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L E A D E R S I N L AW • C O M M U N I T Y • J U S T I C E • A DVO C ACY • T E C H N O LO GY • P R AC T I C E M A N AG E M E N T

Maryland

BAR JOURNAL MSBA. HOME OF THE LEGAL PROFESSION.

VOLUME 1 ISSUE 3

Meet MSBA Member

Rod Rosen

stein Former U.S. Deputy Attorney General

KEY FEATURES Faces of the Profession Business & Technology Aging in the Law Content for Your Practice

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Contents VOLUME 1 | ISSUE 3

106 Combating Ageism in Maryland and Beyond

113 Debt & Depression in Older Adults MSBA UPDATES 4 6 13 16 41

President's Message 2019 Legal Summit & Annual Meeting Maryland Bar Foundation MSBA in the Community An interview with Former U.S. Deputy Attorney General Rod Rosenstein 46 Inside Annapolis 150 Fresh Faces 158 Executive Director’s Message

MEMBER FOCUS & CAREER HIGHLIGHTS

116 The Elderly,

Employment Law, and Federal Benefits

24 Partner Profile 33 Firm Update 72 Solo/Small Firm Practitioners Around the State 90 Breaking into the Law 92 Past President 94 Career Transitions 96 Off the Beaten Path 100 What I’ve Learned 102 What are You Reading? 152 Committee Profile

Member Spotlights 20 Eric Orlinsky 25 Hon. Laura Ripken 29 Chris Jennison 36 Rhian McGrath 76 Susan Land 132 Hon. Nicole Pastore

ADVANCING JUSTICE

121 Retirement: What

Does it Mean to the Experts and to Me?

110 Attorneys Have a Role to Play in Preventing Elder Abuse DISCOVER MORE

50 54 56 59

U.S. Senator Christopher Van Hollen Immigration Legal Information Hub An Access to Justice Champion Protecting Courageous Immigrant Women and Girls

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

MARYLAND BAR JOURNAL | ISSUE 3 2019

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EDITORIAL ADVISORY BOARD

Published quarterly by the Maryland State Bar Association, Inc. 520 W. Fayette St. Baltimore, Maryland 21201 Telephone: (410) 685-7878 (800) 492-1964 Website: www.msba.org Executive Director: Victor L. Velazquez Editor: Anna S. Sholl Advertising Sales: MCI | USA Subscriptions: MSBA members receive THE MARYLAND BAR JOURNAL as $20 of their dues payment goes to publication. Others, $42 per year.

Hon. Vicki Ballou-Watts, Chair

IN-HOUSE EDITORIAL COMMITTEE

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

Richard L. Adams, III

Robert D. Anbinder

Mary Beth Beattie

Anna Sholl

Alexa E. Bertinelli

Susan K. Francis

Peter A. Heinlein

Reena Shah

Hon. Marcella A. Holland

Louise A. Lock

Victoria H. Pepper

Andrea Terry

Corinne M. Pouliquen

Sahmra A. Stevenson

Gwendolyn S. Tate

Bill Hall

Advertising: Advertising rates will be furnished upon request. All advertising is subject to approval by the Editorial Advisory Board. Editorial Advisory Board Hon. Vicki Ballou-Watts, Chair MSBA Officers (2019-2020) President: Dana O. Williams, Esq. President-Elect: Hon. Mark F. Scurti Secretary: Del. Erek Barron Treasurer: M. Natalie McSherry Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial Board or staff. Publishing an advertisement does not imply endorsement of any product or service offered.

SEND US A MESSAGE!

MARYLAND STATE BAR ASSOCIATION @MDSTATEBAR @MARYLANDBAR @MD_STATE_BAR Tell us your favorite part of the new Maryland Bar Journal on social media and using the hashtag: #MDBARJOURNAL 2

MSBA.ORG | ISSUE 3 2019

WEB EXTRA

WANT MORE? This issue of the Bar Journal is accompanied by 3+ hours of related video content. VISIT YOUTUBE.COM/MDSTATEBAR


When you have to be right

Wolters Kluwer Legal & Regulatory U.S. Proudly Announces the 2018 Supplement to

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

Celebrating 29 years of Publication!

Maryland Corporation Law, including 2018 Supplement, #9780735545595, $575.

Cited by Judges and Lawyers in Maryland and Elsewhere

Maryland Corporation Law is the first fulllength book on Maryland corporation law in over 60 years. Since then, there has been a complete recodification of the Maryland corporation statutes, dozens of other statutory amendments, and many important cases decided by Maryland and other courts applying Maryland law. Maryland Corporation Law is the first and only work to survey all of these developments. Written by one of Maryland’s most respected and experienced corporation lawyers, Maryland Corporation Law is based on the most thorough research ever undertaken for a book on this subject. Every volume of the Maryland Reports and Maryland Appellate Reports — as well as many other sources — was reviewed page by page to discover all cases dealing with Maryland corporation law issues since 1658. The book contains many easy-to-use forms, including articles of incorporation, bylaws, organizational and other minutes, board and stockholder resolutions, articles of merger, articles of amendment, articles of transfer, and articles of dissolution. All are specific to Maryland. The 2018 Supplement also includes the author’s analysis of recent statutory and case law developments.

Contents (continued) FOR YOUR PRACTICE Nuts and Bolts 23 Business Valuation Basics Emerging Areas of the Law 31 Tax Treatment of Legal Fees Under 2017 Tax Cuts and Jobs Act 63 Technology and Professional Rules of Attorney Conduct 129 Enhanced Diminution Credits Under the Justice Reinvestment Act 131 Odor of Marijuana By Itself Not Probable Cause to Arrest 138 Maryland Empowers Construction Workers to Recover Unpaid Wages 144 Defendant Class Action Rule Change is Welcome News for Maryland Businesses Technology Developments 62 MSBA Connect is Coming Soon to Your Section 67 A Roadmap for Lawyers With Cybersecurity Paralysis 78 I’ve Taken the Trainings and Read the Rules, but how do I actually use MDEC? 81 Survey Says… Law Practice Management 84 Getting Paid: Stress Less and Earn More Building Your Brand 86 Marketing on a Shoe String Budget Patent Law 136 Patent Eligibility Exceptions Threaten to Swallow Patent Law Whole 146 Updates from the Judiciary 147 Attorney Grievance Update 155 Recent Ethics Opinion

“The leading commentator on Maryland Corporation Law” Judge Robert W. Sweet United States District Court for the Southern District of New York

To order call 800-234-1660 or visit WoltersKluwerLR.com/store

MARYLAND BAR JOURNAL | ISSUE 3 2019

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PRESIDENT’S MESSAGE

| INSIGHTS & UPDATES

MSBA is the home of the Legal Profession I

n my short time as President of the MSBA, I’ve already met with numerous attorneys who excel at what they do. Visiting with a broad spectrum of our Maryland lawyers has given me the opportunity to communicate that the MSBA is inclusive and has something to offer the entire profession. I’ve been privileged to spend time with attorneys early in their careers, making connections via our Young Lawyers Section. I’ve visited with several Section councils filled with experienced individuals who have benefitted from the more specialized relationships and materials that our sections offer. I’ve enjoyed the MSBA’s push to deliver legal content and services on platforms such as LinkedIn. I’ve sat in awe as I listen to the head of our Lawyer Assistance Program (LAP) describe situations of unnamed attorneys we’ve helped, confidentially and at no cost, as they work thru mental health, stress, and substance abuse issues. Our redesigned Bar Journal is demonstrative of the fact that the MSBA is dedicated and will continue to be dedicated to the entire legal profession in Maryland. This journal is filled with images and profiles of the diverse and rich tapestry of experiences that make up our esteemed profession. The third issue is about to be released.

"It's truly powerful when all segments of our profession come together to fill massive rooms."

When I set about my year as your President, I wanted to focus on members, on the practice of law, and to communicate that the MSBA has the tools needed to help our members be just a little more successful and to have a better balance between their professional and private life. From our dozens of revamped publications, to our Practice Management Resource Portal, to our recent event focused on in-house attorneys, to our recent and upcoming visits with members throughout the state, this MSBA is one of responsiveness and relevance. It’s true that the world of associations is challenged all across the U.S. Society at large leans to digital connections. We recognize that and will continue our efforts to provide a virtual community. We must. But as I shared at the opening of our most recent Legal Summit, which had 1,100+ participants and 28% attending for the first time, it’s truly powerful and there is something to gain when all segments of our profession fill massive rooms. I have one ask of you. If you’re reading this, take a moment to reflect on what it means to be in a profession. Not to have a job, but to be part of something larger. A profession that protects the interest of individuals, furthers the interests of small firms to and including corporate objectives, and works to ensure the rule of law. Thank you for being part of our MSBA, our profession. Thank you for suggesting that your colleagues join with us. Thanks to the 85% of members who’ve renewed. For those who have yet to do so, hit a few clicks online and make your commitment to the profession known. Remember we are...the MSBA.

President Williams with President Elect Mark Scurti and ABA President Judy Perez Martinez

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MSBA.ORG | ISSUE 3 2019

Dana O. Williams, President


HOME OF THE LEGAL PROFESSION IN MARYLAND

MSBA.ORG

MARYLAND BAR JOURNAL | ISSUE 3 2019

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MSBA UPDATES

| MSBA IN THE COMMUNITY

LEGAL SUMMIT & LEGAL SUMMIT & ANNUAL MEETING ANNUAL MEETING 2019 2019

Read our full interview with Rod Rosenstein on page 41.

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THE 2019 MSBA Legal Summit and Annual Meeting was one of the most successful to date with over 1,100 participants. Attorneys from all over Maryland, representing diverse practice areas and sectors of the profession, were in attendance for the wide array of educational programming and networking events.

A welcome video from U.S. Senator Chis Van Hollen opened the 2019 Legal Summit & Annual Meeting on Wednesday, June 12, 2019, and kicked off an outstanding lineup of keynote speakers. The standing room only crowd enjoyed hearing from former United States Deputy Attorney General and MSBA member, Rod Rosenstein and CNN Chief Legal Analyst, Jeffrey Toobin. In addition, the program included a discussion with Maryland Attorney General Brian Frosh & Washington D.C. Attorney General Karl Racine. The discussion was moderated by former Maryland Attorney General Doug Gansler. The speakers all brought their own unique perspective on a range of issues affecting the legal profession and current events. On Thursday and Friday,attendeees enjoyed a variety of programs focusing on diverse practice areas provided by many of the MSBA Sections and Committees. In addition to practice specific programs, MSBA Sections and Committees created interesting programs applicable to attorneys from every practice area, including: "Practice Tips from the Bench," "50 Tech Tips and Tools," and the "2019 Supreme Court Review."

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MSBA UPDATES

| MSBA IN THE COMMUNITY

In addition to programs sponsored by MSBA Sections and Committees, MSBA selected and curated programs for its Thought Leaders Series. These programs provided attendees with information on emerging technology affecting the legal profession, including cybersecurity, artificial intelligence, biotechnology, and more. The Legal Summit also featured several panels addressing issues related to various sectors of the profession, including in-house/corporate counsel, legislators, and government attorneys. Throughout the week, attendees enjoyed a host of networking opportunities. Popular events included the Crab Feast, President’s Reception, New Judges Reception, Law School Alumni Happy Hours, and the Silent Disco. Local & Speciality Bars welcomed guests at the nightly hospitality cabanas, and Worcester County Bar Association held its annual “Afternoon at Seacrets.”

MSBA EXECUTIVE DIRECTOR FUNDRAISER JUSTICE ROCKS On Friday evening, the Executive Director Fundraiser benefiting the Maryland Access to Justice Commission, “Justice Rocks,” was held at the Art League of Ocean City. Attendees of this important fundraiser enjoyed the opportunity to get their creative juices flowing by hand painting rocks reflecting their take on access to justice. In addition, attendees enjoyed several art exhibits and live music.

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TO SUPPORT


Health and wellness was also a focus at this year’s summit with added daily fitness offerings including: “Fit to Practice Bootcamp,” afternoon yoga, and the Friday YLS Sun Run sponsored by The Daily Record.

THANK YOU The President's Reception is one of the most popular events at the Legal Summit & Annual Meeting. The MSBA would like to thank The McCammon Group for its generous sponsorship of this year's President's Reception, and it's continued support of future MSBA activities.

On Saturday, the Legal Summit & Annual Meeting concluded with an awards ceremony, including presentation of the Presidential Best Section Awards to the ADR Section for its “ADR in a Box” Program and the Immigration Law Section for its series of pro bono clinics on the Eastern Shore. In addition, the Hon. Martin Welch received a standing ovation as he was presented with the Anselm Sodaro Award for judicial civility. The 2019 Legal Summit & Annual Meeting closed with installation of MSBA President, Dana O. Williams. President Williams gave a moving speech, and outlined four core values on which he and the MSBA will focus during the 2019-20 year: Continuity, Presence, Practice, and Leadership. He expanded on these themes during his speech. Continuity, he explained, means to ensure we stay the course in terms of modernizing our association, and continuing to position the MSBA for the future. As for Presence, President Williams explained the need for the MSBA to be physically present in various places around the state, but also ensure we are the home for all sectors of the legal profession. In Practice, the MSBA will ensure that is providing tools and resources for its members to help them in their day to day work and enhance their careers. Finally with Leadership, the MSBA, through its various partners, including the Maryland Access to Justice Commission will lead the way in working to solve systemic issues related to addressing the justice gap and ensuring those individuals that need lawyers have access to one. President Williams concluded his installation with this reminder to all attendees: “Finally, take the buzz created by this fantastic annual meeting home with you and talk it up with your friends, colleagues, associates and partners. We welcome all of the profession to participate. Now, time to get down to work.” We look forward to a successful 2019-20 Bar year under the guidance of MSBA President, Dana Williams.

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“Take the buzz created by this fantastic annual meeting home with you and talk it up with your friends, colleagues, associates and partners. We welcome all of the profession to participate. Now, time to get down to work.�

The new, cutting-edge Conference App introduced:

415 Users 15.1K Total number of actions 1.64K Total number of attendee messages and social shares 12.8K Total time spent in minutes that users used the app 6.5K Total number of taps for all navigation icons 178 Total taps on sponsor banners WEB EXTRA

RECAP VIDEO Relive the excitment of the 2019 Legal Summit and Annual Meeting. VISIT MSBA.ORG/ANNUALMEETINGVIDEO

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Changes for the 2020 Legal Summit & Annual Meeting 2019 ANNUAL MEETING SURVEY DATA

1100+

participants

28% attended for the first time or the first time in the past 5 years

85% of attendees rated the conference as “Good” or “Excellent”

WITH NOTABLE SPEAKERS, including former former U.S. Deputy Attorney General, Rod Rosenstein, and CNN Chief Legal Analyst, Jeffrey Toobin, and relevant and exciting programming for a wide variety of practice areas and attorneys in varying different sectors of the profession and stages of their career, the 2019 Legal Summit & Annual Meeting drew 1100+ participants. Post-event survey results indicated that 28% of the attendees had never attended or had not attended an Annual Meeting within the past 5 years, a significant increase over the 7% in 2018. In addition, 85% of the attendees rated the 2019 Legal Summit & Annual Meeting as Excellent or Good. We intend to capitalize on the momentum and buzz surrounding a successful 2019 Legal Summit & Annual Meeting to make 2020 our best to date. Our survey data provided us insight on how we can improve to meet that goal. First, the survey indicated that 60 minute or 90 minute classes were preferred over the traditional 2-hour time frame. In addition, the survey indicated that members want to see more programs and know more details about the available programs at least 3-6 months prior to the event, or between January and March.

In response to this data, we are updating the conference schedule to provide 60-minute and 90-minute programs. In doing so, we have the potential to accommodate over 80+ different programs v. the 56 provided in 2019. In order to accommodate this schedule, we are decoupling the Section meetings from the Section sponsored programs. Rather, each day will provide certain times and space for the Sections to hold meetings. Communication about how to schedule your Section meetings will be provided as the schedule becomes more finalized.

Lastly, in order to provide potential attendees with more information on the available programs further in advance, we have outlined the following timeline for program submissions:

NOVEMBER 15, 2019

MID-DECEMBER, 2019

JANUARY 31, 2020

MARCH 6, 2020

APRIL 30, 2020

Initial proposal submissions due

Notification re: acceptance/rejection of submitted proposals.

Final revisions to program titles, description, and speakers/panelists information due.

Program outline due (identifies topics/ subtopics, anticipated written materials or slide presentations, and A/V needs)

Written materials due (written materials and/ or a slide presentations are required for all programs)

If you are a Section interested in submitting a program proposal for 2020, please visit MSBA.ORG/2020-SUMMIT-SECTION-PROGRAM-PROPOSALS If you are an individual interested in submitting a proposal, please visit MSBA.ORG/2020-SUMMIT-GENERAL-PROGRAM-PROPOSALS

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SAVE THE DATE

June 10-13, 2020 Ocean City, MD

ENGAGING. INSPIRING. ESSENTIAL. Earn up to 12+ CLE and stay up to date on the latest changes. A great event for all members of the legal profession: Learning and networking for individuals, a team experience for colleagues, and fun for vacationing families.

Specialized sessions for all segments of the profession: Solo & Small Firms

In-House Counsel

Mid-Sized Firms

Public Interest

Large Firms

Academia

Federal Government

Students

State & Local Goverment

Registration coming soon.

KEYNOTE SPEAKER

Madeleine Albright Former United States Secretary of State

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MSBA UPDATES

| MARYLAND BAR FOUNDATION

Maryland Bar Foundation Grant Recipient Reminds Aging Seniors to Plan for their Pets PETS ARE OUR FAMILY, so it is hard to

imagine a time when we might not be there to care for them ourselves. Unfortunately, however, many pets outlive their owners, and without a plan for care, these pets are at heightened risk of homelessness and possible euthanasia. That’s why the Maryland Bar Foundation (MBF), the Maryland SPCA (MD SPCA) and the Baltimore County Department of Aging are proudly partnering—to encourage all pet parents to ask and answer that critical question: who will care for my pets if they outlive me? Together, the MBF, the MD SPCA and the Department of Aging hope to increase the number of mature adults to

Without a plan for care, these pets are at heightened risk of homelessness and possible euthanasia. think about and include a plan for their pets in their estate plans in order to help reduce the number of pets who become homeless when their caregivers pass away. With a generous MBF grant, the MD SPCA created a valuable resource guide that walks pet parents through planning for their pets’ future care. First, pet parents should select a caretaker that is willing to care for their pet

M A RY L A N D

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

Read the resource guide, Planning for the future: Caring for your pet at MARYLANDBARFOUNDATION.ORG/SPCA

in the event of disability, prolonged illness, or death. Pet Parents should then provide that caretaker with information about their pets’ medical history, day-to-day care, personality and behavior by completing a “Pet Data Sheet.” Second, they should share their plan and data sheet with a family member, trusted friend or neighbor, their estate planner, financial planner, lawyer and/or executor of their estate. If a caretaker cannot be identified, pet parents are encouraged to consider programs like the MD SPCA’s Legacy of Care, which provides shelter and care while finding a new home for pets. Once pet parents participate in a brief interview to qualify their pets for the MD SPCA’s adoption program, they are asked to include the MD SPCA in their char-

itable gift planning. Their planned gifts help to care for many homeless pets—including their own. In partnership with the Baltimore County Department of Aging, the MD SPCA hosted workshops entitled “If Your Pet Outlives You” at senior centers around Baltimore County. Four additional workshops will be held in November. All participants will receive a copy of the MBF and MD SPCA’s resource guide, “Planning for the future: Caring for your pet.” To receive a copy of this free resource, please contact Meg Allen, Senior Development Officer, at mallen@mdspca.org or (410) 235-8826 ext. 127.

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CONGRATULATIONS TO THE MARYLAND BAR FOUNDATION FELLOWS CLASS OF 2019

More about the Maryland SPCA

T

he Maryland SPCA is more than a shelter – our mission is to improve the lives of people and pets in the community through education, veterinary services, and humane care. By 2020, we are working to make a positive impact in the lives of 20,000 pets and 25,000 people. Continuing our commitment to animals since 1869, our vision is a future of compassion and care for all of Maryland’s cats and dogs. In 1869, our founder, attorney William Woodward, was appalled by the mistreatment of Baltimore’s working horses. He recruited 50 like-minded citizens to form the MD SPCA. Over 150 years, the organization has remained relevant by keeping the community’s evolving needs at the center of our mission. •

By sharing our knowledge and experience, we empower and encourage children and adults to treat animals with compassion and take on roles as advocates in their schools, neighborhoods and communities. In 2018, more than 7,000 students participated in humane education instruction; 240 young people and professionals took advantage of our workforce development programs; and more than 1,300 seniors engaged in mental health and wellbeing activities.

By delivering quality pet health care, we work to keep cats and dogs healthy and in their homes. More than 14,300 pets received services in 2018, including 6,504 spay/neuter surgeries and 5,000+ exams and treatment at our Wellness clinic.

By providing a safety net to cats and dogs in need, we save the lives of vulnerable more than 3,000 animals each year. Innovative programs such as foster care and behavioral support provide second chances and ready pets for their forever homes.

Our work is driven by a deep belief in community, compassion, innovation, integrity and respect.

How to get involved ADOPT: If you have room in your heart, family, and home, come to our adoption center to find a furry friend for life. Visit our website to see available pets (mdspca.org/adopt/pets) and to learn more about our at adoption procedures (mdspca.org/adopt/howto).

GIVE: The Maryland SPCA thrives on the generosity of people like

you. Every gift is an investment in our community. We receive no operating support from any other humane society, SPCA or the ASPCA. Whether you’re making a one-time or monthly recurring gift – our pets count on your generosity. Visit mdspca.org/give.

VOLUNTEER: Our volunteer corps includes about 1,000 of

the most dedicated people you will ever meet. They socialize pets, work with adopters, staff events, participate in community outreach programs, and cover administrative tasks. If you are at least 17 years of age and are willing to volunteer twice a month for at least six months, we welcome you to attend a volunteer orientation session. RSVP here. (mdspca.org/volunteer) 14

MSBA.ORG | ISSUE 3 2019

Hon. David B. Aldouby Albert G. Allen, III Hon. Shannon E. Avery Robin G. Banks Kimberly S. Barranco Michael S. Barranco Hon. Brynja M. Booth Curtis H. Booth Michael J. Bramnick Jane A. Canter Hon. Scott M. Carrington Hon. Catherine Chen Patrice M. Clarke Natasha M. Dartigue Jason A. Deloach Diane E. Feuerherd Hon. Lawrence P. Fletcher-Hill Alison Case Weinberg Florance Jason A. Frank Geoffrey H. Genth Llamilet Gutierrez George W. Hermina Allison B. Hicks Christopher S. Jennison Frank M. Johnson Cynthia M. Jurrius Barrett R. King Hon. Sherri D. Koch Brian A. Marsh Margaret M. McKee Benjamin H. Meredith Sierra B. Mitchell Dempsey D. Nash Barry M. Nudelman Lee H. Ogburn Hon. Aileen E. Oliver Amy L. Petkovsek Elizabeth M. Rosen Randolph S. Sergent Peter W. Sheehan Anna S. Sholl Gina M. Smith Dwight W. Stone, II Swapna Yeluri


M A RY L A N D

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

The Maryland Bar Foundation exists to impact local communities through access to justice & public understanding of the law. Every year, the Maryland Bar Foundation donates tens of thousands of dollars to local nonprofits that share our goals. Our grants support many of Maryland’s most vulnerable communities, and facilitate work that positively impacts & changes lives.

MBF ANNUAL MEETING On Thursday, June 13, 2019, the Maryland Bar Foundation held its Annual Meeting at Lighthouse Sound near Ocean City, Maryland. During the meeting, the MBF reported on its activities and highlighted the grants it awarded throughout the year. During the meeting, recipients of the H. Vernon Eney Endowment Fund Award and the Edward F. Shea, Jr. Professionalism Award were recognized. The H. Vernon Eney Endowment Award, which is presented to an individual who has demonstrated excellence in the law, bar leadership, community leadership, and enormous capacity for work, was presented to Hon. Lawrence F. Rodowsky. The Edward F. Shea, Jr. Professionalism Award, which recognizes an MSBA young lawyer who exemplifies professionalism, integrity, compassion and commitment to public service, was presented to Sarah D. Cline. The Maryland Bar Foundation Annual Meeting concluded with the induction of new Maryland Foundation Fellows.

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MSBA UPDATES

| MSBA IN THE COMMUNITY

MSBA in the Community Impacting every sector of the legal profession

Sections VETERANS & MILITARY LAW. The Veterans’ Affairs and Military Law Section, in conjunction with the Battlefield Chapter of the Nam Knights of America MC, held the 2nd Annual Patriot Ride at the Antietam National Battlefield on April 27, 2019. The Patriot Ride helps provided legal assistance to Maryland veterans and active duty military to help them secure benefits and services they deserve and address other legal needs. LITIGATION. On April 25, 2019 the MSBA Litigation Section, along with the Federal Bar Association of Maryland, American College of Trial Lawyers, and the Constitutional Sources Project presented “Maryland Bicentennial Symposium and Celebration of McCulloch v. Maryland.” This historic case, which began with humble beginnings in 1818 as a civil suit filed in the Circuit Court in Baltimore, led to the Supreme Court’s opinion in McCulloch v. Maryland, by Chief Justice John Marshall. The event celebrated the 200th anniversary of the case and discussed the ongoing importance of McCulloch v. Maryland. STATE AND LOCAL GOVERNMENT LAW. On May 7, 2019 this section sponsored a Networking Event and Legislative Wrap-up featuring speakers from both sides of the aisle. Speakers included Del. Marc Korman (D-Dist. 16), Del. Trent Kittleman (R-Dist. 9A), MSBA Director of Legislative Relations, Richard Montgomery, Michael Sanderson, Executive Director of Maryland Assoc. for Counties, and Bill Jorch, Manager, Governmental Relations, Maryland Municipal League.

Young Lawyers YLS/YLD MEET THE JUDGES: On May 1, 2019, the Young Lawyers' Section of the MSBA, in conjunction with the Young Lawyers’ Division of the Bar Association of Baltimore City, sponsored a forum where lawyers and judges could meet one another in a more social setting outside the courtroom. WILLS FOR HEROES. On Saturday, May 4, 2019, the MSBA Young Lawyers Section sponsored the Wills for Heroes program to benefit Howard County first responders.

Board of Governors BOARD OF GOVERNORS RETREAT. On May 10, 2019 the 2018-19 Board of Governors along with incoming Governors for the 2019-20 Bar year met to discuss issues facing the MSBA. During breakout sessions, the Board brainstormed new initiatives that may help the MSBA engage new members, better serve existing members, and position the MSBA for the future.

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Maryland Bar Foundation OPEN MEETING. On Thursday, April 26, 2019, the Maryland Bar Foundation held an Open Meeting and networking reception to present the 2019 Legal Excellence Awards & Curran Award. The Foundation was proud to present this year’s Legal Excellence Awards to: • Hon. Thomas G. Ross – Steven P. Lemmey Award for the Advancement of Public Service Responsibility • Cecilia B. Paizs – Advancement of Professional Competence • Baltimore City District Court Re-Entry Project & Hon. Nicole Pastore – Advancement of the Rights of the Disadvantaged • Susan K. Francis – Advancement of Advocacy for Justice • Erik S. Atas – Advancement of Public Understanding of the Law The Foundation was also proud to present this year’s J. Joseph Curran Jr. Public Service Award to: • Raymond A. Hein, Esq.

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MSBA UPDATES

| MSBA IN THE COMMUNITY

Recent/Upcoming Events In-House/Corporate Counsel LEGENDS OF THE BOARDROOM. On Friday, September 13, 2019, the MSBA presented Legends of the Boardroom by Judicial Events. The event, designed to provide an opportunity for participants to learn from leading General Counsel on hot-button issues in their field, presented three exciting panels on topics relevant to today’s attorneys. During the program, the Maryland Awards of Excellence: In-House Maryland Attorney were presented. HOW TO CONDUCT AN EFFECTIVE WORKPLACE INVESTIGATION. The MSBA Department of Learning and Publications offered an all new presentation: “How to Conduct an Effective Workplace Investigation,” on Thursday, October 3rd at the University of Baltimore in Baltimore, MD. Topics for this presentation included: identifying reasons why investigations may be conducted, developing strategies for structuring investigations – from understanding how investigations are initiated (e.g., intake process, or responding to a lawsuit or public relations matter), to identifying potential investigators (including the role of legal counsel), and forming strategies for fact gathering and more.

Programs Across Maryland CONNECTIONS. October 15, 2019, 5:30-8:00pm: A networking event open to all legal professionals in St. Mary’s County area. The event will feature MSBA President, Dana O. Williams, St. Mary’s County President Jaymi Sterling, and President-Elect, David Weiskopf, and is located at the Front Porch in Leonardtown, MD . This is the first of a series of events that will take place around Maryland. 60TH CONFERENCE OF BAR PRESIDENTS AND 12TH YOUNG LAWYERS SUMMIT. October 25-26, 2019: MSBA’s 60th Conference of Bar Presidents and 12th Young Lawyers Summit at the Chesapeake Hyatt in Cambridge, Maryland. This event invites Presidents, President-Elects, and Executive Directors of Local and Speciality Bars across Maryland to learn and share best practices on membership engagement, governance, and other issues in order to run a successful bar association. SOLO SUMMIT. November 8, 2019: MSBA’s Solo & Small Firm Summit at Live! Casino & Hotel in Hanover, Maryland. Join us for various programs aimed at helping you Start, Run or Grow your solo or small firm practice. Visit with vendors and exhibitors aimed at helping you succeed, and network with new and experienced practitioners. TRIALS & TRIBULATIONS IN, ON, AND OFF THE COURT. November 16, 2019: MYLaw Presents “Trials & Tribulations In, On, and Off the Court”. This event raises funds to support fantastic programs for Maryland youth! Held once every 18 months, Trials & Tribulations has a storytelling component and silent auction. The storytelling piece is based on a new theme each year. T&T 2018 was called “A Family Affair.” This year’s T&T is “In, On and Off the Court” and will focus on Sports and Entertainment Law. We hope you will join us for what we are sure will be a fun, heartwarming, and entertaining evening of networking, storytelling and auction bidding at The Horseshoe Casino!

Bench/Bar WELLNESS WEEK. September 16-19, 2019 was the first Annual Bench/ Bar Wellness week, designed to get members of the Judiciary and Attorneys to increase their focus on health and wellness. Several events were held across Maryland, and included a fun run/walk with the Judiciary, meditation sessions, and a health and wellness expo.

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MSBA UPDATES

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Maryland State Bar Association – MSBA

Maryland State Bar Association – MSBA

Pay packages for public companies’ top lawyers hit a five-year high last year as their role expands beyond the realm of lawsuits and compliance.

The report provides insights on lawyer demographics, earnings, diversity, pro bono service, legal education, use of technology, well-being, and discipline.

GENERAL COUNSEL PAY HITS FIVE-YEAR HIGH AT $2.6 MILLION

EVERYTHING YOU EVER WANTED TO KNOW ABOUT THE LEGAL PROFESSION BUT DIDN’T KNOW WHERE TO ASK

Maryland State Bar Association – MSBA

Hackers are studying lawyers’ practice areas, social media presence and their firm’s hierarchies to craft subtle but destructive phishing schemes, cybersecurity experts say.

Maryland State Bar Association – MSBA

Law firm culture has changed since the American Lawyer began publishing financial data in 1985.

AS LAW FIRM CULTURE CHANGES, OLD PARTNERSHIP MODEL ‘IS ALL BUT DEAD’

4 PHISHING TACTICS THAT DUPE THE LEGAL PROFESSION

MARYLAND BAR JOURNAL | ISSUE 3 2019

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MEMBER FOCUS

| MEMBER SPOTLIGHT

THE THRILL OF THE DEAL ERIC ORLINSKY Eric Orlinsky is the Co-chair of Saul Ewing Arnstein & Lehr’s Private Equity/ Venture Capital/ M+A Practice, where he has spent most of his career.

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WE SAT DOWN to talk to him about his career, and the effects of new technologies are having on business and transactional law. Mr. Orlinsky also discussed his activities within ABA and the State bar, and his role in helping to found Maryland’s business court.

Tell us about your career. When I was in law school, I became very interested in the business courses there and in the business side of the law, things like corporate law, securities law, tax law. I focused my law school education primarily in those areas. I spent a brief period in litigation when I first came to the firm.. After I left the litigation department and joined the corporate group here at the firm, I very quickly focused on corporate transactions and securities transactions. In the early part of my career, at Weinberg & Green, there wasn't very much support on the securities side at the firm. I very quickly became one of the few, and at one point, the only, securities lawyer at the firm. I learned in many ways, including trial by fire, and was able to build a pretty strong background in securities and transactional law. The firm was extremely supportive, allowed me to learn different aspects of securities law and to get tremendous experience in a wide variety of different types of business transactions. I was able to become well versed in private equity transactions, venture capital transactions, many types of public securities transactions, and we were representing some public companies. I was involved in hostile takeovers of public companies, and a wide variety of different types of transactions. I'm kind of a deal junkie, I love the thrill of the deal. I love the fact that no two deals I work on are ever really the same.

Since you are a deal junkie, could you go into more detail in regards to the deals that you are generally involved in? So, very frequently, we're helping companies raise capital. In the early stages of a company's history, that could be from friends and family investing, to angel investors, on to venture capital funds investing in a company to help get it off the ground and fuel its growth. At the later stages, deals could be private equity funds coming in and buying a controlling interest in a company, or a minority interest. If it's a controlling interest, then we help manage the company and grow it.

The biggest thing happening in corporate law, actually is not happening around the law itself, rather, it's happening around technology. What is something that you're particularly proud of about your career? One of the things that I'm most proud of in my career has nothing to do with the practice of business or transactional law. My father had some difficult legal challenges, he was convicted of a federal crime and sent to federal prison for a period of time. One of the most rewarding pieces of legal work that I was able to work on here at the firm was to get him a presidential pardon before he passed away. It was very important to him and it was important to me to be able to do that for him. So that was an extremely rewarding career accomplishment. In terms of more business transactional type work, I'm proud of when I was the lone securities transactional lawyer at the firm. I successfully led a hostile takeover of a small public company. It had been a family-owned business that had been taken away from the family, they had been outmaneuvered. We were able to maneuver them back into control of the company. Additionally, I was very involved in the formation of the “Business Court� or the Business and Technology case management program. MARYLAND BAR JOURNAL | ISSUE 3 2019

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Turning to the Business Court, tell us how you got involved and why you got involved? The business court is really among the earliest ways in which I got involved with the State Bar. When I was going to ABA meetings, I became aware of this national trend in favor of business courts. I thought it would be a good idea for Maryland to develop a business court as well, particularly since Maryland has some very favorable laws relating to REITs (real estate investment trusts) and investment companies' mutual funds. As a result of those laws, many national firms come to Maryland to form both REITs and mutual funds. I felt like our courts weren't always up to the challenge in understanding and dealing with cases involving these entities and our court system needed to be better-equipped to deal with them. So Marshall Paul, a partner at Saul Ewing, and I went to see Jim Hanks, who is one of the most revered corporate lawyers in the state. We suggested to him that we should make a push for a business court in Maryland. With Jim on board, we took that idea to the Business Law Section of the State Bar. They also like the idea, but didn’t think we would gain much traction in the short term. However, during the 2000 legislative session, former Speaker of the House, Casper Taylor, had a similar idea to create a Maryland equivalent to the Delaware Court of Chancery. As a result, we teamed up to propose legislation in the 2000 legislative session. Ultimately, after a year or two of summer

study effort and pressure on the Chief Judge of the Court of Appeals, the business court was born in Maryland, as the Business and Technology case management program.

Could you go into some detail about what a business court is and what it does? It's a little bit of a complex answer. Essentially, the experience in most states has shown that when you employ a certain group of strategies with business cases, which tend to be among the largest and most complex in the court system, they tend to settle faster. These strategies are: having the same judge throughout the entire process, forcing early mediations, and employing certain technologies. When you get these big cases settled faster and get them out of the system, you can actually improve the judicial efficiency for the entire judicial system. So a business court is a program that provides special resources to business cases to get them out of the system faster and more efficiently.

What are some of the new things happening in the area of corporate law that you're following or that you're interested in? I would say that probably the biggest thing happening in corporate law, actually is not happening around the law itself, rather, it's happening around technology. The way in which we practice law has changed dramatically since the time I first started practicing law. If you think about it, when I started practicing no lawyers in our firm had computers

WEB EXTRAS

"I'M KIND OF A DEAL JUNKIE" Eric Orlinsky shares why he loves working in corporate transactional law. VISIT MSBA.ORG/EORLINSKY BUSINESS & TECHNOLOGY CASE MANAGEMENT PROGRAM Want to learn more? You can find more information on the Judiciary’s website. VISIT COURTS.STATE.MD.US/BUSINESSTECH MARYLAND RULE 16-308 In addition, rules governing the program can be found in Maryland Rule 16-308. An “Opinion Database” that publishes judicial opinions arising from cases in the program is also available on the Judiciary’s website VISIT COURTS.STATE.MD.US/BUSINESSTECH/OPINIONS

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on their desks. Today the computing power each of us holds in our hands is dramatic. There are different software, programs, packages, solutions being developed every year that are going to make it more and more efficient to do business transactions. That is going to affect how legal services are priced, perhaps a change to fixed fee or some sort of alternative fee basis. As lawyers get more efficient at doing transactions, it will have an effect on the number of lawyers who become associates at law firms and get trained in business transactional law. I think we're seeing fewer lawyers become associates in transactional practices, because of the number of lawyers that you need to do, for example, due diligence on a transaction is going down year after year. Additionally, there are collaborative tools that I think are going to allow people to negotiate documents in a fraction of the time. All of these things are just moving towards increasing the speed with which transactions are getting done.


FOR YOUR PRACTICE

| NUTS AND BOLTS

Business Valuation Basics

What is Business Valuation? Business valuation is defined as the act or process of determining the value of a business enterprise or ownership interest therein. This can be a 100% or a lessor ownership interest. In addition, the valuation date should be established. A decision to be made at the beginning of the valuation process is what standard of value applies to the matter at hand. Typically, in Maryland, the standards of value used include fair market value and fair value. Fair market value is used in marital dissolution matters and is defined by the AICPA as: “The price, expressed in terms of cash equivalents, at which property would change hands between a hypothetical willing and able buyer and a hypothetical willing and able seller, acting at arm’s length in an open and unrestricted market, when neither is under compulsion to buy or sell and when both have reasonable knowledge of the relevant facts.” Fair value is used for shareholder disputes, it is defined by state law and is similar to fair market value without the reduction of value for a discount for lack of control, if applicable and a discount for lack of marketability. Approaches to Business Valuation There are three overall business valuation approaches: asset-based, market and income. Within each approach, there are various valuation methods. The following represents a summary of some of the most prevalent methods under each approach: Asset-based Approach • Adjusted Net Asset Value Method: This method focuses on the balance sheet of the company being valued. Assets and liabilities are adjusted to fair market value. In addition, off-balance sheet liabilities and contingent liabilities are accounted for. Market Approach

• Merger and Acquisition Method (also known as the Guideline Transaction Method): Pricing multiples are derived from transactions of significant interests in companies engaged in the same or similar lines of business. • Transactions in the Company’s Stock: As the name implies, prior transactions in the Company’s stock can represent an indication of value for the Company if the transactions represent “armslength” transactions. Income Approach • Capitalization of Earnings Method or Capitalized Cash Flow Method: Economic benefits for a representative single period are converted to value through division by a capitalization rate. • Discounted Cash Flow Method: The present value of future expected economic benefits is calculated using a discount rate. The valuation analyst will review the values produced by the methods utilized. The analyst will determine how much weight will be placed on each method based on their judgment. Finally, a discount for lack of control, if applicable, and a discount for lack of marketability will be applied to determine the final conclusion of value. As a market leader in dispute consulting, business valuation and forensic accounting service, the team at Vallit Advisors can provide extensive Business Valuation services to support your case. To learn more about how our dedicated team can assist your firm with these services, contact VALLIT ADVISORS today.

• Guideline Public Company Method: Market multiples are derived from market prices of stocks of companies that are engaged in the same or similar lines of business and that are actively traded on a free and open market. MARYLAND BAR JOURNAL | ISSUE 3 2019

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MEMBER FOCUS

| PARTNER PROFILE

An Introduction to Vallit Advisors, LLC Vallit Advisors, LLC was founded by Mark W. Norris and Charles W. Rains in early 2019 to provide dispute consulting, business valuation and forensic accounting services for law firms, accounting firms, corporate counsel, governmental agencies, public and private entities and individuals. The two managing members realized that these services were typically provided by departments in CPA firms. They identified a need in the marketplace for a firm that just specialized in these services. With the goal of being a leader in the industry, the two founding members brought on Kristopher R. Hallengren and R. Christopher Rosenthal as managing members in the spring of 2019. Most of the services provided by the Firm are for law firms and their clients. These services include, but are not limited to the following: • Damage calculations for intellectual property infringement, contractual disputes, business interruption and corporate disputes • Business valuation for shareholder disputes, marital dissolution, financial reporting, and gift/estate tax planning • Fraud and forensic accounting for white collar criminal investigations • Asset tracing, income analysis, active/passive appreciation analysis, and personal/entity goodwill analysis for marital dissolution • Loss of value calculations • Calculation of reasonable royalty rates With their decades of experience, the credentialed team have qualified as experts for the above services in state, federal and international 24

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courts. This experience is used to efficiently work with attorneys in identifying the critical issues in cases with the goal of delivering a well prepared, objective product that can stand up to the scrutiny of opposing counsel and their experts. In addition to the four managing members, Vallit has five professionals with varying credentials. The Firm has offices in Baltimore, Annapolis, Washington, D.C. and Denver, Colorado. Vallit Advisors is proud to be involved with the Maryland State Bar Association as a sponsor of various events and participate in various CLE programs. To learn more about how our dedicated team can provide dispute consulting, business valuation and forensic accounting services to your firm, contact Vallit Advisors today.


MEMBER FOCUS

| MEMBER SPOTLIGHT

B E YO N D T H E

COURTROOM HON. LAURA RIPKEN Circuit Court of Anne Arundel County and Fifth Judicial Circuit The Hon. Laura Ripken talked to us about her career, and her current role as an Administrative Judge for the Circuit Court of Anne Arundel County. Additionally, she discussed why it is important for Judges to take part in bar associations and volunteer with the judiciary.

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How did you get interested in the law and what made you want to become a lawyer, and then eventually judge?

[Don't] just sit in a courtroom and then sit in chambers. You lose touch with what is happening out in the legal community

I would credit my mother with that. When I was very young, we were studying the Supreme Court of the United States in school and I noticed that they were all men. I came home to my mother, and I said, I want to be the first female Justice on the United States Supreme Court. She said, first, you have to be a lawyer. It turns out that that is not in fact, true. You do not have to be an attorney to be a Justice of the United States Supreme Court. I would say that it was set from that time that my plan was to be a lawyer. The more I found out about it, the more it confirmed my thought that that's what I wanted to do. So even from a young age, I wanted to be an attorney.

What did you do before you became a member of the bench? I first clerked for Judge Williams. Then I went to the State's Attorney's Office and their only opening was for a law clerk. So even though I had already passed the bar, I went there as a law clerk. I waited for a position as an Assistant State's Attorney to open up, which it did a few weeks after I started. As an Assistant State's Attorney, I worked in the district court for the District Court of Annapolis for some period of time. After that, I came up to the Circuit Court and was assigned to what was then called “trial team four” which dealt with jury prayers and District Court appeals. This is where I got a taste for more complicated cases. Then one of the two very long-serving Deputy State's Attorney retired, it was the first time a Deputy State's Attorney position had become available in approximately 20 years. I applied and was selected by the then State's Attorney, Frank Weathersbee, as the first female Deputy State's Attorney. I was in that position until I applied for the Circuit Court bench and was appointed.

Was public service something you always wanted to do and what drew you to it? I was always drawn to it. I cannot say that I had some great master plan. I've always been of the opinion that you ought to be open to all the possibilities before you and pursue what your passion is. I found out that public service was my passion and so I pursued it. I can't say that when I first stepped foot in law school 26

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that I had a plan, although I can say that I was particularly interested in constitutional and criminal law.

Why did you want to pursue the bench? When I was a Deputy State's Attorney, the State's Attorney, Frank Weathersbee, was thinking he might retire in the next few years. There were also two positions on the Circuit Court bench that became available. I needed to decide which direction I wanted to go. So I sat down with many judges on this and other Circuit Court benches and really asked a lot of questions about the job itself. Ultimately, I decided thatinterested in doing the job of a judge. I think some people when they're applying for judgeships get so focused on the applying part, that they don't think about whether or not they really want to do the job. So that was my first priority, making that decision. I wanted to make sure that I was interested in the various aspects of the job, and that I would be good at it. One of the things that I learned when speaking to other judges is that there was a lot more to being a judge than just what occurs in the courtroom. You can contribute in other ways to the judiciary: by participating in educational opportunities, on committees, in workgroups, on the Judicial Council, on the committees of the Judicial Council, or even subcommittees.

What are some of the ways you’ve volunteered with the judiciary? I am the Chair of the Conference of Circuit Court Judges, which is statutorily created, and it consists of all the administrative judges of each circuit, as well as an elected representative of each circuit. So I chair that, which began in January 2019. I was Vice-Chair for the two years preceding and it's a two-year term. I sit on the Judicial Council in that capacity and I've also sat on the Judicial Council for a few years now. I serve on the Education Committee, I have previously served on the Court Technology Committee. I have twice co-chaired the Annual Conference of the Judiciary, which includes the entire judiciary in the state of Maryland. I have sat on other workgroups, other subcommittees, so I've been very involved.


