the profession. how much time and effort they invest in preparing, teaching and writing, when they’ve got dockets, practices, and families also needing their time and best efforts. It’s tremendously gratifying to work with smart, talented lawyers who see continuing education as a clear and necessary path to bettering the profession. They are among the MSBA’s and the profession’s greatest assets. In the big picture, it’s obviously better for the practice and the public if as many lawyers as possible are current and competent, so this work is important.
What is an interesting fact about you that can’t we find on your resume? After starting and running the Harford County Community Mediation Program, and several District Court day of trial mediation programs, I later went back and mediated with those programs as a volunteer. Also, I once drove a team of the Budweiser Clydesdale horses as a Grand Marshall of the Havre de Grace 4th of July parade.
Dugan, Babij, Tolley & Kohler COVER 3
First Maryland Disability Trust PAGE 113
LawPay COVER 2
National Academy of Distinguished Neutrals PAGE 95
Potter Burnett Law Group PAGE 15
The Law Offices of Julie Ellen Landau PAGE 83
The McCammon Group COVER 4
Venable LLP PAGE 3
Warnken Law PAGE 27
What do you do in your down time to de-stress/unwind? Go outside - preferably to run, play tennis, hike, kayak or take my dog to one of Havre de Grace’s beautiful parks. I try to take daily walks to catch up on podcasts now that I’m not commuting every day.
What is one thing you want MSBA members to know about the Learning Department at the MSBA? That, while we produce some of the most venerable and valuable educational programs and publications that have been relied upon by Maryland lawyers for decades, we also are always looking for and open to new ideas.
MARYLAND BAR JOURNAL | ISSUE 2 2020
155
EXECUTIVE DIRECTOR'S MESSAGE
| INSIGHTS & UPDATES
The MSBA Continues to Adapt for You S
o much has happened since the last issue of our Bar Journal. That issue focused primarily on our efforts to fight for the entire legal profession here in Maryland. From the solo practitioner to the largest firms based here who would be at a competitive disadvantage if the legislation seeking to tax legal services had passed. We heard from attorneys all across the state powering our efforts or simply expressing gratitude after we had won. We at MSBA appreciate the national recognition bestowed upon us by ASAE. Only 60 associations were chosen for awards in an industry of over 10K professional associations. Being recognized for doing what we’ve always done is great. We then found ourselves confronted with a set of circumstances never experienced in our 124 years serving as the home of the legal profession. By now, we all understand the magnitude of COVID-19’s impact on our society, our world. Our members, firms, and the MSBA itself, have not been immune from its effects. We marshalled our resources and have already provided 23K+ hours of complimentary online learning to our members when they needed it most. We are continuing to provide free access to CLE for the rest of 2020. Beyond the dozens of webinars, providing complimentary access to our CLE catalog, ensuring rapid dissemination of key information via our dedicated COVID web page, and our efforts working with the federal and state judiciary, the governor's office, and our federal delegation of US Senators and Representatives, we continue to innovate.
"To remain relevant and continue serving this profession, like you, we must adapt. I hope you’ve noticed our efforts to date and I’m looking forward to what we have in store."
We are focusing on development of an all-digital learning library with over 200 content elements which will serve as practical resources for all segments of the profession. In fact, we are rethinking our approach to content overall and will be sharing more of that in the weeks and months to come. We’ve hosted numerous coffee talks, virtual networking and other online forums. We continue to adapt to the times and continue to focus on the value we provide. MSBA dues remain lower than 48 other state Bars even as we deliver more content and value than most. To remain relevant and continue serving this profession, like you, we must adapt. I hope you’ve noticed our efforts to date and I’m looking forward to what we have in store. Thanks to the many firms who’ve pledged that 100% of their attorneys will be members. Thanks to the thousands who have already renewed. As I write this, over 90% of members have already renewed in the first 10 weeks of our renewal campaign – faster than at any time in my three years serving as your Executive Director. We will continue to adapt because we must. To serve you. It’s a privilege.
Victor L. Velazquez, Executive Director
156
MSBA.ORG | ISSUE 2 2020
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. 520 West Fayette Street Baltimore, Maryland 21201
Nonprofit Organization U.S. Postage
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Maryland Bar Journal
Electronic Service Requested
The McCammon Group is pleased to announce our newest Neutral Hon. Toni E. Clarke (Ret.)
Retired Associate Judge, Prince George’s County, Maryland The Honorable Toni E. Clarke joins The McCammon Group after over twenty years of dedicated service as an Associate Judge on the 7th Judicial Circuit Court for Prince George’s County. Prior to her judicial tenure, Judge Clarke served Prince George’s County as an Associate County Attorney and as the State’s Attorney and was in private practice focusing on civil litigation. Judge Clarke is a Past President of the J. Franklyn Bourne Bar Association; Past President of the Women’s Bar Association of Maryland; Past President of the Prince George’s County Bar Association; and Past Chair of the Judicial Division of the American Bar Association. She is a Recipient of the Rita C. Davidson Award from the Women’s Bar Association of Maryland; the Distinguished Woman Award from the Alliance of Black Women Attorneys of Maryland; and was twice named one of Maryland’s Top 100 Women by the Daily Record. Judge Clarke now brings this distinguished record to The McCammon Group to serve the mediation needs of lawyers and litigants in Maryland.
For a complete list of our services and Neutrals throughout MD, DC, and VA, call (888) 343-0922 or visit www.McCammonGroup.com