How did you get involved with the Maryland State Bar Association and are you on any committees or a member of any sections? I've been a member of the Maryland State Bar Association, I think as long as I've been a lawyer, which is longer than I probably should share in this interview. My involvement really stemmed originally from my involvement in the local bar association. I was a member of the Board of Trustees for the Anne Arundel County Bar Association, which has a close working relationship with the State Bar Association. I've done a number of CLEs for different bar associations. I am a member of the Maryland State Bar Foundation. I do whatever anyone calls upon me to do, I think I have done the litigation section dinner where they invite judges, to intermix with the members of the bar to share tips and guidance. I enjoy doing that. I try and attend social events when there are social events. When I can get to the conference, I go to the conference. When I’m called upon to participate I happily do so.

Why do you think it is important to participate in the Bar Association you are a part of? I think it's important for judges to not just sit in a courtroom and then sit in chambers. You lose touch with what is happening out in the legal community. Additionally, judges are lawyers. So it's very important to make sure that you're receiving feedback from the legal community frequently, and giving feedback as well, in a more relaxed setting. Practicing lawyers are more comfortable sharing their thoughts and ideas in a relaxed setting. I can't even begin to tell you how many great ideas I have received in those settings. Frequently, I'll circle back around to the person who brought it up, and pick their brain a little bit more as a

follow up to whatever issue they raise. So I think that it's good for the bench and good for the bar in equal measure.

What is one thing that is happening in the legal profession that is interesting to you? So I would say that one of the many interesting trends right now, or interesting developing areas of the law, is related to technology. Anne Arundel County was the first MDEC jurisdiction. So we're the first electronic state court in the state of Maryland. But there are many other issues that relate to technology. For example, social media, and whether it should relate to jury selection, search warrants, constitutional issues, and the admissibility of social media evidence. So I find that area to be quickly evolving, and fascinating.

Do you have any advice for up and coming lawyers or young lawyers? My advice is to not be set on exactly what you want to do with the rest of your career because you never know what opportunity might present itself. You see young people saying that they want to do this and if they don't get to do this particular thing, be a prosecutor, be a public defender, be a civil litigator, be a family law practitioner, then they will not be a success. My advice is, be open to everything because you never know what area of the law or what job or what career opportunities might grab you and be interesting to you and ultimately, result in what you want to spend your life doing. So be open.

WEB EXTRA

GUEST APPEARANCE ON THE APPELLATE COURT The Court of Special Appeals invited the Hon. Laura Ripken to sit as a guest judge. She reflects on the experience. VISIT MSBA.ORG/LRIPKEN

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MSBA IS HERE FOR YOU. YOUR MEMBERSHIP PROVIDES o Access to the legal community o Professional advocacy in Annapolis o Fastcase, $1,000+ annual savings o Access to MSBA Connect: Online Discussion Communities o Discounted CLE o Participation in assisting a network of affiliate organizations that

support the public interest

Renew your membership today at

MSBA.ORG/RENEW

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MEMBER FOCUS

| MEMBER SPOTLIGHT

BAR INVOLVEMENT IS KEY

CHRIS JENNISON Federal Aviation Administration’s Office of Employment and Labor Law WE SAT DOWN with Chris Jennison and talked

with him about the unique position that government attorneys are in, his involvement in the MSBA and the ABA, and the changes that are taking place within both organizations and in the legal field generally.

How did you first become interested in the legal field? I went to Syracuse University for undergrad, where I studied public relations and policy. I really wanted to do something in the civic world, however, I didn't know whether that was law, politics, or a combination of both. After undergrad, I got my master's degree in Public Administration. The first semester of my graduate program, every conversation that we had boiled down to who had the legal teeth to back up whatever policy they were pushing forward. I learned that if I was going to be an effective policymaker, I really needed to have a legal understanding behind different topics. So that made me look at law school and I ended up at Syracuse again.

Are there unique challenges in your role as Government Employment Attorney? We deal with two different things, one is employment and the other is labor. I didn’t understand the difference between the two before my current role. On the employment side, we're dealing more with individuals like employment discrimination cases. Whereas, on the labor side, we're dealing with union interactions.

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When it comes to the employment side, I think the biggest challenge or the most unique aspect of working for something like the FAA’s labor and employment office is, while we have plenty of resources, we are also still understaffed for the number of cases. Each of us manages an incredibly active caseload. We have 60,000 employees in the FAA and there are numerous employment cases at any one time, as in most federal agencies. On the labor side, we deal with what's called the National Air Traffic Controllers Association, NATCA, and that's the Union for all of the air traffic controllers. There are thousands of planes in the air at any given time and even small workplace interactions can affect the National Air Space. It presents many unique challenges and just trying to make sure that everybody's maintaining a good workplace while also accomplishing our mission.

Is your role as a government lawyer to protect the government or is it to make sure that the labor laws are appropriately followed? It's a struggle in any given case. In an individual employment discrimination case we’ll have an employee who alleges that their manager discriminated against them in some way. As individual attorneys, we want to make usre we are operating in an fair system. My colleagues and I will be the first to say, “Hey, we should really settle out this case,” if it looks like there are any red flags. Unfortunately, a lot of employees also don't really understand that Title VII, the employment discrimination statute that we deal with the most, has a very narrow view of what actually constitutes discrimination. An argument with your manager or a gripe with your colleague, while being unfortunate workplace interactions, does not necessarily amount to discrimination as well. So it's a little bit of a struggle with these individual cases. On the labor side, we're in a unique position in that our client is the FAA as well as the federal government and the President of the United States. We are in a unique position right now in federal labor relations and we just have a very particular focus and a very particular bargaining position. The administration tells us where to operate from right now. It's tough because we have these multiple clients. We’re just trying to make sure that the taxpayers and the federal government operate fairly.

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What is your role within the ABA and MSBA? I'm currently serving as the MSBA’s Young Lawyer Delegate to the ABA House of Delegates. The ABA House of Delegates is like a congress of lawyers, and is made up of representatives from state and local bar associations, ABA section members, and other affiliate groups, like the National Association of Women Lawyers. There are nearly 600 attorneys within the body at any given time. We convene twice a year and we discuss matters of importance to the legal profession. For instance, we have discussed issues like equal pay in the profession and the Uniform Bar Exam. I also serve in the House of Delegates on the Communications and Technology Committee. This committee works to make sure the work done by the House of Delegates, which is incredibly important, is digestible, and is understandable by every lawyer that it affects. I also serve in the Young Lawyers Division of the ABA, which is the umbrella organization that works to partner up individual state bar young lawyer sections. We provide programming, resources, and guidance to the various State Bar young lawyer sections.

What would you say to lawyers that are not as active in Bar Activities? On the professional level, you have to be involved in things like bar associations, because bar associations shape the profession, they shape the demands on lawyers, and they shape the solutions for those demands on lawyers. If you're not involved in institutions that affect you, then you're not going to set the agenda, you're not going to be involved in the discussion. So you're going to miss out, and especially over these next couple of decades, young lawyers have to be involved. We're going to see a growth of artificial intelligence, and the access to justice gap is a persistent issue. Courts and states are going to experiment more with non-lawyer providers like Legal Zoom, or other technology solutions to the law. We need to figure out how to use evolving technologies to make us better as lawyers. So those who aren't engaged with the bar, or those who are engaged in a minimal level with the bar, should realize that by being involved in bar associations, by being involved in the Maryland State Bar Association, you can help set the agenda that's going to affect your entire career.

Bar associations shape the profession, they shape the demands on lawyers, and they shape the solutions for those demands on lawyers. WEB EXTRA

CREATING FAMILY FRIENDLY SKIES Chris Jennison practices employment law at the FAA and discusses the potential of brining paid family leave to the agency. VISIT MSBA.ORG/CJENNISON


FOR YOUR PRACTICE

| EMERGING AREAS OF THE LAW

Tax Treatment of Legal Fees Under 2017 Tax Cuts and Jobs Act

BY FRED B. BROWN

This past tax return filing season has been the first for the years affected by most of the changes made by the 2017 Tax Cuts and Jobs Act, and some taxpayers who have paid legal expenses may have been shocked and dismayed to discover that they were taxed on the funds used to pay these legal fees.

TO ILLUSTRATE, assume that in 2018 a

woman with a modest salary as an employee recovers $100,000 in damages in a lawsuit from a claim against another person for defamation, with 40 percent of the recovery, or $40,000, going to her lawyer to pay legal fees. She will not receive a tax deduction for the legal fees, and thus will be taxed on the full $100,000, even though she is only collecting a net $60,000 in damages. Assuming that she is subject to an average federal income tax rate of 20 percent, she would pay $20,000 in federal taxes on the net recovery of $60,000, which amounts to an effective tax rate of 33 percent. After legal fees and federal taxes, she walks away with only $40,000. This hardly seems fair. Prior to the 2017 tax law changes, legal fees incurred to produce income were generally deductible for regular federal income tax purposes.1 However, many types of legal expenses incurred by individuals are classified as “miscellaneous itemized deductions,2” and therefore were deductible only if the taxpayer is one of the minority of Americans

who itemize their deductions3 and then, only to the extent that these legal fees, plus other miscellaneous itemized deductions, exceeded two percent of the taxpayer’s adjusted gross income (the so-called two percent floor)4. In addition, the types of legal expenses treated

Both before and after the 2017 tax act, legal fees incurred in lawsuits involving business matters, unlawful discrimination claims (which includes employment claims), and some whistleblowers claims are fully deductible.7 In 2018, Congress expanded the types of

The total disallowance of deductions for many types of legal fees violates traditional norms of tax policy that allow deductions for expenses incurred to produce income. as miscellaneous itemized deductions are completely nondeductible for purposes of the alternative minimum tax, or AMT.5 While the AMT impacts only a very small percentage of taxpayers overall, the percentages are much higher for those with relatively high income and significant items disallowed as deductions for the AMT, such as large miscellaneous itemized deductions.6

whistleblower lawsuits that allow for the full deductibility of legal fees.8 And for legal fees related to the recovery of compensatory damages for personal physical injuries or physical sickness, no deduction is permitted, but then these damages are not taxable, either.9 This means that before the 2017 changes, individuals who were not subject to the AMT – typically those with modest income MARYLAND BAR JOURNAL | ISSUE 3 2019

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– could usually deduct a substantial portion of the legal expenses incurred in prosecuting or settling claims where the recoveries were taxable. Starting in 2018, this has changed. The law enacted in 2017 completely disallows deductions for miscellaneous itemized deductions, which includes many types of legal expenses; this will continue until 2026, when the two percent floor rule is restored10. Consequently, for 2018-2025, all individual taxpayers will be denied deductions for many types of legal expenses, including legal fees incurred in claims involving defamation; malpractice by investment advisers, lawyers or accountants; trespass; infliction of emotional distress; and false imprisonment. The total disallowance of deductions for many types of legal fees violates traditional norms of tax policy that allow deductions for expenses incurred to produce income.11 While the two percent floor for miscellaneous itemized deductions has the effect of disallowing or reducing deductions incurred for producing income, its arguable justification is that it reduces the burdens on taxpayers to keep records for small expenditures as well as the IRS to monitor compliance in deducting such expenditures.12 For legal fees relating to litigation, which tend to be significant in amount, this policy is misplaced. It is also wrong to disallow deductions for these legal expenses for purposes of the AMT, which was enacted to prevent taxpayers from using tax preferences to avoid their fair share of federal income taxes.13 This is not the case where taxpayers are incurring significant legal expenses to secure damage awards. Going forward, Congress should rectify the situation by permitting taxpayers an “abovethe-line” (not itemized) deduction for legal fees incurred in connection with all types of civil damage claims where the recoveries would be taxable. This would amount to a broadening of rules that Congress has created that permit claimants in unlawful discrimination, employment and whistleblower suits above-the-line deductions for legal fees. By treating such legal expenses as above-the-line deductions, taxpayers could fully deduct legal fees incurred to prosecute or settle litigation where the recoveries would be taxable, without regard to a two percent floor for miscellaneous itemized deductions (when restored) or AMT consequences. Such an 32

MSBA.ORG | ISSUE 3 2019

approach would promote equity, by treating legal expenses incurred by taxpayers in order to make themselves financially whole after suffering a legal harm like most other expenses related to the production of taxable income.

1

Internal Revenue Code sections 162, 212

Internal Revenue Code sections 67(b), 63(d), 62(a)

2

https://taxfoundation.org/90-percent-taxpayers-projected-tcja-expanded-standard-deduction/

3

Internal Revenue Code section 67(a)

4

Internal Revenue Code section 56(b)(1)(A)(i)

5

https://www.taxpolicycenter.org/briefing-book/whopays-amt

6

Internal Revenue Code section 62(a)

7

FRED B. BROWN is a Professor of Law at the University of Baltimore School of Law. Brown teaches in the area of federal income taxation and directs the University's Graduate Tax Program. He has published articles on matters concerning international taxation as well as articles addressing fundamental income tax features such as realization and nonrecognition, and has co-authored a book on the taxation of business entities. In 2000-01, Brown served as an academic adviser to the staff of the Joint Committee on Taxation in connection with the Joint Committee staff study of the overall state of the federal tax system. In 2007, he was awarded the Saul Ewing Award for Excellence in Teaching in the Area of Transactional Law. In 2011, Brown was awarded the Tax Excellence Award by the Taxation Section of the Maryland State Bar Association. In 2019, he received the award for Outstanding Teaching by a Full Time Faculty Member of the University of Baltimore School of Law.

410-296-4408

Internal Revenue Code section 62(a)(21)

8

Internal Revenue Code section 104(a)(2)

9

Internal Revenue Code section 67(g)

10

Internal Revenue Code sections 162, 212

11

Study of the Overall State of the Federal Tax System and Recommendations for Simplification, Pursuant to Section 8022(3)(B) of the Internal Revenue Code of 1986, Volume II: Recommendations of the Staff of the Joint Committee on Taxation to Simplify the Federal Tax System, 119

12

Study of the Overall State of the Federal Tax System and Recommendations for Simplification, Pursuant to Section 8022(3)(B) of the Internal Revenue Code of 1986, Volume II: Recommendations of the Staff of the Joint Committee on Taxation to Simplify the Federal Tax System, 2-6

13

www.firstmdtrust.org


MEMBER FOCUS

| FIRM UPDATE

Photos courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | ISSUE 3 2019

33


Expansion Mindset PALEY ROTHMAN IS a Montgomery

County law firm with practices throughout DC, Virginia, and Maryland. Rhian McGrath, a family law attorney in Montgomery County and former MSBA Board of Governor, spoke with Paley Rothman’s Co-Presidents Robert Maclay, Esq. and James Hammerschmidt Esq., to learn more about the dynamic firm, its history, and its recent expansion.

DID YOU KNOW Firm co-founder Mark Rothman of jokes that his name is second because he "lost the coin toss" and that Steve Paley was older.

Paley Rothman’s founders, Steve Paley, Esq. and Mark Rothman, Esq., were both former tax attorneys for the Justice Department. In 1972, they decided to leave government and develop a private tax practice. They selected Mont-

Building an “investment portfolio” of mutually supportive and countercyclical practices.

gomery County as the place to build their firm, because Montgomery County lacked a tax firm. At that time, the founding partners had to share a desk and a legal assistant. Today, the firm has 40 attorneys representing clients in 25 practice areas. Mr. Maclay noted that firm’s growth has been based on understanding and recognizing the needs of clients to help identify practice areas that should be added, and ensuring that the practice areas have a deep enough “bench strength” to fulfill the work. Mr. Hammerschmidt describes the firm’s expansion strategy as building an “investment portfolio” of mutually supportive and countercyclical practices. Earlier in 2019, Paley acquired a small practice group from Silver Spring that focused on LGBTQ practice areas, bolstering its family and employment law practices. Other more recent additions include Robert Schulman, who has an insurance recovery practice, and Jim Rathvon and Cristen Rose, who have a niche

E S TAT E & T R U S T L AW

Paley Rothman's Diversity logo.

St udy Gr ou p

Law Section Join the MSBA Estate & Trust Group! for our 2019-2020 Study

Section Study Group is a forum The MSBA Estate & Trust Law news, review case law, professional for attorneys to discuss and We to estate and trust law practice. issues, and updates related answer your present new findings and host experts in the field to questions at every meeting.

to June a regular basis from October The Study Group meets on as well and is open to MSBA members in Baltimore and Bethesda, speakers and other professionals. The as non-member attorneys and the in one of the two locations, for the study groups appear to the other location. treamed simulcasted/s then presentations are city the date will indicate in which The colored dot next to each speaker will appear in person.

NOVEMBER 11, 2019 Alimony, Prenuptial Agreements, and Trusts Under the 2017 Tax Act

JANUARY 30, 2020 Estate Planning for the LGBT Community

FEBRUARY 20, 2020 Basics to Elder Law

(TBD)

MARCH 20, 2020 State Income Tax Considerations in Trust Administration after Kaestner APRIL 23, 2020 Don’t Trip Up the Step-Up: The Importance of Basis Adjustment Planning

TWO WAYS TO ATTEND BETHESDA 4800 Hampden Ln -BETHESDA MSBA.ORG /ET-STUDY

MAY 21, 2020 The Potential Litigation Under New Augmented Estate JUNE 18, 2020 (TBD) June 2020 Meeting

BALTIMOR E Light St Legg Mason Building, 100 -BALTIMOR E MSBA.ORG /ET-STUDY

Paley Rothman is one of two law firms that support the Estate & Trust Law Study Group, by hosting the Study Group’s speakers and members, and assisting in simulcasting to the Baltimore location (Baker Donelson). The MSBA Estate & Trust Law Section Study Group is a forum for attorneys to discuss and review case law, professional news, issues, and updates related to estate and trust law practice. It host experts in the field to present new findings and answer member questions. The Study Group meets on a regular basis from October to June. The MSBA and the Estate & Trust Law Study Group extend their appreciation to both firms for the continued support of this valuable opportunity.

WEB EXTRAS

ESTATE & TRUST LAW STUDY GROUP Learn more and register for the Study Group. VISIT MSBA.ORG/ET-STUDY-GROUP EXPANSION MINDSET We sat down with Paley Rothman to talk about their firm's recent expansion and connection to Montgomery County VISIT MSBA.ORG/PALEY

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MSBA.ORG | ISSUE 3 2019


regulatory practice. As Paley Rothman is located in a culturally and racially diverse marketplace, having attorneys whose backgrounds and experiences reflect the community around them is an important value that drives the firm’s growth. The firm is utilizing connections with minority Bar Associations, like the Hispanic Bar and the LGBTQ Bar, to recruit new talent. The firm’s Diversity and Inclusion committee ensures that the firm provides an inclusive atmosphere for all its attorneys and staff. "We're a very deep-rooted firm, with strong values and loyalty to our people and attorneys, which attracted me to this firm when I came over 20 years ago,” recounted Mr. Hammerschmidt.

DID YOU KNOW Although the firm considers Montgomery County, Maryland home, and focuses its energy on giving back to that community, it is really the home base of a regional practice. Paley Rothman attorneys practice throughout the DMV from Baltimore, to D.C. to Virginia. In addition, some of their practices, including the recently added regulatory practice, are national and international in scope.

The firm also maintains deep ties to Montgomery County. In fact, three past-Presidents of the Bar Association of Montgomery County (“BAMC”) call Paley Rothman home. In addition, the firm claims several former BAMC Board of Governors, Section Chairs and Committee members among its ranks. The firm supports many community groups, including Hearts and Homes for Youth and the D.C. chapter of The Vinetta Project, a community of female tech founders. Approaching its 50th anniversary, Paley Rothman remains committed to its founding values, while implementing a purposeful growth strategy focused on serving its clients and its community.

MARYLAND BAR JOURNAL | ISSUE 3 2019

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MEMBER FOCUS

| MEMBER SPOTLIGHT

HELPING CLIENTS I N T H E M O S T D I F F I C U LT TIME OF THEIR LIVES

RHIAN MCGRATH Webb Soypher McGrath LLC How did you get interested in the Law? Prior to graduating from college, I worked as an intern in the Fraud Division at the Federal Trade Commission with several lawyers. Subsequently, I worked for a nonprofit after I graduated from college, where many of the individuals working for the nonprofit organization were attorneys. I became very interested in the law at that point, because I was surrounded by attorneys. I had the opportunity to listen to them strategize, discuss policies, discuss various cases that they were working on, and it was all very interesting. I went to law school at the Columbus School of Law at The Catholic University of America in Washington, D.C. Photo courtesy of Beverly Funkhouser Photography

WEB EXTRA

ASK WHAT THE COURTS CAN DO FOR YOU (IN FAMILY LAW CASES) From mediation to parenting classes, Rhian McGrath highlights the importance of family law services provided by the courts in Montgomery County. Photo courtesy of Beverly Funkhouser Photography 36

MSBA.ORG | ISSUE 3 2019

VISIT MSBA.ORG/RMCGRATH


What led you to becoming a family law attorney? After law school, I clerked for a judge in the Circuit Court for Montgomery County, Maryland. When I clerked, he was on the family law rotation. During the year, I learned that there were, and continue to be, a lot of families in need. I like working with individuals and helping them with what is arguably one of the worst times in their lives. That is what drew me to becoming a family lawyer.

Tell us a little more about your practice?

Having parents that are not continually battling is ultimately what is best for the child(ren) in family law matters.

My practice is solely in the domestic relations field. I practice in all dimensions of family law including divorce, custody, child support, prenuptial agreements, postnuptial agreements, and domestic violence. I've also been appointed as a Best Interest Attorney for children. I will say that family law is an emotional area of the law. In some instances, it is impossible to reach a compromise. For instance, in a custody matter involving a relocation of a party, each side has a very strong view on where the child or children should live, and both usually have legitimate reasons for their requests. It is a very difficult situation.

they provide families with another way to solve cases without litigation. These services can help to resolve conflicts in an amicable way. Having parents that are not continually battling is ultimately what is best for the child(ren) in family law matters. These types of services ultimately are a very important issue that the courts need to consider, and that we, as practitioners, need to encourage legislators to continue to expand on for future litigants.

Tell us about your involvement with MSBA and other Bar Associations. I just finished my second year on the Board of Governors for the MSBA. Prior to my appointment, I have attended the Legal Summit & Annual Meeting down in Ocean City and attended Family Law Section programs. I'm hoping to get back on the Board of Governors in the future and/or be part of the Family Law Section through the MSBA. I have also been on the executive committee for the Montgomery County Bar Association on two separate occasions. I have been the co-chair of the Family Law Section, and been a member of various committees for the Montgomery County Bar Association.

What is the proudest moment of your career?

What have you learned from being part of Maryland Bar Associations?

That is a difficult question for a family law attorney, because you are seeing people going through one of the hardest periods in their life. There are two situations that come to mind. Acting as a Best Interest Attorney for a child would be one occasion because you are representing and giving him or her a voice. Also, when I hear from a former client, and they share how their life has taken a turn in a positive way since the separation or divorce.

One thing I've learned about the Bar Association is if you get involved, it will give back to you much more than what you end up putting into it. It provides opportunities to learn and grow in the legal community. The Bar Association provides CLE and other services to keep you apprised new issues in your profession. In addition, it provides a forum for having a say in legislative issues and assisting in the nominations of the judicial bench by participating in judicial selections. Further, the MSBA provides a forum for networking and meeting new lawyers in your field. There are multiple avenues for you to benefit from Bar Associations.

What’s one issue in family law that has grabbed your attention? One big issue relates to the services that are provided through the court system. When it comes to Montgomery County, they offer custody evaluations in certain circumstances, they will provide mediation, ADR, and will provide parenting classes to the parties. These services are so important because

MARYLAND BAR JOURNAL | ISSUE 3 2019

37


MSBA UPDATES

| TRENDS IN THE PROFESSION

MSBA Research Notes: Legal Profession Trends Highlights One of the MSBA’s many support functions for its members is to be a clearinghouse of information that enables Maryland lawyers and law firms to see trends in the profession, so they can plan more strategically for the future. In 2018, the MSBA launched a State of the Legal Profession report as a member benefit to help meet this need. Using multiple national and local sources that are monitored by MSBA staff, the report is an aggregator for legal news and data, that is updated regularly.

RECOGNIZING THAT there’s so

Maryland State Bar Association, Inc.

MSBA RESEARCH NOTES:

Legal Profession Trends Highlights FALL/WINTER 2018 | VOLUME 1, ISSUE 1

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MSBA.ORG | ISSUE 3 2019

much information for everyone to try and process daily, the MSBA strives to curate the data Maryland attorneys need to know in its State of the Profession report, rather than having members search around and sift through multiple legal news sources themselves to locate important trends and relevant legal news. Leading this effort is the MSBA’s educational program assistant, Criselle Anderson, who described her process as methodical, “I start with basic demographics such as the number of attorneys in Maryland, largest Maryland law firms and expand out to national demographics such as attorneys by state. With that data and a variety of other categories, I can show comparisons from year to year. I pull the latest data from sources such as the American Bar Association (ABA), The Daily Record, the Client Protection Fund of the Bar of Maryland, and Clio’s legal trends report among others.”

CRISELLE ANDERSON MSBA Educational Program Assistant Report Author FROM YOUR BACKGROUND AS A PARALEGAL AND IN GRAPHIC DESIGN, HOW HAS YOUR PAST PROFESSIONAL EXPERIENCE INFORMED YOUR CURRENT ROLE AT MSBA? My background has been a surprisingly greater fit than I anticipated! When I was working as a paralegal, a large portion of my duties included preparing Medicaid applications, usually several at a time. They were often very complicated and had many moving parts with many deadlines to juggle. I found my time management and organization skills transferred quite well to the MSBA as I now coordinate multiple programs a month for the Learning and Publications Department. WHAT DO YOU ENJOY MOST ABOUT WORKING AT THE MSBA? That’s a hard question because there are many things! I have really enjoyed seeing new faces at our programs, however, I also enjoy seeing familiar faces as well. I love hearing attendees say they felt a program was “the best one yet” and they really thought it was valuable to their practice. WERE THERE ANY SURPRISES IN THE COURSE OF YOUR RESEARCH (E.G., STATISTICS, EMERGING TRENDS, ETC.)? I was surprised (and frustrated) to learn that large law firms are still moving at a glacial pace to incorporate more diversity to their upper management. I do not expect change overnight, but we have a healthy abundance of data that conclusively shows that hiring and promoting diverse staff at all levels, especially at the top, benefits the entire firm/business. There’s a serious disconnect because there’s certainly a buzz about diversity hiring and promotion, but its implementation has been static thus far. I am an optimist so I’d like to see that change in future reports.


In the latest edition, new data on access to justice from The Longitudinal Analysis of Pro Bono Reporting by the Maryland Administrative Office of the Courts will be incorporated into the report. Ms. Anderson says she also relies on fellow coworkers to bring relevant news to her attention so it’s a collaborative and thorough process.

N AT I O N A L L EG A L PR O F E S S I O N U PDAT E S

Diversity in the Legal Profession A N O P E N L E T T E R T O L AW F I R M PA R T N E R S A B O U T L A C K O F D I V E R S I T Y

In January 2019, more than 170 general counsel and corporate legal officers signed an open letter to big law firms lamenting new partner classes that “remain largely male and largely white.” The letter says their companies will prioritize their legal spending on those firms that commit to diversity and inclusion.

The letter was signed by chief legal officers in a variety of industries, including those in technology, retail, media, hospitality, and financial services. The companies range from small tech outfits to large corporations, such as Google Fiber, Etsy, Heineken USA, Chobani Global Holdings, Waymo, Lyft, Vox Media, S&P Global Ratings, and Booz Allen Hamilton.

Ms. Anderson also described some emerging trends, that focused on technology, in the latest edition saying:

M A RYL A N D L EG A L PR O F E S S I O N U PDAT E S

“We, as a group, will direct our substantial outside counsel spend to those law firms that manifest results with

Important numbers respect to diversity and inclusion, in addition to providing the highest degree of quality representation. We

sincerely hope that you and your firm will be among those that demonstrate this commitment,” reads the letter. Read the letter here.

(Source: S U R V E Y: F I R S T - Q U A R T E R L AW Y Ehttps://www.law.com/americanlawyer/2019/01/27/170-gcs-pen-open-letter-to-law-firms-improve-on-diversity-or-lose-our-business/) R OPTIMISM TOPS 2018

Respondents’ overall confidence in the legal market, on a scale of -100 to 100, was 0, which is higher than the index score for all of 2018. The highest overall confidence level last year was -4, reported in the fourth quarter.

D E PA R T M E N T O F L A B O R ’ S O F F I C E O F F E D E R A L CONTRACT COMPLIANCE PROGRAMS (OFCCP)

Overall confidence about the economy fell slightly from 2018.

I S S U E S versus WA R N I N G T O C O N T R A C T O R S F O R L A C K 58% of attorneys working at firms with 3 to 15 attorneys felt positive about the state of the economy OF DIVERSITY 60% in 2018. Minority women are 3% of law firm partners. 63% of attorneys who work at firms with 41 or more lawyers, down from 76% in 2018.

“Law firms need to get their houses in order...There is a big problem at law firms for women and women of color.” — Craig Leen, Director of OFCCP

Maryland Lawyer’s Confidence Survey: Round 9

The legal field has been abuzz with artificial intelligence (AI) and machine learning (ML) for several years now, as ways to increase efficiency. And while investment in legal technology hit one billion dollars in 2018, the data still shows a slower rate of technology adoption in law than in other professions. Also, the legal profession is not immune to the increase in cybersecurity threats and attacks. There’s an increased awareness about the inevitability of a breach and the necessity for protection of sensitive data. The larger the firm, the larger the risk of a breach, and solo and small firms have the best chance of avoiding a breach.

QU ESTION

-100

-80

-60

-40

Our firm plans on hiring additional attorneys within the next 3 months

-20

INDEX 0

40 Office 60 of Federal 80 100 The Contract Compliance Programs (OFFCP) enforces pay, hiring, promotion, and other discrimination protections for workers employed by federal contractors. The OFCCP’s Drirector’s comments come after a waive of sex distcrimination accucations against large national law firms such as Jones Day, Ogletree Deakins, and Proskauer Rose.

20

-31

Our firm anticipates an increase in billable hours over the next 3 months

22

Within the next 3 months, our firm plans to invest or expand in the following areas: Marketing

14

Within the next 3 months, our firm plans to invest or expand in the following areas: New Technology

OFCCP’s office is notifying 3,500 federal contractors that they could be selected at random for OFCCP audits in fiscal year 2019, including firms of Haynes and Boone, Ballard Spahr, Fox Rothschild, and Mayer Brown.

12

Within the next 3 months, our firm plans to invest or expand in the following areas: Support Staff

-18

Within the next 3 months, our firm plans to invest or expand in the following areas: Infrastructure

Some firms that do business with the government have argued that the OFCCP doesn’t have the jurisdiction to investigate potential discrimination against partners because those lawyers are considered owners or shareRESP ONSES ( TOTAL = 4 67) holders, rather than employees. The Labor Department to issue400 guidance 150 200 250 300 plans 350 450 on that question and in the meantime, OFCCP is looking at partner promotions Disagree Somewhat Neutral Agree Somewhat the Agree Strongly as a possible of discrimination. (Source: The Daily Record’s Maryland Lawyers Confidence form Index, 3/28/19) -25

24

The overall state of the economy is good

0

50

100

Disagree Strongly

(Source: https://biglawbusiness.com/law-firms-warned-about-diversity-byfederal-contractor-watchdog)

The Latest from the Session M S B A K E Y L E G I S L AT I V E P R I O R I T Y I N 2 0 1 9

During the 2019 Session of the Maryland General Assembly, the key priority MSBA RESEARCH NOTES: LEGAL PROFESSION of the MSBA was passage of legislation to authorize creation of much-needed judgeships in both the Circuit Court for Washington County and in various Districts of the District Court of Maryland. Judgeships at both levels must be created by statute and budgeted by the General Assembly.

19

TRENDS & HIGHLIGHTS 2019

Senate Bill 205 – Judgeships – Circuit Court and District Court, introduced by the Maryland Judicial Conference, passed in the waning days of the 2019 Session. The bill provides for 1 circuit court judgeship for Washington County, and for District Court judgeships for Anne Arundel, Baltimore, St. Mary’s, and Prince George’s Counties. Senate Bill 205 takes effect July 1, 2019. (Source: Richard A. Montgomery III, Director of Legislative & Governmental Relations Maryland State Bar Association) 4

MSBA RESEARCH NOTES: LEGAL PROFESSION TRENDS & HIGHLIGHTS 2019

MARYLAND LAWYER’S CONFIDENCE SURVEY: ROUND 9

QUESTION

-100

-80

-60

INDEX

-40

Our firm plans on hiring additional attorneys within the next 3 months

-20

0

20

40

60

80

100

-31

Our firm anticipates an increase in billable hours over the next 3 months

22

Within the next 3 months, our firm plans to invest or expand in the following areas: Marketing

14

Within the next 3 months, our firm plans to invest or expand in the following areas: New Technology

12

Within the next 3 months, our firm plans to invest or expand in the following areas: Support Staff

-18

Within the next 3 months, our firm plans to invest or expand in the following areas: Infrastructure

-25 24

The overall state of the economy is good 0

50

100

150

200

250

300

350

400

450

RESPONSES (TOTAL = 467) Disagree Strongly

Disagree Somewhat

Neutral

Agree Somewhat

Agree Strongly

(Source: The Daily Record’s Maryland Lawyers Confidence Index, 3/28/19)

MARYLAND BAR JOURNAL | ISSUE 3 2019

39


Women in the Legal Profession: Gender Breakdown

Female attorneys are younger than their male counterparts on average (42 years vs. 50 years). Among younger attorneys (ages 25 to 34), the pool of women is on par with that of men. Among Older attorneys (35+ ), the number of men outweighs that of women. Female attorneys work full-time, year-round on average more than the average for all working women (82% vs. 63%). They are more likely to work for the government and less likely to be self-employed than their male colleagues. PERCENTAGE OF LAWYERS WHO ARE WOMEN 50 40 30 20 10 0

1960

1970

1980

1990

2000

2010

2016

Note: Lawyers’ refers to the Standard Occupation Classification category of Lawyers, Judges and Related Workers. For information about confidentiality protection, sampling error, nonsampling error and definitions in the American Community Survey, visit www. census.gov/programs-survey/acs/technical-document/code-lists.html Source: U.S. Census Bureau, 2016 American Community Survey

Interestingly, the report indicates that women are joining men in the legal profession at a steady pace since the 1990s. Currently, women from 25 to 34 years of age are on track to close the earnings gap, a big difference from women beginning at age 44, where the gap becomes wider. Says Ms. Anderson, “We’re seeing the best pay equity now and hopefully the trend continues to complete earnings parity.” A national trend found in the report shows that since the 2008 recession, law schools have seen enrollment drop and then level off in recent years, with Maryland law schools mirroring that trend. Further the report indicates that in 2019 there were historically low bar exam pass rates not seen since 1965. On a positive note and citing The Daily Record and MSBA Maryland Lawyers Confidence Index, attorneys remain confident overall about the legal market and the future of the profession, reporting even greater confidence in the last six months. Ms. Anderson invites members to provide feedback on the report, which is available on the MSBA website.

N AT I O N A L L EG A L PR O F E S S I O N U PDAT E S

Women in the Legal Profession WOMEN IN THE LEGAL PROFESSION: GENDER BREAKDOWN

Female attorneys are younger than their male counterparts on average (42 years vs. 50 years). Among younger attorneys (ages 25 to 34), the pool of women is on par with that of men. Among Older attorneys (35+ ), the number of men outweighs that of women. Female attorneys work full-time, year-round on average more than the average for all working women (82% vs. 63%). They are more likely to work for the government and less likely to be self-employed than their male colleagues.

Lawyers: 1960-2016 NU M B E R

M EN

WOMEN

800,000

700,000

600,000

500,000

400,000

300,000

200,000

100,000

0

1960

1970

1980

1990

2000

2010

2016

Percentage of lawyer who are women 50 40 30 20

WEB EXTRA

READ THE REPORT To read each edition of the report in its entirety, visit: MSBA.ORG/HIGHLIGHTS

10 0

MSBA.ORG | ISSUE 3 2019

1970

1980

1990

2000

2010

2016

Source: U.S. Census Bureau, 2016 American Community Survey 14

40

1960

Note: Lawyers’ refers to the Standard Occupation Classification category of Lawyers, Judges and Related Workers. For information about confidentiality protection, sampling error, nonsampling error and definitions in the American Community Survey, visit www.census.gov/programs-survey/acs/technicaldocument/code-lists.html MSBA RESEARCH NOTES: LEGAL PROFESSION TRENDS & HIGHLIGHTS 2019


MSBA UPDATES

| MSBA IN THE COMMUNITY

AN INTERVIEW WITH FORMER U.S. DEPUTY ATTORNEY GENERAL

ROD ROSENSTEIN

WEB EXTRAS

MSBA MEMBER RETURNS HOME Rod Rosenstien addresses the 2019 MSBA Legal Summit and Annual Meeting. VISIT MSBA.ORG/ROSENSTEIN-ADDRESS A VERY PUBLIC SERVANT We sit down for a conversation with Rod Rosenstein. VISIT MSBA.ORG/ROSENSTEIN-INTERVIEW MARYLAND BAR JOURNAL | ISSUE 3 2019

41


Prior to packing the room for his keynote address at the 2019 Legal Summit & Annual Meeting, MSBA Immediate Past-President, Hon. Keith Truffer, sat down with former U.S. Deputy Attorney General to learn a little bit more about his career.

Q

Q

You're welcome, my schedule has actually kind of slowed a little bit.

I think the first thing to recognize is that I wasn't really in the news every day. The news focused on certain aspects of what they thought I was doing, but I actually didn't give a lot of TV interviews and so what you often saw were rehashed clips of me testifying months before, or walking out of my house and not saying anything. My day-to-day existence consisted often of just back-to-back meetings. Many days we'd be in meetings from 8:30 in the morning until 6:00 or 7:00 at night and so it keeps you pretty busy. So that really does keep you focused on the work of the office and you don't have time to pay attention to all the fuel that's going on in the news media. If I'd spent my time obsessing about that I think it would have been very difficult to get the work done. As a matter of fact, the deputy attorney general's office has a television set up on the wall that was never plugged in while I had the job, so that really symbolizes my philosophy.

Good morning Rod, welcome and thank you so much for taking time from what I'm sure is a very busy schedule to be here and speak with the members of the Maryland State Bar Association.

Q

How has life been for you the last couple of years?

It’s been no secret - most people know what I've been up to for the last two years which is a bit of a change, and it's been a very rewarding experience. Obviously there's been some stressful moments and some challenges in the job, but there's a lot to the job that people don't know about. The Deputy Attorney General supervises a department with a twenty-eight billion dollar budget and one hundred fifteen thousand employees. We have 93 US attorneys, seven litigating divisions, and main Justice, meaning all the civil and criminal litigation handled by the United States comes through the deputy's office. In theory, obviously, you don't micromanage it, but you're accountable for it and there are other responsibilities too. We were responsible for coordinating with state, local and federal officials as well as foreign officials working with the National Security Council, and issues involving national security so it's a very broad range of responsibilities. While most people know only what they see in the news media which tends to focus on some of the more dramatic aspects of the job, there's a lot more to it.

42

MSBA.ORG | ISSUE 3 2019

Although you were hardly operating in private as the US Attorney for Maryland, the role you took on with the U.S. Attorney General’s office was much more public. How did you adjust to being in the news every day?

This is what I told my team - you try to ignore what's going on on television, try not to focus on the breaking news cycle which is now, as you know, 24/7. Let's not worry about what's going to happen in the next 30 minutes on TV, let's worry about preparing the United States for the next 30 years. So we kept our focus on what kind of challenges do we face, what are the most important law enforcement issues that we need to address, and that's why I found the job very rewarding. Despite all the publicity, at the end of the day we got a lot done and I think the department will continue to get a lot done.


Q

Were there any of your experiences as the US attorney in Maryland that particularly prepared you for the national stage? I think obviously every experience that I had helped to prepare me for the job. I had an advantage really over most people who take this job - there are many people who are superb lawyers who’ve held the job, but one of the big advantages that I brought to the job was I had been in and out of main Justice several times over the course of three decades. During that

tion like that, let alone government where every four or eight years you have a complete turnover of staff. That really wouldn't be possible today because since September 11th the operations in the deputy's office really have never slowed down from administration to administration, and the fight against terrorism and the national security work that they do is 24/7 365 days a year. So we have some career staffers in the office that I relied on, and I also was able to bring in on detail some people I trusted from throughout the department and from the US Attorney's office, including quite a few from the district of Maryland. It

Let's not worry about what's going to happen in the next 30 minutes on TV, let's worry about preparing the United States for the next 30 years. time I had gotten to know the people and the issues, and also I understood the tempo of Washington DC. I spent most of my career out of Washington and I actually spent most of my career in Maryland. Even when I was a Department of Justice litigator I spent a lot of my time on the road because I tried cases all over the country. I was based in Arkansas for about a year and a half, but having been in or around Washington DC I understood what happens in those offices, and so I think I was better prepared than most for the kind of issues that might come up. Nobody knows exactly what's going to happen, nobody knows which issues are going to result in public attention or which enemies you're going to make in the job, but you know that you're going to make some enemies. As a matter of fact, one of my predecessors told me that he believed a person is never more popular in the Deputy Attorney General job than on their first day, and that was true. As I reflect back now on my entire tenure, which was about two years and two months (which doesn't sound like much but it's actually above average in that job - the average is about 16 months), I'm proud of what we accomplished. I had a great team working with me, I had good support from the Attorney General but also you have the whole Department of Justice and the 115,000 career employees whose work goes on from administration administration, who were part of your team you lean on most. It would be hard to pick out individual people, but in the immediate deputy attorney general's office there is a core team of career people you rely on. That wasn’t always the case. When I was with the Deputy Attorney General's office in 1993 they actually did not have career lawyers in the office, and think about how challenging it is to run any large organiza-

takes a little longer to bring the political appointees on board because they have to go through the vetting process but ultimately we also had a cadre of political appointees, so I relied on a lot of people.

Q

Looking back at your time at Justice what are you most proud of?

You know I'd be hard pressed to pick one thing because I was there for so long and I think that obviously in terms of impact, the opportunity to serve for 12 years at the United States Attorney office is somewhat unusual, so I think if I had to look at where I made the biggest impact in my career it would be that. Just by virtue of the fact that 50 or 60 MARYLAND BAR JOURNAL | ISSUE 3 2019

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percent of the attorneys ultimately were hired on my watch so I’m responsible for that and I'm proud of the work that they're doing. I had the opportunity to work with federal, state and local officials throughout Maryland and when you come in as a US Attorney you don't think you're going to be there that long and you've got a number of things you'd like to get accomplished quickly. But having 12 years to do it really enabled me to develop long-standing relationships particularly with our state and local prosecutors in Maryland, and to develop programs that were really focused on the crime problems in their communities and I think that was a big benefit.

Q

Shifting gears a little bit, what advice would you give to young lawyers now about how to succeed in the profession and what it takes to be a good lawyer? You know it's hard to answer because lawyers are now so diverse in what they do. People used to think about lawyers as people who went into court and argued for their clients, and the majority of lawyers these days probably don't do that. There are different skills that are required now. I taught law classes at the University of Baltimore for several years, and I told my students to learn how to research and write. You can learn how to advocate in the courtroom but it's very hard to teach adults how to read and write analytically, and so I think that's the most important skill. Being a generation or two older than the students that I was teaching, I noticed they have a lot of experience with technology that enables them to communicate very quickly, but it doesn't promote the kind of thought and reasoning process that really is required for practicing law. So that's my number one piece of advice to young lawyers, is make sure you develop those research and writing skills early on.

Q

You know I’ve spent thirty years in the Justice department and I’m fifty-five years old so there's a lot of people that I could cite for that. There are mentors that I really looked up to, and then role models who I didn't necessarily know, but who I used as models for my own career. I've been supported by a lot of really super people throughout my career. I mentioned some of the folks who worked with me in the deputy’s office. I worked with career attorneys in the Public Integrity section of the Justice Department, on the independent counsel and the US Attorney's Office who taught me how to try cases. You know I sometimes reflect back on what it was like walking into the Justice Department for the first time as a young trial attorney December 3rd of 1990, knowing nothing really about how to try cases or what thought process to follow, and all of that I learned from my colleagues and I'm very grateful.

From your vantage point what are the greatest challenges to the legal profession?

I think adapting to technology is really the biggest challenge for all professions. I mean I think this applies to doctors, journalists, as well as lawyers. When I was in law school computer research was just beginning - I learned to do research on a crude form of Lexis which at that time was on a DOS operating system, but the impact that’s had over the last thirty years has been just a proliferation of precedent. The way we were taught how to do research, you look at the relevant volumes and relevant reporters whether it be state or federal, you check Shepard's to make sure you get the latest precedent, and you could do that in a relatively concentrated period of time. Now there's such a proliferation of sources everything gets reported including the unreported opinions that are available on the Internet. I think for lawyers, being able to master that and really to be able to suss out what exactly is the legal principle that applies in your case, that's a particular challenge now and it requires a lot more work than it used to.

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Q

Who are the people, attorneys and nonattorneys, who have the greatest impact on your legal career?

MSBA.ORG | ISSUE 3 2019

In terms of mentors, I've been fortunate to have a number of people who I spent enough time with to learn directly from them about legal principles. One of those is a fellow who was a career prosecutor in the Department of Justice named David Margolis who's actually the first career employee of the Justice Department. David was at his desk at the Justice Department every day up until he passed away about three years ago at age 75. He was respected universally by Republicans and Democrats throughout the department because everybody understood that if you went to David for advice you were going to get candid advice unaffected by politics. It wasn’t that he lacked political views, he had very strong views, but he set those aside and advised accordingly. Joanne Harris was the head of the Criminal Division I worked with for about a year in the 1990’s and she was a career prosecutor who was very principled in the way that she went about her


work with Ken Starr who was my boss in the Whitewater investigation. I saw Ken go through some difficult times managing that investigation. Believe it or not, when he was selected as independent counsel in 1995, he was universally praised by Republicans and Democrats. Of course the impact of being involved in a politically sensitive investigation tends to cement people as partisan, but I learned a lot from watching Ken Starr. Bob Mueller was a role model of mine. I never worked directly for Bob Mueller, but I long had admired his career and and respected the approach that he took, and I knew a lot of the folks he had surrounded himself with over the years, so those folks had an impact on me. There were others who I viewed as role models. As Deputy Attorney General I looked to the former Attorneys General and the way they dealt with the challenges of their time, and one I cited most frequently was Robert Jackson who was

Q

So you have now closed the book so to speak, on your professional life in public service as a full-time employee, so what's the future hold? Well it's unresolved at this point. It's actually legal to find a job while you're still in the job as deputy U.S. Attorney General, but it's difficult. First of all it requires time and second of all it would require recusal every time you talk with a potential employer, and so I didn't do that. I've been out of the job at this point for about five or six weeks and I haven't yet started my job search. My plan is to spend time with my family and start a new job in the Fall, so I'll be looking at law firm opportunities but I'm not limiting myself. If a good opportunity arose in the corporate sector or in academia I might be interested in that as well.

You find people who really adhere to the traditional principle of lawyers as being colleagues and friends who fight it out in the courtroom, and then you might get together for a drink or dinner afterwards and I think that's a great model for all of America. the Attorney General under Franklin Roosevelt. He later became the Nuremberg prosecutor. This wouldn't happen today, but he took a leave of absence from the Supreme Court to become a prosecutor at Nuremberg and of course then served for several years as a Supreme Court justice. But during his tenure as Attorney General, which lasted only about two years, Jackson dealt with a lot of the same issues that I confronted in my time. He had battles with the Congress and he dealt with criticism in the news media and all those sorts of issues. Jackson gave a series of speeches in 1940 and 1941 about the role of the federal prosecutor and the importance of prosecutors exercising their power with humility and judgment and avoiding being caught up in politics. His instruction was helpful, and as deputy attorney, I had a practice of quoting him in almost every speech. At one point my aides told me that they had a bet that would pay off if I ever gave a speech and did not quote Jackson. I don't think it ever paid off. I also relied a lot on John Ashcroft as somebody else who I never worked directly with, but I worked for him and was close enough to appreciate how he dealt with a dramatic change in the Department of Justice post 9/11. Prior to 9/11 national security was not our responsibility - we sort of viewed the FBI as having two sides, the classified side that prosecutors never dealt with, and the law enforcement side. We realized after 9/11 that we had failed to maximize our potential to prevent terrorism, and so Ashcroft along with Bob Meuller reinvented the FBI and reformulated the Department of Justice so that we would play a major role in the war on terror.

Q

I can say, on behalf of the MSBA’s 23,000 lawyers, how proud we are that you are a member of the MSBA and have remained so throughout your career. Why is your MSBA membership important? Well you know it's funny, I'm going to talk today about my connection to Maryland and about the inspiration that I draw from Maryland lawyers in Maryland history. I remember the Maryland State Bar since I joined the Maryland bar and I participated a lot of the activities. In fact this US Attorney often came to the bar conferences at this very hotel and I've really enjoyed being part of the Maryland legal community. I'm sure there are other places that are similar, but what I view as special about the Maryland legal community is the sense of collegiality and camaraderie that you experience. I view it more as the traditional model of a lawyer. The public stereotype of lawyers is of people who are always at each other's throats and are mean and nasty and combative, but my experience in Maryland has been obviously it's not universal. There are exceptions, but generally speaking you find people who really adhere to the traditional principle of lawyers as being colleagues and friends who fight it out in the courtroom, and then you might get together for a drink or dinner afterwards and I think that's a great model for all of America.

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MSBA UPDATES

| INSIDE ANNAPOLIS

Del. Vanessa Atterbeary Vice-chair of the House Judiciary Committee

Photo courtesy of Beverly Funkhouser Photography 46

MSBA.ORG | ISSUE 3 2019


MAKING THINGS

HAPPEN

During the 2019 Session of the Maryland General Assembly, we sat down with Vanessa Atterbeary, Vice-chair of the House Judiciary Committee. We discussed how she got interested in the law, what made her run for office, and what she has been focusing on in Annapolis since she was first elected. What influenced your interest in the law? I knew since the fourth grade that I wanted to do trial work. I went to law school to do trial work. I’ve always really loved performing: dancing, plays, musical theater, which I think helps when you're in court in terms of keeping a judge interested, and getting your points across. It also works well here, in Annapolis, when you're on the House floor defending bills.

Tell us about your career in general. I started out as a law clerk in Baltimore City for Judge David Young, where we did six months of juvenile and then six months of civil. After that, I fell into Family Law. I went to a small firm in Bethesda because I wanted to get into court, and I got a lot of court experience there. After that, I went to the Attorney General Office in D.C. It was just super fun, you're young, you're doing jury trials in federal court and in District Court in the city, and you're just defending the city against anything and everything from a slip and fall, to police brutality, to sexual harassment. There was just so much energy in that office. After that , I became corporate counsel to a government contracting company. I never thought I would be in house counsel, but it’s given me the opportunity to run for office.

What motivated you to run for office? I get asked that question a lot. When I was growing up, my mother, and my father, but particularly my mother always instilled in me volunteering and civic responsibility. In fact, for many years, my mother was former delegate Frank Turner's chairperson. Then, in college and law school, I was very active in the community, and received a Community Service Award when I graduated. After law school, I moved back to Montgomery County, Maryland, and again became very active in my community through the local chapter of my sorority, Alpha Kappa Alpha. That’s when I thought, “Hey, I'll run for office, I'm passionate about these issues. Certainly, I can run for office”. This turned out to be an interesting lesson because I ran in District 18, and I did not win. It was devastating at the time, but I knew things would work out for the best.

After not winning District 18, I gave birth to my first son. I realized I really wanted my children to grow up in Howard County, so I hatched a plan to move to Howard County to be closer to my parents and my brother. I finally moved back to Howard County, when I was pregnant with my second son. In 2014, there was an opportunity for me to run for office in District 13 in Howard County. I was actually pregnant with my daughter at the time, but I still knocked on a lot of doors, went to a lot of events, and campaigned really hard. I won the primary on my birthday, which is great, because otherwise it would have been a really bad birthday. It’s been a great experience ever since.

When I was growing up, my mother and my father always instilled in me volunteering and civic responsibility. What are some of your legislative priorities? This year is the fourth year I have focused on trying to increase the age of marriage in Maryland to the age of 18. Currently, you can get married in Maryland at the age of 15, with parental consent and you’ve had a child or are pregnant. At age 16 or 17, you can get married with parental consent OR you’ve had a child or are pregnant. When I first came across this issue, it was in an article in The Atlantic and it was identifying issues with New York and New Jersey Law. It was probably midnight, four years ago, and I thought to myself: “well, what is the age in Maryland because certainly, it's 18,” then I realized that was not the case. The age of consent causes a lot of issues. In particular, there's a lot of parental coercion to cover up abuse and violence. I’ve had some success in the past with passing a bill to raise the age to 17 or 18 in the House, but have not had the same success in the Senate. This year, the approach is to try to pass the emancipation statute and deal with it within the emancipation statute.

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What about this issue besides The Atlantic article, really caught your attention? When I started focusing on increasing the age of marriage in Maryland, a lot of young women in Maryland started reaching out to me. There was one that really caught my attention. I got an email from a woman wanting to remain anonymous, and she said, “The children forced into marriage are not what you think.” We normally think of international forced marriages, however, she said “I'm white. I'm suburban. I'm living in Howard County. My parents are well to do and respected, but to cover up abuse, both sexual abuse and physical abuse, I was married off to an older man.” We did a 10-year look back at statistics and we found that there were about 3000 child marriage. Young girls, ages 15, 16, 17 who had been married to men 10- 20 years older. Statistics show that when you get married that young, you're not going to finish school, you're not going to be financially successful, and you're likely to get divorced. We know that if you live in a cycle of poverty, it's going to probably be a cycle for your children. So I really see this as a child advocacy bill, child rights bill, and a lot of the other work I've done in Annapolis is related to child abuse. Others have argued: “What about the two teenagers that are in love?” and “they're 17 and 18 and he wants to marry his sweetheart?” My response is, we tell our children, with respect to other issues, these things can wait. For instance, one of the priorities for the General Assembly, both the House and the Senate this year is to increase the age of smoking to 21. I think that when we're dealing with children, this should be a priority and, in my opinion, should be a priority for everybody down here.

Now that you are vice-chair of the Judiciary Committee, how has this changed your perspective on legislating? After my first term, Speaker of the House, Michael Busch appointed me vice-chair of the Judiciary Committee, which I was ecstatic about. It's changed my perspective, because I now need to focus on everything

Leadership knows that when it comes to my particular issues, I’m going to be dogged, and I'm not going to give up if it's something I feel incredibly passionate about and believe in strongly. that becomes before the committee. Before becoming vice-chair, I was able to focus on what I was doing, and maybe a couple other larger pieces of legislation. Now I really have to pay attention to everything. The increase in pace has been substantial, and I have to get used to it. That said, I'm enjoying it. I love this committee. The issues we deal with affect people's lives and I think this is the most important committee in the House. I'm still very passionate about certain issues. When it comes to children, child abuse, I'm passionate about gun legislation, which I was able to pass the last session, and hopefully this session. So I think leadership knows that when it comes to my particular issues, I’m going to be dogged, and I'm not going to give up if it's something I feel incredibly passionate about and believe in strongly. That's not to say that, I think that this is my way or the highway situation, because as attorneys, we know, it's not. But if it’s incredibly important, I'm not going to give up and I won't necessarily bend.

WEB EXTRA

FROM COMMUNITY SERVICE TO POLITICIAN Del. Vanessa Atterbeary shares what it was like to run for office. VISIT MSBA.ORG/VATTERBEARY

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ADVANCING JUSTICE

| DISTINGUISHED LEADERS

U.S. Senator Christopher Van Hollen There are over 40,000 attorneys in Maryland, and they are leaders in their local communities. They also represent all sorts of political persuasions. We want our members and the public to know that Senator Van Hollen has been a friend to the MSBA. He has been aligned with our interests, and particularly with access to justice. We had the privilege to hear his thoughts on everything from access to justice, his personal motivations to his advice for young attorneys.

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OPENING THE

DOORS OF JUSTICE Why is Access to Justice important to you? Access to justice is vital to who we are as a country. We have, of course, engraved above the Supreme Court “Equal Justice under Law.� That is just an empty phrase, if you can not actually access justice. We want to make sure that all people in our country, regardless of income, regardless of background, are able to access the justice system, because without that, there really cannot be any justice. That is why access to justice is an imperative. It is a moral imperative. And it is a requirement if we are going to fulfill the values and meet the principles of our country.

We live in polarizing times. Do you see access to justice as an issue for Democrats or Republicans? Or does it transcend these divides? Access to justice is definitely a bipartisan issue – for the most part. Here on Capitol Hill, you will find Democrats and Republicans in both the Senate and in the House supporting funding for the Legal Services Corporation. There are a fair number of attorneys like myself in the Congress. There is an understanding that without access to justice, through those civil legal aid programs, that our constituents will not be able to uphold their civil rights and rights on a range of issues. And so, if you cannot afford an attorney in a civil legal issue or make sure your housing rights are protected, then you do not really have the protection of the laws.

Do you think that lawyers have a special role or special duty in upholding access to justice or equal justice under law? I do. Lawyers are officers of the court. They are important ambassadors for our legal system. They have the knowledge and training to understand that without access to justice, without even being able to get into the courthouse, that you are not going to be able to protect your rights. As officers of the court, it is essential that lawyers take the lead in trying to make sure those doors of justice are open to everybody.

Can you talk specifically about your efforts to ensure that all Marylanders receive equal access to justice? Sure. One is a very straightforward effort to protect federal funding for the Legal Services Corporation. And while I said that access to justice is a bipartisan issue here on Capitol Hill, unfortunately, the reality is the Trump administration's budget for the past three years in a row has tried to eliminate funding for the Legal Services Corporation. The Trump administration has tried to shut it down. But we were able to work on a

"Access to justice is definitely a bipartisan issue" bipartisan basis to prevent that outcome. I serve on the Senate Appropriations Committee, which makes decisions in regards to funding. And the good news is, we were able to provide robust federal funding for the Legal Services Corporation both in fiscal year 2018 and fiscal year 2019. I am very hopeful and believe we will do it again and fiscal year 2020. So the good news is, it is a bipartisan effort here on Capitol Hill, but not so much in today's White House. I have also been part of other efforts with respect to access to justice, especially with respect to returning citizens - making sure they can expunge their criminal records and have access to training programs and Pell Grants. I am also working on a bipartisan bill to make sure that the college tax credit is available to people released from prison who may have committed drug offenses. I want to make sure that anyone who has served their time and is reentering society is equipped to be as self sufficient as possible and start fresh. MARYLAND BAR JOURNAL | ISSUE 3 2019

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Currently, about 80% of Marylanders do not get the help they need with a civil legal problem, yet less than 1% of Maryland attorneys work in a civil legal services organization. What can Congress do to incentivize more attorneys to enter the public interest?

"As officers of the court, it is essential that lawyers take the lead in trying to make sure those doors of justice are open to everybody."

Senator Van Hollen meets with MSBA Executive Director Victor Velazquez and Maryland Access to Justice Commission Executive Director Reena Shah.

This is a priority and we have introduced legislation. We have a law now that says if you are engaged in public service, you can have some loan forgiveness after a certain period of time in a public sector position. There have been some bumps along the road with the implementation of that. So we have proposed legislation to try to smooth over the bumps, because we want more people choosing to go into the public service and provide those legal services. Of course, we want to encourage lawyers in private practice to engage in pro bono activities. When I was practicing law, I tried to commit a good amount of time to pro bono services. So those are essential as part of a multiplier effect for services.

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On a personal level, what has motivated you to become a public servant and pursue these issues of equality and justice? I do see elected office as one way to try to change laws for the better. I grew up overseas - my father was in the Foreign Service and my mother was also very interested in foreign policy. I was born in Karachi, Pakistan, lived in India, Sri Lanka and Turkey and traveled to many parts of the world growing up. And in many of those countries, people had no political rights. They sometimes had no right to vote. They faced a fear of being locked up if they spoke out against the government. There was limited rule of law - maybe on the books, but not applied fairly. And so, as I looked at our country, on the one hand, we were really a beacon of hope for people in other countries who were denied those freedoms. At the same time, when you hold up a mirror, you realize that, although we have important principles, and we are way ahead of much of the world, we also have a big gap between the principles that we hold dear and the actual everyday implementation of those principles, especially in terms of race, ethnicity, poverty, gay rights, women's rights. So part of my interest in politics was looking at these grassroots movements that over time have brought about change. My big belief is change comes from the bottom up. Ultimately, in order to translate those movements into durable law, you also need legislators who are going to write those protections into the books or you need courts making decisions upholding certain constitutional principles. And so I have always worked to partner with grassroots movements to translate the ideals of the movement into durable law to protect civil rights and justice.

What impact has being a lawyer had on your life as a legislator? I think going to law school and being a lawyer is a big benefit to legislators; after all, the art of legislation is the act of law making. To the extent that you have a grounding in legal principles, it gives you a heads up. And certainly, something like constitutional law makes you very aware of where the boundary is between what you can do through legislation and rights that are protected by virtue of being enshrined in the Constitution and the Bill of Rights. The legal background is important and has served me well. And a lot of the folks I turn to for advice and counsel, on a lot of these issues are


also lawyers. I mean, you always look for subject matter expertise on an issue - so in health care, you obviously talk to health care experts. But lawyers are always involved in translating these ideas into statute, whether in the state legislature or in the United States Congress.

What does it take to stand out in this town and move up into leadership as you have? I am a big believer that in order to get the policy changes we want to make, you need to do your politics right. After all, the lesson, if you are in the legislature, is every vote matters, right? If you do not have the votes, you cannot pass the Civil Rights Act, you cannot pass the Voting Rights Act, you cannot pass the Affordable Care Act. Just last year, we saved the Affordable Care Act and in doing so, saved affordable health care for about 130 million Americans - by one vote. So what I am getting at here is if we want to be successful at translating these values and principles in law, you need to get the votes. If you are going to get the votes, you have got to win elections. And that means doing politics right. I did have the honor of heading up what was called the Democratic Congressional Campaign Committee - the “DCCC” for two cycles when I was in the House of Representatives. And when I came to the Senate, I got a phone call from Senate Minority Leader, Chuck Schumer, asking me if I would spend my first two years in the Senate working as the chair of the Democratic Senatorial Campaign Committee, which I did. Because at the end of the day, you have got to persuade a majority of Americans to support our positions in order to have the votes here in the United States Senate.

What are some of the toughest challenges you have faced and how have you overcome them? While being in the legislature is a great opportunity to try to change things for the better and I am proud of my many accomplishments both in the state legislature and here in Congress, it can also be a very frustrating place to work. In the last two years in the Senate, we spent a lot of time stopping bad things from happening. On the flip side, there are lots of things that I would like to accomplish -- everything from dealing with climate change to further efforts of criminal justice reform, education policy, and funding for a whole host of other things. But it is hard to build bipartisan coalitions for some of these issues. So, most of my professional frustrations stem from the fact that there is so much we need to be doing in this country. But there are other moments

where we have been able to get things done even under current polarized circumstances, so you focus on that.

We have a lot of young attorneys in Maryland. MSBA’s Young Lawyers Section is big and active. What kind of advice you would have to the younger attorneys entering the profession? My advice is really to follow your passions and interests. I do hope that people, whether they go into private practice or the public sector, use their legal background to advance the principles of our country. That to me means working to make the promise of equal rights, equal justice and equal opportunity a reality for more people. Every day, I see that the great journey of our country is to make reality better match what we stand for as a country and lawyers have an incredibly important role to play there. In Congress, we of course have a big focus on legislation and passing laws. But when you think about some of the biggest breakthroughs -- school segregation, marriage equality, women’s reproductive rights -- it was lawyers and judges, looking at the Constitution, and looking at reality, and concluding that we needed to better match those things up. So I just say to young lawyers, you have got a huge opportunity and responsibility to help our country live up to its values and principles. I spoke at some high school graduation ceremonies this year and I am encouraged to say that there is a lot of enthusiasm in this generation to be involved and make changes. My wife and I have three children. All of them are also engaged and want to be involved in bringing about change. That is excellent.

Senator, thank you for your leadership and for all that you do for Marylanders to advance equal justice under law. I want to thank the Maryland State Bar Association and lawyers in Maryland, they have been very supportive of the cause of access to justice. And thank you to the Access to Justice Commission for all that it is doing. It is also important to have the legal profession continue to do what it can to support the effort of access to justice. WEB EXTRA

ACCESS TO JUSTICE IS A BIPARTISAN ISSUE We sat down with Sen.Chris Van Hollen to talk to him about what he is doing to address the need for access to justice. VISIT MSBA.ORG/CVANHOLLEN MARYLAND BAR JOURNAL | ISSUE 3 2019

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ADVANCING JUSTICE

| ACCESS TO JUSTICE

Immigration Legal Information Hub EARLY IN 2017, the Maryland Access to Justice Commission started

convening immigration legal services providers in the face of a surge of immigration-related provocations and changes on the national stage. The convened group, which still meets monthly, sought to do the following: • Provide comprehensive and statewide immigration legal services to non-citizen Marylanders impacted by changes in federal immigration policy and escalated immigration enforcement • Maintain effective communications between and among legal and social service immigration providers to increase information-sharing, collective action and efficiency • Provide a continuum of legal services – including legal information, selfhelp resources, brief advice and referral, limited scope representation and full legal representation – that are consumer-friendly and maximize statewide impact • Work across organizational boundaries and in partnership to identify and scale effective and collective solutions In keeping with the goals established by this group, the Access to Justice Commission is proud to announce the launch of the Immigration Legal Information Hub at the People’s Law Library.

?

KEY FACTS ABOUT IMMIGRANTS IN MARYLAND

15% of Marylanders are

Almost foreign born

Immigrant workers comprise of Maryland’s workforce

18.2%

$34.2

Immigrants have billion in consumer purchasing power Immigrant-owned businesses in MD employ over 96,000 Marylanders and have sales and receipts of billion

$15.6

29,000 pending cases in Baltimore City Immigration Court

13.4% of women and children that have legal representation in Baltimore Immigration Court

Lawyers Matter DETAINED IMMIGRANTS:

49%

23%

get relief sought with counsel

get relief sought without counsel

NEVER DETAINED IMMIGRANTS:

63% get relief sought with counsel 54

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13% get relief sought without counsel


Access to Quality Legal Information = Access to Justice LEGAL INFORMATION

LIMITED SCOPE REPRESENTATION

BRIEF ADVICE

FULL LEGAL REPRESENTATION

Immigration Legal Information Hub at the People’s Law Library Do you or someone you know need some quality, reliable information about an immigration legal issue? Spearheaded by the Maryland Access to Justice Commission, civil legal aid organizations across Maryland have worked together to create an Immigration Legal Information Hub that is housed at the Maryland People’s Law Library. Access to quality and reliable legal information = Access to Justice Quality, reliable legal information is part of the continuum of access to justice supports and services that can be helpful when someone faces a civil legal problem, where they do not have a right to an appointed attorney if they cannot afford one.

Topics Asylum Deferred Action for Childhood Arrivals (DACA) How Will Divorce or Separation Affect My Immigration Status? Immigration & Employment Immigration Court Information Immigration Options for Victims of Crimes: U-Visa Information for Immigrants and New Americans Information for Immigrants and New Americans Notario Fraud Representation in Immigration Case Special Immigrant Juvenile Status

Immigration Legal Information Hub has... 12 articles on hot

immigration topics Five languages: English, Chinese, Korean, Spanish, French

Standby Guardianship Temporary Protected Status (TPS)

In partnership with:

ACLU of Maryland Ayuda Esperanza Center, Catholic Charities of Baltimore

"Know Your Rights" Fact Sheets Videos

Libraries without Borders Office of the Public Defender of Maryland Maryland State Law Library National Immigration Women’s Advocacy Project Pro-Bono Resource Center of Maryland University of Maryland Carey School of Law, Practicing Law in Spanish Class Women’s Law Center of Maryland World Relief MARYLAND BAR JOURNAL | ISSUE 3 2019

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ADVANCING JUSTICE

| COMMISSIONER PROFILE

An Access to Justice Champion BONNIE SULLIVAN has been a member of the Access to Justice Commission from its in-

ception in 2008. She was part of the group that fought to keep the Commission alive after it was sunset by the Maryland Judiciary. Bonnie retired in September, 2019 and shares her thoughts on her long legal career in the private and public sectors and her passion for access to justice.

How did you become part of the Maryland Access to Justice Commission? WEB EXTRA

THE MANY REWARDS OF GIVING BACK Listen to Bonnie Sullivan share how giving back can be both personally and professionally rewarding. VISIT MSBA.ORG/BSULLIVAN

I was appointed to the Commission when it was first created by the Maryland Judiciary by Chief Judge Robert Bell in 2008. In 2014, that Commission was sunset. Chief Judge Barbera instead established an Access to Justice Department in the Judiciary. Then, in 2015, I was part of a group of 10 different agencies and the two law schools that thought we should continue the Commission in some capacity and wrap within it the advocacy work of getting changes in the law and regulations that impact litigants’ ability to either represent themselves in court or be represented by a lawyer.

Why do you think it’s important for Maryland to have an Access to Justice Commission? Well, for several reasons. First, the commission represents a broad sector of the public and shines a bright light on the issue of representation in civil legal matters. One of the things I learned when I first was on the Commission is how few lay people even know that if they have a civil legal matter, like a divorce, custody dispute or landlord tenant matter, they're not entitled to a lawyer if they cannot afford one. And when they find out there that they're on their own, it’s a shock. And it's also very daunting for most people to navigate that situation, especially in courts.

Tell us about your career trajectory and how you found yourself leading a statewide pro-bono organization. The first 20 years of my career, I spent as a lawyer in practice in Washington, DC. I was an environmental lawyer and worked with the Department of Justice, as well as some private law firms. I switched careers in 2001, after working at a firm that really promoted pro bono work, and I had a number of cases that really broke 56

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my heart. I represented children in the foster care system and that really brought home to me how critically important and essential lawyers were, to many different kinds of civil legal cases. And when I had the opportunity, I shifted over to the nonprofit sector, and legal services, and I've been there for the last 18 years. THE CIVIL JUSTICE GAP There is a huge need for lawyers in civil legal matters. The most recent data show that a good 80% of individuals who would qualify for legal services, in other words, they meet our income guidelines, are unable to access an attorney because there's a very big gap in terms of the number of attorneys and number of people needing help. There are only one or two legal services lawyers per ten thousand people in Maryland who cannot afford an attorney, and Maryland's no different from any other state in that regard. There just aren't enough lawyers who are working in legal services to represent everyone who needs help. And that's why my organization, the Maryland Volunteer Lawyers Service (MVLS), was created in 1981. We cannot certainly fill the entire gap, but we are an important part of the solution for those folks who are unable to get an attorney from a legal services organization.

Tell us about MVLS. MVLS is one of a number of pro bono organizations. There are several regional pro bono organizations and of course, the Pro Bono Resource Center of MD, the pro bono arm of the MSBA. MVLS is different from many other organizations in that we focus on full representation. So when a client comes to us with landlord tenant matter, we're not just bringing the volunteer to represent them in rent court, for example, but to represent them for the life of the case. And that is a commitment of time. And it's difficult, especially busy lawyers, who are surviving on the basis of the time they spend on their billable hours, to give up a significant


And it's difficult, especially busy lawyers, who are surviving on the basis of the time they spend on their billable hours, to give up a significant amount of that to represent one of our clients, but they do. amount of that to represent one of our clients, but they do. We rely heavily on small firm and solo attorneys , so we offer them incentives, such as free malpractice insurance and free trainings. Volunteering with MVLS is also great for recent grads because it gives them a chance to get some hands-on experience working with clients. We also provide mentors for volunteers,so it's a way to learn skills, develop your practiceand a good way to build business too.

What are some other ways outside of pro bono that you think lawyers could help bridge the access to justice gap? Shine a light, talk about the unmet need for so many civil litigants. And also, we have many private lawyers on our board of directors, they help us to fundraise. They help us to recruit volunteers. Some of them will help us out with trainings by participating in our trainings as subject matter experts. There are many, many ways lawyers can help, beyond accepting a case.

Beyond statistics, do you have a story that humanizes the access to justice gap? Yes. Recently, MVLS was involved with a 94 year old resident of Baltimore City, who had a tax lien on her home for failure to pay taxes. Her husband died about 10 years ago and she hadn't filed the taxes. What ended up happening with penalties and interest was that she had about $17,000 in tax liability. When she came to our low income tax-payer clinic, she was able to have a lawyer help negotiate with the IRS and reduce the penalty to nothing, with her owing a tiny amount of tax because she was on a fixed income and didn't have the ability to pay. And just the fact that she had that burden off of her -- not only the actual lien, but the constant mental anguish -- just changed her life. We also work to help people with child custody and foreclosure. Our priority cases are those that affect basic human needs - like your home, family, kids, the basics of life.

We understand you are on the cusp of retiring. What are you reflections and what’s next? Well, that's a question I've gotten quite a few times recently. The biggest reflection I have is how happy I am. I’m leaving MVLS in a strong position and in good hands. Our Deputy Director, Susan Francis, has been promoted to Executive Director when I leave at the end of September. This makes me very confident and optimistic about the future of MVLS. In terms of my plans, I don't have any fixed plans. I’m sure I’ll volunteer, spend time with grandkids, travel and spend time with my two little dogs. It’ll be a full plate!

Do you have advice for new or young lawyers? That is an easy one - make pro bono part of your early training. I have said it already, but I will say it again. It gives you some great experience. MVLS actually has a young lawyers group now called the Community Advocacy Network. Lawyers who have been out of law school for 10 years or less agree to accept two pro bono cases a year, help recruit other volunteer lawyers from among their peers and also participate in networking events with us and our board of directors. We have about 50 volunteers that are participating in that and we are hoping to grow the program in the coming years so that we have a pipeline and continuation of pro bono. Right now, only about 16% of young lawyers do pro bono, according to the reporting and data, which is understandable, given their time constraints. But I would say make that a part of your early learning, you will get more than you give from that experience! You can find all the information on our website mvlslaw.org. Under volunteer, just hit the button and apply!

SHIFTING ROLES Congratulations to Susan Francis on her role as the new Executive Director of MVLS, effective October 1, 2019!

MARYLAND BAR JOURNAL | ISSUE 3 2019

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ADVANCING JUSTICE

| ORGANIZATION PROFILE

Protecting Courageous Immigrant Women and Girls The Tahirih Justice Center protects courageous immigrant women and girls who refuse to be victims of violence. By elevating their voices in communities, courts, and Congress, we are creating a world where all women and girls enjoy equality and live in safety and with dignity.

TAHIRIH STANDS ALONE as the only national, multi-city

organization providing a broad range of direct legal services, policy advocacy, and training and education to protect immigrant women and girls fleeing gender-based violence. We provide free immigration, family, and civil legal services, as well as a connection to vital social services, so our clients can rebuild their lives in safety; engage in national and local policy advocacy, elevating our clients’ voices and transforming laws and policies to foster lasting social change; and educate thousands of professionals every year to create a community better able to respond to the unique needs of immigrant women and girls. Areas of Focus/Current Issues Right now in Baltimore 70% of our clients are from South and Central America predominately from El Salvador, Guatemala and Honduras where women and children are subjected to horrific, war like levels of domestic violence and sexual assault. In addition, recent policies such as the new public charge rule, expansion of expedited removal and increased immigration enforcement are a collective attack on immigrant communities, which especially harms survivors of gender-based violence.

1. The new public charge rule, expansion of expedited removal, and increased immigration enforcement have compounded a chilling effect within immigrant communities. The public charge rule rewards perpetrators by deterring impacted survivors from accessing much needed benefits to feed themselves and their children, basic health services, and housing. Abusers commonly use threats of violence and deportation to keep survivors economically dependent on them and prevent them from escaping. Additionally, in a recent survey of advocates and attorneys, three out of four advocates reported that immigrant survivors fear reporting abuse to authorities. 2. The asylum ban, Migrant Protection Protocols (Remain in Mexico), and challenges to the Flores agreement are shutting the door on asylum seekers, not effectively acting as deterrents to border crossings and only serve as temporary solutions to a manufactured crisis. If the living conditions are anything like staff recently saw in Tijuana, migrants may become more susceptible to sickness and disease, or targets for violence, compounding their trauma and making it harder to detail their abuse. Tahirih is currently challenging the harmful Remain in Mexico and asylum ban policies in court.

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Photo courtesy of Beverly Funkhouser Photography

3. Former Attorney General Jeff Sessions’ ruling in Matter of A-B- attempts to dangerously narrow qualifications for asylum. While the decision lacks legal weight, immigration judges are applying it and denying cases that may have succeeded prior to the decision being made. This decision cuts at our core mission and means that women and girls who cannot get justice in their own countries could be sent back to face abuse and death. 4. Protecting immigrant survivors of gender-based violence should not be a partisan issue. Tahirih continues to work with colleagues and Congress to reauthorize a version of the Violence Against Women Act that will put all victims of violence first. 5. Impacts of family separation are still felt today despite an executive order to formally end the policy last summer. There are more cost-efficient and humane responses that address the issue at hand. Additionally, detaining children indefinitely has long-term consequences on their physical and mental health.

"I kept thinking about my courageous Tahirih clients who decided for themselves to say no to gender based violence that they and generations of women in their communities had suffered and determined that I wanted to finally become a woman’s advocate." 60

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KRISTEN STRAIN Executive Director, Baltimore Area Tahirih Justice Center

We asked Tahirih Justice Center, Executive Director, Kristen Strain, a little bit about her role, her legal career, and what advice she has for up and coming attorneys.

Tell me a little about your career and the work you are currently doing. I was in private practice for fifteen years before joining Tahirih Baltimore in 2016. For most of that time I was a litigator in Venable’s commercial litigation and products liability groups in Towson and then Baltimore. I was lucky to work for a law firm where I worked with and learned from attorney mentors with incredible work ethic and a commitment to social justice and pro bono advocacy. I took my first asylum case as a pro bono attorney at Venable in 2011. My client ultimately was granted asylum and I continued to take asylum cases in co-counsel with Tahirih until I left Venable in 2015. During a year sabbatical in Switzerland, I had the great fortune to shift my focus and prepare for a career change. In the midst of a city seemingly dedicated to international human rights advocacy I kept thinking about my courageous Tahirih clients who decided for themselves to say no to gender based violence that they and generations of women in their communities had suffered and determined that I wanted to finally become a woman’s advocate. As luck would have it, the position of Executive Director for Tahirih’s Baltimore office was open when I returned home and I jumped at the opportunity to work for an organization I greatly admired advocating for survivors of violence. Today as the Executive Director of Tahirih Baltimore I provide local leadership, maintain a small immigration legal services caseload, oversee legal and social services staff and work to expand Tahirih Baltimore’s capacity to serve more immigrant survivors of gender based violence though fundraising and development and expansion of Tahirih’s pro bono network.

Who are some of your mentors or key influencers and can you share any particular lesson they taught you? I have been fortunate to be guided at Tahirih by our founder and CEO Layli Miller-Muro and our Director of Programs Rena Cutlip Mason who have taught be invaluable lessons in managing in a culturally informed and trauma centered way. This year I have also been mentored by staff at the Anti Oppression and Resource Training Alliance as we interrogate our systems and processes to ensure diversity equity and inclusion for all staff and clients. Locally, I have had the great fortune of being mentored in leadership by Bill McCarthy of Catholic Charities and Sheldon Caplis in the areas of fundraising and development.

Do you have any words of advice to young or up-and-coming attorneys? I would encourage them to look around the communities in which they live to identify ways they can lend their legal expertise to solve a problem or make life better for someone. It will be life changing and incredibly meaningful and make our community a better place to live.


Achievements Tahirih’s holistic, client-centered legal services include screening, assessment, counsel and advice, and/or full-scale legal representation. Our staff are experts in the areas of: • Gender-based asylum (for individuals who have suffered or fear that they will suffer persecution in their home country) • Violence Against Women’s Act Petitions (for battered spouses, parents, and/or children)

immigrant women and children. Last year we co-counseled cases with 100 pro bono attorneys. In addition, 52 regional law firms are a part of our pro bono network and we have over 240 individual attorneys who have been trained to co-counsel a case with us. But we do not stop there, in addition to providing training and education to front line responders about the unique needs of immigrant survivors of trauma, we provide resources that help our clients stabilize

We accept cases that others have deemed “unwinnable” and proudly pioneer in uncharted areas of the law. • T Visas (for survivors of trafficking) • U Visas (for survivors of certain types of crimes on U.S. soil) • Special Immigrant Juvenile Status (for abused, abandoned, or neglected children) Our clients receive culturally sensitive, trauma-informed legal representation from the start to the finish of a case. Many of our clients have obstacles to safety and stability that can’t be remedied in immigration courts alone. We meet these needs by offering holistic services—providing wrap-around social services case management and representation in family court, where we are able. To increase the number of women and girls we protect, we rely on help from attorneys in our Pro Bono Network. Together, we maintain a 99% litigation success rate, despite the complex nature of our cases. We accept cases that others have deemed “unwinnable” and proudly pioneer in uncharted areas of the law. Last year in Baltimore our small legal staff of two full time staff attorneys was able to provide 427 individuals and their family members with protection including providing 231 women and children with full legal representation or brief services. Our pro bono model is unique. It is what makes us so efficient and effective. And it allows us to leverage donated services to reach more

VOLUNTEER OPPORTUNITY

and live more safely. For example, last year in response to increase threat of raids and deportation, we co-hosted a Family Safety Planning Clinic with the Maryland Pro Bono Resource Center to connect our clients with pro bono attorneys who assisted undocumented parents with creating a safety plan for their children in event the parents are detained or removed/deported by Immigration Customs Enforcement. Pro bono Attorneys along with volunteer interpreters and notaries helped immigrant parents and their children complete medical and financial powers of attorney, kinship care affidavits, and care plans.

INTERESTED IN BECOMING A PRO BONO ATTORNEY WITH TAHIRIH? At Tahirih, every pro bono attorney gets: •

A Tahirih mentor attorney is assigned to each case

An E-library with case tools, including redacted briefs, templates, and other samples

Ongoing assistance with litigation strategy and case preparation

We also review evidence, forms, and other filings

And we accompany our pro bono partners to Immigration Court merits hearings

GET STARTED: Visit tahirih.org/get-involved for more information on how you can become involved. MARYLAND BAR JOURNAL | ISSUE 3 2019

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FOR YOUR PRACTICE

| TECH DEVELOPMENTS

MSBA Connect is Coming Soon to Your Section THE MSBA HAS BEEN steadily modernizing all that it does

to ensure we are both an association of today and an association positioned for the future. As part of these efforts we will be deploying a new platform, MSBA Connect, to replace the current Email Discussion Lists (more commonly referred to as the MSBA’s ListServs), a technology dating back decades and which is no longer supported.

An interactive forum for every section or committee you are a part of.

Here are some of the new features available on MSBA Connect:

»» Ability to control the types and frequency of messages you receive via email from other attorneys »» Ability to share documents and attachments and more robust content in areas of specific interest to you »» Option to use the MSBA website or email to connect with other members »» Ability to flag other member comments as valuable or not appropriate/relevant to the topic area »» Enhanced searchability of topics to more easily find previous questions and responses posted

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Customize all settings, including alerts and email notifications.

Read and post messages on any device via our website or your email.

The new MSBA Connect tool gives our members much more flexibility in connecting with each other. It works on any device, has a dedicated website forum, and continues to offer the same email functionality that exists with our current Email Discussion Lists. You’re sure to find even more improvements once you access Connect and get started (like the ability to post documents and attachments with your messages to your section!). To ensure a smooth transition and learn from the new user experience, two sections (Young Lawyers and Consumer Bankruptcy) have been piloting MSBA Connect, and we will slowly onboard 2-3 Sections a month. Once all sections are onboarded, and members have had a chance to use the new technology and provide their feedback, the existing system will be phased out.


FOR YOUR PRACTICE

| EMERGING AREAS OF THE LAW

Technology and Professional Rules of Attorney Conduct Advancements in technology over the past two decades have impacted many industries, and the legal profession is no different. Technology has touched on multiple aspects of the practice of law, including the development of new software to law firms manage their practices from intake to billing, and new services to allow attorneys to more easily redact and share documents. In addition, digital databases have all but replaced the legal library as the primary resource for legal research. THE PACE OF CHANGE in legal

technology shows no signs of slowing down, and the legal profession’s reaction to these emerging technologies is mixed. Some organizations are already beginning to use artificial intelligence to review pleadings and contracts, automate legal research and much more. Other legal professionals have been quick to adopt emerging technology to create more efficient processes and reduce their overhead costs, whether by creating a completely paperless, virtual office or utilizing technology to improve their intake process. Outside of practice management, technology is also prevalent in the legal profession as it has created new areas of the law, like social media law, and created an entire new segments of the profession (i.e. e-discovery, blockchain, etc.). With all of these changes tied to technology and the legal profession, many states have made changes to their professional rules of conduct to include knowledge of technology as a factor for determining competency. Indeed, in 2012 the American Bar Association (ABA) added knowledge of technology to its Model Rules of Professional Conduct. Specifically, comment 8 of Model Rule 1.1 now requires attorneys “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”.1 Since the ABA adopted the comment, over 36 States have adopted similar rules/comments with respect to knowledge of technology.2 Maryland, along with 12 other states, have no specific language requiring knowledge

of technology.3 In 2018, the ABA added to its stance on technology when it amended its Code of Professionalism to include: “I will stay informed about changes in the law, communication, and technology which affect the practice of law.” In addition to adopting a version of the ABA model rules, some states have taken a step further, and are requiring members of their Bars to take technology courses as part of their CLE requirements. For example, as of January 2017, Florida now requires that lawyers take three hours of programming related to technology every three years.4 North

In addition to adopting a version of the ABA model rules, some states have taken a step further, and are requiring members of their Bars to take technology courses as part of their CLE requirements. Carolina has imposed a similar requirement effective January 1, 2019, requiring attorneys to receive 1 hour of technology training on an annual basis.5 With these rapid changes in mind, we asked a few of our members to provide their thoughts on expanding technology.

1

Model Rules of Prof’l Conduct Rule 1.1, Comment 8 (2012) (emphasis added).

https://www.lawsitesblog.com/tech-competence

2

That said, a broad reading of Comment 6, which includes the phrase “an attorney should keep abreast of changes in the law and its practice,” could be interpreted to include changes created and affected by technology.

3

https://www.floridabar.org/member/cle/

4

https://www.nccle.org/about-us/news-publications/2018/11/technology-training-cle-required-effective-in-2019/

5

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Hon. Steven I. Platt (Ret.) • Senior Judge, The Platt Group Inc., Annapolis

WHAT MOTIVATED YOU TO BECOME A JUDGE? My work and inspiration gained by clerking for 7th Judicial Circuit Chief Judge Ernest A. Loveless, Jr., being mentored by District Court Chief Judge Robert F. Sweeney, as well as, Court of Appeals Chief Judge Robert Murphy. Their interest and work in designing and implementing judicial and dispute resolution systems spurred my interest and desire to work in that area as a judge and now as an ADR professional.

DO YOU THINK LAWYERS ARE RESISTANT TO ADOPTING NEW TECHNOLOGY? WHY OR WHY NOT?

Officially a Senior Judge is recalled to preside over cases and/or perform other duties prescribed by The Circuit Administrative Judge of The County or City in which the Senior Judge is recalled to sit or by the Chief Judge of The District Court and The Chief Judge of The Court of Appeals. A Senior Circuit Court Judge can, if selected, also be recalled to provide ADR services for The Court of Special Appeals. I am so recalled. DO YOU THINK TECHNOLOGY IS IMPORTANT TO THE PRACTICE OF LAW? WHY OR WHY NOT?

WHAT WOULD YOU SAY TO LAWYERS THAT ARE RELUCTANT TO ADOPT NEW TECHNOLOGIES FOR THEIR PRACTICES?

Yes. I do think technology is important to the practice of law because it makes the practice of law more efficient and more economical for the clients whom lawyers are there to serve, and for the lawyers themselves. WERE THERE ANY TYPES OF TECHNOLOGY THAT HELPED YOU THROUGHOUT YOUR CAREER? Email communication, as well as visual technologies that can illustrate documents and other exhibits contemporaneously to juries, judges, counsel, parties, and witnesses, both in and out of court, helped a great deal in speeding up all forms of dispute resolution processes without any reduction in the quality of the processes. Also, the use of computerized research and analytical technologies, algorithms, etc., aid immeasurably in the research of facts and law as well as risk assessment both in litigation, ADR and settlement administration which are the services that I provided as a lawyer, judge, mediator, arbitrator, and settlement administrator.

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Yes, or at a minimum, have one or more staff who understand how the technology works and can explain it to the lawyer whenever necessary and appropriate, i.e., often!

Some lawyers as well as some judges, are resistant to adopting new technologies and some are not. The reason it varies is because contrary to the conventional wisdom found in some quarters, not all lawyers are alike. They are as diverse as their ages, respective life experiences, and histories, as well as their practices. The dispute resolution forums in which they engage, and the economics of their diverse Practices of Law. In other words, they are human and like technology more complicated than either their admirers or detractors would like to believe.

COULD YOU TELL US ABOUT WHAT A SENIOR JUDGE DOES?

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DO YOU THINK IT IS IMPORTANT FOR LAWYERS TO UNDERSTAND HOW NEW TECHNOLOGY WORKS?

“The train is rolling – you can either be on it or under it!” WHICH TYPES OF TECHNOLOGY DEVICES, SOFTWARE OR SERVICES, WOULD YOU ENCOURAGE LAWYERS AND JUDGES TO ADOPT? I would encourage lawyers and judges to consult with experts on Law Office Economics and Court Administration who have the background, experience and therefore the expertise to evaluate what each law office and court needs to maximize their efficiency based on a cost-benefit analysis. Courts and law practices are very different and much more specialized than in earlier times. The technology they should be encouraged to adopt is therefore very dependent on the nature, size and functions of their organization and operations. “One size fits all” simply won’t work. WHAT DO YOU THINK ABOUT THE MOVE TOWARDS USING DIGITAL FILES FOR THEIR CASEWORK?

WHAT TYPES OF TECHNOLOGY DO YOU UTILIZE MOST IN YOUR CURRENT ROLE?

I think it can work! But probably not universally until the generation used to paper passes on.

Email, computerized legal research, Contract Litigation Analytics, Databases to evaluate case types, lengths, calculation of damages and assessment of risk.

DO YOU THINK THE PRACTICE OF LAW WILL EVER GO FULLY PAPERLESS? Yes, but probably not in my lifetime. Although, that could be closer than we think.


Jennifer Litwak • In-House Counsel, Baltimore WHAT INTERESTS YOU THE MOST ABOUT YOUR CURRENT ROLE? I love that I have the opportunity to work with various entities and business clients on a wide variety of commercial transactions. In such role, I have the opportunity to really dive in and learn all about the inner workings of each business unit so that I can properly advise on a wide range of issues. Being able to learn something new every day keeps the work challenging and interesting. DO YOU THINK TECHNOLOGY IS IMPORTANT TO THE PRACTICE OF LAW? WHY OR WHY NOT? Absolutely. Not only does technology help to improve efficiency and enhance client experience, but I find that clients today are demanding that lawyers keep up with cybersecurity practices and trends to ensure the protection of their information. Adopting appropriate and effective cybersecurity technology, for example, is something I think is vital for all lawyers, as the need to protect client information, including trade secrets, business plans, and personal data, becomes more and more of a focus of not only the world in general, but in particular for clients. WERE THERE ANY TYPES OF TECHNOLOGY THAT HELPED YOU THROUGHOUT YOUR CAREER? I would say the most helpful have been the data rooms for due diligence software that help streamline the due diligence process for deals. This technology has made the exchange of highly sensitive documents during the review process not only more efficient, but safer as the documents exchanged can be encrypted and completely controlled by using user permission features. WHAT TYPES OF TECHNOLOGY DO YOU UTILIZE MOST IN YOUR CURRENT ROLE? In addition to the standard email and communication tools, I would say I currently utilize cloud based document management services the most. The software allows me to access files remotely from anywhere and to pull any client information I may need no matter where I am so that I can better assist clients quickly and efficiently. DO YOU THINK IT IS IMPORTANT FOR LAWYERS TO UNDERSTAND HOW NEW TECHNOLOGY WORKS? Yes, technology will just keep evolving and by keeping up with the changes lawyers will be able to increase productivity and efficiency. In addition, technology is constantly changing the law and creating new practice areas such as data privacy and cybersecurity that spill over into traditional areas of law such as commercial transactions and labor and

employment. DO YOU THINK LAWYERS ARE RESISTANT TO ADOPTING NEW TECHNOLOGY? WHY OR WHY NOT? I think that it’s not so much a resistance to adopting new technology, but that lawyers have a complicated relationship with technology. The ever-changing and evolving technology available are changing the legal culture and what it historically meant to be a lawyer, and that can certainly cause some reservations for some. WHAT WOULD YOU SAY TO LAWYERS THAT ARE RELUCTANT TO ADOPT NEW TECHNOLOGIES FOR THEIR PRACTICES? It’s important to get out there and test some new technologies, and even more important to sign up for any trainings or classes on various different types of software or programs that could help you in your practice. Once you have the chance to dive in and learn how technology can help you and make your day to day easier, you may find that you can’t believe you worked without some of the programs and services before! WHICH TYPES OF TECHNOLOGY; DEVICES, SOFTWARE OR SERVICES, WOULD YOU ENCOURAGE LAWYERS AND JUDGES TO ADOPT? I would encourage lawyers to adopt cloud based client management software, client relationship management software, and online risk management software. I have also noticed over the past couple of years a trend of clients seeking to engage with their lawyers in more interactive ways, so I’d suggest looking into adopting video conference software as well. WHAT DO YOU THINK ABOUT THE MOVE TOWARDS USING DIGITAL FILES FOR THEIR CASEWORK? I think it is a good move for many reasons, including improving efficiency, managing more cases and matters, and allowing attorneys to tap into client documents to provide quick and effective representation no matter where the lawyer may be on that given day. Also, as I mentioned, I believe the secure access via the software helps to maintain client confidentiality and lessen any security concerns related to data held by lawyers. DO YOU THINK THE PRACTICE OF LAW WILL EVER GO FULLY PAPERLESS? Perhaps, as I know that many attorneys already have or are striving to be. However, I do think that it will be a very long time before the practice of law as a whole goes fully paperless.

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Brian Thompson •

Assistant General Counsel, Litigation, Merkle Inc,. Columbia

WHAT INTERESTS YOU THE MOST ABOUT YOUR CURRENT ROLE? In my current role, no two days are ever the same. From describing legal principles to non-attorneys, to working with IT to properly apply litigation holds, to counseling my client in how it communicates with its customers, to negotiating agreements that contemplate complex and fascinating relationships and transactions, my current role satisfies my intellectual curiosity each and every day. DO YOU THINK TECHNOLOGY IS IMPORTANT TO THE PRACTICE OF LAW? WHY OR WHY NOT? Yes; absolutely. I believe technology is woven into our society, from mobile phones to e-signatures, and where society goes (or is going), so must go the practice of law. Were my access to technology permanently reduced (e.g., from computer to typewriter; from mobile phone to rotary phone), I believe that the quality of my service to my client would be diminished. WERE THERE ANY TYPES OF TECHNOLOGY THAT HELPED YOU THROUGHOUT YOUR CAREER? No, but I do believe that my general comfort with technology and an openness to changes in technology have been helpful throughout my career.

"If an attorney chooses not to understand how new technology works, then that attorney is choosing to provide inadequate service to their client. " WHAT TYPES OF TECHNOLOGY DO YOU UTILIZE MOST IN YOUR CURRENT ROLE? I utilize various software platforms (e.g., MS Office Suite, Adobe Acrobat), cloud computing (e.g., Amazon Web Services), and portable computing infrastructure (e.g., laptop, mobile phone, VPN). My client (i.e., my employer) also uses Workday and Salesforce for human resource functions (e.g., performance management, benefits) and document workflow. DO YOU THINK IT IS IMPORTANT FOR LAWYERS TO UNDERSTAND HOW NEW TECHNOLOGY WORKS? Yes, and I further believe that if an attorney chooses not to understand how new technology works, then that attorney is choosing to provide inadequate service to their client. Attorneys must grow and adapt to a changing world, which includes changes in technology. 66

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DO YOU THINK LAWYERS ARE RESISTANT TO ADOPTING NEW TECHNOLOGY? WHY OR WHY NOT? I do not think lawyers are inherently more or less resistant to adopting new technology than non-lawyers. However, I believe that lawyers have an obligation to adopt technology that enhances the practice of law that non-lawyers do not have. WHAT WOULD YOU SAY TO LAWYERS THAT ARE RELUCTANT TO ADOPT NEW TECHNOLOGIES FOR THEIR PRACTICES? I would say that adoption of new technology solely for the purpose of having newer technology is optional. However, I would also say that the adoption of new technology that allows the lawyer to provide better service to their client is necessary. WHICH TYPES OF TECHNOLOGY; DEVICES, SOFTWARE OR SERVICES, WOULD YOUENCOURAGE LAWYERS AND JUDGES TO ADOPT? While I do not believe that I can offer advice to judges, I would encourage lawyers to adopt technology that promotes (i) synchronous audio and visual communication; (ii) the ability to work outside of the office; and (iii) digital document storage. I believe the proper technology to adopt is a function of many factors, including practice area(s) and size of practice. WHAT DO YOU THINK ABOUT THE MOVE TOWARDS USING DIGITAL FILES FOR THEIR CASEWORK? I believe the move from physical files to digital files is reflective of technological advances in society, just as cassette tapes have largely given way to digital music files. As an attorney who works almost exclusively with digital records, I believe that the use of paper files by an attorney would be less organized and less accessible than if the attorney maintained the same files digitally. DO YOU THINK THE PRACTICE OF LAW WILL EVER GO FULLY PAPERLESS? I do not believe that the practice of law will ever go fully paperless, as I think many people (clients and attorneys) enjoy the security of a physical document. In addition, I think that many people will continue to prefer paper in certain circumstances, such as when working with or reviewing a large number of documents at the same time.


FOR YOUR PRACTICE

| TECH DEVELOPMENTS

A Roadmap for Lawyers With Cybersecurity Paralysis

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

WE UNDERSTAND WHY lawyers have cybersecurity paralysis. They don’t un-

derstand cybersecurity, experts disagree on the best steps to take, the majority of cybersecurity measures involve spending time and money – and to top it off, the threats and defenses against those threats change daily. Here’s a brief roadmap to where you should be going.

By the Numbers: Where We Stand Today Thanks to the ABA’s 2018 Legal Technology Survey Report, we have some solid numbers to ponder as we construct our roadmap. Looking strictly at the big picture statistics, these were the ones we found most significant. • 23% of respondents reported that their firm had been breached at some point. • Of those reporting that they had been breached, the percentage breached generally increased with firm size until you got to large firms - 14% were solos, 24% for firms with 2-9 and 20-49 attorneys, 42% with 50-99 attorneys, and 31% with 100+ attorneys. • 60% reported that their firms had not experienced a data breach. It is important to note that it is extremely possible that many firms experienced a breach and never detected it. • 9% of those breached notified clients and 14% notified law enforcement. • Of those breached, 41% reported downtime/loss of billable hours, 40% reported consulting fees for remediation of the problems, 11% reported loss or destruction of files, and 27% reported replacement of hardware/software. • 40% reported experiencing an infection with viruses/malware/spyware, with the greater number occurring in firms with 2-49 attorneys and the lowest in firms with 500+ attorneys. • 34% reported having cyberinsurance coverage (the percentage is growing, but slowly). • 24% reported using full-drive encryption, a low number in these days. • 29% reported using encryption of email for confidential/privileged data sent to clients.

The smaller the firm, the less likely it was to have a policy covering document retention, acceptable computer use, remote access, social media, personal technology use and employee privacy. Perhaps most startling to us was the fact that only 25% reported having an incident response plan, a critical cybersecurity component. Larger firms were more likely to have such a plan. In general, larger firms have a bigger attack surface, but they also have more resources to devote to cybersecurity. We will focus in this article on solo/small/mid-size firms as we try to lay out a roadmap to cybersecurity. 68

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Security Assessments Are Essential You can’t fix what you don’t know is broken. That’s a fact. We are now at a point in time where 11% of attorneys have received from a client or prospective client a request for a security assessment. 34% have received some sort of client security requirements document. While the survey didn’t ask about assessments required by insurance companies in order to get cyberinsurance, we know from our own clients that these are becoming more prevalent. Even if no one requires you to do an assessment, you absolutely need one – and it should be done at least annually. Why don’t firms have an assessment done? Mostly because lawyers fear the costs of the assessments – and the costs they may incur in fixing what’s wrong. So let us try to allay some fears. While it’s true that large law firms will generally seek out large (and therefore expensive) cybersecurity firms, it is equally true that there are many smaller cybersecurity firms with reasonable fixed-fee prices for doing an assessment and giving you a report identifying your vulnerabilities. What should you be looking for besides a reasonable price? References from colleagues (who have no dog in the hunt) are useful. Make sure the company has true cybersecurity certifications. IT certifications are not cybersecurity certifications. Also make sure the report will follow the guidelines of a reputable organization such as the Center for Internet Security. What you want as an end result is to know what critical vulnerabilities you have so those can be fixed right away. After that, the report will identify medium and low risks. Address medium risks as soon as you can. The idea is to plan a timeline, often constructed around budget constraints or impact on productivity. The low risks should of course be addressed, but they don’t carry the level of concern that critical and medium risks do. Train Your Employees! Your most valuable asset (your employees) are also a great threat. They are often moving too fast and easily duped by phishing emails.

Phishing emails often and successfully target law firm. Perform phishing simulations where employees receive carefully constructed emails specific to your firm. If they do not see the red flags and click on a link or attachment (or answer an email leading to a follow-up conversation asking for monies, gift cards etc.), you will see how much training – and retraining - is needed. Training should be annual, mandatory and without mobile devices present. The partners should be there, leading by example. Believe it or not, training is not very expensive – again, stick with smaller companies with cybersecurity certifications. Don’t use your in-house folks – they simply don’t carry a

the policies that sufficed twenty years ago!), all policies should be reviewed yearly and revised as needed. Train employees on them every year – they will invariably forget portions of policies that are very important. Many policies involve cybersecurity but they have different names, which can be confusing. The most common, by whatever name, are: • • • • •

Acceptable use policy Social media policy Remote access policy BYOD (Bring Your Own Device) policies Access control policies (passwords, multifactor authentication, biometric

If you don’t have an incident response plan and you then suffer a breach, you will invariably be running around in headless chicken mode. big enough stick – outsiders are invariably a better solution. Again, it’s a good idea to get referrals from colleagues. You want trainers who can both educate and entertain. If they cannot keep the attention of your employees, you are probably throwing money down a rat hole. Happily, we are seeing more and more firms of all sizes investing in training. It might surprise you, but the employees generally enjoy the training and feel more confident in their ability to spot phishing emails, recognize social engineering attacks, etc. This is an excellent way of creating a culture of cybersecurity. The Power of Policies Policies in law firms tend to be static. There is a big push to get some policies in place and then nothing happens – sometimes for years. But policies are invaluable in all sorts of ways. They set the expectations of your employees. If employees disobey them, they will expect consequences, up to and including termination, depending on the severity of the violation. As the world invariably changes (think of

authentication, etc.) • Backup policy • Vendor access policy • Retention and destruction of data policy (let us interject here that minimizing the data you retain is free – and greatly reduces your risk) • Disaster recovery policy • Encryption policy • Reporting lost or stolen device policy • Employee privacy (which may mean the absence of privacy on your network) The Critical Incident Response Plan If you don’t have an incident response plan and you then suffer a breach, you will invariably be running around in headless chicken mode. We have borne witness to this reaction many times – you don’t want to be in that mode. The way to avoid it is to have a good incident response. The elements of such a plan are not all that complicated. Here are the essentials: • Contact information for your regional FBI office • Contact information for a data breach lawyer

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• Contact information for the attorney who will oversee the breach response and any others in the firm who may be involved • Contact information for a digital forensic company (to investigate and remediate the breach) • Contact information for your insurance company (you may be required to report a breach/incident in a given period of time or lose benefits) • Contact information for your bank (in case you need to warn them to be wary of suspicious transactions - banks are accustomed to this) • Contact information for a public relations firm (small firms are less likely to use these services) • Who needs to be informed? Clients? Vendors? The state attorney general? Make sure to have a copy of your state’s data breach notification law kept with the plan. • Plans for preservation of information to assist in the breach investigation such as gathering all logged data and taking impacted devices off-line • Steps to resume operation You should do annual reviews of the plan, including (at least) tabletop exercises where you go through various scenarios, adding and subtracting issues and problems (managing partner is climbing a mountain in Asia and inaccessible, the electric grid is down, etc.). The Right Technology at the Right Price So . . . you’re not a mega law firm and you are budget conscious. No worries, it’s a big club. So here is our basic technology advice with this stern warning: No technology is invincible. Let’s start with some simple and free advice. Make sure you apply all patches and updates as they become available. Failure to patch leaves you vulnerable to a security incident. Trust us, the bad guys are constantly scouring the Internet looking for those that are vulnerable to a known hack. Obviously, you need some sort of endpoint protection. This means there should be some sort of security software installed on all your

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computers, servers and mobile devices. In the old days it was called anti-virus software, but today’s endpoint protection is really a security suite that contains such things as a firewall, anti-malware protection, anti-virus, encryption, etc. Endpoint protection is a good start, but you really need some vision into events happening at the endpoints. According to a report by Sophos and market research company Vanson Bourne, one in five IT managers didn’t know how an attacker got in, even after discovering the threat. This has given rise to Endpoint Detection and Response (EDR) tools to provide vision into security events.

Final Thoughts As we write this the week after coming back from speaking at ABA TECHSHOW®, we are reminded that much of the cybersecurity advice above was echoed there. One of our favorite slides had the words “Store Less. Delete More.” That might have been the best, most succinct advice we heard during the conference. Words to live by!

Another important concern is edge protection. This is where you would install some sort of firewall appliance. One of our favorite products (no we don’t get any commissions) is the Meraki product line by Cisco. The Meraki is a combination firewall, intrusion detection system (IDS), intrusion prevention system (IPS) and wireless access point (AP). The device itself is only a few hundred dollars and the annual subscription for the software is only a few hundred dollars as well. Best of all, the subscription includes continuing updates to your protection as new threats are discovered – and they happen automatically – you don’t have do a thing or spend another dime. You may recognize the combined functions from the old days of unified threat management (UTM) devices. You don’t see the UTM term used these days, but effectively that’s what devices like Meraki are.

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

Another area to focus on is mobile device management (MDM). It is no secret that we are a mobile society and our smartphones are really powerful computers that can also make phone calls. Larger firms will invest in MDM solutions such as Airwatch, Mobileiron or Microsoft’s Intune. We would suggest that the solo and small firm lawyer look to the built-in controls contained in Active Sync. If you have your own Exchange server or use Exchange Online with Office 365, Active Sync is a free feature that can enforce device encryption, enforce lock codes and even remotely wipe the device.

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

This article has been printed with express permission from Sensei Enterprises, Inc.


SOLO SMALL

FIRMS

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MEMBER FOCUS

| SOLO/SMALL FIRM PRACTITIONERS

Solo/Small Firm Practitioners Around the State The MSBA is proud to have many solo and small firm members from across the State. We wanted to learn a little more about our solo and small firm members to learn about their practices, their challenges, and what makes them tick. What follows are responses from a handful of these attorneys, and we hope you enjoy getting to know them like we did.

Our Panel ANNE DEADY Law Office of Anne M Deady LLC Baltimore City Practice Areas: Criminal Defense and Family Law

DIVYA POTDAR Diva Law, LLC Baltimore City Practice Areas: Litigation

MARY ELLEN FLYNN Andalman & Flynn, PC Silver Spring Practice Areas: Litigation, Family Law, Trust and Estates

ROBERT ALDERSON Skidmore & Alderson Cumberland Practice Areas: Criminal Law, Family Law

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DAVID GROVER Law Office of David E Grover Rockville Practice Areas: Criminal Law, Administrative Law

JIM LIANG Law Office of Jim Liang, LLC Towson Practice Areas: Tax Law

NEIL TYRA Tyra Law Firm LLC Rockville Practices Areas: Trust and Estates

RON CANTER Law Offices of Ronald S Canter LLC Rockville Practice Area: Litigation


We asked... Why did you choose to open or join a small or solo practice rather than a larger organization? AD: I have always practiced in a small firm setting. After watching many trials from the sidelines during my clerkship, I was hungry for the courtroom and client contact. I knew I would gain that experience more quickly in a small firm and it was always a goal of mine to eventually have my own practice.

DG: Being a Solo Practitioner gives me the

freedom of setting my own schedule(I.e. work hours), trial calendar and vacation time. Having previously been a Partner in a 10 person Law Firm, I felt the need to be my own person and make my own decisions.

DP: My entire legal career has entailed

working at small/solo personal injury firms. My first job after law school was working as an associate for a solo attorney who litigated personal injury cases. After about a 9 month stint there, I found a job closer to home with another solo attorney and handled all the litigation at that firm. During my 5 years there I helped expand the firm which gave me an insight on all the different hats worn by a business owner, employer, and lawyer. I was able to take all the experience gained over the span of almost 6 years and start my own firm in the neighborhood that I lived in and was very familiar with. My office is similar to many other small businesses in Mt Vernon, our doors are always open for neighbors to come in, chat, have a cup of coffee, and then also use our legal services. I enjoy the close bond I can have with clients at a small practice rather than a larger organization

JL: The primary reason is freedom! Free-

dom to choose cases, freedom in handling cases, freedom from office politics and freedom to make decisions. I also enjoy the flexibility and opportunity to innovate as a solo. Finally, solo practice provides me great personal satisfaction.

MEF: I enjoyed the per-

sonal nature of working in a small law firm upon graduating law school. Elliott Andalman and I created Andalman & Flynn in June 1998 after working together at another Firm for ten years with the goal of having a law firm that can provide personal attention to all of our individual and business clients and that would allow us to prioritize our family responsibilities while being profitable. I’m proud to say that we have achieved our goals.

"I enjoy the flexibility and opportunity to innovate as a solo."

NT: I opened my solo practice because I

wanted greater flexibility in determining my work vs. life balance, more flexibility in controlling, and the opportunity to pursue other practice areas of the law.

RA: I like to control my own destiny. After

six years as an associate in a medium sized firm in Baltimore City, my wife and I then wanted to return to my hometown to raise our family. In 1988 we moved back to Cumberland, Maryland; our first child was born in 1989. Interestingly, my associate, Wayne Heavener and his wife have basically done the same thing, Wayne having practiced 2 years with Semms Bowen and Semms before returning to Cumberland. Cumberland is a small town, and therefore does not have large law firms and consists primarily of small and/ or solo practitioners.

RC: I was practicing in another firm for 25 years and left the firm after it merged with another firm.

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What do you think is the best way for a solo or small firm practitioner to find clients? AD:The best referrals are from happy clients. If you are just starting out, referrals from colleagues who practice outside your practice area are invaluable.

"The best referrals are from happy clients."

DG: By networking on a weekly

basis with other experienced and overburdened Attorneys. Attend Bar functions, both local and State, give talks at Civic Associations, meet with business groups looking for younger Attorneys. One can also contact Unions, Teacher Associations and prepaid Legal plans.

DP: Referrals from other

lawyers whose practice areas may complement yours and community involvement.

JL: In my experience, making connections with other lawyers has been the best source for clients. MEF: Networking. The best referrals to

receive are those referred to you by people who like you and you like.

DG: Time Slips and MSBA FastCase access and a Software package to keep track of expenses.

DP: I love my voice over internet protocol

(VOIP) phone provider. Ring Central allows me to text, fax, and conference call from my cellphone without using my cellphone number, but instead using the office phone number.

JL: Cloud computing. While fears over data and program security are understandable, cloud computing means you no longer need to upgrade programs, the data is likely more secure and backed up more often, and you can serve your clients from anywhere in the world.

MEF: TABS for billing clients and Timematters for litigation software, and JST Collectmax if you have a collections practice.

NT: My entire podcast, The Law Entre-

attract new clients is mandatory for solos and small firms and the bottom line is that it is hard work. The key is to find what type of marketing bests suits your strengths and desires. Whatever you like, make that the primary focus of your marketing efforts and put all your energy there to be the best.

RA: In a small community, the best way to

RA: I would recommend good software for

procure clients is by reputation and word of mouth. In a small town, if you provide timely and competent service clients will refer new clients to you and will return when they need additional services.

RC: In this day and age, I think the internet

and social media are the preferable methods to find clients.

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running from day one and have your accountant teach you how to use it effectively.

preneur, is devoted to identifying software and services for use by solo and small firm practitioners. Some that I recommend highly include: Clio (case management), QuickBooks (financial management), Things3 (task management outside of the case tool), LawPay (online payments), OnceHub (online appointment scheduling), GetFiveStars (review management)

NT: There is no magic bullet. Marketing to

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Is there any type of software or service that you use for your practice that you would recommend to other solo and small practitioner AD:Have tax accounting software set up and

keeping track of client matters. I currently use Time Matters and have been very pleased with it.

RC: I recommend Cloud computing.


What is one thing that you can’t live without professionally or otherwise? AD: My Planner. I am pretty much lost without it.

DG: I could not run my practice without

my able bodied assistant. From a personal standpoint, I could not be without the aid and comfort and advice of my wife.

DP: Organization! My client files, just like

kitchen cabinets and closets at home are all organized and categorized methodically.

JL: Technology. Technology has arguably im-

"If we keep up with technological advances, technology can help us efficiently and effectively represent our clients."

proved our lives and revolutionized the practice of law.

MEF: Technology. I have learned that if we

RA: Three things that are on my desk right

keep up with technological advances, technology can help us efficiently and effectively represent our clients.

now are a criminal case, an Orphan’s Court case, and a domestic case.

NT: It would be pretty difficult for me to live

writing pad.

without my technology. I am a certified tech geek and love all my “toys”.

RA: My family. RC: Professionally – access to my file servers; otherwise – Washington Nationals Baseball.

What are three things that are on your desk right now? AD: Plants, A Magic 8 Ball, for fun, and a lot of firm stationery.

DG: A number of my Case files, my paper calendar and access to my timeslips records.

DP: Stacks of yellow legal pads, post-it notes of varying sizes, and a couple of blue gel pens.

JL: Coffee, coffee and more coffee. Besides that, a laptop, monitor and scanner.

MEF: My computer, My I-pad and a large pitcher of water

NT: An antique balance scale made by my Eng-

lish grandfather who was a master scale maker in London, a ceremonial Japanese long sword (katana) given to me by my black belt students upon my retirement as a martial arts instructor, and photos of my actress daughter in Hollywood, my mathematician son in San Diego, and my original starter wife of 38 years.

RC: A telephone, two computer screens and a What do you do when you are not working? AD: Gardening, Spending time out on the water, or day trips with friends.

DG: Exercise at a local gym, Golf, travel outside of the State and Country 4 weeks a year.

DP: Travel, cook, spend time with my puppy and attempt to learn golf.

JL: In my spare time, I enjoy cooking and jogging

MEF: Having fun with family and friends. As a family, we take two annual vacations with our extended families and my husband and I go away several times a year by ourselves.

NT: My problem is I love way too many things

beyond working. For the last several years I have been working hard to improve my guitar playing. Improving my golf game is a long struggle as well. And spending time at the beach with family and friends, playing golf and guitar, is a welcome respite from the challenges of owning a solo practice.

RA: I generally try to spend time with my adult children all who live out of state, hence the remote connection to the office.

RC: Go to baseball games, go to the beach, exercise.

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MEMBER FOCUS

| MEMBER SPOTLIGHT

SOLO

ON THE SHORE SUSAN LAND Seidel, Baker & Tilghman

WE SAT DOWN with Susan Land, the new chair of the Solo & Small

Firm Practice Section, to learn about her interest in the law, her practice, and the challenges she anticipates as chair of the section.

Why did you enter the legal profession? I grew up watching my father as a judge and as a practicing attorney, until I was 16, when he retired due to disability. Even after retiring and being disabled, my father still volunteered to help the community. My mother also always volunteered to help the community. I entered the legal field because I saw it as a means to provide assistance to people and families caught up in the law. It can be so confusing and stressful for people.

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What’s exciting about your current role at Seidel Baker & Tilghman? In my current role, I have the opportunity to do a lot of city/municipal work, which I didn’t have much experience with in the past, nor was I particularly interested in it. However, before I committed, I worked on a couple of projects, and found the work was really interesting and exciting, and allowed me to put my legal skills to work in new ways. The ability to learn new things and explore new areas of the law is really exciting. The other great part of my role is that I get to continue my role as a court appointed Best Interest Attorney. I love the opportunity to represent children, because it allows me to have the unique position to give parents objective information on the best options for their children involved in a divorce/custody dispute.

What is the best piece of advice you have received from someone in the legal profession? “Don’t take your work home with you and keep a work life balance.” It’s so important to have this balance. I think I’m doing a better job with this at this point in my career. I have to remind myself to “say no”, and not over commit. It’s a constant struggle and always something I’m working on.

What is your fondest memory of your legal career so far? I would love to tell you about a case I won or big courtroom moment, but there is no one fond memory. What keeps me going is getting thank you notes from clients. Just getting that thank you from a client is really great.

What is the one piece of advice you would give someone in law school or considering a legal career? Step out of your comfort zone and explore multiple areas of law before you settle on one. Don’t be afraid to change your practices areas later in your career. “Stay Flexible”. You may be a phenomenal criminal law attorney your whole life, but someone may ask you an interesting question that leads you to another practice area in which you can excel.

How is it different or more difficult to be a Solo/Small Firm attorney v. an attorney in a larger organization? I’ve always been a solo or small firm attorney. The hardest part of being a solo is finding other attor-

neys to talk to about cases, problems, legal issues. When you are part of a larger office, you have these resources. MSBA Email Discussion Lists are helpful, but still not the same as having face to face access to partners or other attorneys for brainstorming and resolving issues. It’s really important to have a network you can tap into. All that said, I love being a solo/small firm attorney, because I have more control over my practice. When you are in a small firm, there is more opportunity to develop new practice areas or shift your priorities. You have a lot more control over your life and practice if you are in a small or solo.

When you are in a small firm, there is more opportunity to develop new practice areas or shift your priorities. What are some challenges that you expect as chair of the Solo/Small Firm Practice Section? Our council this year is an interesting mix of seasoned veterans and newcomers, so a big challenge will be making sure everyone is heard, and no one feels pushed aside. Our goal is to expand programs for everyone’s benefit, regardless of how long they’ve been practicing.

How has the MSBA helped you in your career? CLE. I also attend the Legal Summit & Annual Meeting and other seminars. The networking and the education I’ve received through MSBA, has helped make me the attorney I am.

What is one thing you would like other legal professionals to know about you? I love comedians, so next summer I’ll be heading to the JFL “Just for Laughs” event in Canada! If you want to know more about me, reach out, I’m an open book!

Photo courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | ISSUE 3 2019

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FOR YOUR PRACTICE

| TECH DEVELOPMENTS

I’ve Taken the Trainings and Read the Rules, but how do I actually use MDEC? BY SUSAN J. LAND, ESQUIRE SOLO & SMALL FIRM PRACTICE SECTION CHAIRPERSON 2019-2020 1

SINCE OCTOBER OF 2014, when Anne Arundel County became started the pilot pro-

gram for the Maryland Electronic Courts (MDEC), the program has extended to 24 of 27 jurisdictions in Maryland. Only Baltimore City, Montgomery County and Prince George’s County have not joined MDEC. However, within the next few years, the rollout will be complete. What does this mean for you? Unless your career path has kept you completely out of the Court system, you will need to know how to use the MDEC system. The purpose of this article to give attorneys some practical pointers and tips for navigating through the programs. It will NOT be comprehensive guide or even attempt to teach you everything you need to know about MDEC. Rather it will point out issues that others have raised, provide hints on how to make this less stressful, and, hopefully, will help by simply spreading some knowledge. Please also note, this article will not address the programs used by court staff and judges; they have companion programs that are different than the interface attorneys use. First, let’s get some basics out of the way:

Is the Maryland program the best out there? Probably not. For those of you familiar with PACER and CM/ECF in the Federal system, MDEC feels a bit clunky. The program was purchased from a company that has designed electronic filing systems in multiple courts, across the United States. It was not made specifically for Maryalnd, which results in some hiccups and problems. That being said, there are no insurmountable problems when dealing with MDEC.

How do I start? Go to https://maryland.tylerhost.net/ofsweb. You will see three large boxes on the screen. In the lower right box are a number of links to information about the MDEC system. Print out the User Guide for easy reference, 78

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watch some of the videos and read the FAQs. If a training session is offered near you – Go! Take your office staff, too. And if a second training session is offered nearby, go to that one as well. It is also imperative to read the Maryland Rules Title 20: Electronic Filing and Case Management. You must register for both the Odyssey File and Serve System and the Maryland Judiciary Record Search.

It is also imperative to read the Maryland Rules Title 20: Electronic Filing and Case Management. What websites do I need to be familiar with? The Maryland Judiciary Case Search site http://casesearch.courts.state.md.us/casesearch/processDisclaimer.jis) is still active. This is a public site that has been around for years and provides docket style information for cases in the Circuit and District Courts. You do not need to register for this site. The site used to file a new case or file into an existing case is the Odyssey File and Serve System site at https://maryland.tylerhost. net/ofsweb. You must be a registered user to access files on this site. Finally, the Maryland

Judiciary Record Search, found at https:// mdecportal.courts.state.md.us/MDODYSSEYPORTAL allows you to access and print records from cases in which your appearance has been entered. You must be a registered user to access this site as well.

If I encounter difficulties, what do I do? If the issue is with either the Odyssey Portal or the Record Search Portal, and is a technical issue, contact Tyler Systems through the help page, or call 1.800.297.5377. If the issue seems to be more along the lines of registration or issues specifically related to you, contact Judicial Information Systems, which is part of the Administrative Office of the Courts, at 410.260.1088. In the situations where you have a problem with an actual filing, paying a court fee, getting access to a file, contact the Clerk’s office in your jurisdiction2. It is also a good idea to talk to other practitioners who have handled cases using the MDEC system over the past 4 and a half years.

Are any levels of Court or government NOT part of MDEC? At this time, State agencies, such as OAH, Comptroller, Juvenile services are not using MDEC. Orphans’ Courts are also not on MDEC. There is a pilot program in Baltimore County District Court for Landlord Tenant cases, in which cases can either be filed in bulk through a third-party e-filing provider


or through Landlord-Tenant Interface. The Court of Special Appeals and Court of Appeals ARE part of MDEC. Now, let’s get to some of the questions that have been asked by fellow practitioners on “listservs3” and trainings. These are the things we really need to know, but in no particular order.

My filing was marked deficient because of my signature line. How do I fix it? Read the Maryland Rules, specifically Rule 20-201(t). To register for e-filing, you must use your Client Protection Fund (CPF) number. If you do not know your CPF number, you can find it at http://mdcourts.gov/lawyers/attylist.html. My signature block looks like this: /s/ Susan J. Land Susan J. Land, Esquire Seidel, Baker & Tilghman, PA 110 N. Division Street Salisbury, Maryland 21801 410-742-8176 Sjland.sbtlaw@gmail.com CPF Id # 9212160151 Attorney for xxxxxx

Why do I get so many emails after filing? When you file a new case, a motion or anything else with the Court, you receive confirmation that you submitted a document, confirmation of service of that document and another email saying whether or not it was accepted. This is for EACH document in the “envelope” that you file. An envelope will contain all related motions, attachments and proposed orders for a particular case, so this can add up fast. Each document must be a separate PDF. PLEASE NOTE: Omnibus motions in criminal cases are no longer allowed. Requests to enter your appearance, for discovery, for a speedy trial, etc., must be broken down into separate motions, per MD. Rules, Title 20.

When filing proposed Orders, has the formatting changed? Yes and no. When I first started using MDEC here on the Lower Shore, it was requested that a space for the date no longer be put in the first line of the proposed order. Instead,

the date would be inserted with the Judge’s signature.

My filing was marked deficient. What do I do?

Old: It is this ___ day of _____________, 2019, ORDERED

First, figure out what the issue is. Maybe your signature line is incomplete, or maybe the PDF of your motion includes exhibits. If you cannot determine from the information you received, call the clerk. Having an item marked deficient does NOT cause problems with deadlines. You have fourteen days to correct the deficiency. If you do not, the file is sent to a judge for review and at that time, it may or may not be rejected. If rejected, it could affect deadlines. I recommend not waiting. Deal with the issue and learn for next time.

New: It is hereby ORDERED However, I have noticed that Courts don’t seem to mind if you use: It is this _______________ ORDERED. The Clerks have been filling in that blank.

Where are subpoenas? Can I still go to the Clerk’s office to get a subpoena? If you want to issue a subpoena, you now go to https://mdcourts.gov/uniform/index.html for the Statewide Uniform Subpoena Form to complete and print your subpoenas.

What do the MDEC service options mean and how do we use them (found on the screen when filing documents)? a. EFile: Use this if you are NOT serving the opposing party/counsel/other service contacts electronically, for instance if the opposing party is pro se, or it is a new case and no attorney has entered her or his appearance yet. b. EFile and Serve: Use this when you are serving the opposing party/counsel/other service contacts. You do not have to follow up with a hard copy by mail. c. Serve: Use this when sending documents to opposing party/counsel/other service contacts but you are not providing documents to the Court. For example, when dealing with discovery your Notice of Discovery should be “EFile and Serve”, but the actual discovery can be sent by “Serve”.

If there are no local rules in MD, why do the counties enforce MDEC rules differently? There is no truly satisfactory answer to this question. Rather, the facts are that each County has an elected Circuit Court Clerk and therefore they may make some practical decisions or create procedures that comply with Maryland law but are not the same as in other Counties. This may have to do with the size of the County or other considerations. As MDEC becomes more and more the norm, I think we will see less of these issues.

With regard to scanning existing court files, how far back will that go? Will it be uniform across the state, or depend upon the individual clerks? Are sealed documents scanned? How are they protected? This is addressed in Maryland Rule 20-102. As far as sealed documents, they are assigned a security type that protects their view from any court personnel that does not have the rights/role to view a sealed document.

What do I do when I cannot find an e-filing code that matches what I am trying to file? The JIS suggests you select a filing code that most closely aligns with the document being submitted. If you cannot find a filing code similar in meaning, then using a more generic code is suggested. The clerk may elect to change the filing code to one more appropriate, if necessary. The list of available filing codes can be found here: https://mdcourts. gov/mdec/efilingattycodes.

How do I file a document that has personal information that needs to be redacted? You will need to file two documents. The original, unredacted version is filed and identified as “unredacted”, and select the security level of confidential. The redacted version is filed as any other document.

If I efile my exhibits before trial who can see them? Any submitted document that is accepted by the court and docketed can be viewable by the public at the courthouse kiosk if it’s a public document. Attorneys of record in the MARYLAND BAR JOURNAL | ISSUE 3 2019

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case can also remotely view any document filed into the case whether it is marked as a public or confidential document using the Maryland Records Search portal. Filers have the ability to mark documents as public or confidential.

I am an attorney in Maryland and I have registered with both websites, why can’t I see the documents in a case? If this is a case in which your appearance is entered, it is a simple error to fix. Just contact the appropriate clerk’s office and let them know. If it is for a case in which your appearance is not entered, you cannot access the documents from your computer. You can go to the public computer in the clerk’s office to see and print documents. Yes, this does seem counterintuitive to the whole point of MDEC, but as noted earlier, the procedures are the same, only the mechanics are different.

1

The content of this article is based on information provided to me by Tara Glover, Applications Manager at Judicial Information Systems, comments made by Chief Judge John Morrissey and Robert Frank, Esquire, at sessions held during the MSBA Conventions in 2018 and 2019, and, on my personal experience. However, I am solely responsible for this article, and any errors are my own.

Paraphrasing a brilliant attorney I know: If you have an issue with MDEC, think back to when we worked only with paper. What would you have done? Called the clerk? Then call now. The system is the same, just the mechanics are different. h/t to Phillip Cronan, Esquire.

2

Questions were raised on various MSBA Section Email Discussion Lists, commonly known as “listservs.”

3

Generally speaking, you cannot just name an opposing attorney as a service contact. However, in criminal cases you can select the State’s Attorneys office.

4

I have filed a new case (in district or circuit court), how do I get the summons for service? The summons will be put in the electronic file for you print and serve. Most jurisdictions will have an email sent out to notify you of this, with a link. If you do not get it, contact the clerk. Just like before MDEC, if you filed a new case and did not get a summons, you would call the clerk’s office for a status. Same process here.

How do I serve the State’s Attorney in a criminal case? When putting in service contacts, on the search bar you will see a box that says “Firm”, type the name of the county in there and you will see a number of service contacts. Locate the one that indicates Circuit or District Court and select.4

Is it possible to input the email address for a Pro Se party into MDEC so that service of process can occur through MDEC rather than through the necessity of service by first class mail? No. Rule 20-205(d)(2) says that “The filer [of a submission] is responsible for serving in the manner set forth in Rule 1-321 [i.e. in paper], persons entitled to receive service of the submission who (A) are not registered users”. Since pro se parties are not

MDEC cannot be used to electronically serve an unregistered pro se party. required to register for MDEC, but have a choice (Rule 20-106(a)(3)) and the user registration provisions do not make provision for registering someone else for MDEC, MDEC cannot be used to electronically serve an unregistered pro se party.

In traffic cases in the District Court, why do I have to file a separate entry of appearance, separate request for discovery, separate motion, for every citation? This result in dozens of emails from the system. This has by far been one of the biggest complaints I’ve heard about the system. The good news is that for each citation, you can use one envelope for all of the filings. The bad news is that does not help with the emails, etc. Unfortunately, there is no good reason. It just is the way it is. The citation numbers are generated by the police departments and other agencies. At this time, there is no way for the Court to convert the citations into single cases with multiple charges. We are hopeful that will change, and have made contact with the Governor’s office for assistance, as the executive branch would have the authority to change the current set up.

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WEB EXTRAS

This article has only touched the tip of the iceberg when it comes to MDEC questions. I recommend that you review the resources listed above and that you attend the 2019 Solo Summit on November 8, 2019. We will have two sessions with a demonstration of how to actually file and handle matters in MDEC. VISIT MSBA.ORG/SOLOSUMMIT19 Learn about MDEC how it works in various jurisdictions and some tips to make it more convenient. VISIT MSBA.ORG/MDEC


FOR YOUR PRACTICE

| TECH DEVELOPMENTS

Survey Says.... We surveyed Solo & Small Firm Practitioners about technology they use in their practices. EMERGING TECHNOLOGY impacts various aspects of our lives, including the way we practice law. Technology can help attorneys be more efficient and effective when it comes to running their practice; however, determine which of the many technologies to choose from can be a daunting task. Recently, the MSBA surveyed solo and small firm attorneys around the state to learn more about the technologies they employ in their practices.

Based on that survey, we received over 150 responses from attorneys in various stages of their careers.

The Demographics of our Respondents Q: How many attorneys are in your firm?

Q: How long have you been an attorney?

1

0-5 yrs

2-3

6-10 yrs

11.46%

4-6

11-15 yrs

12.74%

7+

16-20 yrs

8.92%

7.01% 56.87%

21+ yrs

Q: How old are you?

68% of respondents are solo practitioners

As you can see the respondents include attorneys in various stages of their careers and different sized firms. What follows is the results of our survey, which includes information about popular practice management software, email providers, office suites, and more.

25-34 35-44

Clio None Other

9.55%

22.58%

55-64

In response to a question soliciting information on their current practice management software, respondents answered as follows:

MyCase

14.19%

45-54

33.55%

65+

Practice Management Software Q: Which Practice Management Software do you use?

5.81%

23.87%

In the “Other” category the majority of respondents provided the following: • • • • •

Tabs Time Matters Practice Master Amicus Zola Suite

• PracticePanther Legal Software • CosmoLex • Rocket Matter • Firm Central

Notably, many attorneys stated that they did not use practice management software.

21.02% 36.94% 32.48%

Respondents also noted that the three major factors contributing to their decision on which practice management software to purchase were: 1) Ease of Use, 2) Pricing, and 3) On the go access or cloud access. MARYLAND BAR JOURNAL | ISSUE 3 2019

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Email Providers When we asked our respondents about which email provider they used, Microsoft and Gmail were by far the most popular. The full results are as follows.

Respondents were asked about Project Management Software, and an overwhelming majority (78.34%) noted that they did not use a specific Practice Management Software.

Q: Who is your Email provider?

The respondents that do use a project management software or system, indicated that they use one of the following tools:

40.91%

33.12%

2.60%

OTHER 16.23%

1.30%

3.25%

Microsoft Projects Trello Asana Slack Excel Project management functions available through their practice management software

Office Suite We also asked attorneys about their document processing suites. By far, Microsoft Office seems to be the top choice among practitioners, with WordPerfect and the Google Suite being distant 2nd and 3rd choices.

Online File Sharing We also inquired as to the software/service individuals used for file sharing.

Q: Which office suite do you use? G Suites

Q: What file sharing service do you use?

5.77%

Office 365

75%

iWork

1.28%

Dropbox

OnlyOffice

1.28%

Google Drive

WordPerfect Office

OneDrive ShareFile None Other Box

As you can see Dropbox is the clear choice for most of the respondents.

MSBA.ORG | ISSUE 3 2019

• • • • • •

0.65%

Respondents selecting the “Other” category, more often than not, listed GoDaddy as their email provider.

82

Project Management Software

10.9%

None

2.56%

Other

3.21%


Online Payment Solutions When it comes to payment methods, the advance of technology has opened up how attorneys can get paid and how clients want to pay. For this reason, we asked our respondents what online payment solutions that they use.

Q: Which Online Payment Solution do you use? Lawpay ClientPay

In the “Other” category the majority of respondents said either PayPal or MyCase.

41.03% 0.64%

Square Stripe

We wanted to know what factors lead to respondents choosing their online payment solutions. The top factors were IOLTA Compliance, ease of use, integration with their practice management software, and endorsement/recommendation of the MSBA.

6.41% 1.28% 38.46%

None Other

12.18%

Accounting Software

Practice Management

When we asked respondents to provide information about their accounting software of choice, a clear leader emerged, with most solo and small firm practitioners relying on Quickbooks.

Q: What Accounting Software do you use?

RESOURCE PORTAL

58.6%

Quickbooks Wave

1.27%

Quicken Bench

12.74% 0.64%

Other

26.75%

Some of the answers in the “Other” category were: • Tabs • Excel Respondents also noted that they relied on an accountant to maintain their bookkeeping and IOLTA compliance. For more information on technology, including Articles, Whitepapers, and Comparison Charts, check out the Practice Management Resource Portal. MSBA.ORG/PRACTICE-MANAGEMENT-PORTAL

Recommended Tech The last question we ask of our respondents was “What is one other app, software, or technology that you find most useful in your law practice?” We had a large range of results, however, there were similar themes, including: • • • • •

Online research/resources such as: Fastcase and Google Scholar Time tracking software like Timeslips and Bill4time Note taking options including: OneNote and Evernote Document management applications like Adobe Acrobat Pro Scanning functions both physical scanners as well as applications like scansnap • Telephone services including Google Voice, RingCentral, Call Ruby, and Conference Call Services. MARYLAND BAR JOURNAL | ISSUE 3 2019

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FOR YOUR PRACTICE

| LAW PRACTICE MANAGEMENT

Getting Paid: Stress Less and Earn More Necessary Steps to Profitable Billing and Effective Collection of Your Attorney’s Fees

BY: MARY ELLEN FLYNN, ESQ., ANDALMAN & FLYNN, P.C.

WE ALL WORK hard representing our clients, and it is an injustice when clients are not paying

our bills, particularly when we have obtained good results and the client has the ability to pay. By following these tips, I believe that your receipts will increase and your stress will decrease. Screening Your Potential Clients Right from the very beginning, you should be screening your potential clients. If, during that first phone call and/or meeting, a potential client sounds as if he or she might be a difficult person to work with, then trust me, he or she will be even worse to have as a client. If a prospective client complains about your consultation fee, then expect the complaints to be numerous and worse when that client receives your bills. Also, trust the instincts of your staff; if a staff person says the caller is a difficult person on the phone, this should carry significant weight in your decision to speak with the person and/or in your consideration to take on a case. There are certain red flags from the first meeting or first phone call with a potential client such as: individuals who have sued their prior attorney(s), refused to pay outstanding fees to prior attorney(s) and/or who have been or are being sued by an attorney or another professional for nonpayment. Do not ignore the warning signs. Retainer Agreements Always, always, always, have a written retainer agreement, and this tip applies even for longtime clients and small matters. When written correctly, clearly, and in simple but detailed language, the retainer agreement protects you, the attorney, in so many ways. Have the retainer agreement clearly state the parameters of your representation, especially if it is limited in scope. The retainer agreement should state explicitly the circumstances under which an additional retainer will be 84

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required, i.e., if a particular matter becomes contested prior to filing suit, prior to filing exceptions, or at the time of an appeal. When representing a client on an hourly fee basis, I highly recommend the use of an "evergreen retainer” as a way to increase the odds that you will be paid for all of your time in a case. An "evergreen retainer" agreement is one by which the client agrees to keep a minimum balance in his or her trust account with your office and to replenish the account to that minimum balance on a periodic (I suggest monthly) basis. If enforced, an "evergreen retainer" agreement is an excellent way to ensure that there will be money at the end of the case to apply to your last statement. In addition, it will help alert you in most instances when a client cannot or will not pay your fees while there is still some money in the trust account. To provide an incentive for clients to timely pay your fees, as well as to enable you to request the Court to award pre-judgment interest and a contractual post-judgment interest rate higher than the judgment rate of interest, have the retainer agreement state that a finance charge in the form of an interest rate will apply to outstanding balances. In addition, the retainer agreement should provide that the client is responsible for any reasonable attorney’s fees and costs that you may incur in the event that you have to file to collect your fees. But remember that you’re only entitled to an award of attorney’s fees if you retain an attorney to represent you.


Billing Your Clients To successfully bill your clients, you should bill on a periodic schedule so that clients know when to expect your bill (preferably once a month and early in the month), and you must bill accurately. The first step in achieving these goals is to invest in a good billing software program. The cost of a billing software program will quickly be offset by the time you save and by the increase in your receipts that you will soon garner. Be sure to keep track of your time on a daily basis, and at the end of each day review your timesheets, looking for cases and tasks that you may have missed. Trust me, you will lose billable hours if you try to recapture your time later. To encourage payment of your bills, consider accepting payment by credit cards, both at your office and through your website, and have a message on each of your bills advising your clients of all payment methods. Also, you may arrange to bill a client’s credit card on a regular basis with his or her written pre-authorization. Your bills can also provide incentives, such as offering discounts for early payment, and if your retainer agreement so provides, charge interest as a finance charge on overdue balances. Also, if you use "evergreen retainers," have your bills clearly show your client’s obligation to replenish the retainer and to what amount. Collecting Your Accounts Receivables (Your Clients’ Past-Due Balances) When calling clients to discuss delinquent bills, be pleasant and solicitous, and advise the client that you would rather not spend your time on their past due balance. One suggested opener for a collection call is simply to ask what the client’s intentions are with regard to the outstanding bill. If the reply is silence, let the client be uncomfortable about the silence. An embarrassed apology by a client is sometimes a good sign that the bill will be paid. If during the phone call, the client raises a legitimate complaint or a question about the bill, do not respond defensively. Rather, tell the client you will give their comments your consideration and will respond later; then do so and reduce the bill if appropriate or explain, clearly and simply, why the service was so performed or why the charge is correct.

When you are collecting from your own clients, you are not required to have a collection license and the Federal Fair Debt Collection Practices Act (FDCPA) does not apply. Nonetheless, not only would it be bad business to harass or intimidate a client into paying you, but other criminal and civil laws and the Maryland Rules of Professional Conduct prohibit you from doing so. For perpetually late-paying clients or seriously overdue balances, set up regular payment plans and promptly enforce the payment plan if a due date is

ney’s fees set forth in Maryland Rules of Professional Conduct, Rule 1.5(a). Also, review all your billing statements for accuracy in describing tasks done and payments received. Further, you are entitled to assert an "attorney’s lien" without having to file suit on your fees. Pursuant to Maryland Rule 2-652, you may assert either a "retaining lien" on any papers of the client in the attorney’s possession until the attorney’s claim is satisfied (but only if your retaining papers doesn’t prejudice the client) or a "statutory lien" on any money

If enforced, an "evergreen retainer" agreement is an excellent way to ensure that there will be money at the end of the case to apply to your last statement. missed. Also, having clients sign a promissory note is an excellent way to document a payment plan to pay an overdue balance. For a case that is already closed, consider accepting a lump sum discount as a way to settle the outstanding balance. Although you might substantially reduce your fee, you will not have to look at or think about this account again, and you are then free to pursue those cases that bring in money. If a client disputes your fees, consider arbitration. The Maryland State Bar Association and many county bar associations offer fee arbitration services specifically for this purpose. And, of course, mediation of a fee dispute is always an option. When all else fails, the next decision is whether or not to sue. On the one hand, a majority of malpractice defense lawyers and insurance companies will say, "Don’t!" On the other hand, you worked hard for your client and you deserve to be paid, and it just may be that you will not be paid unless you file suit. If you decide to file suit, it is best to send your account to a lawyer who has experience in handling collections for lawyers. That lawyer can objectively look at your file and your attorney’s fees, and then send out an initial demand letter followed up by phone calls, if necessary. A surprising number of former clients pay when they receive a demand letter on a collections law firm’s letterhead. If you do decide to file suit, be sure that your work in that case is without fault, your file is well documented and your fees are reasonable as per the factors of reasonableness of attor-

payable or property passing to the client relating to the action, proceeding, settlement, judgment, or award that is the subject of your representation of the client. Keep in mind, however, that even if you are able to assert an attorney lien, the debtor-client may still compel you to justify the reasonableness of fees in a trial by way of filing a motion to adjudicate your lien. Conclusion By ensuring that you are paid for the work you do, you are keeping yourself in business; allowing yourself and your staff a better quality of life and a sense of accomplishment; preventing clients from taking advantage of you; and sending the message that you are a detailed professional and a good business person. Also, if you are fairly compensated by your paying clients, you are then in a better position to assess your ability to take on additional paying work and be able to represent deserving clients on a pro bono basis, while still having the time and peace of mind for a personal life outside the office. I hope that by implementing these strategies, you can further your enjoyment of both your practice of law and your personal time away from the office. MARY ELLEN FLYNN is active in the MSBA having served most recently on the Board of Governors and Executive Committee. In addition, Ms. Flynn served a faculty at the 2018 Solo Summit, where she presented “Getting Paid Without Getting into Trouble.”

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FOR YOUR PRACTICE

| BUILDING YOUR BRAND

Marketing on a Shoe String Budget Sometimes the most obvious pathway is, for some reason, the one we choose not to follow thinking there must be a more effective way to success.

IN INTERVIEWING OVER one hundred successful solo and small

BY NEIL TYRA

firm practitioners for my podcast, themes regarding low cost marketing are glaringly apparent. Sometimes the most obvious pathway is, for some reason, the one we choose not to follow thinking there must be a more effective way to success. But the fact is that these tried and true methodologies are what most successful firms are using to grow their practice. Pick one or two that resonate with you and go for it!

HANDWRITTEN NOTECARDS TO FORMER CLIENTS

One of the richest resources solo/small firm practitioners have is their database of happy, past clients. Unfortunately, a lot of times, once the successful matter is over, the client never hears from the attorney again. Failing to communicate with past clients is literally throwing

Just be genuine. And do it every week. money out of the window. Find a nice note card that suits you and fits with your brand, choose five past clients every week, and write a short personal handwritten note that conveys how special that client was to your success and how much you value them. Do NOT ask for a referral. Just be genuine. And do it every week. When you finish the list, start over, rinse and repeat.

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PUBLIC SPEAKING

Marketing effectiveness is often based on a numbers games. Interacting one-to-many instead of one-on-one obviously is preferable.

Speaking before groups is one of the most effective ways of getting your message out to the public. Speaking before groups is one of the most effective ways of getting your message out to the public. Lots of organizations are always looking for free programming. Rotary Clubs, Kiwanis groups, PTAs, and many others welcome offers to speak to their groups. These are perfect opportunities for you to sharpen your public speaking skills for bigger and more prestigious opportunities in the future. Just make sure your presentation is heavy on the information and light on the sales pitch.


WEEKLY BLOG POST REPURPOSED

The key to leveraging marketing is repurposing content in multiple ways. The best source for doing so is your weekly blog post. You are publishing a post on your blog page, aren’t you? Your blog should be a page on your firm’s website and not a

The best source for doing so is your weekly blog post. separate site. Once your post is published you must link to it in multiple ways. Write a post on your Facebook business page (you have one of those too, right?) and link to the blog post. Similarly, link to it using all your social media platforms such as Twitter and Instagram. The blog post can also be used in your newsletter, or sent to other media outlets (such as local newspapers or websites) for publication. Print nice color hard copies as well and include the best ones in your potential client package.

THOUGHTS?

SELECTED SPONSORSHIP

EMAIL MARKETING

There are all kinds of organizations looking for sponsors to help promote and fund their cause. It does not have to be a big ticket investment to reach your target audience and get your name out. My favorite are school organizations - the smaller, the better and most cost effective. Family law and estate planning attorneys can post an ad in elementary school directories. Juvenile law and traffic law might be better targeted at the junior high or high school level. Sports teams always need t-shirt sponsors or program advertisers.

One of the most effective and lowest cost marketing tools for solo/small firm practitioners is their mailing list. Email marketing platforms are different from

The connections are endless and tend to be a bit more “evergreen”.

The connections are endless and tend to be a bit more “evergreen”. Being a t-shirt sponsor for an elementary school 3K fun run is literally a golden opportunity for a pretty low price. A little creativity goes a long way with these folks so stay away from the standard legal ad format and let your creative juices flow.

One of the most effective and lowest cost marketing tools for solo/ small firm practitioners is their mailing list. your email clients such as Outlook, GMail or Apple Mail. Platforms like MailChimp, aWeber and Constant Contact provide vast resources for easy, bulk emailing. The key to this low cost marketing approach is a) the size and makeup of your list and b) your ability to write engaging emails that get read. Foremost, people have to opt into your list and have the ability to opt out. You can use a PDF of your five most popular blog posts as a lead magnet in exchange for their email address. Who you target and how you engage is the topic for another article but the platform you choose should have a ton of tutorials and educational material available on email marketing that you can take advantage of.

If you have comments or other ideas for low cost law firm marketing, feel free to drop me a note at NEIL@THELAWENTREPRENEUR.COM

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R A I S E YO U R P R AC T I C E T O G R E AT H E I G H T S .

solo & small firm summit

SPONSORED BY

8

NOV 2019

Success as a small firm or solo practitioner takes a unique blend of technical knowledge and business savvy. The MSBA Solo Summit is designed to bring you up to speed on the skills and strategies that will give you an edge. Meet other attorneys and share insights on technology, marketing, and management strategies that will raise your practice to great heights. $10 DISCOUNT for Solo and Small Firm Section and Young Lawyers Section members

To register, visit 88

msba.org/solosummit19

MSBA.ORG | ISSUE 3 2019

THREE TRACKS START

YOUR PRACTICE

Starting a Law Firm Basics, Accounting 101 for Lawyers, Disaster Planning and more.

RUN

YOUR PRACTICE

Practical MDEC training, Health & Wellness for Solo Attorneys.

GROW

YOUR PRACTICE

Digital Marketing, Guide for Hiring New Employees, and increasing office efficiency.


Career Highlights What I’ve Learned

Past President Profile of a past MSBA Presdient. Career Transitions

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

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

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

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

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CAREER HIGHLIGHTS

| BREAKING INTO THE LAW

Pallavi Kachoria

ASSOCIATE, NAGLE & ZALLER, P.C.

"I think all women reach a point in their lives when it is necessary to revisit our career goals." Photo courtesy of Beverly Funkhouser Photography

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PURSUE CHANGE WITH PURPOSE

MS. KACHORIA is an Associate in Community Associations practice group at Columbia law firm of Nagle & Zaller, P.C. since May 2019.

Following graduation from University of Baltimore School of Law in 2015, she clerked for MSBA Immediate Past President, the Honorable Harry C. Storm (Montgomery County Circuit Court). Ms. Kachoria is also a graduate of the MSBA Leadership Academy Fellowship program. Prior to entering law, she was an Information Technology Consultant for small businesses, large corporations, and federal government agencies. We asked Ms. Kachoria to discuss her prior career and journey to find a home in the legal profession.

Please briefly describe your background.

Why did you decide to pursue a career in the law?

Has working in the law surprised you in any way?

I was born and raised in Huntsville, Alabama and received my undergraduate degree at The Ohio State University. I moved to Chicago for my first job at Accenture. My husband (who I met in college) was already at Accenture and we were both traveling IT consultants. Soon after we got married, and in an effort to minimize travel, we moved to the DC Metro area in the midst of the technology boom – life was so exciting with such different opportunities. I definitely enjoyed working with software and data; however, I always had a keen interest in law.

After we had our 2 children, I was eager to pursue higher education. I think all women reach a point in their lives when it is necessary to revisit our career goals. In the midst of our busy family lives, we tend to lose track of where our professional life is headed. At that time, I was contemplating whether to get an MBA or a JD; I wanted my next move to allow me to specialize in a respective area/ practice. I decided to pursue law due to interest, career mentors, and the pursuit of an entirely new career. I felt the opportunities after law school would help to enhance my career.

I think most people think lawyers are too serious and apathetic. Practicing law, however, has made me understand and care more about people. Clients come to lawyers with a myriad of problems, including painful divorces, failing businesses, and financial troubles. Every time I represent a client, I find a way to relate to each one at a practical level. Lawyers deal with real people and real business, and I learned very quickly in my early years of practice that understanding our clients on a personal level is just as important as understanding the law.

What was your role as an IT Consultant? I was a project manager and data analyst for various clients in several industries, including telecommunications and healthcare. I helped with enterprise software implementations, database management, and data analysis and reporting. I also worked for the federal government in Contracts/Grants for Transportation Security Administration and National Institutes of Health. I was always drawn to opportunities that enabled me to grow my skill set and learn new fields and applications.

How has your consulting background informed your role as a lawyer? My experiences in the private sector and in the federal government have given me practical knowledge about business, process improvement, technology, finance, and contracts. Practicing law exposes you to many different clients with varying needs. Having life experiences and a higher emotional intelligence as well as a background in business operations and finances, helps me understand and relate to my clients.

Any words of advice for anyone looking to make the leap into the law as a second (or third, etc.) career? Go for it, it is totally worth it! It is a whole new fascinating field and a lot of fun. My advice to anyone who has the urge and the courage to change careers is to do it with a purpose. Have a plan and get it done. I was fortunate to have a huge support system in my family who live in the area. Specifically, my husband, who is patient and has the utmost respect for education, helped me make it happen. There is never an optimal time to enhance your career, so find your support system and just do it.

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CAREER HIGHLIGHTS

| PAST PRESIDENT

Kathy Howard

GENERAL COUNSEL, REGIONAL MANAGEMENT INC.

GETTING INVOLVED A S A YO U N G L AW Y E R I S K E Y

Tell us a little bit about your current role? I’m currently General Counsel for Regional Management Inc. It is a property management company for residential and commercial rentals and has been in Baltimore since 1950 in Baltimore. The company has about 6000 rental units in Baltimore City and Baltimore County as well as three commercial shopping centers. As General Counsel, I provide management and legal advice to the managers and other legal entities, as well as some government relations work. I find it a wonderful place to work and we really care about our customers.

Why did you get interested in law? Well, I have to say that law is essentially the family business in my life. Two of my great grandfathers were judges and my cousin, Edward Delaplaine, was a judge on the Court of Appeals. Additionally, my dad and husband are lawyers. Also, my daughter has just graduated from law school and is taking the bar exam. The law is just one of those things that has always been in our blood.

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"I PLEDGE IN 1 MONTH WE WILL HAVE 1000 VOLUNTEER ATTORNEYS" How the MSBA responded to 2008 the foreclosure crisis. Photo courtesy of Beverly Funkhouser Photography

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VISIT MSBA.ORG/KHOWARD


How did you get to where you are today? I started out at the good old University of Maryland, College Park and got my undergraduate degree. I was very active in the Student Government Association, hence the government relations side of what I like to do. Then I went to the University of Maryland Law School and after graduating from there, I clerked for one year for Hon. James A Parrot when he sat on what used to be called the Supreme Bench of Baltimore City. After that, I started in a litigation firm and left there after about five years and was tapped to become the Assistant General Counsel here at Regional Management, Inc. I’ve been General Counsel now for 30 years and doesn't seem like it, it feels more like five.

Law is essentially the family business in my life. The law is just one of those things that has always been in our blood. What were some hard things that you face professionally throughout your career? I think that probably one of the hardest things in my career, starting out in particular, was trying to establish a work-life balance. The issue for me was that at the start of my career my mother had Alzheimer's, and you want to spend as much time as you can with a person with Alzheimer's while you have it. It lasted for 10 years and at the same time, I was trying to establish my professional career. Unfortunately, she lived in Frederick, so I had to commute to see her. I am really grateful that my former firm and Regional Management, really understood the pressure on me to be there for my mother. They also knew that, when I was working, I was 100% focused on my work. I think people are always faced with different life situations, and work-life balance is something that everyone is stretching to try to find. What worked for me was asking for support from my peers and being honest with the people I reported to, and hopefully, having them be honest with me.

How did you get involved with the MSBA? I got involved with the MSBA as a young lawyer, and I fully believe that it’s one of the greatest paths to leadership. When I was in law school, I was tapped to serve on a committee with other law students as well as seasoned lawyers. After that, it was like I got bit by a bug. I joined the MSBA Young Lawyer Section, and eventually chaired the Public Service Committee. I then started to work on becoming the chair of the Young Lawyer Section, after which I became apart of the Board of Governors. I took a number of officer roles before I became President of the MSBA in 2008.

What were some of the things you accomplished during your presidential year? The year I took over, 2008, was the advent of the foreclosure crisis in Maryland. Working with Chief Judge Bell and Sharon Goldsmith of PBRC, we were able to recruit volunteer lawyers to assist people going through the foreclosure crisis. Through our efforts, we were able to educate 800 attorneys in the first month of the program on foreclosure issues and how to represent clients going through foreclosure. In exchange, the attorneys agreed to take at least one foreclosure case for a client. Ultimately, more than 1000 lawyers becoming involved in the project. I think today, we still have foreclosure clinics and various volunteer organizations beyond PBRC doing that kind of work, but it was a very innovative thing at the time. It has now grown into something that provides a needed service for people that are dealing with foreclosure. Another focus of mine was to make sure that young lawyers that became involved with the MSBA or other Bar Associations had a path to leadership. I wanted there to be a dialogue between the young lawyers of various Bar associations, and so we started the Young Lawyers Summit at the Conference of Bar Presidents. That started 10 years ago and it’s still going strong. It is something that has really borne some fruit, looking at the great leaders that have come through the young lawyer section over the last 10 years.

What’s one of the biggest lessons you learned from being MSBA President? I think the biggest lesson I learned was to be flexible. It also taught me that I can be a little impatient. I always want to do everything all at the same time, but as President of the MSBA you have to be a bit more methodical in your approach, and consider things from all sides. There are a lot of different sections, committees, and divergent thinking in the MSBA, which is one of the things that makes it really strong, but you have to learn to consider all sides and have these various pieces collaborate to put together a really great product for the members. We’re going through the same thing today in a new era of leadership. We are doing a deep dive into our strategic planning, which I hope will bear a lot of fruit over the next 3-5 years, and one of our priorities is to make sure that we speak and represent all lawyers in Maryland.

Do you have any advice for young lawyers? I think the best piece of advice, considering that my daughter is a newly minted lawyer, is that you build your reputation over a lifetime and it only takes one mistake to completely destroy it. I always advise every young lawyer to think about how you're going to present yourself and think before you act because your reputation is your stock and trade. As a lawyer, your reputation is really tied to how well prepared you are and how honest you are, and you’re the only one that can make it, so be very mindful about how you do that.

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CAREER HIGHLIGHTS

| CAREER TRANSITIONS

Natasha Nazareth

OF COUNSEL, MCMILLAN METRO, P.C.

MSBA member Natasha Nazareth is Of Counsel to McMillan Metro, P.C. in Potomac, MD, and has served as General Counsel to a University of North Carolina system campus, as well as a variety of large and small independent schools. Her passion for education helped shape much of her decision making throughout her career, and recently Ms. Nazareth shared her journey in an interview with the Maryland Bar Journal.

FORGING A N E W PAT H Describe your professional journey. Each step of my career has involved two aspects: making connections with lawyers and other professionals who truly enjoy what they do, and following my passion to make a difference in the lives of others. It has been the authenticity of relationships with others and self, along with the willingness to chart my own course, that has created a series of interesting opportunities for me to thrive as a lawyer. I started out with Legal Aid of North Carolina representing poor children with disabilities needing access to education, healthcare and safe homes. I started a holistic civil advocacy program which relied on referrals directly from judges, prosecutors, defense attorneys and juvenile court counselors. At the time, that kind of collaboration

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was highly unusual. Several large foundations were willing to fund my office to develop a model which we replicated with federal funds. I grew quickly as a lawyer and ended up supervising other lawyers in just a couple of years. Raising money, administering the program, and offering training on special education and other disability law were part and parcel of the job. Every case felt successful because my clients had nowhere to go but up. As I started my own family, I realized I wanted to make a more systemic impact and began working as a student disability specialist for the North Carolina School of Science and Mathematics, which is a premier public boarding school. I then became their in-house general counsel, which allowed me to branch into governance, business, finance, employment, contracts, construction, and all the other non-student legal needs of a state agency. During this time, I also taught legal research and analysis to first year law students at North Carolina Central University. Teaching kept my law practice fresh and vice versa. Teaching students to really be open to other perspectives and practice cognitive flexibility every day helped my own practice. It’s so important for us as lawyers to continue to have an open mind each day. Just before my 40th birthday I took a sabbatical to plan and launch a boutique solo practice to represent independent schools. As part of my business plan, I became licensed in Maryland and DC and sought out mission-focused schools which valued my integrative approach to general counsel services. As is true for so many professionals in their 40s, these were the years that I finally felt I had come into my own. I stopped worrying that my path was different. I stopped viewing non-legal work as “mission creep” and finally embraced the concept that being able to juggle the one-off legal matters my clients brought me along with non-legal management responsibility was the highest-value work I could do.

Describe your current practice.

Is there one accomplishment you're most proud of in your career? In 2016 Erskine Bowles became president of the University of North Carolina system, prompting a merger of the North Carolina School of Science and Mathematics into the UC system. I had the great fortune to co-lead the process: building support among faculty for the change, negotiating the deal, drafting a comprehensive legislative package, and revamping all of the governance policies for both the school’s board of trustees and the university system’s board of governors. The

"I finally embraced the concept that being able to juggle the one-off legal matters my clients brought me along with nonlegal management responsibility was the highest-value work I could do." role brought together my strengths in thinking holistically, creating systems to improve performance, and relishing the challenge of uncharted waters. Erskine brought an exciting and sometimes exhausting pace to UNC – for me it was a growth opportunity that I couldn’t have predicted.

What role should the MSBA play in the professional lives of attorneys? A key strength of a bar association lies in the ability of an individual attorney to invest their time wisely and hit three birds with one stone: knowledge, relationships and marketing. I know when I attend an MSBA bar event in person, I can be confident that I have leveraged all three aspects. MSBA should also continue to help diverse attorneys become and stay connected to one another and our chosen professional field. Inclusivity in programs and services is essential to the MSBA being the best organization it can be.

I represent individuals and businesses in the areas of corporate and business, employment, and education law and litigation. As an experienced lawyer with additional background in both teaching and administering human resources and learning support programs, I give clients a unique perspective grounded in a growth-mindset. Just like many of my for-profit clients, my schools are striving for the best mix of services, facilities and employees to generate sustainable and diverse revenue. I have walked a different path than most lawyers. Instead of starting in a larger private practice then going in-house, I find myself in a traditional firm for the first time as I start the third decade of my career. I raise up that difference into a strength: broad experience as in-house general counsel brings a different value-add to my clients. I know how business owners think because I’ve worn the management hat and the lawyer hat.

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CAREER HIGHLIGHTS |

OFF THE BEATEN PATH

Jill Green

JOHNS HOPKINS CAREY BUSINESS SCHOOL

THE NEXT GENERATION

OF PROFESSIONALS We sat down with Jill Green, from the Carey Business School, to talk about her career, from a child advocate to a dean at Johns Hopkins. She detailed her career, why she shifted to academia and why it's important for non-practicing attorneys to be members of the MSBA.

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Photo courtesy of Beverly Funkhouser Photography


How did you get interested in the law? I was an undecided major in undergrad but I really loved government and politics classes that I was taking. However, my parents were not so happy and basically said that I would have to go to law school. I was still unsure about the law until the legal team from the House of Ruth gave a presentation to my gender in law class. It changed my life, it totally blew me away. The next thing I knew I was in the Family Law Clinic and I was sitting in front of my first client ever, who had endured and survived horrible abuse, and she was looking to me to help her. That power, that sense of I have knowledge that could change someone's life or help them get out of a situation was really transformative for me.

What did you do after law school? So my experience in the Family Law Clinic, representing victims of domestic violence, totally changed my career path and where I wanted to go. So when I graduated, I wanted to pursue that as a career. I moved to Maine, where I started working as a Victim Witness Advocate in the District Attorney's Office, helping women and children who were victims of domestic violence. Soon, I got a fellowship to represent them in family matters, protective orders, child abuse, and neglect cases. My clients were low income and, without the fellowship and other programs, they would not have lawyers. That's where I really spent the bulk of my early career.

I found myself leaning towards helping the children more so than parents, and my career took a turn, and I focused it fully on child advocacy. The impact these situations on the children in my cases really hit me hard. I found myself leaning towards helping the children more so than parents, and my career took a turn, and I focused it fully on child advocacy.

How did you get into academia? The transition into academia was happening throughout my career, even though I didn’t

realize it as it was happening. Early on, I taught at a local college in a paralegal program and I taught contracts. I was always mentoring and teaching younger attorneys as they were coming up, and I really enjoyed that. I think that was due, in part, to positive experiences and incredible mentors I had, particularly my female professors who were amazing role models. They were always looking to lift up those coming behind them, so I think that just a part of who I became as a professional. What sealed the deal was my experience teaching at the University of Maine law school, as a clinical professor. It was an incredible place to be a part of the law, but also to help support, craft, and create the next generation of lawyers and hopefully impart that interest in helping others to them. Then I came back to Baltimore, and I got involved in the University of Baltimore School of Law’s Career Development Office, and that was a huge shift in a lot of ways. When I got the call to come interview at Johns Hopkins, I thought, this is crazy, but I also was ready for another challenge. Coming here and seeing what this school was about, learning the challenges that they were facing and about the startup nature of it, really spoke to me. So I took the leap and it was a big leap, but it has been an incredible experience so far. It’s been about two years, and, surprisingly, I use my law degree everyday, whether it's my educational background or my experience as an attorney, and that has helped me be successful here.

What is it about being a lawyer that helped you be a decision-maker? A dean has to make multiple decisions every day, it can be really challenging for a lot of people. People are reluctant to make a decision, and because we have the luxury of time, people want to over-analyze everything. I think my law degree and legal practice really prepared me well to make decisions. In law school and in practice, you have to get comfortable with gray. I've been in situations, where you have to make split-second decisions, and so I'm very comfortable in that space. I'm comfortable taking the risk, because the decision might not be the best one or the right one, but based on the information at hand, I can make an educated decision. That is all we can do. I think some people are really uncomfortable in that space, but as any lawyer whose practice could tell you, sometimes it MARYLAND BAR JOURNAL | ISSUE 3 2019

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works, and sometimes it doesn't. Getting comfortable with failure and trying to figure out the next move is a part of being a lawyer. I think it serves me really well in this environment.

Can you tell us more about your current role? My current role is very interesting and challenging. It's like nothing I would have anticipated that I would be doing at this point in my life. I manage the admissions team and academic programs. I also

Getting comfortable with failure and trying to figure out the next move is a part of being a lawyer. deal with our exponential learning team, which is providing out of the classroom experiences for students in Baltimore doing social impact work. That is another aspect of the job that is a huge passion project of mine, because it connects to my public interest work. Also, as a member of the management of the school, we are looking at strategy on how do we attract and retain the best faculty, how do we attract the best students, and how do we ensure that what we're delivering is a quality product.

What attracted you to Johns Hopkins’ Carey Business School?

Jill Green presenting her program "Ten Dual Commandments: A Brief History of Dueling & Other Lessons in Civility from Hamilton" at the 59th Conference of Bar Presidents.

The things that really attracted me to the Johns Hopkins Carey Business School, were the people, and it’s Johns Hopkins, who doesn't want to be here! Other things that really attracted me were the mission of the institution, the incredible history, and that the business school itself is fairly new. The real focus here is to keep humanity in mind, and that means teaching and educating people to be leading citizens, which really spoke to me. The people here are just tremendous, dedi-

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cated professionals, interested and committed to Baltimore, and to have Baltimore really grow and prosper. So it's just a fun and warm environment to be in. I'm thrilled to be a part of Johns Hopkins in general, but specifically the business school, it's an amazing group of people.

Do you have Advice for lawyers getting into Academia? I would say a few things. First, for academia, dip your toes in the water to see if you can teach as an adjunct. There's always an opportunity for that and to be a mentor to students. Reach out to your law school, or to a college in the area, and become a mentor; Get involved in some way. You have to decide if you're really going to like that and do you connect in that way. Then job shadowing or doing informational interviews will help you decided if this is the job you want. Go sit down with someone doing the job and ask them, what's the best part of your day and what's the most challenging. Do your research, as any good lawyer would do. Think about the things that you do in your day-to-day work, and how that translates to the work that someone's going to be doing in higher education, whether it's teaching or being an administrator, because every skill is transferable in my opinion.

Do you think there is a benefit for people who are not practicing attorneys, to being part of the bar and staying active in the legal community? Absolutely. It is incredibly important for lawyers, whether they're practicing or not practicing to stay involved and be a part of the Bar Association and the legal community. At different points in your career, you might have to step back to focus on different things, but to stay involved and to give back when you can is important. There's so much value that comes out of it and I'm thrilled that I can stay involved and see the benefits like the personal connections and friendships with other legal professionals. I would never give that up, I don't know why anybody would.

PUTTING HER J.D. TO WORK Jill Green shares how she is using her law degree in her role at the John Hopkins Carey School of Business VISIT MSBA.ORG/JGREEN

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CAREER HIGHLIGHTS

| WHAT I'VE LEARNED

Jeanette Rice WALSH, BECKER, & RICE

S O LO

SUCCESS We sat down with Jeanette Rice and discussed her career and the unique path she took along the way. We also discussed the importance of pro bono work, under representation in our court system and importance of the solo and small firm section. What got you into the law? I've always wanted to be an attorney, since I was little. I used to watch a lot of Perry Mason with my mom. I just thought that was the best job because he always got his client off, always solved the case. I just grew up thinking that's the job for me.

Was law school challenging for you since you had such a young child? It was challenging, but I made it work. He went through law school with me. He went to classes, exams, and law review. I was the only person in school that had a child

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at the time, so everybody thought he was a novelty, some of my classmates would help watch him if I was busy. It was a different experience for my classmates, but we made it work and he enjoyed it. He still remembers going to classes with me to this day.

How was it looking for a job and settling on a firm to work for? When I graduated from law school, I already had one son, and knew that I wanted to have more children. I found that when I went to interview with firms, which was admittedly 20 plus years ago, people thought I was not going to be dedicated to the profession. The expectation was that I would not meet the demand for billable hours because I was a parent who wanted to be there for a young child. I found that I didn't want to meet those demands anyway. I needed to find somebody who was going to accommodate me as a parent, so I started to look at solo and smaller firms. I found a practitioner in Upper Marlboro with a small firm of two attorneys, and they agreed to work with me and my need for work life balance. Since then, I’ve had four children and a successful legal career.

Do you find pro bono work important and why? I've done a lot of pro bono. I feel it's important, especially for successful attorneys, because you have the financial wherewithal to help people for free. It seems that much of the pro bono work is pushed on the young struggling attorneys who can't afford to do it. It's experienced attorneys like us, who are financially stable, who should be doing pro bono and most of the time we don't do it. I feel almost like we have a duty to give back to the community, whether we do so in the Bar Association, improving the legal profession, or we help people who can't afford an attorney, or we speak to groups and educate people about their legal rights.

Why is it important for low income people to get representation? Every time I go to court, I see someone who has a good case and is entitled to certain relief, but cannot afford an attorney. I have witnessed individuals that are representing

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themselves against a party that is represented, and walk away without the relief they are entitled to, like child support, retirement benefits or other resources. Unfortunately, the court can only do so much, and judges can’t interject and litigate for self-represented individuals.. The court system is complicated, and self-represented individuals do not necessarily understand discovery, the relief to which they are entitled, or the mechanism for how to ask for this relief. How is that fair? We as a profession should not condone that or allow that if we can help.

How did you first become involved in the MSBA? I've always wanted to improve the image of legal professionals. When I went to law school, I would meet my friends and family and everybody had a bad lawyer joke. I thought, law school is hard and the lawyers I know are good people. It is terrible that our image is so tarnished by the public, so I have always been interested in making sure that the image that we project to the public is upheld and I saw that opportunity in the MSBA. The first section I joined was, of course, the young lawyers section, and then the solo and small firm section where I've served for many years on the council. Most lawyers in Maryland are small and solo practitioners. I think this sector of the profession is where we can make the most difference.Each individual attorneys needs to take steps to improve the public’s view of the legal profession.

What would you say is important about being a member of the MSBA? I think that for the Maryland State Bar Association, it's important, not only, that attorneys join, but that they are involved. I think it's very important for seasoned attorneys, who have already achieved success in their careers, to join the Bar Association and mentor younger attorneys. It’s important that seasoned attorneys ensure core values of the legal profession stay intact, not for our own benefit, but for the people in our communities. The community, our future clients, are entitled to have honest lawyers, lawyers with integrity, and quality, zealous representation.

KNOW WHAT YOU WANT OUT OF THE PRACTICE OF LAW Jeannette Rice talks about how she was able to find a practice that fit her life plans. VISIT MSBA.ORG/JRICE


CAREER HIGHLIGHTS

| WHAT ARE YOU READING?

Reader Review:

"How to Read the Constitution and Why" by Kimberly Wehle, Professor of Law, University of Baltimore School of Law REVIEW BY PETER SHEEHAN

Office of Legal Counsel under George W. Bush, who said: “You can’t be in that office with all its enormous responsibilities . . . and not exercise all the powers that have accrued to it over time.”) Rather, the book makes clear that all of the tools in the executive “tool kit” can be used for good or for bad—both, actually, because it depends on the eye of the beholder—so all of us need to be skeptical whenever a new tool is added or an existing tool is used for a new purpose. The framers could have chosen a form of government that looked like a pyramid, with one final authority at the top. Instead, they chose a system of three interlocking branches because they, rightfully, distrusted monarchy. Each branch must do its job.

PARTNER, NELSON MULLINS

ARE WE LIVING in the twilight of

democracy? Professor Kim Wehle’s appropriately-named book, How to Read the Constitution and Why, posits that, unless “We the People” understand and care about the Constitution, we risk letting it slide into obscurity. A sobering task, to be sure. But for the reasons Professor Wehle discusses—clearly, concisely, and with appropriate balance of humor and solemnity—it’s the task of the citizens, as much as it’s the task of the coordinate branches of the federal government. How to Read the Constitution and Why is not a law book in the traditional sense (though legal nerds will enjoy it). Nor is it a book about the esoteric fringes of Constitutional history (though it has some of that, too). Rather, it is a book for anyone—regardless of legal training, political views, or party affiliation—who believes in good government. For those who haven’t really thought about what good government means or why it should prevail over an “ends-justifies-the-means” view of government, the book makes a compelling case. As Professor Wehle explains, the Constitution is a lot like a lottery ticket: it has value only if we cash it in; if we don’t, it’s just a piece of paper. Professor Wehle divides the book into three

WHAT’S ON YOUR SHELF?

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main parts: structure of government, individual rights and liberties, and, finally, why we should care. Structure—the focus of Part I of the book—matters because the three branches of the federal government depend on each other. If one stops functioning properly, another must pick up the slack. How to Read the Constitution and Why doesn’t disparage the intentions of people in office who push the boundaries of their constitutional power. (Think Jack Goldsmith, head of the DOJ’s

Structure also matters because it allows for checks and balances—as Professor Wehle points out, the term “checks and balances” itself is nowhere to be found in the Constitution’s text. Checks and balances are important, however, because the number of questions about which branch is empowered to do what, and under what circumstances, is potentially limitless, especially in the modern world. The government faces issues never imagined by the framers—the internet, the global economy, international terrorist organizations unaffiliated with any nation state—and contrary to what some might claim, not all of the answers are in the text of the Constitution. Healthy checks and balanc-

SHARE YOUR FAVORITES: What’s caught your interest lately? Send book, magazine, or article reviews to Anna Sholl, at anna@msba.org.


es prevent any one branch from accumulating too much power. They also enforce Constitutional norms—behavior that is not checked becomes normalized, for better or worse. (Of course, considering that, one day, someone with whom you have a major policy disagreement eventually will engage in the now-normalized behavior, it’s almost definitely for worse.). The discussion of individual rights and liberties—Part II—is perhaps the most interesting section of the book (though that is not to detract from the rest of the book). Without letting her points get entombed in the legal jargon typical of Con Law writing, Professor Wehle walks through the key cases and doctrines concerning the Bill of Rights’ protections. Suffice it to say here that none of our rights is absolute. All of them are subject to governmental restriction—how much restriction and under what circumstances are simply functions of the individual proclivities of the Justices on the Supreme Court at a particular time. (Think of the myriad laws limiting speech—either in a content neutral way or because the speech is deemed no-value or low-value speech—notwithstanding the First Amendment’s apparent plain language that precludes laws “abridging the freedom of speech,” period.) All judicial philosophies require interpretation of the Constitution’s text. How to Read the Constitution and Why does not criticize the Supreme Court—with some notable exceptions, the Court has done a pretty good job over its 230-year history—but for many reasons, the Court is ill-equipped to shoulder the burden of preserving our Constitutional democracy. For one thing, it is not an elected branch of government; for another, Article III’s “case” and “controversy” requirement only allows it to act reflexively, on the particular facts presented by a particular case. Congress, however, is directly accountable to the citizens, at least in theory, but according to Professor Wehle, it has become hobbled by money in politics, gerrymandering, and tribal politics—all three amplifying one another. This is the focus of Part III of the book. As Professor Wehle explains, good government breaks down at the expense of “procedural outmaneuvering.” The result: “[V]oters whose representatives happen to be in the minority party are left out in the cold. And when the minority party becomes the majority party, there’s little incentive

to return to bipartisanship and consensus building over the sharp tools of its predecessors.” Political parties are themselves checks and balances on one another, and they should

The government faces issues never imagined by the framers—the internet, the global economy, international terrorist organizations unaffiliated with any nation state—and contrary to what some might claim, not all of the answers are in the text of the Constitution. treat each other that way. Otherwise, “[t]he loser in this high-stakes gamesmanship is the American people—not individual members of Congress.” Thus, according to Professor Wehle, the American People have a job to do to protect the Constitution—in her words, “‘We the People’ must be our own Constitution Cop”—and we do it, primarily, with our votes. Rather than telling us how to vote, How to Read the Constitution and Why suggests we reexamine our priorities and implement new considerations when choosing our elected representatives. Perhaps the most important consideration: don’t confuse policy with politics. “Politics is about ideology. Policy is about using facts and data to reach a conclusion or argue for or against a particular outcome.” Also, “democracy is safer in a multi-party system.” Therefore, Professor Wehle posits, we should reject candidates who manipulate the rules and norms of the legislative process, even if we share their politics, and we should reject candidates who don’t do their jobs to police the Constitution. In addition, we need to stay educated so that we can make informed decisions. (To this end, Professor Wehle suggests asking whether a news source was around in 1980; if so, it’s probably a trustworthy source.) The Constitution “works only insofar as we enforce it—that is, we throw our elected leaders out of office if they ignore the terms of their representation—and that we do this consistently, from generation to generation, so that our children are not left with a replacement that is far inferior.” If we don’t enforce it though, we risk our freedom and the freedom of future generations.

PROFESSOR KIM WEHLE OF THE UNIVERSITY OF BALTIMORE ON WHY SHE WROTE HOW TO READ THE CONSTITUTION AND WHY: The goal of the book is to enhance constitutional literacy and a broader understanding of the rule of law as crucial to the preservation of individual rights, regardless of political party and ideology. I liken the concept to a 230-year-old bridge. People can debate whether the red uniformed officers or the blue-uniformed officers should be directing traffic. Some might get deeply invested in their “side” of this dispute, fiercely defending their red or blue team and even vilifying those on the other side. But if the bridge is neglected and allowed to erode, eventually crumbling, everyone goes down with it. So it is with constitutional structure. Many Americans don’t understand how the Constitutional works, what a constitutional right even is, and how to maneuver what’s going on in government today. The book aims to empower people to make their own judgments rather than rely on partisans and pundits. It incorporates doctrine, policy, theory, and common sense - all are necessary to an intellectually honest approach to constitutional law.

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THE LAW

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Combating Ageism in Maryland and Beyond: An Exploration of Federal and State Workplace Anti-Discrimination Laws BY GREGG C. GREENBERG AND MATEO FORERO 1

T

he towering novelist and Nobel1 laureate, Gabriel Garcia Marquez, once wrote: “age has no reality except in the physical world. The essence of a human being is resistant to the passage of time.”The idea of an enduring essence of humanity animates our intuition that every person is entitled to equal dignity and treatment, regardless of their station in life. And yet, ageism – which the World Health Organization (WHO) defines as discrimination towards people on the basis of age – remains a prevalent practice in our society2. Ageism manifests itself in many forms, from pervasive employment discrimination, to biased health care coverage, media caricatures, and day-to-day microaggressions. This is especially problematic because, as WHO officials have noted, “unlike other forms of discrimination, including sexism and racism, [ageism] is socially accepted and usually unchallenged.”3 In response to this difficulty, the WHO announced in 2016 that it was launching a multi-million dollar global campaign to combat ageism through research, education, and policy reform.4 The WHO initiative is a laudable step toward combatting ageism, and is sure to meaningfully complement existing laws in the U.S. that protect against age discrimination. But in order to maximize the effect of any reform efforts, it is crucial to understand the current state of affairs in this policy area. With that in mind, this article seeks to shed some light on the contours of current anti-discrimination law, with an emphasis on federal and Maryland laws addressing ageism. Part I of the article will first describe the framework of federal and Maryland laws targeting age discrimination in the workplace. Part II will then explore recent developments in the application and expansion of age discrimination laws. And Part III will conclude with brief remarks about the continued fight against age discrimination in Maryland and beyond.

Overview of Laws Targeting Age Discrimination A. The Federal Age Discrimination in Employment Act In 1967, Congress enacted the Age Discrimination and Employment Act (ADEA) to promote employment of older persons based on their ability rather than age, and to prohibit arbitrary age discrimination in employment.5 The law protects employees who are 40 years of age and older,6 and applies against 106

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the following employers: (1) private businesses with at least 20 employees,7 (2) employment agencies,8 (3) most of the federal government,9 (4) state and local governments,10 and (5) labor organizations with at least 25 members.11 The ADEA makes it unlawful for covered employers “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”12 This mandate applies to a broad range of employment

Ageism manifests itself in many forms, from pervasive employment discrimination, to biased health care coverage, media caricatures, and dayto-day microaggressions. practices, including the hiring, promotion or demotion, transfer, termination, or discipline of an employee because of their age. Indeed, because the statute prohibits discrimination with respect to all terms and conditions of employment, age discrimination regarding salary, leave, and other benefits also violates the ADEA. Further, the ADEA prohibits discrimination in referrals by employment agencies, actions by unions, and retaliation against employees for filing or participating in an ADEA claim.13

B. The Maryland Fair Employment Practices Act Although the ADEA provides a floor of protection against age discrimination, the statute is limited in two important ways: (1) its anti-discrimination mandate only applies against employers with 20 employees or more, and (2) only people who are 40 or older are protected by the law.14 Responding to these gaps in protection, the Maryland General Assembly has included age discrimination among the acts prohibited by the Maryland Fair Employment Practices Act (FEPA). FEPA, the state analogue to Title VII of the Civil Rights Act of 1964, is widely considered to be one of the most protective anti-discrimination schemes in the United States. Unlike the ADEA, FEPA protects any individual who is employed (regardless of their age).15 Further, the law applies against the following employers: (1) private businesses with at least 15 employees16 (a lower threshold than ADEA),17 (2) employment agencies,18 (4) state government,19 and (5) labor organizations.20 FEPA makes it unlawful for a covered employer to “fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to the individual's compensation, terms, conditions, or privileges of employment because of … age.”21 Like the ADEA, FEPA’s anti-discrimination mandate applies to all employment practices, from hiring to firing and everything in between. Furthermore, FEPA makes it unlawful for any person to aid or abet others in committing age discrimination,22 and prohibits an employer from retaliating against an employee who opposes an age-discriminatory practice or who files a charge of age discrimination.23

Supplementing this scheme, FEPA also incorporates the anti-discrimination mandates of certain counties in Maryland. Likewise, the law permits individuals working in Montgomery, Howard, and Prince George’s County to sue employers covered by FEPA for age-related discriminatory practices.24 The incorporation of these local anti-discrimination mandates enhances FEPA’s ability to remedy ageism in the workplace and incentivize better employment practices in some of the state’s most populous areas.

Recent Developments in Age Discrimination Law Having described the framework of federal and Maryland laws targeting ageism in the workplace, it is worth noting some of the judicial and legislative developments that have occurred in the last year with respect to the ADEA and FEPA.

A. Recent Developments in the Fourth Circuit On June 17, 2019, the U.S. Supreme Court denied certiorari in a case decided by the Fourth Circuit, which held that the award of back pay is a mandatory remedy under the ADEA.25 In EEOC v. Baltimore County, the Equal Employment Opportunity Commission (EEOC) brought suit on behalf of two retired corrections officers who were discriminated against based on their age.26 The suit arose from the fact that the officers had to contribute more to Baltimore County’s pension plan than younger employees.27 After years of litigation, Baltimore County and the EEOC entered into a Joint Consent Order to equalize pension member contribution rates.28 Once the Order was entered, however, the EEOC moved the U.S. District Court of Maryland to award retroactive and prospective monetary relief. The District Court declined to award this relief and held that backpay was not a mandatory remedy under the ADEA.29 On appeal to the Fourth Circuit, Baltimore County argued that the district court properly exercised its discretion under the ADEA to deny the award of back pay. In support of its position, the County pointed to a trio of Supreme Court decisions holding that, in pension cases arising under Title VII of the Civil Rights Act, the award of back pay is not mandatory.30 The Fourth Circuit, however, rejected these arguments and instead agreed with the EEOC that because the ADEA incorporates the FLSA’s liability provisions, and because back pay is a mandatory legal remedy under the FLSA, the district court lacked the discretion to decline an award back pay.31 The court also observed that the ADEA’s “legislative history further suggests that Congress consciously chose to incorporate the powers, remedies, and procedures of the FLSA into the ADEA.”32 The Fourth Circuit’s decision, and the Supreme Court’s subsequent denial of certiorari, is significant in that it creates a split in the Courts of Appeal on the issue of mandatory remedies for age discrimination suits. Prior to this case, The Second, Eighth, and Eleventh Circuits had all held that back pay awards were discretionary under the ADEA.33 But with a contrary holding from the Fourth Circuit, employers in Maryland will need to operate under the assumption that ADEA violations will result in mandatory back pay, thereby making the stakes for age discrimination much higher.

B. Recent Developments in Maryland In addition to the federal law developments discussed above, there has also been movement in the enhancement of state law protections MARYLAND BAR JOURNAL | ISSUE 3 2019

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against age discrimination. During the 2019 session, the Maryland General Assembly passed a number of bills that will impact employment practices in the state. Of particular note was the Workplace Harassment Bill (HB 679 / SB 872), which amended FEPA to vastly expand liability for employers engaging in age-motivated harassment.34 The bill, which was signed by Governor Hogan and will go into effect in October 2019, promises to substantially enhance Maryland’s protections against ageism in the workplace.35

Gregg Greenberg is a Partner, and Mateo Forero is an Associate, at Zipin, Amster & Greenberg, LLC.

1

Alana Officera & Vania de la FuenteNuñez, A Global Campaign to Combat Ageism, Bulletin of the World Health Organization No. 2018;96:299-300, 295 (Mar. 9, 2019), available at https://www. who.int/bulletin/volumes/96/4/17-202424/ en/.

2

contractors, meaning those persons will be protected from age discrimination perpetrated by their principals.36

Expands the definition of “employer” to include any private

Id. at 296.

4

Id. § 631(a).

6

For a summary of the procedural history in this case, see Baltimore Cty., 904 F.3d at 332.

28

Id. § 630(b). Id. § 630.

8

See id. § 633a(a) (making the ADEA applicable to a variety of executive agencies); 2 U.S.C. § 1301 et seq. (extending the ADEA’s provisions to congressional employees).

EEOC v. Baltimore Cty., 202 F. Supp. 3d 499 (D. Md. 2016).

29

9

Id. § 630. Although the Supreme Court held in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), that state employees cannot sue states for monetary damages under the ADEA, the statute may still be enforced against states by the EEOC, and state employees may still sue state officials for declaratory and injunctive relief.

See City of Los Angeles, Dep’t of Water & Power v. Mannhart, 435 U.S. 702 (1978); Arizona Governing Comm. For Tax Deferred Ammunity & Deferred Comp. Plans v. Norris, 463 U.S. 1073 (1983); Florida v. Long, 487 U.S. 233 (1988).

30

10

Adds provisions expressly forbidding employers from harass-

11

ing an employee because of their age.38

12

Baltimore Cty., 904 F.3d at 334.

31

Id. at 335.

32

See Whittlesey v. Union Carbide Corp., 742 F.2d 724, 727–28 (2d Cir. 1984); Leftwich v. Harris–Stowe State Coll., 702 F.2d 686, 693 (8th Cir.1983); Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1561 (11th Cir. 1988).

33

29 U.S.C. § 630(d), (e). Id. § 623(a).

Adds a provision providing that an employer is liable if its negligence led to the harassment of its employees . 39

Id. § 623(d).

13

The ADEA does not outlaw reverse age discrimination – i.e. favoring protected employees over ones younger than 40 years old. Moreover, the Supreme Court has held that the ADEA does not outlaw discrimination against younger employees within the protected class. See Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004).

ment administrative complaints and lawsuits.40

Continuing The Fight Against Age Discrimination The recent developments in judicial and legislative action toward more robust protections against age discrimination are encouraging. But as the WHO has pointed out, there is still much work left in order to achieve true progress.41 Indeed, more than 50 years after Congress passed the ADEA, a new data analysis by the Urban Institute and ProPublica shows that more than half of older U.S. workers are pushed out of longtime jobs before they choose to retire, suffering financial damage that is often irreversible.42 Meanwhile, data shows that since a 2009 Supreme Court ruling made age discrimination claims harder to prove, the EEOC has only pursued such claims in a low percentage of cases—3.1 percent on average.43 These statistics are staggering, but they should also serve as a call to action both here in Maryland as well as across the United States. The march toward equal justice under law continues. GREGG C. GREENBERG is an employment lawyer. Mr. Greenberg represents employees and counsels small businesses in workplace disputes relating to the rate, method, and sufficiency of employee compensation. The focus of Mr. Greenberg’s practice is litigating claims wherein the central questions are often: (1) determinations of status or classification as employee or independent contractor; (2) questions concerning overtime pay exemptions or exceptions under Federal and State wage laws; (3) questions of compliance with the “tip credit” exception to Federal and State minimum wage requirements; and (4) disputes as to owed or unpaid wages or commissions. In Mr. Greenberg’s career as an attorney, Mr. Greenberg has litigated several hundred Federal and State employment law claims including Class Actions and Collective Actions.

2019 Md. Laws, Chapter 222 at 2.

34

14

Extends the limitations periods to file age-motivated harass-

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Id.

27

7

business with at least one employee whenever there is an allegation of harassment (meaning small employers will be on the hook for any age-motivated harassment).37

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747 F.3d 267, 270-72 (4th Cir. 2014) (prior appeal in the litigation describing the facts of the case).

26

Id. 29 U.S.C. § 621.

Expands the definition of “employee” to include independent

EEOC v. Baltimore Cty., 904 F.3d 330 (4th Cir. 2018) cert. denied, 587 U.S. _ (June 17, 2019) (No. 18-781).

25

3

5

Significant Changes to FEPA as a result of the Workplace Harassment Bill

Md. Code Ann., State Gov’t § 20-1202(b), and see Code of Montgomery Cty. § 27-19(a) (outlawing age discrimination in the workplace); Code of Howard Cty. § 12.208(II) (same); Code of Prince George’s Cty. § 2-222 (same).

24

Md. Code Ann., State Gov’t § 20-601(c)(1).

Id. at 10.

35

Id. at 4.

36

Id. at 5.

37

Id. at 7.

38

Id.

39

Id. at 8-9.

40

15

On April 3, 2019, the Maryland General Assembly passed amendments to FEPA. Among the amendments is an expansion of the definition of “employer” to include employers with as few as one (1) employee and expansion of the definition of “employee” to include independent contractors. These amendments (and others) will to take effect on October 1, 2019. See infra.

16

Id. § 20-601(d)(1).

17

Id. § 20-606(b).

18

Id. § 20-601(d)(2).

19

Id. § 20-606(c).

20

Id. § 20-606(a).

21

Id. § 20-801.

22

Id. § 20-606(f).

23

Officera & de la Fuente-Nuñez, supra note 2, at 296.

41

Richard Johnson & Peter Gosselin, How Secure Is Employment at Older Ages?, Urban Institute Research Reports 20 (Dec. 28, 2018), available at https://www.urban. org/research/publication/how-secure-employment-older-ages/view/full_report

42

Dana Wilkie, 50 Years After Age Discrimination Became Illegal, It Persists, SHRM. com (January 22, 2019), available at https://www.shrm.org/resourcesandtools/ hr-topics/employee-relations/pages/ age-discrimination-in-the-workplace-.aspx, and see Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (imposing a higher burden of proof on workers who allege age discrimination than on those who allege race, religion or gender-based discrimination).

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WEB EXTRA

MSBA CLE: MARYLAND AND FEDERAL EMPLOYMENT LAW UPDATE Learn about the most recent developments in state and federal employment law, including employment laws passed by the Maryland General Assembly during the last legislative session. The panel will also address recent developments at the Maryland Civil Rights Commission. VISIT MSBA.ORG/EMPLOYMENT-LAW-UPDATE


OUR FIRM IS GROWING

Exciting changes are happening at Stein Sperling. In addition to the launch of the firm’s newly redesigned website, Stein Sperling began the process of moving to its new headquarters at 1101 Wootton Parkway, Rockville, MD, a process scheduled for completion by the summer of 2020. Reaching its largest size ever, Stein Sperling is excited to work with the Tower Company to occupy more than 40,000 square feet in the LEED Gold® and ENERGY STAR Certified Tower Building. This move will come in stages with a number of attorneys and staff working out of a temporary space while the firm develops its new home. When complete, this move will allow attorneys and staff to connect and collaborate with ease. The firm’s new location will allow continued close proximity to the Montgomery County Courthouse and accommodates future growth of the firm. Founded in 1978, Stein Sperling started with just four attorneys plus three staff in one small building at 23 West Middle Lane, a building the firm still occupies today along with four additional buildings in Rockville, Maryland as well as stand-alone offices in Wheaton, Langley Park, and Frederick in Maryland and Baileys Crossroads in Virginia. Since it’s inception, the firm has grown to 51 attorneys and 78 additional staff.

Stein Sperling Bennett De Jong Driscoll PC · 25 West Middle Lane · Rockville, MD 20850 · 301-340-2020 · steinsperling.com MARYLAND BAR JOURNAL | ISSUE 3 2019

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ATTORNEYS HAVE A ROLE TO PLAY IN PREVENTING ELDER ABUSE BY MARGARET HENN, ESQ.

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June 15 was World Elder Abuse Awareness Day. As many as 1 in 10 older Americans suffer some type of abuse or neglect. Abuse may be physical, financial or emotional. As lawyers, we are in a unique position to prevent abuse as we assist clients in planning for their futures. This topic applies to all clients, but is of special importance to low income seniors who have less access to legal advice and fewer options for long term care.

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ttorneys should be aware that many tools that clients commonly use to simplify their lives can also be used to financially abuse a vulnerable adult. Financial powers of attorney are a prime example. Clients may set up a financial power of attorney for any number of reasons, including conducting a business transaction or allowing a family member to help with finances as that client ages.

AS MANY AS 1 IN 10 OLDER AMERICANS SUFFER SOME TYPE OF ABUSE OR NEGLECT. Many clients are wholly unaware of the broad powers conferred by the durable statutory power of attorney form. It may seem like a good idea to have your son help pay your bills, but people are often surprised that their agents can sell or mortgage their homes and have unfettered access to their bank accounts. Unfortunately, as they get less physically or mentally able to take care of their own affairs, many older adults find themselves in situations in which their agents

are stealing their funds. These cases are notoriously difficult to prosecute because clients are unwilling to report family members and have difficulty accessing the justice system due to limited capacity. Sometimes the victim is living in the same home as the abuser and relying on them for basic care. Additionally, it is often difficult to collect from the perpetrator and make the victim whole. For low income clients, the results of this type of abuse can be particularly devastating; they are often living on a very low fixed income and theft of this income can mean homelessness or going without food or medication. Attorneys can reduce the risk of abuse by carefully counseling their clients about the benefits and risks of a executing a durable power of attorney. A client should consider carefully whether he or she trusts the person who will be named agent and whether that person is in financial distress and may be tempted to use the client’s money improperly. Attorneys should also be on the lookout for situations in which a family member is trying to insert him or herself into the client meeting in an unwelcome way or pressure the client to make certain decisions regarding estate planning. The ABA’s National Center on Law and Elder Rights has helpful resources for avoiding situations of undue influence. Deed changes are another tool that clients commonly utilize to simplify their end of life plans, which can result in financial abuse. In order to avoid the costly and time consuming probate process, MARYLAND BAR JOURNAL | ISSUE 3 2019

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many people assume that it will be beneficial to them to add another family member to their deed while they are living. They execute a new deed without the advice of an attorney and do not realize that judgments against the person who has been added to the deed may attach to the home. Additionally, depending on how the property is titled, the new co-owner may be able to borrow against the house without the other owner’s consent or knowledge. An older adult may unwittingly find him or herself in foreclosure, at risk of losing the family home, when his or her original intent was merely to plan for the future. Lower income clients, who have less access to the legal system, are at a higher risk of using form deeds online or internet-based information that might not paint the whole picture of the risks of transferring their properties. In the context of real property transfers, attorneys can reduce risk to their clients by making them aware of all the tools that might be available to them. A client who comes in asking about adding someone to their deed, might be better served by a life estate deed, trust or other planning tool. There are many pro bono programs who assist low income clients who do not have access to quality legal advice in this arena. Another way in which attorneys can reduce the risk of elder abuse is through providing pro bono legal services through the Pro Bono Resource Center of Maryland, Maryland Volunteer Lawyers Service or the Bar Association of Baltimore City’s Senior Legal Services Program. Attorneys can even assist in providing quality information to those who are searching for information online by answering questions pro bono on Maryland.freelegalanswers.org.

THE GUARDIANSHIP PROCESS CAN ALSO BE FRAUGHT WITH SITUATIONS IN WHICH A FAMILY MEMBER SEEKS TO BE NAMED GUARDIAN AS A MEANS TO TAKE ADVANTAGE OF AN OLDER ADULT. Similar to the concept of adding someone to a deed, it is common for an older adult to change the title on his or her bank account as a way to make the process easier for those who will inherit money or are helping to manage the older adult’s finances. Adding another person as a joint owner on one’s bank account carries the obvious risk of allowing that person unimpeded access to the older adult’s money. Too often this action paves the way for abuse or neglect. Attorneys should be vigilant in advising their clients about the risks and benefits of adding family members to their bank accounts. A bank account that is payable on death to a beneficiary, rather than jointly owned, can help to prevent some of the worst forms of elder abuse. As the baby boomer generation ages, often without advance planning documents, more and more cases are resulting in court-appointed guardianship. Unfortunately, the guardianship process can also be fraught with situations in which a family member seeks to be named

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guardian as a means to take advantage of an older adult. Clients should be aware that advance planning can reduce the need for a guardian. Also, if guardianship is needed and the client does not have a trusted family member or friend to serve in this role, he or she has the option of requesting that a neutral attorney be appointed by the court. One of the best ways to reduce the need for guardianship and put safeguards in place if a guardian is appointed is through creation of an advance medical directive, will and a comprehensive list of assets. Failure to create an advance medical directive can result in situations in which the individual is in the hospital, unconscious and on a ventilator, and the hospital cannot take any action to remove that person from life support. Often this is not the choice the individual would have made for themselves; an advance medical directive will clearly give medical personnel instructions about the client’s wishes and the agent designated to make healthcare decisions on his or her behalf. A will and list of assets, including where the assets and located and who has access to them, will give an indication of whether anything improper has taken place with the older adult’s funds. In addition to being cognizant of elder abuse prevention, attorneys should familiarize themselves with the services that may be available if they suspect elder abuse is at play. Maryland’s Adult Protective Services only has jurisdiction over cases in which a vulnerable adult is suffering abuse. Vulnerable adults include those who lack the physical or mental capacity to take care of their daily needs. Many older adults who suffer abuse do not fall under the auspices of Adult Protective Services because they have the mental and physical capacity to take care of their daily needs. The Stop Abuse of Elders Program (SAFE), through CHANA, is available to work individually with older adults who are victims of abuse and consult with attorneys or other advocates who are working with older clients. For those who are vulnerable adults, Maryland attorneys are not mandatory reporters of abuse, and in fact may not be able to report abuse without the client’s consent and careful consideration of the impact of waiving confidentiality. However, there may be situations in which the client does wish to waive confidentiality and have the attorney make a report. Attorneys who suspect abuse should initiate a conversation with their clients about the benefits and risks of making such a report. As trusted advisors in their clients’ lives, attorneys can play a large role in preventing elder abuse and helping abuse victims access help. The best way to prevent abuse is by familiarizing oneself with the legal tools that can be used by abusers, counselling clients appropriately and knowing where to refer clients if they have suffered abuse. MARGARET HENN is Director of Home Preservation Project at the Pro Bono Resource Center of Maryland.


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Debt Depression in Older Adults BY AMY P. HENNEN, MANAGING ATTORNEY FOR HOUSING AND CONSUMER LAW, MARYLAND VOLUNTEER LAWYERS SERVICE

NB: This article discusses suicide. Refer to the end of the article for resources.

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O

lder adults are struggling with debt at alarming and increasing rates. The consequences can be truly heartbreaking. Total debt levels for families headed by older adults has increased considerably in recent years. A study from Employee Benefit Research Institute (EBRI) found that the number of families carrying debt and headed by adults 75 or older has increased by 60% between 2007 and 2016. Additionally, the number of those same families where debt payments exceed 40 percent of income has increased 23 percent.1

the negative consequences people can face as we age. It is important as attorneys, and people, to recognize these signs which can lead to depression including:

I have committed my career to helping those struggling with debt to find a way out from under it all or fight for a way for them to manage their debt. For the past 4 years, I have worked at the Maryland Volunteer Lawyers Service (MVLS) as the Managing Attorney of Housing and Consumer Law and have seen many clients decline rapidly in health and even pass away during the course of my representation. But last summer, I felt a profound loss when two of my clients committed suicide. The impact on their loved ones was devastating. At the time, I questioned my representation and wondered what else I could have done to help them. It has made me more mindful when working with vulner-

Health care providers and social workers have begun to examine the impact finances can have on health. Attorneys must do the same since poor financial well-being can have tragic results, especially as adults reach retirement age.

• Physical or emotional isolation • Loneliness from the loss of a spouse or other loved ones • Reduction of economic circumstances • Feeling of no longer being the family’s go-to person • Loss of feeling of useful and having purpose • Fear of a loss of independence, especially the ability to live in one’s own home

For many in society, retirement may not look like what we hoped or planned and older adults may experience depression, isolation, and loss of purpose. Poor health or the loss of a partner can make it harder to make ends meet. Bankruptcy filings by older adults have increased two fold.3 As older Americans enter retirement, they feel the consequences of a reduced social safety net, a reduction of in-

2007 - 2016 the number of families carrying debt and headed by adults 75 or older has increased by

60 percent the number of those same families where debt payments exceed 40 percent of income has increased

23 percent

Educating clients about options and providing resources is a major part of what attorneys do for them. able populations and MVLS clients. I want to share what I learned about working with vulnerable populations from social workers and health care professionals which other attorneys may find useful when working with older adults under financial stress. Approximately two million older adults are dealing with depression.2 Like many older adults, my clients were experiencing some of 114

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come, and increased health care costs. Added to those pressures is the increasing student loan debt for Americans over the age of 60.4 Older adults that are already feeling financial strain are facing larger balances on debt later in life and older individuals with student debt run the risk of garnishment of their Social Security benefits. Financial instability problems are compounding for older adults who are less likely to be able to recover their


wealth after filing for bankruptcy later in life. This kind of financial hardship can contribute to despair and feelings that things will not improve in the future. However, there are protective factors that help people cope with difficult situations and ensure resiliency. Support networks5 are a major protective factor that help people handle stressors and face negative experiences. Attorneys can be a part of the support networks that provide hope and help their clients make connections to additional resources. Educating clients about options and providing resources is a major part of what attorneys do for them. Attorneys make clients feel heard and respected, which can be validating for clients. Determining what the client really needs is equally important. When working with older adults with significant debts it is especially important to focus on legal options that can lead to a positive outcome. Typically when a client is living only on Social Security, the major stressor is often affording basic necessities. These clients can be so overwhelmed that starting by asking them to take a few deep breaths and making them feel heard can impact how they feel about their financial struggles and their ability to navigate their often-overwhelming debt. By listening to the major stressors, attorneys can help find the best option. Educating clients about options when they are facing a mountain of debt can help provide a way forward. Not every client needs to file bankruptcy. MVLS started our Bankruptcy Bypass Program to help in these situations. If a client has no garnishable income or assets, bypassing bankruptcy can be a superior alternative. In these situations, when bankruptcy is not a good solution, attorneys can send letters to creditors informing them that the client is not collectable. For older adults on limited incomes, by-passing bankruptcy frees up their income to pay for necessities. By recognizing and acknowledging that debt is a major stressor for their clients, attorneys can help them choose the best option. The other major activity attorneys can assist with is resource mapping. Attorneys can’t prevent all

the negative financial or emotional aspects in their clients' lives, but attorneys can help them find other assistance to make their lives easier. Resource mapping connects the client with the other services that can assist them. Attorneys can encourage vulnerable clients to seek counseling or social work help in their communities, if available. This kind of help can make clients more successful because they provide additional supports. Attorneys who are unsure of local resources can reach out to 211 and the local Department of Aging in their county to learn about additional help. According to the National Institute of Mental Health, suicide is the 10th leading cause of death in the United States, and males over 65 have the highest rate of suicide.6 My clients’ deaths took a toll on everyone around them, and there were warning signs leading to their deaths. Suicidal thoughts do not appear the same in everyone, but if a person talks about killing themselves, feeling hopeless, or feeling they are a burden to others, in addition to not making plans after a certain date, giving away prized possessions, or isolating themselves, these could be signs of suicidal thoughts. Advocates can contact organizations like Baltimore Crisis Response Inc., Adult Protective Services, or may even wish to have the police do a wellness check. Attorneys often don’t want to meddle in their clients’ lives, but should trust their instincts and err on the side of intervention and seeking additional support, especially when considering the suicide risk in older adults with overwhelming financial problems.

1

Study by the Employee Benefit Research Institute (EBRI) Debt of the Elderly and Near Elderly, 1992–2016; 5 March 2018 Available at EBRI: https:// www.ebri.org/content/debt-of-the-elderly-and-near-elderly-1992-2016

Mental Health America https://www. mentalhealthamerica.net/conditions/ depression-older-adults-more-facts

2

Thorne, Deborah and Foohey, Pamela and Lawless, Robert M. and Porter, Katherine M., “Graying of U.S. Bankruptcy: Fallout from Life in a Risk Society.” (5 August 2018) Indiana Legal Studies Research Paper No. 406. Available at SSRN: https://ssrn.com/ abstract=3226574 or http://dx.doi. org/10.2139/ssrn.3226574

3

McLaughlin, Kelly. “3 million senior citizens in the US are still paying off their student loans.” Business Insider N.p., 3 May 2019 Web. 13 August 2019. Available at Business Insider: https:// www.businessinsider.com/americansover-60-paying-student-loans-2019-5

4

Yates T. M. Masten A. S . 2004. Fostering the future: Resilience theory and the practice of positive psychology. Available at University of California Riverside: https://adlab.ucr.edu/ wp-content/uploads/2014/12/Yates-etal.-2014-Resilience.pdf.

5

National Institute of Mental Health, National Institute of Health (NIH) Available at NIH: https://www.nimh.nih. gov/health/statistics/suicide.shtml

6

Both debt and depression are a growing problem for older adults. Awareness of the issue is important, but there are larger societal structures that are at work: student loans, lack of affordable housing, and insufficient income from Social Security all play a part. Society will need to make systemic changes if we want to decrease the number of older adults in crisis. If your or someone you know is in crisis, call the toll-free National Suicide Prevention Lifeline at 1-800273-TALK (8255), available 24 hours a day, 7 days a week. The service is available to anyone. All calls are confidential. http://www.suicidepreventionlifeline.org

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The Elderly, Employment Law, and Federal Benefits

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The Elderly, Employment Law, and Federal Benefits BY RICHARD NEUWORTH, ESQ.

1 in 5

individuals that are 65 and older are still employed on a full time basis For age 70 and older, the estimate is 1 in 10.

More elderly persons are forced to work while collecting federal benefits. Practitioners need to consider these benefits when addressing employment law questions.

B

aby boomers are aging and leaving the workforce in droves. It is estimated that only 1 in 5 individuals that are 65 and older are still employed on a full time basis. It is also estimated that 1 in 10 individuals over 70 are still working on a full time basis. Nevertheless, significant numbers of baby boomers continue to work on a parttime basis or look for work due to inadequate retirement savings, credit card debt and/or mortgage obligations. These aging individuals present numerous challenges and opportunities to practitioners. At the outset, unlike all other workers, those age 62 and older that have worked in the private sector may be entitled to receive federal benefits such as regular Social Security benefits. In fact, individuals that have paid sufficient quarters into the Social Security system are entitled to collect a reduced retirement benefit beginning at age 62. For individuals born between 1938 and 1954, the normal retirement age for receiving Social Security benefits without an actuarial reduction based on one’s earnings record is 66. For all those born beginning in 1955, the retirement age goes up from one’s 66th birthday based on (2) month increments through 1959. All those born after 1960, the age is 67. The maximum age to start collecting regular Social Security benefits is 70.

An additional benefit will be available once an individual reaches regular retirement starts for their child(ren) until their child(ren) reach age 18 or graduate from high school (but no later than age 19). Individuals age 62 and older may also be entitled to Social Security disability benefits and Medicare for health insurance coverage in addition to regular retirement benefits if they are eligible. Disability benefits may continue until one reaches normal retirement age from age 62 and thus increase the amount of the normal regular retirement benefit. The over 62 age group, many suffer from chronic medical illnesses and degenerative conditions that make working on a full-time basis difficult if not impossible, which is also one of the important conditions to qualify for Social Security disability benefits. Individuals that collect Social Security disability benefits after being declared disabled are also permitted to work and continue receiving these benefits if the earnings from work are usually limited to less than $1,000 per month. An individual after qualifying for Social Security disability may work full time and collect unlimited amounts of earned income for nine months and then their disability benefits are terminated. Monetary severance benefits and/or settlement proceeds are not counted as an offset and/or will not

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affect Social Security disability benefits based on one’s earnings record.

administrative agency or before verdict that will also potentially affect federal benefits.

Other federal benefits may include health insurance through Medicare. Medicare coverage for health insurance begins at age 65 for those that have worked at least five (5) years in the private sector. Individuals age 62 and older may also be eligible for Medicaid coverage (a federal and state program) along with Medicare for health insurance and long term coverage. Significantly, these same employees may keep these same federal benefits with or without an offset if they continue to work on a part-time basis and possibly even on a full-time basis.

If the former employee is already collecting regular Social Security benefits at the time of receiving severance benefits or settlement, the attorney should consider whether or not the monetary package will affect the Social Security benefits. In 2019, employees may work and still collect regular Social Security benefits if their total earned income does not exceed $17,640 if the employee has not reached normal retirement age. Monetary

With respect to employment law issues for this cohort over age 62, the principal remedies concern age and disability discrimination under federal and state law. A practitioner needs to be aware of how the above-referenced federal benefits interface with and affect employment law remedies. Decisions need to be made concerning whether or not the potential client will seek just federal benefits and/or pursue simultaneously both federal benefits and employment law claims. AGE DISCRIMINATION One of the principal issues in age discrimination cases that are affected by federal benefits concern whether or not to pursue only a severance package and how will the federal benefits affect the severance package. If litigation is pursued, the attorney must examine whether or not the collateral source rule, mitigation of damages, and offsets to the nature and type of Social Security benefits that the potential client is receiving or will receive in the immediate future. Since the passage of the Older Workers Benefit Protection Act of 1991, many potential age discrimination cases are resolved based on the payment of severance benefits usually one to two weeks per year depending on the nature of the job position and the length of service with the employer. These severance packages are sometimes offered initially by the employer prior to termination or shortly after termination if the employee retains counsel. Employers may also settle a case after a charge of discrimination is filed with an 118

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Security benefits in the same year that severance or a monetary settlement is received, the federal benefits may be voluntarily repaid interest free to the Social Security Administration. The Social Security Administration will permit an employee to perform one “do over” or start over for collecting regular Social Security benefits. By delaying the initial receipt of regular Social Security benefits, the employee could then receive a higher amount of Social Security benefits at a later age. Unlike regular Social Security benefits, Social

Courts have never counted regular Social Security benefits as an offset against economic loss in discrimination cases. benefits such as salary continuation contained in a severance package or a settlement agreement will count towards the earnings limit in one year. If the employee’s total earnings exceed $17,640 for one calendar year, then the employee will be forced to pay back $1 out of every 2 dollars of all regular Social Security benefits received in a year based on each dollar earned over $17,640. If one reaches normal retirement age in a particular year then one can earn $46,920 before the offset is applied to regular retirement benefits. In the case of normal retirement age and above, the offset is applied by reducing Social Security benefits based on a $1 dollar for every $3 dollars received. The earnings limit increases each year if there is a cost of living allowance increase. In order to avoid the offset issue, the attorney must inquire about how much money that the employee has already earned or will earn in one year as a result of accepting the monetary severance package or settlement agreement and age of the client. Other questions include whether the employee started to collect Social Security benefits or intends to apply for Social Security benefits in the current calendar year. Significantly, if the former employee has started collecting Social

Security disability benefits cannot be repaid back to the Social Security Administration. If the employee cannot perform a “do over or start over” with respect to their Social Security benefits, other options are to spread out the monetary benefits contained in the severance or settlement package over more than one year or to obtain other types of benefits including payment of health insurance premiums or other types of benefits that will not count against the earnings limit for collecting regular Social Security benefits. Traditional Medicare only pays eighty (80) percent of hospital and doctor bills and does not pay for all prescription medications. If an employee also collects unemployment benefits after collecting severance pay, the unemployment benefits in Maryland and almost other states will not be an offset against regular Social Security benefits. Unemployment benefits cannot be collected simultaneously with severance pay since 2011 in Maryland but can be claimed only after monetary severance benefits end. If litigation is being pursued, the focus will again be on monetary damages. Individuals receiving Social Security benefits based on their earnings record should not be adversely affected by the collateral source rule in an age


discrimination case. Under the federal age discrimination law, the only source of monetary damages is based on economic loss and/ or double damages based on economic loss to the claimant. Specifically, in the Fourth Circuit, courts have never counted regular Social Security benefits as an offset against economic loss in discrimination cases. See EEOC v. Consol Energy, 860 F. 3d. 140, 152 (4th Cir. 2017). Similarly, these same benefits may not be used as a collateral source against economic damages under state age discrimination statutes. See, Haischer v. CSX Transp., Inc. 381 Md. 119, 132, 848 A. 2d 620, 627 (2004)

inconsistent with the duty to mitigate economic loss. Nevertheless, the Supreme Court and Fourth Circuit have permitted significant leeway for an employee to work part-time, to go to school or to accept a lesser paying position that will satisfy the duty to mitigate damages. See Brady v. Thurston Motor Lines, Inc. 753 F. 2d 1269 (4th Cir. 1985); Ford Motor Company v. EEOC, 458 U.S. 219, 102 S.Ct. 3057, 73 L. Ed. 2d 721 (1982).

A more difficult issue involves mitigation of damages. All employees that file age discrimination charges under state or federal law are required to mitigate their economic loss damages. If an employee starts collecting regular Social Security benefits, that may be

An individual applying for Social Security disability is required to state on forms under penalties of perjury and that are discoverable that he or she is applying for disability benefits because he or she is unable to work

DISABILITY DISCRIMINATION Disability discrimination presents all of the same type of issues as mentioned above but also presents attorneys with other tricky navigational twists and turns.

in any capacity. An employee may try to apply for unemployment benefits before qualifying for Social Security disability that may very well cause the Social Security disability application to be denied. It is highly advisable not to apply for any type of unemployment benefits unless and until two conditions are met. First, the employee has already qualified for Social Security disability benefits and, second, a physician has released the employee to some type of work. However, by not applying for unemployment benefits, an individual may not be able to mitigate economic damages in a disability discrimination lawsuit or administrative charge. The district court in Maryland and Fourth Circuit has held that delays in applying for other positions may preclude monetary damages for economic loss. See Bossalina v. Lever Bros., 47 Fair Empl. Prac. Cas. (BNA) aff’d 849 F. 2d. 604 (4th Cir. 1988) Thus, the attorney needs to decide

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at the outset about whether or not to pursue federal benefits only or what type of remedies to seek as part of a disability discrimination case. The Supreme Court in Cleveland v. Policy Management , 526 U.S. 795 (1999) unanimously held that receipt of Social Security disability benefits would not judicially estop all claimants from bringing disability discrimination cases under federal law due to the requirement of offering reasonable accommodations. See also EEOC v. Stowe-Pharr Mills Inc., 216 F. 3d 373, 379 (4th Cir. 2000); Fox v. General Motors Corp., 247 F. 3d 169, 178 (4th Cir. 2001) The employee must still provide an explanation concerning the inconsistency between the Social Security disability appli-

of accommodating an individual receiving Social Security disability benefits diverge under state and federal law. Under the Rehabilitation Act of 1973, (an employer receiving federal funds) and under state law must accommodate individuals with disabilities that they are qualified to perform including vacant positions that the disabled individual had not previously performed. See Peninsula Regional Medical Center v. Adkins, 448 Md. 197, 137 A. 3d 211 (2016) Reyazuddin v. Montgomery County, Maryland 789 F. 3d 407 (4th Cir. 2015) Under the Americans for Disabilities Act, there is no requirement to consider an employee for a vacant position if unable to perform the essential functions of the previous position that they were performing for the employer.

In order to properly represent the elderly in employment litigation, one must have a fundamental understanding of federal benefits and how those benefits will be impacted both by monetary severance packages and litigation. cation and the disability discrimination case stating that the individual is able to work albeit on either a part-time or full-time basis after the onset date of Social Security disability due to medical improvement or that the original condition was based on inability to perform past work only. Plaintiffs that have collected Social Security disability benefits have prevailed in subsequent employment cases. See Van Rossum v. Baltimore County, 178 F. Supp 3d 292 (D. Md. 2016); Bingman v. Baltimore County, 714 F. App’x 244 (4th Cir. 2017) The duty to reasonably accommodate has also lessened the employee’s burden somewhat. An employer is legally required to offer reasonable accommodations to disabled applicants and employees. The requirements 120

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Under all statutes, the individual must still be able to perform all essential functions of a job with or without accommodations. Two related questions to accommodations are whether or not the accommodation must be reasonable and the potential employee must not present a direct threat to the workforce if hired or reasonably accommodated. In Reyazuddin v. Montgomery County, Maryland 789 F. 3d 407 (4th Cir. 2015) , the Fourth Circuit held that a reasonable accommodation should provide a meaningful equal employment opportunity to attain the same level of performance as is available to nondisabled employees having similar skills and abilities. Furthermore, expert testimony that indicated that the accommodation would cost at least $100,000 was important but not

the sole factor in isolation when other employers were able to accommodate the same type of disability regardless of cost. With respect to the direct threat defense, an employer has a right to have an employee seen for a medical examination when the employee would pose a direct threat to himself or to others in the workforce. See Equal Employment Opportunity Commission v. McLeod Health Inc. 914 F. 3d 876 (4th Cir. 2019) Certainly, a potential employee receiving Social Security disability benefits might pose a danger to themselves or to others in a workforce depending on the nature of the disability, the length of the disability, and the types of reasonable accommodations to perform the essential functions of a job. Nevertheless, in order for the medical examination to be valid and not discriminatory, it must be directly related to the essential functions of the job. In short, in order to properly represent the elderly in employment litigation, one must have a fundamental understanding of federal benefits and how those benefits will be impacted both by monetary severance packages and litigation. RICHARD NEUWORTH is a Partner at Lebau and Neuworth, LLC and has been handling disability, personal injury and employment and employee benefit litigation for more than thirty-five (35) years. He has extensive experience in employee benefit, discrimination, harassment, personal injury, workers compensation, personal injury and social security disability cases. He has successfully represented individuals and groups of employees in significant employment disputes. He is an AV preeminent rated attorney. He is listed in Best Lawyers in America in Labor and Employment Law in 2010-2015. He is also listed in Super Lawyers Top 100 for 2020. In 2018, the Daily Record named him as a Leader in the Law.


Retirement

WHAT DOES IT MEAN TO THE EXPERTS AND TO ME? BY JAMES L. THOMPSON

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Unless one is prepared to create some new structure and routine through leisure pursuits, it won’t be long before you are missing some of the workplace structure and routine that for some may have felt confining and, perhaps, boring.

T

here’s a book entitled “How to Retire Happy, Wild and Free” by Ernie Zelinski. It poses an intriguing challenge to you as a reader. Chapter Two is entitled “Retirement: A Time to Become Much More Than You Have Ever Been.” However, I’m a little afraid of retirement since, as the book points out, “It’s the loss of a life’s structure that has been central to a person’s existence.” In addition, from my perspective, my current situation with my law firm is very satisfactory and I can adjust and move work so that things work out. So, why do I want to retire? I have always attempted to trade up in connection with my professional and personal life, and hopefully this is no different. How can I trade up and have retirement be better than what I have now and perhaps become much more as a person than I’ve ever been? How does one retire to be “happy, wild, and free?” Retirement forces me to rethink who I am, what my interests are

1.

Finding who you truly are and being this person.

2.

Re-creating your life through personal interests and creative pursuits, possibly through a new part-time career.

3.

Making optimum use of your extra leisure time.

4.

Maintaining physical, mental and spiritual well-being.

5.

Don’t retire without a plan.

6.

Need a place to go.

7.

Need to feel as though you matter – that you count.

The workplace has provided me with structure and routine. I am a lawyer and my priorities revolve around that and 1

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At present, semi-retirement may be the best alternative for someone like me. It is a way to have my cake and eat it, too. I can have a freer life style and still enjoy the positives of having a job and a place to go. There are several reasons why some retirees, including me, opt for semi-retirement. They enjoy their field of endeavor; they want to feel productive;

As a part of this environment and the full-retirement process, there are several fundamental issues that we could consider:

and what my priorities are. Retirement can provide me with a higher quality of life, although that is uncertain. I can pursue creative pursuits, fun jobs, and enhanced health from not having to work at a stressful job, plus vacations and other things. What are my priorities specifically? What are the trade-offs?

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family. I’m advised that many people go from living a life style that is highly structured, moderately purposeful and reasonably fulfilling, to a lifestyle that has little structure, no purpose and no fulfillment. Unless one is prepared to create some new structure and routine through leisure pursuits, it won’t be long before you are missing some of the workplace structure and routine that for some may have felt confining and, perhaps, boring. It seems to me that the degree to which you are able to give up the positive aspects of your work will determine whether you are prepared to retire cold turkey, in the traditional sense.

they can’t think of anything else to do; they like the companionship of like-minded colleagues; they like being around bright people; they like the social aspect of work; they like building and creating in work and its environment; and they want to get out of their spouse’s hair. For self-employed individuals, who enjoy their work, being semi-retired is a way to continue their life-long passion and enjoy retirement pursuits. Semi-retirement is a

At this point, I have decided to utilize the writings of Mr. Zelinski, and copy or summarize portions of his book that I found useful as I contemplate retirement. Hopefully you will as well.


way to prepare for full-time retirement by gradually introducing more and more leisurely pursuits into a person’s life. This is currently what retirement means to me, but I need to evaluate the prospect of complete retirement more fully.1 Several wise people have addressed the pitfalls of retiring without a purpose. “What can a man do who doesn’t know what to do?” Milton Mayer. Consider this, “It is seldom that an American retires from business to enjoy his fortune and comfort. He works because he has always worked and knows no other way.” Thomas Nichols. Another pundit observed, “Leisure tends to corrupt, and absolute leisure corrupts absolutely.” Edgar A. Shoaff. To end up successfully retired, you must have sufficient confidence in your ability to live life without interference or guidance from anyone else. Freedom is not always as easy as it appears. A noted pundit, Saul Alinsky, warned us, “The greatest enemy to individual freedom is the individual himself.” For many, retirement is not just the end of employment, but instead is the loss of a life structure that has been central to a person’s existence. However, according to the experts, retirement gives you the freedom to find yourself. It provides many opportunities for a new lease on life. Pursuing intellectual, creative or spiritual goals is a road to personal renewal and renewed energy. Indeed, many people have spent practically all of their waking hours for several decades working at their jobs, not knowing who they really were. Much to their surprise, after they retired, they discovered their true selves and what they really wanted to do with their lives. “It’s never too late” concluded George Elliot, “...to be what you might have been.” In this regard, retirement gives you the time and the freedom to become more than you have been. In fact, it may be your last shot. Why not take advantage of this? There is a danger here. After many years in the work force, it’s common for people to have become so engrossed in work that they are unable to function without it. Not only are they unable to deal with the lack of the work routine, they also have a hard time functioning without the sense of achievement – false as it may be – that comes from being involved in work. The transition from work to retirement can seriously affect 20 percent of those retiring, leaving them in a state of mild to severe depression. This is manifested by a low sense of self-esteem – esteem was earned in their work positions. Some experts have observed that it may be more beneficial to help achievement-oriented workaholics find ways to spend time doing what they enjoy – working – rather than retirement. In fact, Richard Rhyme, a researcher and professor of

psychology at the University of Rochester in New York, has concluded that people driven by wealth, status, fame or power – known as extrinsic goals – are generally dissatisfied with their lives. Worse, they are much more prone to a variety of psychology disorders. In fact, people who chase extrinsic goals are insecure and obsessed with how they measure up to others. One of the critical issues which one must face is this: Do you just want to get by in life or do you want to become the person who you can be? Doing the same thing over and over again and expecting your life to change is a good definition of crazy. Retirement allows you the freedom to be the person that you have always wanted to be. Paradoxically, you may not know any longer who it is that you exactly want to be. Work may have chipped away at your true identity until there is only an identity associated with the work world. This will need to be addressed and, perhaps, suppressed so that the other wonderful aspects of your true self can become manifest. How you define yourself during your retirement may be very different than how you define yourself during your work life. It is very difficult for many retirees to realize that they are no longer “productive” in the traditional sense of the word. Also, much of their identity has been tied to their work, and retirement means many losses, including: Power, status and perhaps self worth.

“Leisure tends to corrupt and absolute leisure corrupts absolutely.”

• Edgar Shoaff

One of the interesting quotes in this book pertains to people like me suggests that semi-retirement is a way to change gears from full to part-time work while, at the same time, gradually changing one’s life style. Semi-retirement is seen as a way to prepare for full-time retirement by gradually introducing more and more leisure pursuits into your life. Most people don’t know how much they are defined by their jobs until they give them up. In our culture, sometimes what you do and how much money you make are more important than who you truly are. The book points out that one got by for eighteen to twenty years in the beginning of his or her life without any work identity and, hence, you can probably get by the last twenty years of your life without one either. Here is a checklist of finding your “true identity.” Write down your five best traits. This can’t have anything to do with work. Also, write down what you want to be in the non-work world. (At age 18 it was “What do I want to be when I grow up?”) These things may be such items as creativity, kindness, passionate pursuits, generosity, love, joy, spontaneity, connectiveness, a sense MARYLAND BAR JOURNAL | ISSUE 3 2019

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of humor, peace of mind, inner happiness and spirituality, to name several. Get in touch with your “inner life.” Some people assume a new title, such as “Connoisseur of Life and/or Leisure,” and they have business cards made up with their name, phone number and address. As Luther Price says, “Be what you is, not what you ain’t. ‘Cause, if you ain’t what you is, you is what you ain’t.” Retirement is an incredible opportunity for self-discovery. You get to find out who you really are, and who you would like to be. For many retirees, there needs to be a sense of a “higher meaning,” or to find a passion and pursue it. For some, people are satisfied with a purpose. As Benjamin Franklin advises, “Leisure is time for doing something useful.” Unless you put some purpose into daily activities, you may end up constantly questioning the meaning of life. For some, superficial pursuits, such as material possessions, status, competition and wasteful consumption are a purpose of a sort. Discovering who you really are is essential because purpose is created from within – an important mission, a true calling or a passionate pursuit. Here is another Zelinski personal checklist of questions to ask. Some of these include: • What is extremely important to me? • What makes me happy? • What made me happy in my childhood that I would like to do again? • What made me happy in my career that I would like to continue doing? • What would make me a much happier person? • What talents or skills am I most proud of? • What makes me feel most creative? • What would I like to do that I’ve always wanted to do but never got around to doing? • How would I like to make the world a better place in my own way? • What sort of legacy would I like to leave? – What would I like to put on my epitaph? It’s best to write your answers down in a notebook and review your answers and add to them over a period of weeks to see what shakes out. Eleanor Roosevelt has an interesting quote. She says, “Friendship with one’s self is all-important, because without it one cannot be friends with anyone else.” There’s a chapter entitled, “Happiness Doesn’t Care How You Get There.” An opening quote from Alice Meynell states: “Happiness is not a matter of events; it depends on the tides of the mind.” Zelinski points out that happiness in retirement, as in all stages of life, doesn’t care how you get there. Not only doesn’t happiness care how you get there, it doesn’t even care if you get there at all. You are also sure not to obtain true happiness if you wait for destiny or others to show

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you the way. If nothing else, satisfaction and inner peace will be missing. Mr. Salzman, a recent retiree, explains that retirement is not a time to sleep, but a time to awaken to the beauty of the world around you, and enjoy that which comes when you cast out all of the negative elements that cause confusion and turmoil in your mind and allows serenity to prevail. However, as Eric Fromm says in Escape from Freedom, “Modern man lives under the illusion that he knows what he wants, while he actually wants what he’s supposed to want.” Many retirees consume this programming instead of stopping to question what will truly make them happy. Another quote of interest comes from Martha Washington, “The greater part of our happiness or misery depends on our dispositions, and not our circumstances.” Finally, Mr. Zelinski poses a series of questions directed to a happy, wild and free retirement. Here’s an action checklist which I’ve supplemented: • Am I in control of my life style? • What can I achieve in my retirement that would make me proud? • What can I do that is unique? • Do I have enough friends in my life? Build a social portfolio before you retire. • Do I devote sufficient time to see my close friends and family? • Do my time commitments allow me to make a contribution to making this world a better place? • Do I have a place to go where I matter? • Do I exercise enough in my own enjoyable way? • Am I continually learning something new? • Do I do something special for myself each and every day? Another interesting quote is, “Enjoy every day as if it was your last, and one day you will be right about that.”

Live an engaged life with a purpose and find inner peace and self-worth – find that you matter. Let me close with a short but powerful bit of advice. Live an engaged life with a purpose and find inner peace and self-worth – find that you matter. This short paper collects really a series of thoughts and ideas from Ernie Zelinski which were helpful to me and I hope help you as well. Also, there are some other useful books, entitled Retire Smart, Retire Happy and Revitalizing Retirement, by Nancy Scholssberg, and a book by Jerri Sedlar and Rick Miners, Don’t Retire, Rewire.


MEMBER FOCUS

| SECTION SPOTLIGHT

SENIOR LAWYERS

The Section also gives awards to attorneys and Judges who have made outstanding contributions to the legal field.

FOR NEARLY 50 YEARS, Rob Ross Hendrickson has been

practicing law and for the past 10 years he has been Chair of the Senior Lawyers Section. As he turns the reins over to a “younger” Senior Section member, we sat down with Rob to thank him for his service, and to learn about his adventures throughout his career. After graduating from Western Maryland College, Rob attended the University of Maryland Law School, where he graduated in 1969. During an internship in Annapolis with the Department of Legislative Reference working with Delegate Carl N. Everstine, he was assigned to work with Mr. Boyd. Proving himself worthy, Mr. Boyd offered him an associate position at Boyd and Benson, which was one of the biggest influences of his career. Rob is the only remaining member of Boyd, Benson & Hendrickson which was founded in the 1920s and at one time boasted six partners, three-four associates and administrative staff. The firm now occupies two small offices in Mt. Vernon where time seems to have stood still and very little “technology” exists, except for the computer on the desk of his part-time administrative assistant. While he has not taken a vacation since 1990, when Rob is not working you can find him “in his happy place,” sitting on his 1952 Allis Chalmers Tractor on the 280-acre family tree farm which is situated along the St. Mary’s River.

What keeps you showing up to the office on Charles Street everyday? You need to have a reason to wake up every morning, and a place to go. Hendrickson lives in Baltimore City and walks to and from his office every day.

Senior Lawyer of the Year Award Recipients 2019

Benjamin Rosenberg

2018

James L. Thompson

2017

James P. Garland

2016

Herbert S. Garten

2015

Hon. John F. Fader, II

2014

Hon. Joseph H. H. Kaplan

2013

Hon. Lawrence F. Rodowsky

2012

Hon. Thomas H. Ward

2011

Constance K. Putzel

2010

Frank E. Cicone

2009

Hon. Shirley Brannock Jones

2008

Melvin J. Sykes

Senior Judge of the Year Award Recipients 2019

Hon. Paul E. Alpert

2018

Hon. Charles E. Moylan, Jr.

Please join the Senior Lawyers Section for any bi-monthly luncheon currently scheduled on November 20, 2019, January 15, 2020, at MSBA HQ, 12 pm.

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The Senior Lawyer Section hosts bi-monthly luncheons throughout the year with a speaker at each. Past speakers include: Hon. Edward J. Angeletti, Mark Stichel, James Thompson, James Astrachan, Hon. William D. Missouri and Alan Zukerberg. They have shared their experiences regarding executions, intellectual property, retirement planning and zoning cases. Future programs in development include succession planning and sunsetting your practice, among others. The Section is planning to partner with other Sections, such as the Young Lawyers Section, to offer brief, informal yet valuable, mentoring opportunities. As Mr. Henderson noted, his career was launched during an internship in Annapolis when he was assigned to draft legislation with Mr. Boyd, the senior partner at Boyd and Benson, which led to an offer of employment and numerous occasions to co-counsel with senior attorneys at other firms across the State of Maryland. Introductions of this nature are often the key to furthering someone’s career. At the very least, it provides an opportunity to make a new acquaintance, have lunch, and a new audience for old stories. The senior attorneys in this Section can greatly enhance and/or boost the career of a young or solo attorney. Won’t you consider giving back in a way that will reap rewards for decades?

What are you most proud of about your career? Hendrickson lobbied in Annapolis for 35 years and is proud of two laws he worked on that were passed. In 1986, the mandatory seatbelt law. And in 2006, after a six-year campaign, the law that nursing homes must notify family members when there has been a violation affecting their loved one. The major opposition to this legislation was the nursing homes and the State of Maryland. The pivotal moment in this testimony resulting in passing the legislation was that of a family member who was never advised that there were healthcare violations which ultimately caused the death of his mother.

What is your favorite book? The Dictionary, which is prominently displayed on its own pedestal table and open to the last reference checked.

What is the radio station in your car right now? Bloomberg or NPR

Any hobbies? Collecting and working on antique clocks.

If anything, what would you have done differently in your life? I would have been a beach bum!

Advice for someone graduating law school? Make money and retire early.

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Interested in joining the Section? VISIT MSBA.ORG/SENIOR


Remaining Neutral in Retirement with Nelson W. Rupp, Jr. Senior Judge of the Circuit Court for Montgomery County, Maryland 50 Maryland Avenue, Rockville, Md. Mediator and arbitrator with The McCammon Group.

How did you get into the law? I developed a passion for the law while in college at Denison University. My entrance into law school was delayed a year while I satisfied my military service commitment. This delay provided additional motivation for me to pursue the law.

Tell us a little about your career? Prior to my appointment to the bench, my legal career had two components. I focused on criminal law as a prosecutor for 6 years in Montgomery, Prince George’s and St. Mary’s Counties and as a public defender for 3 years in Montgomery County. From 1983 to 1993 I focused on civil litigation at Jordan, Coyne, Savits and Lopata where I had a variety of cases (professional liability, product liability, workers compensation, personal injury, etc.). In 1993 I was appointed to the District Court for Montgomery County, and in 1997 I was appointed to the Circuit Court where I remained until my retirement on April 29, 2019.

What is an accomplishment you are proud of during your time as a judge? After two years of planning and organizing, I started the Montgomery County Adult Drug Treatment Court in 2004. I continued to preside over the Drug Court until my retirement. I still sit in Drug Court as a recall judge. Instead of incarceration, Drug Court is designed to break the cycle of the non-violent addicted offender through an intense program of supervision, treatment, and monitoring. We hold Drug Court at night to allow our participants to maintain employment. We established a 501 (c) 3 to provide housing, education, and vocational training to provide our participants with an opportunity to become contributing members of society with a viable, sustainable future. These are individuals who have been viewed as hopeless and helpless. The opportunity to work with them through the criminal justice system and to help them become contributing members of our community has been an incredible experience.

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What kind of work do you do now for The McCammon Group? I conduct mediations and arbitrations in all types of cases including personal injury, professional liability, commercial, construction, business disputes, medical malpractice, premises liability, products liability, defamation, contracts, insurance coverage, employment; and family law including child/spousal support, custody/visitation, and equitable distribution.

It is highly satisfying to be part of a collaborative process that permits the parties to finally conclude their dispute and move on with their life. What kind of experience do you bring as a former judge to dispute resolution work? I have presided over every type of case in my service as a judge over the past 25 1/2 years. I have learned that, in addition to understanding the legal issues, it is of equal importance to understand the dynamics of the parties and attorneys involved in the litigation. Frequently, there are underlying emotional components which must be respected to arrive at a successful resolution. My experience as a judge has allowed me to actively and patiently listen to parties and counsel to guide them towards a reasonable agreement.

What is it like working for The McCammon Group? The McCammon Group is the gold standard of dispute resolution. 25 years ago, John McCammon had the foresight to recognize that our courts were not equipped to deal with the volume of cases being filed. He developed a highly professional and efficient model to provide effective dispute resolution as a and satisfactory alternative solution to our overburdened courts. I knew that I wanted to participate in dispute resolution upon my retirement. My research disclosed that The McCammon Group has an impeccable reputation within the legal community. My experience with The McCammon Group has confirmed my research. It has been a pleasure to have the support and resources of The McCammon Group as I embark on my new chapter in my professional career.

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What kind of training did The McCammon Group provide you as you transitioned to working in dispute resolution? All mediators with The McCammon Group are required to undergo a 40-hour training session conducted by John McCammon and Barbara Hulburt prior to undertaking any mediations. We are also required to observe mediations with experienced mediators. In addition, every year all mediators attend a one-day training session to address ongoing issues that arise during mediations. A common theme throughout is to be mindful of the four “Ps”: Be Prepared, Be Professional, Be Patient and Persevere.

What is your favorite part of working in dispute resolution? I thoroughly enjoy helping the parties reach a resolution of their dispute. It is a difficult process and requires that I be willing to work with the parties and counsel to help them overcome roadblocks and frustrations. If the process were easy, the parties wouldn’t need our assistance. It is important to be committed to working as long as it is necessary during the mediation. It is highly satisfying to be part of a collaborative process that permits the parties to finally conclude their dispute and move on with their life.

WEB EXTRA

"IT'S THE EMOTIONAL COMPONENT THAT IS NEW TO ME" The transition from Judge to mediator is a little more complex than the Hon. Nelson Rupp expected. Here he shares the story of what he had to learn when he became a mediator for The McCammon Group VISIT MSBA.ORG/NRUPP


FOR YOUR PRACTICE

| EMERGING AREAS OF THE LAW

Enhanced Diminution Credits Under the Justice Reinvestment Act BY DELEGATE EREK L. BARRON Although we have a ways to go, criminal justice reform has definitely entered the realm of bipartisanship. Nationwide, there are at least two important drivers of this dynamic: unsustainable incarceration costs along with an emerging focus on data-driven, evidencebased policymaking. Two examples of these drivers in action are the recently passed federal First Step Act and, in Maryland, the Justice Reinvestment Act.

THE JUSTICE REINVESTMENT Act (JRA) came

out of an initiative originally established by the U.S. Department of Justice’s Bureau of Justice Assistance that promotes a collaborative, data heavy approach to enhancing public safety, improving recidivism, and reducing corrections spending. The justice reinvestment initiative has worked with the Pew Charitable Trust and crime prevention focused nonprofits to successfully implement reform packages in dozens of states, including Maryland.

Enacted in 2016, the JRA incorporated the recommendations of a bipartisan group of experts and elected officials. With an effective date of October 1, 2017, the legislation made sweeping changes, including increased availability of drug treatment, reduced sentence maximums for nonviolent offenses, increased reduced-time credits, and “swift and certain” parole and probation supervision practices. The legislature intended that these changes facilitate the rehabilitation of nonviolent offenders and reintegrate them into the community MARYLAND BAR JOURNAL | ISSUE 3 2019

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with help from corrections savings that are “reinvested” into recidivism programs. These changes would also allow law enforcement to focus resources on violent offenders. Reform this substantial requires careful, ongoing implementation and troubleshooting, and even follow up legislation. Therefore, the Justice Reinvestment Oversight Board was established to monitor changes, make recommendations, and administer funds in keeping with the intent of the bill. House Bill 274 Rarely, if ever, does a bill come out of Annapolis perfect. There is often a need to enact legislative “fixes” in subsequent sessions. One significant quirk since the JRA became effective is the State’s implementation of a policy denying increased sentence-reduction credits (“diminution credits”) for certain inmates. The Department of Corrections has been denying diminution credits to individuals convicted of nonviolent offenses and sentenced before October 1, 2017, but who were returned to custody after October 1, 2017, to serve a sentence imposed at a violation of probation hearing or pursuant to some other resentencing event. Local corrections took an inconsistent position on the issue. Besides the clear problem of inconsistency and a need for clarity, many practitioners believed that the DOC’s policy was contrary to the intent of the JRA, if not its plain language and the relevant case law. Defense attorneys and public defenders argued that unreasonably limiting good time credits disincentivized what JRA intended: inmates learning the skills that reduce the likelihood of reoffending. Thus, this past legislative session, Delegate Kathleen Dumais, Senator Will Smith and I

WEB EXTRA

JUSTICE REINVESTMENT ACT In January 2017, the Maryland Justice Reinvestment Coordinating Council created the “Practitioner Guide to SB 1005”. The Guide provides a summary to many changes that arose from the passing on the Justice Reinvestment Act. This Guide can be found on the MSBA website. VISIT MSBA.ORG/CRIMINAL 130

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introduced legislation clarifying the application of diminution credits under JRA. Starting this October, and applying retroactively, the enhanced diminution credits under JRA will apply to inmates originally sentenced before October 2017 but sentenced on a violation of probation afterwards. The legislation’s fiscal and policy note estimates that more than 1,000 inmates are potentially impacted by the bill. A recent report by The Marshall Project indicates that Maryland is leading the nation in reducing its inmate population with a 9.6 percent drop between 2016 and 2017. This bill is sure to continue that trend in a manner that benefits public safety and recidivism. EREK L. BARRON represents Prince George’s County in the Maryland House of Delegates; he is Secretary of the MSBA and a Partner at Whiteford, Taylor & Preston, LLP; he can be reached at ebarron@wtplaw.com.

The legislation’s fiscal and policy note estimates that more than 1,000 inmates are potentially impacted by the bill.


FOR YOUR PRACTICE

| EMERGING AREAS OF THE LAW

Odor of Marijuana By Itself Not Probable Cause to Arrest BY JOHN MACLEAN

IN A CASE OF first impression having

far reaching effects, the Court of Appeals of Maryland ruled that the odor of marijuana and possession of clearly less than ten grams of marijuana was not probable cause to arrest and conduct a subsequent search. The court not only set a strong precedent for challenging cases with those factual circumstances, but in the court’s analysis addressed prior case law, fully defining it, that can be used to challenge cases charged prior to the decision and are pending litigation. In Pacheco v. State, decided on August 12, 2019, the defendant was alone in a parked car when police officers approached the vehicle, smell the strong odor of freshly burnt marijuana and saw a marijuana cigarette in the center console, which appeared to be less than ten grams. The defendant was ordered to leave the vehicle, where he was arrested and searched, whereupon cocaine was found in the defendant’s pocket. Pacheco v. State, August 12, 2019, _ A3d _, 2019 WL 3773773 (Md. 2019) The Montgomery County trial judge denied the argument that observing less than ten grams of marijuana, a civil citation, did not constitute probable cause to arrest and search incident to arrest. The defendant subsequently plead guilty, while preserving the right to withdraw the plea if he was successful in his appeal of the court’s ruling on the motion to suppress. The Court of Special Appeals agreed with the trial court. However, the Court of Appeals reviewed the case, and addressed the issue of whether police are authorized to arrest a person for the criminal offenses of more than ten grams of marijuana and/or possession of marijuana with intent to distribute based on

observing the person committing the civil offense of possession of under ten grams. In the opinion, written by Chief Judge Mary Ellen Barbera, the court stated that the standard of review was limited to an independent evaluation of the record established in the suppression hearing with the facts most favorable to the state, citing Moats v. State, 455 Md. 682, 694, 168 A.3d 952 (Md. Ct. Spec. App. 2017), Norman v. State, 452 Md. 373, 386, 156 A.3d 940, cert denied ____ U.S. ____, 138 S. Ct., 174, 199 L.Ed. 2d 42 (2017), and Grant v. State, 449 Md. 1, 15, 141 A.3d 138 (Md. 2016) (quoting State v. Wallace, 372 Md. 137, 812 A.2d 291 (Md. 2002.) The court’s analysis of the issue centered on the fact that possession of less than ten grams of marijuana was decriminalized in 2014, the Norman decision, and Robinson v. State, 451 Md. 94, 152 A.3d 661 (Md. 2017). In Robinson, the Court of Appeals held that the odor of marijuana emanating from a vehicle provided probable cause to search the vehicle. Id. In Norman, the Court of Appeals held that the odor of marijuana emanating from a vehicle was not reasonable suspicion that multiple occupants were armed and dangerous and may be frisked.

No evidence supported the inference that the defendant possessed over ten grams of marijuana. The court in Pacheco noted a search incident to an arrest was a higher level of intrusion than the frisk in Norman, focusing on the police officer’s testimony that there appeared to be less than ten grams of marijuana in

the center console. Citing Longshore v. State, 399 Md. 486, 534, 924 A.2d 1129 (Md. 2007) (alteration in original) (quoting Wood v. State, 185 Md. 280, 286, 44 A.2d 859 (Md. 1945), in which the court held that experience and special knowledge of police officers can be considered when determining probable cause, the court in Pacheco held that no evidence supported the inference that the defendant possessed over ten grams of marijuana. Based upon the testimony and Norman, the court held there was not probable cause to arrest and search the defendant for the odor of marijuana emanating from the vehicle and less than ten grams of marijuana observed in plain view. The court’s reliance on Norman gives further basis to challenge the issue in cases charged prior to the court’s decision in Pacheco and not yet litigated. Norman should not only stand for the ruling that the odor of burnt marijuana emanating from a vehicle does not give reasonable suspicion to frisk for weapons, but that it also does not rise to the higher standard of probable cause to arrest and search incident to arrest. The ruling in Pacheco will not only affect numerous cases due to the high number of arrests and seizures based upon the odor of marijuana, it can be used to argue cases decided before the decision because it fully defines the holding of Norman, and should be argued in the appropriate factual circumstances. JOHN MACLEAN is an assistant public defender practicing in Frederick County. Mr. Maclean's views do not represent the views of the Maryland Office of the Public Defender.

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MEMBER FOCUS

| MEMBER SPOTLIGHT

ALTERNATIVES T O I N C A R C E R AT I O N

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HON. NICOLE PASTORE Associate Judge for the District Court of Maryland, District I, Baltimore City & Founder of the District Court Re-Entry Project (DCREP) What led you to become involved with the law? I attended college at Tulane University in New Orleans, Louisiana. While there, I stayed for a few years after graduation as I caught the “political bug” and began working as a Legislative Aide for the City Council of New Orleans and as a Liaison to the Mayor’s Office. I remained in Louisiana but moved to Baton Rouge to accept a Legislative Analyst position with the Governor’s Office. It was there, where I reported directly to the Governor’s General Counsel, that I developed a keen interest in the law and, accordingly, a desire to attend law school. Knowing that eventually I wanted to move back home to Baltimore, I did just that and ultimately graduated from the University of Baltimore School of Law.

Tell us a little about your career and the work you are currently doing. My first job after clerking for the Court of Appeals, Judge John C. Eldridge, was with Saul Ewing, Weinberg & Green, where I focused on employment and general civil litigation. During my seven years at the firm, I was encouraged to participate in groups and organizations outside of the legal arena - in my community and to take active leadership roles within them. Because of that, I was able to work on major community projects, become an active player in some key City initiatives, and start a community non-profit organization (that is still alive and going strong today), all the while learning the value of hard work in the legal profession is just as important as giving back to your community. Then, from about 2007-2013, I served as an Administrative Law Judge (ALJ). It is sometimes forgotten or little known that the OAH resolves some of the most complex and important matters involving our state government and its agencies. The OAH hears over

500 different case types for approximately 30 state agencies, including, but not limited to: personnel, medical assistance, insurance, environment, home improvement, natural resources, real estate, child abuse and neglect, motor vehicle license suspensions, special education, inmate grievances, involuntary hospital admissions, not criminally responsible referrals, and various professional licensing and discipline cases. There are about 55 ALJs travelling the state. Individually, I made over 500 bench rulings and issued over 50 written decisions per year. It was truly an honor to be a part of this important state agency. Then in September 2013, I was appointed to the Baltimore City District Court.

Tell us more about the District Court Re-Entry Project (DCREP). During a time of extreme unrest in Baltimore City after April 2015, I was able to create a program arising out of the District Court of Maryland for Baltimore City that could help affect permanent positive change, the Baltimore City District Court Reentry Project (DCREP). The DCREP is the first of its kind in the country. It is a truly unique program. There are many reentry programs that have come out of the prison system once individuals have served a set amount of time; however, there have been none that have originated directly from the court as an alternative to incarceration. With the Justice Reinvestment Act, judges have been tasked to find alternatives to incarceration. This is a creative way of sentencing in that we are offering people an opportunity to work, go to school, get a degree in a variety of fields, technical and non-technical, so that they don’t reappear in the courtroom. It took over a year, from August 2015 through August 2016, to find 17 organizations presently, 12 when we first began, who would be willing to hire ex-offenders and allow them

an opportunity to break the cycle of crime and poverty. We not only give an opportunity, we go the extra mile to offer incentives to individuals who complete the program: for example, ending their probation early, waving their probation costs, or changing their probation from a supervised to an unsupervised status. The court system cannot only be about punishment and negative results, but it has to recognize positive outcomes and individual achievements to allow people to not have their past dictate their future. That is precisely why we hold a graduation ceremony for previous defendants to invite families, friends, neighbors, etc. to see their success. Each judge who gave them the opportunity and put them in the program attends the ceremony and hands the individual their certificate. People come to court for a positive experience so hopefully the negative connotations will go away, and they can see that all community players -- like the judges, the State’s attorney’s office, public defender’s office, probation agents, the police officers -all support them.

"For some of these families, this is the first graduation anyone has ever seen, and it truly is a remarkable and heartwarming experience."

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I even reached out to the business community and Under Armour has provided graduation gifts in the form of shirts, hats and bags to the graduates. We partnered with the Baltimore Ravens who agreed to provide a commencement speaker at each graduation where they could share their story and then get photos and recognition from star athletes speaking about changes in their own lives like Ray Lewis, Femi Ayanbadejo, Jameel McLain, Buck Allen, Matt Judon and Anthony Levine (he is set for October 21, 2019). For some of these families, this is the first graduation anyone has ever seen, and it truly is a remarkable and heartwarming experience. With six graduations and approximately 140 graduates to date, giving individuals an opportunity that they otherwise would not have had access to in a setting they would not have dreamed of, getting such an opportunity is by far and away my most significant professional accomplishment. I can only hope that these 140 graduates are tenfold because their sons and daughters, their sisters and brothers, their neighbors and friends, will hopefully be indirectly affected, see these remarkable turnarounds and want one for themselves. To this end, as I mentioned, nothing like this has ever been done before. It was overwhelming to sit in court every day presiding over cases so in order to develop a program, form partnerships with the interest of court personnel and parties, I had to take time in the evenings and on the weekends to develop something that could work. This is all with no additional paid staff or clerks but simply trying to enlist help from law school students and friends that were looking for something in Baltimore City that could work to reduce crime. Over the past 3 years, the statistics and success speak for themselves.

What are some of your and/ or DCREP's most memorable achievements? We have consistently had members of our previous graduating classes come back to encourage and inspire recent graduates. It is awe inspiring to see these individual successes and for them to tell 134

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DCREP At-a-Glance

D

CREP was initiated in 2016 and works to simultaneously reduce recidivism in Baltimore, while offering participants with a viable path to become productive community members and lead successful lives. Primarily through the use of 18 programs, this program provides ex-offenders increased opportunities for educational advancement and job placement in various industries including, but not limited to, warehouse work, shipping, packaging, culinary arts, customer service and secretarial work. DCREP serves 400 people on average at any given time and holds two graduation ceremonies a year. Graduates must have no new arrests or convictions and work a full-time job for at least three consecutive months. The program follows a national trend of socalled second-chance programs that started in the 1980s with drug courts that connected offenders to recovery programs with monitoring, supervision, sanctions and incentives, but it is the first of its kind in the country focused solely on employment.

WEB EXTRA

MORE ON DCREP ATTN: praised Pastore and DCREP in a recent Facebook Video VISIT MSBA.ORG/DCREP-VIDEO

RECIDIVISM RATES

Baltimore County

68%

DCREP Graduates

5%

S

ince inception DCREP has graduated over 140 Baltimore City citizens and held its 7th graduation on October 21, 2019. The DCREP statistics are staggering. As of the sixth graduation, totaling approximately 140 graduates to date, we have an approximately 5% recidivism rate. Compare that to a 68% recidivism rate in Baltimore City. It costs $44,082 to incarcerate an individual for one year. It cost absolutely nothing to give them a job. By giving individuals a job, you give them a new lease on life.


us how DCREP has positively impacted their life and now that they are a role model for their kids, their family and their community. How after 17 previous convictions they’ve had no more because of the DCREP, how for the first time in their lives they are now a tax paying citizen and they feel they have become a productive member of society. Beyond that, I and DCREP are getting recognized by community outlets, like the MSBA and others, for the positive impact we are having on Baltimore and its citizens - which is appreciated. I was honored to be selected by The Baltimore Sun as a “2018 Women to Watch and by The Daily Record as the winner of the coveted “Leadership in Law” award. I was also tremendously honored to receive the Maryland Bar Foundation’s 2019 Legal Excellence Award for the Advancement of the Rights of the Disadvantaged.

What lies ahead for DCREP? The DCREP has already had a tremendous impact, but the challenge will always be to have funding for such a program. The DCREP was run by myself and volunteer law school interns for nearly 2 years until I obtained a much-needed grant from the Governor’s Office of Crime Control and Prevention (GOCCP). But that funding was only for 1 year. The Judiciary then provided some funds for a coordinator position, but one person cannot effectively manage over 200 participants and coordination with the various DCREP partner organizations and employers, the Departments of Parole and Probation, Pretrial Supervision, the State’s Attorney and Public Defender Offices, etc. More funding to provide more permanent positions is crucial to sustaining the health of the DCREP.

Tell us about your involvement with the MSBA. As a young attorney at Saul Ewing Weinberg & Green, I was committed to being active in the MSBA and participated in committees and meetings regularly. It was not until I was appointed to the OAH as an ALJ, that I refocused on other legal organizations and began a family of which I have 3 girls today, ages 13, 11 and 9. Since being appointed to the

"Where you’re headed is much more important than what you’ve left behind. The past is in your head. The future is in your hands." Judiciary, I have attended the annual MSBA conference in Ocean City every year with my co-appointee Mark Scurti. I was also inducted a few years ago as a fellow in the Maryland Bar Foundation and was honored to receive the Advancement of the Rights of the Disadvantaged Award at the MBF 2019 Open Meeting on April 25, 2019.

What role do you think MSBA could play in advancing access to justice for all Marylanders? MSBA should support programs like DCREP, which gives individuals direct access to justice through alternative sentencing options. The MSBA can give support to such programs in a variety of ways, but giving it the exposure it deserves is greatly appreciated!

Do you have any words of advice to young or up-and-coming attorneys? Have goals and ideas for achieving them. Do not let “no that can’t be done” be an answer. Where there is a will, there is a way. Dig deep, and do not give up. And remember, even though there may be days that you wish you could change some things that happened in the past, there’s a reason that the rear-view mirror is so small, and the windshield is so big, where you’re headed is much more important than what you’ve left behind. The past is in your head. The future is in your hands.

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FOR YOUR PRACTICE

| PATENT LAW

Patent Eligibility Exceptions Threaten to Swallow Patent Law Whole BY DAVID TAYLOR, ESQ. AND JOHN WHITE, ESQ.

WHAT SORTS OF INVENTIONS

may be patented continues to be the most debated topic under U.S. patent law. 35 U.S.C § 101 defines patentable-eligible subject matter as “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Despite that broad wording, the U.S. Supreme Court has long held Section 101 contains “implicit exceptions,” namely laws of nature, natural phenomena, and abstract ideas, that are not eligible for patenting. Software and business-method patents are abstract ideas under current laws. See Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). Oxford’s online dictionary defines “abstract” as “existing in thought or as an idea but not having a physical or concrete existence.” One might think the Supreme Court or the U.S. Court of Appeals for the Federal Circuit, which has exclusive subject-matter jurisdiction to hear patent appeals, would have adopted an accepted definition or acted as its own lexicographer to define the term “abstract” in the course of invalidating patent claims as abstract ideas. Instead, the Federal Circuit has sidestepped the issue by citing and building on an ever-growing body of precedent to determine what is, and what is not, an abstract idea. This approach has not only led to inconsistent decisions, but to an expansion of the abstract idea exception well beyond software and business-method patents. The patent bar is left to grapple with constantly changing law.

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In Alice, the Court cautioned against the slippery slope posed by judicial exceptions such as abstract ideas: At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. Mayo, 566 U.S., at ___, 132 S.Ct., at 1293-1294. At some level, "all inventions... embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas." Id. at ___, 132 S.Ct., at 1293. Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. See Diamond v. Diehr, 450 U.S. 175, 187, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981). Alice, 573 U.S. at 217. The Federal Circuit has paid little heed to the Supreme Court’s cautionary warning. In one of its most recent decisions, the Federal Circuit reversed a district court’s ruling that patent claims for a movable barrier operator (e.g., a garage door opener) were not directed to an abstract idea. Chamberlain Grp. v. Techtronic Indus. Co., --- F.3d ---, 2019 WL 3938278 (Fed. Cir. Aug. 21, 2019). The Federal Circuit whittled the patent claims down to the invention’s perceived advancement over the prior art of “wirelessly communicating status information about a system.” The Federal Circuit equated the advancement “to abstract ideas we have found in our previous cases.” In doing so, the Federal Circuit gave no weight to the concrete arrangement of physical components of the garage door opener recited in the claims on the ground that the components were “off-the-shelf technology [used] for its intended purpose.” Chamberlain comes on the heels of ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759 (Fed. Cir. 2019), which I discuss in the April 2019 MSBA Bar Bulletin. Affirming a decision from the Maryland district court, the Federal Circuit found ChargePoint’s patents invalid as directed to an abstract idea over ChargePoint’s argument that the claims recited “a concrete arrangement of [physical] components that enables users and site hosts to access and control electric-vehicle charging stations.”

One has to wonder how we, and by “we” I mean the Federal Circuit, have arrived at a point that a garage door opener and charge transferring devices for recharging electric vehicles, which are physical and concrete devices that serve utilitarian purposes and provide improvements over the art, fit into any accepted definition of “abstract.” Compounding the problem, there is a disconnect between the U.S. Patent & Trademark Office (“PTO”), which issues patents,

a one-page outline of proposed goals for Section 101 reform. Although the reform has bipartisan support, it is only a first step. Much work remains to be done, and the clock is ticking. DAVID TAYLOR and JOHN WHITE are partners with the law firm of Berenato & White, LLC. The firm concentrates its practice in the area of intellectual property, including patent prosecution and client counseling.

The net effect of the current status quo of the U.S. patent system is that companies are encountering difficulties, sometimes insurmountable, in protecting their inventions within the United States, whereas other countries are embracing the same technologies by providing intellectual property protection. and the Federal Circuit. As I discuss in the March 2019 MSBA Bar Bulletin, the PTO’s 2019 Revised Patent Subject Matter Eligibility Guidance requires that a claim fall into one of the following categories to be considered an abstract idea: (a) a mathematical concept; (b) a method of organizing human activity; and (c) a mental process. Neither a garage door opener nor a charge transferring device falls into any of those categories. The net effect of the current status quo of the U.S. patent system is that companies are encountering difficulties, sometimes insurmountable, in protecting their inventions within the United States, whereas other countries are embracing the same technologies by providing intellectual property protection. This has raised a growing concern that companies may move operations abroad in order to better monetize their innovations. It is time for Congress to step in to restore order. In April 2019, Congress released

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FOR YOUR PRACTICE

| EMERGING AREAS OF THE LAW

Maryland Empowers Construction Workers to Recover Unpaid Wages

BY BART SHEARD AND ESMERALDA AGUILAR

According to the Maryland Department of Labor and Industry there are over 2,500 active prevailing wage projects in the state.

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IN MARYLAND, when a grocery store fails to pay a cashier the minimum wage, state

law permits that worker to file a lawsuit against the employer to recover the unpaid wages.1 Similarly, if an employer pays a female employee less than her male counterpart, even though they perform the same work, state law allows her to file suit against her employer for back pay and equal pay going forward.2 The concept behind these and other3 Maryland workplace laws is simple – workers must have access to the courts to advocate for themselves. Until this year, however, construction workers on public projects covered by Maryland’s Prevailing Wage Law were afforded no such direct access. Construction workers cheated out of wages were instead forced to rely on an administrative process that leaves much to be desired. Senate Bill 300 changed all that. The law, which went into effect on October 1, 2019, gives workers the option of suing their employer (and the project’s general contractor) in court to recover back pay, double or treble damages, and attorney’s fees and costs.4 This update to the law will provide a significant tool for workers in one of the most important – and dangerous5 – industries in Maryland. What is a Prevailing Wage Law? Prevailing wage laws are minimum wage laws that prohibit contractors on public construction projects from paying workers less than the locally going rate, known as the prevailing wage. Such laws prevent cut-throat bidding in public procurement from eroding local wages and


discouraging employment in this high-hazard, labor-intensive industry. In addition to the federal prevailing wage law, known as the Davis-Bacon Act,6 over 20 states – including Maryland – have their own prevailing wage statutes. Maryland’s Prevailing Wage Law covers all construction projects valued at $500,000 or more where (1) the contracting entity is a unit of the Maryland government or an instrumentality of the state, or (2) the contracting entity is a political subdivision, such as a county, and the state funds 50% or more of the project, except for school construction which must only include state funding of 25% or more7. All contractors and subcontractors on covered projects must pay their construction employees at the appropriate prevailing wage rates. Prevailing wage rates refer to the hourly wage and fringe benefit rates that the Maryland Department of Labor, Licensing and Regulation (“DLLR”) establishes by county, for each classification of worker, based on survey data it collects every year from construction projects in the area. DLLR issues prevailing wage determinations for each of the state’s 23 counties and for Baltimore City. Under Maryland’s prevailing wage law, contractors also required to submit certified payroll reports to the government to ensure compliance with prevailing wage requirements. Contractors must also post the applicable prevailing wage determinations in a prominent and easily accessible place at the work site. According to DLLR, in fiscal year 2018, there were over 2,500 prevailing wage projects throughout the state, ranging from school renovations to highway improvements to the construction of recreation centers. The Need for Access to the Courts: Wage Theft and Enforcement Strains For many construction workers in Maryland, the idea of a fair wage has been an empty promise. Worker testimony before the Maryland Senate Finance Committee in support of Senate Bill 300 described efforts by unscrupulous contractors to maximize profits by cutting corners at workers’ expense. According to worker testimony, government contractors underpay their employees in a variety of ways. For example, some contractors shave hours off of employee time sheets, misclassify skilled workers as general laborers

Compliance Tips for General Contractors and Subcontractors on Prevailing Wage Projects • Consult with DLLR and the project’s contracting officer to confirm the applicable prevailing wage and benefit rates for each job classification in the jurisdiction where the work is to be performed • Ensure that workers are receiving the prevailing wage and benefit rate that corresponds with the work they are actually performing • Ensure that overtime is being paid properly • General contractors should ensure that all subcontractors are aware of the appropriate prevailing wage and benefit rates • General contractors should consider including in their subcontracts, a provision allowing them to review their subcontractors’ pay practices, pay records, and history of wage and hour compliance • General contractors should consider including in their subcontracts, a provision allowing them to withhold contract payments if a subcontractor’s employee claims that the subcontractor did not comply with its prevailing wage obligations

in order to pay them less, and pay workers under the table to avoid having to report them on the certified payrolls that contractors must submit to the government. Without direct access to the courts, workers on Maryland prevailing wage jobs are left with only one avenue for redress – the administrative process. Currently, the only legal remedy available to workers whose rights have been violated is to file a complaint with DLLR’s Prevailing Wage Unit (“PWU”). Despite the hard work of dedicated DLLR professionals, the broad scope of the agency’s jurisdiction and its limited resources, make it impossible for the agency to adequately enforce the prevailing wage requirements. The PWU falls under DLLR’s Division of Labor and Industry, which is charged with administering and enforcing over 30 laws and regulations, including the prevailing wage law. The PWU itself is currently comprised of four wage and hour investigators, who are responsible for ensuring prevailing wage compliance on all covered projects throughout the state. According to DLLR’s most recent figures, there are over 2,500 prevailing wage projects currently under construction, for which the PWU is responsible.

Employers who violate the law willfully, knowingly, or with deliberate ignorance or reckless disregard may be held liable for double or treble damages. Successful plaintiffs are entitled to attorney fees and costs.

Investigating wage theft complaints filed by workers is just one of the many tasks assigned to the investigators. Among other responsibilities, investigators must review the annual wage surveys used by the agency to determine the prevailing rates for each MARYLAND BAR JOURNAL | ISSUE 3 2019

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classification of worker in 23 counties and Baltimore City; conduct pre-construction meetings with contractors on prevailing wage projects; conduct jobsite inspections; and monitor and audit certified payroll reports submitted by contractors – which, according to DLLR, amounts to approximately 30,000 to 45,000 reports for each investigator. Suffice it to say, DLLR has its work cut out for itself. Most of Maryland’s labor and employment laws provide a private right of action: • Wage and Hour Law, MD Code, Lab. & Empl. § 3-427 • Wage Payment & Collection Law, MD Code, Lab. & Empl. § 3-507.2 • Living Wage law, MD Code, State Fin. & Proc. § 18-109 • Equal Pay Law, MD Code, Lab. & Empl. § 3-307 • Workplace Fraud Act, MD Code, Lab. & Empl. § 3-911 • Parental Leave Act, MD Code, Lab. & Empl. § 3-1208

Moreover, the current administrative process for resolving wage theft complaints can be burdensome. The PWU must complete a series of steps before the state mandates repayment. Once a worker files a complaint, the PWU must investigate the claims and attempt to resolve the dispute informally. If the PWU is unable to settle the dispute, a hearing must be held by the Commissioner of Labor and Industry.8 If the Commissioner determines restitution is due, he orders back pay. If the employer fails to comply, DLLR or the employee may file suit to enforce the order. To be sure, the PWU remains an excellent resource for workers and employers seeking guidance and compliance assistance. Access to the court system, however, is not only fair; it will alleviate the workload of investigators while streamlining worker access to justice. How the Law will Change In the 2019 legislative session, the Maryland General Assembly passed Senate Bill 300, giving construction workers on state prevailing wage projects the option of taking their wage 140

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theft complaints straight to court without first filing a complaint with DLLR. The bill also establishes that general contractors may be held jointly and severally liable for the violations of their subcontractors, and provides for double or treble damages and reasonable counsel fees and costs. Governor Larry Hogan allowed Senate Bill 300 to become law when he chose not to sign or veto the bill. Senate Bill 300 went into effect October 1, 2019. Putting Power Back in Workers’ Hands The passage of Senate Bill 300 brings Maryland’s prevailing wage law in line with the state’s other wage and benefit protection laws. Moreover, with over 2,500 prevailing wage projects on DLLR’s plate, the private right of action bill will remove a number of wage theft complaints from the burdened agency’s docket. If nothing else, Maryland has empowered workers to take matters into their own hands. In addition to helping aggrieved workers recover their hard-earned wages, Senate Bill 300 will ensure greater compliance and deterrence across one of our country’s most dangerous industries. Individual efforts to rein in wage theft will also benefit the state as wage theft practices reduce payroll and tax revenues, decrease workers’ spending power, and exert downward pressure on area labor standards.

concerns of the AFL-CIO and its affiliates to the media, elected officials, and the public through a wide array of outlets. Esmeralda is a member of the Bars of the District of Columbia and the State of California. She was named a Super Lawyers Rising Star in 2018 and 2019. BART SHEARD Prior to joining Sherman Dunn, P.C., Bart Sheard served as Labor Counsel to U.S. Senator Patty Murray (D-WA), Ranking Member of the Senate Health, Education, Labor and Pensions (HELP) Committee. In that role, Bart drafted labor legislation, prepared members for nominations hearings, briefed Senators and staff on labor issues and legislation, and prepared witnesses for committee hearings. Bart graduated from the George Washington University Law School in 2015 where he received the ABA-Bloomberg BNA Award for Excellence in the Study of Labor and Employment Law. During law school, he participated in the Neighborhood Law & Policy Clinic (now known as the Prisoner & Reentry Clinic), and successfully petitioned President Obama for executive clemency on behalf of his team’s client. He has also clerked with the District of Columbia U.S. Attorney’s office, the U.S. Equal Employment Opportunity Commission, the Amalgamated Transit Union, and the AFL-CIO General Counsel’s office. Bart earned his B.A. from Stetson University. Prior to law school, he spent one year as an Americorps VISTA member, and two years as a grant writer for a non-profit serving homeless and at-risk youth in the D.C. area. Bart is a member of the bars of the District of Columbia and the State of Maryland.

1

ESMERALDA AGUILAR is a partner with the firm Sherman Dunn, P.C. She represents and provides counsel to the firm’s clients on a wide range of labor and employment issues. She has extensive experience representing the firm’s clients in matters concerning local, state and federal labor standards, as well as on issues concerning open records and freedom of information laws. Esmeralda has litigated cases in federal trial and appellate courts throughout the United States, and before administrative agencies, including the U.S. Department of Labor, the National Labor Relations Board, and various state agencies. Esmeralda is a graduate of Cornell Law School, where she served as a bench editor for the Cornell Law School Moot Court Board. While in law school, she also externed with the U.S. House Committee on Education and Labor, and served as a judicial intern for the Honorable Daniel T.K. Hurley of the U.S. District Court for the Southern District of Florida. Prior to law school, Esmeralda worked for the AFL-CIO in its communications department where she focused on communicating the

MD Code, Lab. & Empl. § 3-427

MD Code, Lab. & Empl. § 3-307

2

Md. Wage Payment & Collection Law, MD Code, Lab. & Empl. § 3-507.2; Md. Living Wage law, MD Code, State Fin. & Proc. § 18-109; Md. Workplace Fraud Act, MD Code, Lab. & Empl. § 3-911; Md. Parental Leave Act, MD Code, Lab. & Empl. § 3-1208

3

S.B. 300, MD. General Assembly Session 2019 (codified at MD Code, State Fin. and Proc. Art., §17-224)

4

“971 construction workers were killed in 2017. The highest number in any sector.” Death On The Job 28th Edition • April 2019 A National And State-By-State Profile Of Worker Safety And Health In The United States The Toll Of Neglect Available At https://aflcio.org/sites/default/files/2019-05/DOTJ2019Fnb_1.pdf

5

The Davis-Bacon Act, 40 U.S.C. § 3141 et seq., applies to contracts for construction in excess of $2,000 to which the federal or D.C. government is a party. There are also some 70 Davis-Bacon Related Acts that extend federal prevailing wage requirements to federally-assisted projects (e.g., school construction assisted with federal grants, local housing projects assisted by federal loans, etc.).

6

7

MD Code, State Fin. and Proc., §17-201 et seq. MD Code, State Fin. and Proc. Art., §17-224(a)(4)(i).

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FOR YOUR PRACTICE

| PROFESSIONAL DEVELOPMENT

A Conversation With The Honorable Matthew Fader Chief Judge, Court Of Special Appeals Of Maryland BY STEVEN M. KLEPPER AND PAUL MARK SANDLER Two editors of Appellate Practice for the Maryland Lawyer: State and Federal, sat down with Chief Judge Matthew J. Fader of the Maryland Court of Special Appeals to gather his thoughts on the unique aspects of appellate practice. Portions of Chief Judge Fader's comments are appearing here first, but the full version of the interview will join the interviews of Chief Judge Mary Ellen Barbera, former Chief Judge Patrick L. Woodward and Chief Judge Roger L. Gregory in the most recent edition of Appellate Practice, the premier handbook since 1977 for Maryland lawyers handling appeals. We thank Appellate editors Paul Mark Sandler and Steven Klepper for sharing their interview with Chief Judge Fader, as his insights will reflect just some of the guidance that's provided in detail throughout this MSBA publication.

CHIEF JUDGE FADER, Thank you for

inviting us to your chambers. We appreciate the opportunity to speak with you. We would like to ask you some questions to help our readers gain a better understanding of the Court, and hopefully obtain some tips on Brief writing and oral argument in the Court of Special Appeals of Maryland.

What are your responsibilities as Chief Judge? The Chief Judge generally supervises the scheduling and assignment of cases to the members of the Court. She or he sets administrative policies for the Court and oversees operation of the Clerk’s office, the staff attorneys’ office, and the Alternative Dispute Resolution office, which are the three different divisions of the Court’s staff. The Chief Judge decides many of the non-substantive motions that are filed in cases before a panel is assigned to hear the case. She or he also chairs the Court’s monthly conferences and represents the Court in the Judiciary and in public.

What are some of the challenges you confront? Order Appellate Practice for the Maryland Lawyer: State and Federal at MSBA.INREACHCE.COM

One of the biggest challenges for a high-volume court such as ours is managing the cases in a timely and efficient manner. I believe in the adage that justice delayed is justice denied. We face the challenge of making the Court run as efficiently as possible to decide cases in an expeditious fashion without sacrificing any aspect of the quality of our decision making. Another challenge we face is our aging physical plant. There is some remediation work going on right now to address some old issues that we’ve had with the building. We appreciate the patience of the lawyers and litigants as we have worked through that and some recent construction. And then, of course, we face the constant challenge of ensuring that our judges have the tools and opportunity to do the important work that they do. MARYLAND BAR JOURNAL | ISSUE 3 2019

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What was your experience before becoming an appellate judge, and how has it aided you in deciding cases? I was in the Office of the Attorney General immediately before becoming a judge. Before that I was in private practice for eight years, and before that a trial attorney with the United States Department of Justice. So I represented the federal government, private litigants, and the State. Every aspect of my practice before joining the bench has been very helpful in forming my approach to my new position, especially having had the opportunity to represent a variety of clients with different priorities, from the federal government to the state government, and from large corporations to individuals. Those experiences have given me a broader view of why people come to court, what they’re looking for, what they expect, and what is helpful to them from the bench. All of those experiences have informed how I go about this role.

What do you like best about the position of Chief Judge? I like the opportunity to engage a wider range of the Court’s stakeholders with an interest in how we function. I also enjoy the opportunity to look at the work that we do from a broader perspective than I had as an associate judge. For example, the Chief Judge is a member of the Judicial Council, which serves as an advisory body to the Chief Judge of the Court of Appeals with respect to the operation of the Judiciary as a whole and is comprised of members representing every corner of the Judiciary, including the circuit court bench, the district court bench, senior judges, magistrates, Judiciary administration, court administration, and clerks’ offices. That experience is providing insights into the broader issues the Judiciary confronts.

What percentage of these cases are affirmed? The Court disposed of 2,190 appeals in the last fiscal year. Many of those appeals were dismissed by the Court or the parties. Of the appeals decided on the merits, the Court affirmed the circuit court’s judgment in approximately 70% of civil cases, 72% of juvenile cases, and 80% of criminal cases.

What percentage of the appeals involve selfrepresented parties? 26 to 29 percent of cases involve at least one self-represented party.

Has the Court taken any steps to accommodate self-represented parties? We’ve put together a guide for self-represented parties to help them through every step of the process. The guide, which is available in hard copy and online (https:// mdcourts.gov/sites/default/files/import/cosappeals/pdfs/ cosaguideselfrepresentation.pdf), was originally an initiative of former Chief Judge Peter Krauser, with a second 142

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edition published last year by former Chief Judge Patrick Woodward. We also have staff attorneys who assist in processing motions that come before the Court, and who ensure that filings by self-represented parties are handled appropriately.

What is your view of the written Briefs? How important is the Brief compared to oral argument? I view briefs as the second-most important part of the appellate process, and the most important part that can be addressed once you get to the appellate court. The most important part of the process is the record developed in the trial court. But briefs are your best opportunity to thoughtfully and comprehensively address the issues before the Court in a well-structured and uninterrupted manner.

"Briefs are your best opportunity to thoughtfully and comprehensively address the issues before the Court in a well-structured and uninterrupted manner." How important is the Reply Brief that Appellant is permitted to file? When used properly, reply briefs can be very effective. They provide the opportunity to respond to new arguments, to clarify points, and to briefly place both of those things in the context of the appellant’s themes. But they are rarely used as effectively as they can be. If they’re used just to reiterate the arguments made in the initial brief, then they’re at best a waste of time.

What tips do you have for our readers on avoiding some of the common mistakes you observe in the Briefs filed in the Court of Special Appeals of Maryland? Be purposeful in the choices you make, such as choice of arguments, order of arguments, manner of presentation of facts, etc. Be organized, clear, and concise. Avoid repetition. Proofread everything. If possible, have someone else read your brief, both for proofreading and for feedback on how clear and concise the argument is. Understand that your panel is likely to be composed of generalists. If you have a highly technical area of law, try to make your argument in a way generalists can understand it. Your audience is not your client, opposing counsel, or other lawyers practicing in your area of the law. Know the rules, and jealously guard your credibility.


When do counsel learn who is on their particular panel? We understand that some changes regarding this question might be pertinent? The Court has recently begun to publicly identify the panel members seven to ten days before argument. Approximately five or six weeks before the Court’s monthly sitting, the Clerk posts the argument schedule on the Court’s website, under “Court Schedule.” The initial version of the schedule says “Judges: NOT YET RELEASED.” Beginning seven days before the first day of the month’s arguments, the Clerk updates the document periodically to post the names of the judges assigned to each panel. Of course, last-minute changes to panel assignments can always occur.

How are the Judges selected for a particular panel? Judge selection to a panel is random, except in cases where a panel has made a prior substantive decision in a case, or where the Court granted a postponement after identifying the panel members. In both of those cases, there is an effort to reconstitute the prior panel. Before oral argument, there is a presumptive authorship assignment, made randomly, so that the workload of the court is equalized across the board. Of course, that assignment changes if the presumptive author is not in the majority.

What are some of the common mistakes lawyers make in oral argument? Lawyers sometimes forget that their task is to persuade the three people sitting on the bench, or at least two of them. Do not argue to the crowd or your client. If the judges have questions, it is helpful to think about why they’re asking those questions. Another common mistake is being defensive. Judges are asking questions for the purpose of trying to explore the issues and find the right answer to the questions presented by the case. Being defensive in response to a hard question—even if the advocate thinks it is the wrong question or misses the point—is generally not productive. Lawyers also need to adequately prepare, know the record inside and out, and be ready to answer not just the easy questions, but the hard questions.

How does the Court go about making its decisions?

"Be organized, clear, and concise. Avoid repetition. Proofread everything." judges then meet at conference following the day’s arguments, which is usually the first time they discuss the case with each other. A preliminary vote is taken at that time. At some point after that, the assigned author circulates a draft opinion to the other panelists for comments and approval. The opinion often evolves throughout the drafting process and the outcome can change from the preliminary vote after argument. The decision becomes final upon issuance of the decision and the mandate.

You follow as Chief Judge, in the footsteps of highly regarded jurists: Judge Peter B. Krauser, and Judge Patrick L. Woodward. How does it feel to be following them as Chief Judge? I am honored and humbled to be able to follow in their footsteps. Both of them have been extremely helpful in my transition into this role. I have also received helpful advice from former Chief Judges Alan Wilner and Joseph Murphy and other current and former appellate judges. I’m very fortunate to have the opportunity to attempt to live up to their legacies.

What changes have you made, and perhaps you will share with us what changes you’re considering regarding the appellate process in your Court? Running the Court is a constantly evolving act because of the evolving nature of society to which the Court responds. Technology evolves, and that introduces challenges and opportunities that we need to confront. Much of what we are doing is focused on internal processes and so is not noticeable to the public or litigants. We are currently considering some changes to improve how we schedule cases, to make the process more efficient and reduce dead time in the schedule, and to how we handle cases involving self-represented litigants, to improve access and the handling of those cases. There may be more to report on those fronts when we meet again.

STEVEN M. KLEPPER is a principal with Kramon & Graham, P.A. An active member of the MSBA Section of Litigation, Mr. Klepper is the founder and editor-in-chief of its Maryland Appellate Blog. He sits on the Section Council and co-chairs its Appellate Practice Committee.

PAUL MARK SANDLER is a trial lawyer with a national reputation for successfully representing many notable clients in trial and appellate courts. He is a partner in the Baltimore law firm of Shapiro, Sher, Guinot & Sandler, P.A.

Thank you Judge Fader for taking the time to meet with us.

Before oral argument, every judge gets the materials for the case. The judges each have a different process for reviewing the materials and deciding how to exercise their vote. At oral argument, they get to ask questions of the counsel. The panel MARYLAND BAR JOURNAL | ISSUE 3 2019

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| EMERGING AREAS OF THE LAW

Defendant Class Action Rule Change is Welcome News for Maryland Businesses BY JASON R. SCHERR

THE MARYLAND COURT OF APPEALS recently adopted a

new rule abolishing defendant class actions in Maryland state courts. Effective June 1, 2019, the amended Rule 2-231 explicitly limits the availability of class actions to plaintiff classes and bans lower courts from certifying defendant classes. Under the previous defendant class procedure, unnamed members of a defendant class could be held liable without notice of either the lawsuit or class certification, without the ability to choose their own representatives, and without the ability to present their own defenses in court. The rule change provides greater protection for the due process rights of Maryland businesses who may be subject to class-directed liability. Background of the Rule Change Until May 15, 2019, Rule 2-231 of the Maryland Rules permitted members of a class to sue or be sued via class representatives if certain requirements are met. Thus, like the Federal Rules of Civil Procedure, Maryland rules permitted both plaintiff class actions and defendant class actions. Unlike federal practice, however, Maryland courts (like courts in sixteen other states) lack any mechanism for interlocutory appeals of class certification determinations. While some federal courts or other state courts have certified defendant classes, Maryland state courts had never done so before 2018, when the Circuit Court for Montgomery County certified a defendant class in Yang v. G & C Gulf, Inc. That case involved a bilateral class action—where a class of plaintiffs sued a class of defendants—for monetary damages from allegedly unlawful “trespass tows” by a now-defunct tow operator. Car owners whose vehicles were towed from Maryland businesses obtained a consent judgment for $22 million in damages from the towing company, then named the tow customers—the business property owners—as class defendants jointly liable for the violations to which the tow company defendant consented to judgment. The circuit court not only certified a plaintiff class of towed drivers, but also granted the plaintiffs’ request to certify a defendant class of parking lot owners, appointing as involuntary defendant-class representative the named defendant selected by the plaintiffs. A subsequent settlement between the class representatives meant that absent defendant class members were liable for damages on claims they had no opportunity to challenge, and for which many received no notice until after liability. Given the inherent inequities, the Maryland Rules Committee considered whether Rule 2-231 could be amended to permit interlocutory appeals of orders certifying or refusing to certify a class, but interloc144

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utory appeals are not permitted in Maryland1. After reviewing Yang and defendant class actions more generally, the Rules Committee recommended abolishing defendant class actions altogether, based on due process concerns that do not arise in the plaintiff-class context.2

The rule change provides greater protection for the due process rights of Maryland businesses who may be subject to class-directed liability. Whether defendant classes may be appropriate in some contexts—e.g., an injunction against a class of defendants infringing the plaintiff’s patent by engaging in the same conduct3—the concerns motivating the recent Maryland rule change show that defendant class actions are particularly troublesome in cases like Yang, where there are bilateral classes, where the plaintiffs seek monetary damages, and where no interlocutory appeal is available. Due Process Concerns in Defendant Classes While Maryland has become the first state to explicitly ban defendant class actions (three states don’t permit any class actions), other states may follow suit given the due process priorities identified by the Maryland Rules Committee: an ability to opt out, the manner of selecting a defendant class representative, and notice to class members. The unique fairness concerns arising from defendant class actions are “more pressing” than in plaintiff classes;4 an absent plaintiff class member stands to gain from the litigation, while an absent defendant class member stands to lose, or be held liable, without the opportunity to defend itself.5 In defendant class actions, the defendant class representative is almost always chosen by the plaintiff and may not have all the same motivations and individualized defenses as absent class members.6 Particularly in “bilateral” class actions, where not every plaintiff has the same claims against every defendant, the defendant class representative will have even less ability or motivation to protect the interests of all absent defendants. Instead, the defendant class representative has a heightened incentive to settle—as happened in the Yang case—to avoid shouldering litigation expenses not shared by other defendants. Adequate representation is crucial to due process, but is especially unlikely in defendant class actions. Most importantly, the Supreme Court has long recognized that due


process requires notice and an opportunity to opt out for absent class members when the lawsuit is for individualized monetary damages.7 If plaintiffs have the right to notice and opt-out to preserve their right to bring a claim for monetary damages, then defendants (who are more in need of due process protections8) must have notice and the ability to opt out to defend against claims for monetary damages. The opt-out right may diminish the efficacy of defendant classes, but in our jurisprudence, due process is not optional. Juxtaposing these serious due process concerns, defendant class actions often fail to serve any real judicial economy purpose, as plaintiffs already may join multiple defendants in a single action under state and federal joinder rules.9 Those rules preserve the due process rights of defendants to present their own defense where class actions do not. Presently, sixteen other states permit defendant class actions but lack an interlocutory appeals process–the framework rejected by Maryland. Other State Considerations of Interlocutory Appeals Whatever the merits of defendant class actions, denying interlocutory appeals forces defendants to proceed to final judgment before they can challenge certification. At that point, the defendant’s only option is to argue on appeal that the parties should start over without the certification. In cases where a class would be decertified, defendants must expend significant time and effort obtaining a final ruling (or watch the trial progress with no ability to participate in their own defense), where an interlocutory appeal would avoid that inefficiency. Yet, that same inefficiency decreases the likelihood that appeal will even occur. Because class certification puts enormous pressure on defendants to settle on behalf of the entire class, granting class status often constitutes a “reverse death knell” for defendants, encouraging the class representative to settle rather than pursue a meritorious defense.10 In response to these concerns, the Federal Rules Advisory Committee amended Rule 23 in 1998, adopting Subdivision (f) permitting interlocutory appeals to contest class certification. The discretionary power to grant interlocutory review alleviated some unfairness concerns in federal class actions. Eighteen states and the District of Columbia followed suit and adopted discretionary appeal provisions. In some states—like Illinois and Michigan—the new provisions signified an abrupt change in class action procedure, overriding state common law that had previously banned interlocutory appeals.11 Another thirteen states went further, guaranteeing interlocutory appeal as a matter of right. Recognizing the concerns driving these decisions, Maryland chose to foreclose defendant class actions altogether.12 Using three different methods, thirty-three jurisdictions alleviated the unfairness of forcing defendant classes to wait until final judgement to appeal class certification.

plaintiff and defendant classes. Alternatively, states could follow the Federal Rules approach to permit interlocutory appeals of certification orders by rule. One elegant solution to consider is the one embraced by Maryland. Prohibiting defendant class actions not only prevents the unfairness that concerned the Advisory Committee in 1998, but also protects against due process concerns that arise when defendants are not allowed to represent themselves. Conclusion Defendant class actions may broadly affect defendant businesses in any state. Maryland’s rule change is welcome news to every business operating in Maryland that may be a state court defendant. Maryland Defendants are assured an opportunity to defend themselves when accused, and avoid the perils of remote representative liability. As federal courts account for only about 10% of all litigation nationally, these sorts of state-level protections are—and should be—a significant focus of businesses evaluating class-based exposure. JASON R. SCHERR is a litigation partner with Morgan, Lewis & Bockius in Washington, DC. 1

See Standing Committee on Rules of Practice and Procedure, Notice of Proposed Rules Changes, 1-2, https://www.mdcourts.gov/sites/default/files/rules/reports/200threport.pdf (Mar. 5, 2019).

Id. at 3-4 & n. 2-4.

2

See Angelo N. Ancheta, Defendant Class Actions and Federal Civil Rights Litigation, 33 UCLA L. Rev. 283, 308-09 (1985).

3

2 Newberg on Class Actions § 5:1 (5th ed. 2012); see Simpson & Perra, Defendant Class Actions, 32 Conn. L. Rev. 1319, 1323 (2000).

4

See Thillens, Inc. v. Cmty. Currency Exchange Ass’n of Ill., Inc., 97 F.R.D. 668, 674 (N.D. Ill. 1983); Marchwinski v. Oliver Tyrone Corp., 81 F.R.D. 487, 489 (W.D. Pa. 1979).

5

See Debra J. Gross, Mandatory Notice and Defendant Class Actions: Resolving the Paradox of Identity Between Plaintiffs and Defendants, 40 Emory L.J. 611, 622, 639 (1991).

6

7

See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 363 (2011); Phillips Petroleum Co. v. Shutts, 72 U.S. 797, 808 (1985). See Ameritech Ben. Plan. Comm. v. Commc’n Workers of Am., 220 F.3d 814, 820 (7th Cir. 2000).

8

See Maryland Rules 2-503, 2-504.1, or 2-212.

9

Cf. Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1708 (2017) (noting unfairness concerns in plaintiff class actions).

10

11

See Ill. Sup. Ct., R 306(a)(8) (adopted in 2003); Levy v. Metro. Sanitary Dist. of Greater Chicago, 92 Ill. 2d 80 (Ill. 1982) (holding dismissal of class action allegations interlocutory and not appealable as of right); Minn. R. Civ. P. 23.06 (adopted in 2006); In re Objections and Defs. to Real Prop. Taxes for the 1980 Assessment, 320 N.W.2d 729 (Minn. 1982) (holding denial of class certification not appealable as of right). See Standing Committee on Rules of Practice and Procedure, Notice of Proposed Rules Changes, 1-4 https://www.mdcourts.gov/sites/default/files/rules/reports/200threport.pdf (Mar. 5, 2019).

12

13

See Bell v. Beneficial Consumer Disc. Co., 465 Pa. 225, 348 A.2d 734, 736 (Pa. 1975) (holding class certification orders as final for purposes of an appeal statute).

See Hanson v. Fed. Signal Corp., 451 Pa. Super. 260 (Pa. Sup. Ct. 1996).

14

For the same reasons, the remaining sixteen states will likely need to address the tension of allowing defendant class actions while barring interlocutory appeals. They may be able to create state common law that class certifications are “final” for purposes of appeal statutes. Pennsylvania tried this route,13 but subsequent amendments to the appeal statute forced judges to abandon the finality approach.14 This exemplifies the risk with common law solutions—any rule could be changed by subsequent cases or legislation, creating uncertainty for MARYLAND BAR JOURNAL | ISSUE 3 2019

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FOR YOUR PRACTICE

| UPDATES FROM THE JUDICIARY

Judicial Appointments Governor Larry Hogan has appointed the following individuals to the Maryland bench: ٚٚ Guido Porcarelli, District Court for Baltimore County ٚٚ Bruce Friedman, District Court for Baltimore County

Court News Adult Treatment Court graduates honored at Circuit Court for Calvert County On Thursday, July 25, eight graduates celebrated their sobriety and successful completion of a court-supervised program during a graduation ceremony at the Circuit Court for Calvert County’s Adult Treatment Court. Since the Adult Treatment Court’s inception in 2015, more than 65 individuals have graduated from the program, which focuses on assisting participants in achieving self-sufficiency and becoming responsible members of the community. New courthouse in Queen Anne’s County is Open for Business The new courthouse for the Circuit Court for Queen Anne’s County opened to the public on Monday, June 17. “The new courthouse brings Queen Anne’s County into the 21st century and provides increased security and ADA compliance, as well as additional courtrooms and space for services and staff,” said County Administrative Judge Thomas G. Ross, Second Judicial Circuit. The current courthouse, located across the street at 100 Courthouse Square in Centreville, will no longer be used for regular court business. The closing of the historic building marks the end of 224 years of service to the citizens of Queen Anne’s County. Built 146

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during George Washington’s first term as president, it is the oldest courthouse in continuous use in the state of Maryland and one of the oldest courthouses in continuous operation in the country. “When a courthouse is to be built in a county with the rich historic setting that characterizes Centreville and Queen Anne’s County, additional care and thought must be taken to honor the history and to serve the needs of the people of this county today, tomorrow, and well into the future,” said Maryland Court of Appeals Chief Judge Mary Ellen Barbera. “This new courthouse does exactly that.” The new courthouse is the state’s first all-electronic court, which means it will operate under the Maryland Electronic Courts system, also known as MDEC. It will also feature CourtSmart, an electronic recording equipment system. “We’ve gone from being the oldest to the newest courthouse in the state of Maryland,” said Queen Anne’s County Clerk of Circuit Court Katherine Hager. “While we will miss the charm and character of our historic courthouse, we look forward to serving the citizens in a 21st century courthouse allowing us to provide improved access to justice for all.”

ٚٚ Michael Siri, District Court for Baltimore County

New Attorney Information System Faces First Test as September 10 Deadline Passes On January 1, 2019, new changes to the Maryland Rules took effect, requiring Maryland Attorneys to register for the new Attorney Information System (“AIS”). In addition, the new rules established a single compliance cycle, requiring Maryland Attorneys to pay their annual Client Protection Fund (“CPF”), confirm their tax identification number, if they have one; submit a report on pro bono legal services; and submit the Interest on Lawyers Trust Account (IOLTA) report by September 10. Under these new rules, paper statements or forms will no longer be mailed to attorneys; rather, attorneys will receive electronic notices. Although attorneys may elect to pay their CPF assessment either online through AIS or through the U.S. Mail, the pro bono and IOLTA reports must be completed online. Attorneys that failed to pay their CPF assessment by September 10 will incur a late fee. Additionally, attorneys who failed to pay the assessment, confirm their tax ID number, or complete pro bono and IOLTA reporting by the September 10 deadline may be subject to a temporary suspension or decertification from the practice of law.


FOR YOUR PRACTICE

| ATTORNEY GRIEVANCE UPDATE

What’s Your Succession Plan?

BY LYDIA E. LAWLESS, BAR COUNSEL

What will happen to your law practice in the event of your death or disability? Who will protect your clients? Does anyone know where to find your passwords and client ledgers? Can someone locate the file for the hearing next week? Will anyone know you have a hearing next week?

SOLO AND SMALL FIRM PRACTITIONERS should

be able to answer each of the above questions. For those of you without answers, the time to start working on your succession plan is now. While succession planning may take time away

While succession planning may take time away from your practice, the failure to plan can have serious negative consequences for both your clients and your loved ones who, in the absence of a plan, will be left scrambling to make sense of your practice. from your practice, the failure to plan can have serious negative consequences for both your clients and your loved ones who, in the absence of a plan, will be left scrambling to make sense of your practice. The Maryland Attorneys’ Rules of Professional Conduct encourage, but do not require, an attorney to have a succession plan. Comment [5] to Rule 1.3 (diligence) provides: To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent attorney to review client files, notify each client of the attorney’s death or disability, and determine whether there is a need for immediate protective action.

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The American Bar Association has opined that an attorney’s duty of competent representation includes arranging to safeguard the clients’ interests in the event of the attorney’s death, disability, impairment, or incapacity. ABA Formal Op. 92-369 (1992). The ABA House of Delegates has recommended that bar associations and courts develop, adopt, promote and implement programs and procedures to enable attorneys to plan for contingencies. See Recommendation Adopted August 13-14, 2007. The following is provided as a general outline to get you started on your succession plan:

STEP 1: Organize your office. Start by creating or updat-

ing your office procedural manual to include calendaring and filing systems, procedures for conflicts checks, financial information including location of accounts, records and checkbooks, all passwords, instructions for generating bills, and credit card information. Additionally, you should keep your calendar and client files up-to-date, return original documents to clients, shred paper files as appropriate, and establish a file retention policy.

STEP 2: Find a competent attorney (or attorneys) who are

willing to take over your client files or close your practice. Consider the attorney’s qualifications, the commitment of time that will be required, and the attorney’s area of practice.

STEP 3: Enter into an agreement with the attorney detail-

ing the scope of the arrangement. Be sure to address access to your office, files and bank accounts including whether any power of attorney is necessary to act on your behalf during your life and what estate planning documents are needed to enable the attorney to act following your death. Consider and address authorization to contact clients for instructions on transferring their files and to provide notice of your death or disability, authorization to obtain extensions of time in litigation matters when needed, provisions that give the attorney authority to wind down financial affairs including providing clients with final accountings, authorization to collect fees on your behalf, and to liquidate or sell the law practice. Additionally, the agreement should include provisions for the disposition of closed client files, payment of any firm liabilities and any compensation the attorney is entitled to receive for her service.

STEP 4: Inform your staff and family of the plan. Advise your clients as necessary and review the plan annually to ensure it remains current.

While the above steps provide a general framework for succession planning, a number of our sister jurisdictions have published comprehensive handbooks, checklist and guidelines that are available for free and should make the task of creating a plan much less daunting. See, e.g, Succession Planning Handbook for New Mexico Lawyers (New Mexico Supreme Court Lawyer Succession and Transition Committee July 2014); The Basic Steps to Ethically Closing a Law Practice (Illinois Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, October 2012). The ABA has 148

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compiled a large number of succession planning resources which are available for free on its website: https://www.americanbar.org/groups/professional_responsibility/resources/ lawyersintransition/successionplanning/ In the absence of a succession plan, my office may be forced to pursue a conservatorship action when an attorney with open client matters dies or becomes incapacitated. Maryland Rule 19-734 provides that Bar Counsel may file a petition requesting the appointment of a conservator to take possession of client files, funds, and other property where there is “not known to exist any personal representative, partner, or other individual who is willing to conduct and capable of conduct-

In the absence of a succession plan, my office may be forced to pursue a conservatorship action when an attorney with open client matters dies or becomes incapacitated. ing the attorney’s client affairs[.]” The conservator is then tasked with inventorying the attorney’s files and property and returning the same to clients and third parties. A conservatorship results in the complete dismantling of the law practice and is the worst-case scenario for any attorney’s practice. Unfortunately, conservatorship actions are becoming increasingly common. At the end of fiscal year 2011, my office had 11 open conservatorships. By 2014, that number had reached 26. Currently, there are 36 open conservatorships. The time to plan is now. LYDIA LAWLESS is Bar Counsel for the Attorney Grievance Commission of Maryland. She may be reached directly at lydia.lawless@agc.maryland.gov.


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MSBA UPDATES

| YOUNG LAWYERS

Fresh Faces Denise Brown Attorney, Heartly House Frederick County Recent Leadership Academy Graduate

What’s one thing that you learned from Leadership Academy that has served you well in your everyday life? Being able to discern what people really want, even if they are not forthcoming with that information, to know how or when to approach them (or whether they should be approached at all!). Sometimes concession is the better part of valor.

What is one thing that you can’t live without in your professional life? A padfolio. It can hold (or hide) paperwork in its pockets, it holds my business cards, it has a notepad and pen, and it can also hold my iPhone. Often, I am the only person who has pen and paper when we are in a situation where they are suddenly needed.

"My most valuable education came from outside of a classroom."

WEB EXTRA

APPLY TODAY Are you a future leader in MSBA? Applications for Leadership Academy 2020-21 will be available soon. VISIT MSBA.ORG/LEADERSHIP

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What is happening within the legal profession that you're obsessed with right now? The rise of the Uniform Bar Exam (UBE) juxtaposed with the problems around the bar passage rates. I attended law school in CA, so I have a natural interest in the scandal surrounding their bar passage rate. While in law school, I remember when the UBE was a mere idea batted around ABA Governors’ meetings, and now every year jurisdictions are joining. I have been opining with other lawyers about how long CA (and other jurisdictions) will hold out, or if they might be forced to consider UBE.

What is the best advice you have ever gotten? “Don’t let school get in the way of your education.” Even though I am no longer in “school” I think this advice is still very relevant. My most valuable education came from outside of a classroom.

What is the best advice you have ever gotten?

“Don’t let school get in the way of your education.” Even though I am no longer in “school” I think this advice is still very relevant. My most valuable education came from outside of a classroom.

What three things do you have to have on your desk? My water bottle, my iphone, and my Mister Rogers’ Neighborhood Sticky Notes. “It’s a beautiful day in this neighborhood.”


Detric Kemp Recent MSBA Leadership Academy Graduate

What’s one thing that you learn from Leadership Academy that has served you well in your everyday life? Leadership Academy taught me how to successfully organize and execute a large-scale public service project. One of the lessons that I learned from organizing and executing a large public service project is that it is impossible to do it alone. Not only does this help keep me grounded but it helps confirm that asking for assistance is acceptable.

What is happening within the legal profession that you're obsessed with right now? I am obsessed with how advances in information technology has and continues to impact the type of tasks lawyers do and the types of cases lawyers litigate. There are many tasks that were previously performed by lawyers, are being done by technologists, process experts, and others. And, as we move into an era where the practice of law is not solely about lawyers, I am interested to see how the practice of law will continue to evolve.

Who inspired you to get into the law? My high school biology teacher inspired me to go to law school. Prior to taking high school biology, I wanted to be a doctor. However, because of how interesting his biology class was, I decided that I wanted to do something (anything) else. Fortunately, I was always fascinated by the law and enjoyed watching reruns of shows like Perry Mason growing up, so I decided that I wanted to become an attorney.

"While I’ve been a member of MSBA for eleven years, I’ve only been an active member of MSBA for a few years. In that short amount of time, I have been able to cultivate great personal relationships with many leaders and future leaders in Maryland." What do you value most about the MSBA?

What three things do you have to have on your desk?

I value the people that make up the MSBA that I have come to know and respect the most. While I’ve been a member of MSBA for eleven years, I’ve only been an active member of MSBA for a few years. In that short amount of time, I have been able to cultivate great personal relationships with many leaders and future leaders in Maryland. And, I look forward to continuing to build and expand personal relationship through MSBA.

There are three items always on my desk – a box of facial tissue, hand sanitizer, and chewing gum/mints. I keep a box of facial tissue because emotions often run high in matters involving family law and having facial tissues on my desk is crucial. I keep hand sanitizer on my desk in hopes of reducing the spread of germs and bacteria. And, I keep chewing gum/mints on my desk because most, if not all, of us could use chewing gum/mints from time to time.

What advice would you give your younger self? I would impress upon my younger self the importance of networking and being active in local and specialty bar associations. I would tell my younger self that searching and applying for a job is important but that having a well-established network of people is vital to your success. Therefore, I would strongly advise my younger self to devote a substantial amount of time building your professional network through participation in bar associations.

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MEMBER FOCUS

| COMMITTEE PROFILE

Meet the New Ethics Committee Chair WAYNE M. WILLOUGHBY Gershon, Willoughby & Getz, LLC Why did you enter the legal profession? From the moment I read To Kill a Mockingbird as a child I knew I wanted to be a lawyer. I felt then, and still feel today, that there is no better use of one’s limited time on this earth than to fight on behalf of people striving to obtain some semblance of justice.

What do you love about the legal profession? I love that the career I chose has enabled me to represent people whose causes are ones in which I truly believe. It is immensely gratifying to stand up to powerful interests (insurance companies, massive hospital corporations, etc.) on behalf of “the little guy.”

What drew you to your current practice area(s)? Good fortune. After completing an appellate clerkship, I accepted a position with an international law firm in its District of Columbia office. The work was challenging and the firm provided unlimited resources and mentoring by a team of great lawyers. It was an outstanding place to cut my teeth but I just wasn’t happy spending my days defending oil companies, investment banks, and the like. Then one evening a friend, who was (and is) a highly successful medical malpractice attorney, asked me if I’d consider leaving the large firm world to come join him and another very successful lawyer at the small firm the two were forming in Baltimore. I would primarily be representing the victims of medical negligence and dangerous products. Everyone advised me that it is crazy and a career ender to leave big firm practice for a tiny PI start up firm, but the opportunity was too great. I would be doing what caused me to want to be a lawyer in the first place. Moreover, I would be able to learn trial practice under the tutelage of two extremely experienced lawyers practicing at the highest levels of competence and professionalism.

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What is the best piece of advice you have received from someone in the legal profession? Protect your good name. At the end of the day a good name is all we can carry beyond the grave.

How has your prior career as a CPA helped you in your legal career? My career as a CPA actually enabled my legal career. The money I earned from practicing public accountancy substantially financed my legal education. Moreover, my background taught me not only what it means to be a professional, but also how to engage in systematic detailed analysis, which is particularly useful as a medical malpractice attorney. An additional benefit is that I often have to work with (or cross examine) economists and annuity experts. I do not find them intimidating because I too was trained in economics and finance and understand the jargon. Perhaps equally important, my experience as a CPA equipped me to handle the business aspects of running a law firm, something that was not taught in law school. Preparing and reading financial statements, managing cash flow and investments, establishing and operating accounting systems, adopting standard personnel practices, etc. are all within my wheelhouse only because I was a practicing CPA.

How did you first become involved with the MSBA? The Ethics Committee? I first joined the MSBA over 30 years ago because that is what a Maryland lawyer should do—join the state bar association. Over the years I used my membership to purchase relevant educational materials but I did not become actively “involved” with the MSBA until the presidency of Henry Dugan, who asked me in 2011 to serve on the Ethics Committee. I have been active with the MSBA ever since.

What is the role of the Ethics Committee? The Ethics Committee exists to issue written opinions on the proper interpretation of the Maryland Rules of Professional Conduct and to make those written opinions available to the public via the MSBA website. The Committee also presents an ethics seminar annually at the MSBA Legal Summit covering contemporary issues. Moreover, committee members volunteer to staff an ethics hotline for the use of MSBA members in need of a quick curbside consultation.

What are some challenges that you expect as your first year as chair of the Ethics Committee? Fortunately, the MSBA Ethics Committee has a long history of excellent leadership and a diverse membership. The Committee traditionally functions as a well-oiled machine with the assistance of the hardworking staff of

the MSBA. Consequently, I do not anticipate any significant challenges as a first year chair. We are a team! We produce results!

How has the MSBA helped you in your career? Aside from providing ethics advice and excellent continuing education materials, I think the greatest benefit of MSBA membership in my career has been the networking opportunities from active committee membership and

Protect your good name. At the end of the day a good name is all we can carry beyond the grave. attending MSBA events. I have developed new professional friendships and referral sources simply by showing up and engaging with others face-to-face at MSBA sponsored meetings and events.

What is your fondest memory of your legal career so far? This is a difficult question to answer because I have many fond memories from over 30 years of practice. A representative example occurred at an animal feed store. I didn’t recognize right away the man in the overalls standing on the loading dock when he said, “Mr. Willoughby!” As my mind focused and I looked closely at the stranger, I realized he was a former client. He had grown a beard since we last met years earlier. I had represented him and his family. He hopped off the loading dock and gave me a bear hug as though I was his long lost brother. Through tears he told me how much better his daughter’s life had become because my firm and I took on their case when other lawyers had turned them down. He showed me pictures of his child and their handicapped accessible home and accessible van, and before long we were both standing there like two fools just crying for joy. Such occasions of pure heartfelt appreciation do not occur from representing big corporations, insurance companies and banks. They only happen from representing good people desperate for justice.

What is one thing you would like other legal professionals to know about you? I am the proud husband of Gail Smelkinson Willoughby. They said it wouldn’t last because she is a proud Jewish woman (involved with her synagogue) and I am a proud Christian (involved with my church). Well, 38 years later we keep proving them wrong.

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Are you Department of Learning and Publications

Practice Manual for the Maryland Lawyer fifth Edition MSBA Young Lawyer’s Section

Criminal Practice & Procedure in the District Court of Maryland 2019 Revised Edition

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

Civil Practice & Procedure in the District Court of Maryland 2019 Revised Edition

Maryland Will Contests Jeffrey E. Nusinov, Esq. & Paul D. Raschke, Esq.

Workers’ Compensation Manual Nineteenth Edition Theodore B. Cornblatt, Esq.; Robert C. Erlandson, Esq.; David E. Fink, Esq.; H. George Meredith, Jr. Esq.; Mark C. Miller, Esq.; Bernard J. Sevel., Esq.

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MARYLAND BAR JOURNAL | SPRING 2019

154


ETHICS

| ETHICS DOCKET NO. 2019-04

Maryland State Bar Association, Inc.

Committee on Ethics ETHICS DOCKET NO. 2019-04 FEES - DONATION OF ATTORNEY’S SERVICES TO BE AUCTIONED FOR CHARITY

NEARLY 40 YEARS have passed since

we were asked to render an opinion on whether an attorney’s services may be auctioned on behalf of charity. When the issue was first raised, the Parents Club of a local private school wished to include legal services as part of a fundraising auction. Wishing to comply with existing Disciplinary Rules, the attorney asked us whether “a lawyer’s services [may] be auctioned on behalf of charity, and, if so, what constraints must be observed?” The attorney also sought our “guidance with regard to any limitations concerning specific areas of practice, hours or valuation of services and whether the auction should take place on an anonymous basis or for the service of a specifically named attorney.” Rather than place limitations on participation, we rejected this practice in its entirety in Ethics Docket No. 1980-43. Before Maryland’s adoption of the Rules of Professional Conduct, we expressed concern that this

practice would conflict with several Disciplinary Rules embodied in the Code of Professional Responsibility. DR 2-103(C) prohibited lawyers from giving “anything of value” to a person or organization in return for the recommendation or referral of a client. Despite the charitable intent of the proposed auction, we believed that the donation of valuable attorney time as a means of securing such a client violated this rule. If this client required services beyond those purchased at auction, we feared that this may cast doubt on the altruistic intent of the donation itself and, at a minimum, create an appearance of impropriety if viewed as an improper solicitation of clients. See also DR 2-103(D) (a “lawyer shall not request a person or organization to recommend or promote the use of his services”). Compounded by the danger that attorneys may donate services which they are not competent to provide, “the Committee conclude[d] that the provision of legal services

through auction in behalf of charity does not comport with the requirements of the Code of Professional Responsibility.” Our concerns echoed those expressed by the ABA Committee on Ethics and Professional Responsibility in Informal Opinion 1250 (1972), and several other bar associations issued similar pronouncements. New York State Bar Opinion 524 (1980); Bar of the City of New York Opinion 81-22 (1981); Monroe County, NY Opinion 1 (undated); Kentucky Opinion E-239 (1981); New Hampshire Bar Ass’n, Op. 1990-91/2 (1991); Nebraska Formal Opinion 92-4 (1992); Ohio Supreme Court Opinion 2002-5 (2002) (donating legal services improperly gives “a thing of value which secures employment of the lawyer”). As more lawyers embraced advertising and other methods of marketing, jurisdictions began to revisit blanket prohibitions on certain practices, including an attorney’s participation in charitable auctions. Only two years after we released our opinion, the California MARYLAND BAR JOURNAL | ISSUE 3 2019

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bar under different rules of professional conduct expressed the opinion that “the benefits that flow from an attorney’s donation of legal services” outweigh “the remote likelihood of abuse of fundamental public policies,” and approved the practice with certain constraints. California Opinion 1982-65. Other states began to revisit the issue as well. See, e.g., Alabama State Bar, Op. 90-51 (1990); Hawaii Supreme Court, Disciplinary Board, Op. 31 (1992); Philadelphia Bar Ass’n, Op. 80-35 (undated); South Carolina, Op. 91 35 (1991); but see Ohio Supreme Court Opinion 2002-5 (2002); Nassau County Opinion 97-11 (1998). Following this growing trend, 15 years after rejecting the practice in its entirety, the Nebraska State Bar Association and New York State Bar Association changed their opinions in favor of limitations designed to avoid some of the concerns raised earlier. Nebraska State Bar Opinion 06-11 (2007); New York State Bar Association Committee on Professional Ethics Opinion 971 (6/26/13). Each opinion included varying limitations based on the Committee’s perceived concerns as to how the donation and auction might be implemented. Considering the merits of these opinions, we believe that the time has come to do likewise in Maryland. In reconsidering our position, we continue to express many of the same concerns that we identified nearly four decades ago. Although Maryland has since adopted Rules of Professional Conduct to replace the older Code of Professional Responsibility, the substance of provisions restricting the solicitation and referral of clients, and the competence of those serving them, remain the same. Mirroring the language of DR 2-103(C), Rule 7.2(c) of the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) still provides that “[a]n attorney shall not give anything of value to a person for recommending the attorney’s services.” Likewise, regardless of the circumstances under which a lawyer is retained, that lawyer must be “competent” to provide these services under MARPC 1.1, and must be free of conflicts which would preclude representation. MARPC 1.7, et seq. Although restrictions on attorney advertising and legal services information embodied in MARPC 7.1 and 7.2 also apply in the context of such auctions, we believe that appropriate constraints may ensure compliance with 156

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these provisions.1

services for a fee, the auction materials should indicate that. 5. The lawyer should ensure that the lawyer has no on-going professional relationship with either the charitable organization or with other persons or entities related to the auction or organization in such a way that the lawyer’s donation of services could be seen as the “giving of a thing of value in order to recommend or secure a lawyer’s employment.” 6. The lawyer should review in advance, and retain the right to edit or delete, any description of the lawyer or the lawyer’s services published in any auction program, promotional materials, or advertising for the event. The lawyer must ensure that enough information is provided, including about the areas of law in which the lawyer practices, to enable prospective bidders intelligently to decide whether to bid on the lawyer’s services.

To ensure compliance with these rules, and to avoid misunderstandings in an otherwise charitable endeavor, we conclude that attorneys may properly donate legal services to be auctioned1 in exchange for charitable contributions under the following conditions: 1. To ensure competence, a lawyer may only donate legal services which the lawyer is qualified to provide; therefore, the donation should be clear as to what services are being offered. 2. The lawyer’s offer of services to the high bidder, whether contained in the auction program or communicated by the auctioneer, should be expressly conditioned on a later consultation between the lawyer and high bidder, before any attorney-client relationship is formed or representation begins, to ensure that (a) there is no prohibited conflict of interest with the lawyer’s other clients; (b) the lawyer has the appropriate expertise to handle the client’s particular needs competently; and (c) the client is otherwise satisfied with the choice of lawyer. Until an attorney client relationship has been formed, the high bidder must be treated as a prospective client under Rule 1.18. 3. The lawyer and charitable organization must agree in advance that if for any reason the lawyer cannot begin representation, or the client does not wish, after the initial consultation, to hire the lawyer, then either the charity or the lawyer (by pre-arrangement between themselves) will refund the client’s bid. If the agreement requires the charity to make the refund, the lawyer must ensure that the charity does so, or must do so herself. 4. Often the auctioned service may be a discrete one, such as the preparation of a simple will. However, if the lawyer were to offer a service of limited scope – e.g., a set number of hours of advice concerning estate planning – the representation would have to comport with Rule 1.2(c). That is, any limitation must be “reasonable under the circumstances,” which means that the services may not be too limited to be useful to the client. If the lawyer proposes to donate a limited number of hours of advice to be auctioned by the charitable organization, but to offer the client foreseeably needed additional

Although written retainer agreements are only required in certain circumstances under MARPC 1.5(c), we strongly recommend that the terms of representation be expressed in a written agreement at the outset of representation and that all prospective bidders be informed of the need for such an agreement to consummate an attorney-client relationship. In approving these guidelines, the Committee understands that these stipulations may be perceived as too cumbersome to implement in the context of a “silent auction” or similar fundraiser. However, if they cannot be implemented in a feasible manner, we would strongly discourage the auction of legal services and would encourage attorneys to find other appropriate means of contributing to worthwhile charities.2 1

This opinion may also apply to charity raffles so long as they comply with applicable law. While MARPC 7.3 continues to prohibit lawyers from soliciting clients in certain circumstances, we do not believe that most charity auctions or raffles would implicate this rule.

The Committee renders no opinion on the tax deductible nature of a donation of services, but cautions attorneys to be mindful of such implications.

2


STAFF PROFILE

| ANNA SHOLL

Anna Sholl Deputy Executive Director "I think it’s important for me to continue to give back using my law degree, and I want to make sure I stay connected and in tune with the legal profession.

When did you decide to pursue the law and why. Looking back, I think I always wanted to be an attorney. I solidified that goal while working as a Manager at WalMart Corp. I interacted with our legal department more often than I think I would have liked to get advice on a variety of issues from employment, to slip & falls, to union activity. I just found it so interesting that when issues arose, there was almost always a need to consult with the legal department on some aspect. It really made me realize how much the law touches so many parts of our lives.

Has being a lawyer been what you'd expected when you decided to go to law school? There are definitely parts that I expected, like the fast paced nature of the profession. What I didn't expect is the profession's general aversion to change. Don’t get me wrong, I understand that the legal profession is steeped in tradition, but I definitely underestimated how difficult it is for legal professionals to adapt and change, especially in the face of emerging technologies. In my view, attorneys need to recognize and understand potential disruptions, learn about new technologies, and reimagine the practice of law. We cannot, unfortunately, go on doing things as we’ve always done them. Change is inevitable.

What have been some of the greatest challenges in your career? I’m naturally an introvert or a shy person, which, if you met me, you may not believe. I’ve really worked hard on this aspect of my personality, and have become more comfortable with public speaking, asserting myself in a group, and engaging with others in a social setting. That said, I still struggle in certain settings like networking events. I think I’m pretty terrible at small talk, but I try to work on it as often as possible.

Describe your current position. In my current role, I work with all departments in the MSBA to develop tools and resources for legal professionals, and deliver them in a variety of ways. From electronic newsletters to print publications, and from the Legal Summit & Annual Meeting to Section networking events. From an operations perspective, I work with our Executive Director, Victor Velazquez, to ensure that we are executing on new initiatives like MSBA Connect, supporting our volunteer leadership, and delivering value to our members. I also work with many of our committees that are focused on moving the MSBA into the future, whether from a governance standpoint, like our Bylaws Committee and Policy Review committee, or from a strategic planning perspective, like our Strategic Vision Committee.

What do you do outside of work? For one, I do take pro bono cases here or there. I’m currently working on an immigration matter through the Esperanza Center/Catholic Charities. I think it’s important for me to continue to give back using my law degree, and I want to make sure I stay connected and in tune with the legal profession. I also volunteer with the White Marsh Volunteer Fire Department in an administrative capacity. When I’m not volunteering, I’m probably engaged with sports in some way. I’m a Steelers Fan and Orioles Fan (a weird mix, I know), and I also enjoy playing golf and softball.

What advice would you give to others considering pursuing the law as a career or to young lawyers? My advice is don’t be afraid to go off the beaten path. I think many people go to law school and think that they need to hit certain milestones, along a specified career path. However, what I’ve learned along the way is that there are many different paths to success in the legal profession, and you’ll be happier if you follow your gut rather than trying to fit yourself into someone else’s ideal.

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EXECUTIVE DIRECTOR'S MESSAGE

| INSIGHTS & UPDATES

Thoughts from your Executive Director A

t the end of 2019 I will have reached a full 36 months serving as the MSBA’s Executive Director. It’s been a privilege to be part of an organization with such a great legacy that’s also focused on transforming itself into a modern association for attorneys of today and tomorrow. On a side note, in addition to the insights I’ve gained during this journey thus far, I’ve also gained some pounds! Having just attended the National Association of Bar Executives (NABE) conference it’s clear that we are serving as an example for Bar associations all across the country. Much of the innovation and idea sharing centered around efforts we have already commenced, completed or have on tap. In fact, I recently hosted a webinar to share some of our thinking and approaches which was attended by nearly two dozen State Bars. It is no surprise to our members that Maryland is a leader.

"We will see an acceleration of our efforts to drive value and relevance for all practice segments of the legal profession in Maryland."

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Where we’ve been…. At this point, I’ve met with hundreds of attorneys from every part of the state. In fact, it was their voices along with the feedback from several thousand attorney surveys that helped to form a series of ‘foundational recommendations’ unanimously approved by the Board of Governors in May, 2017. Those recommendations focused on modernizing our infrastructure, how we communicate with members and non-member attorneys, enhancing our publications, and so much more. It was 25 recommendations in all meant to power us forward. Subsequent to the adoption of those recommendations we got to work. The first 12 months was spent focused on behind the scenes efforts including bringing on talented new team members and partners to give us the capabilities needed to deliver more value. The second year was focused on beginning to deliver visible change and value to our members. We’ve now entered the third year which will see an acceleration of our efforts to drive value and relevance for all practice segments of the legal profession in Maryland. Examples of progress… In this Journal you’re holding one of dozens of refreshed or totally revamped products and efforts of our new MSBA. In our most recent Legal Summit & Annual Meeting, we saw the greatest number of participants in recent times and the satisfaction scores were outstanding with 28% of attendees attending for the first time or the first time in the last five years (was only 7% as recently as 2 years ago). Our social media presence is dramatically enhanced and we’ve released 20 revamped or new publications in the last 2 years, the highest level of output ever since MSBA assumed MICPEL in 2010. I could mention so many other examples of our progress, from the launch of a new logo conveying that things are changing at our MSBA, to the imminent rollout of a modern version of our valuable discussion lists typically referred to as the MSBA Listservs.


OLD BAR JOURNAL

Where we’re going… With the adoption of our Strategic Priorities & Objectives to guide the next 3-5 years, the recent modernization of our Policies and other governance efforts, we’re primed to become an even more vibrant home for tens of thousands of attorneys in Maryland. We have several new and exclusive member benefits rolling out this year in keeping with President Dana Williams’ vision of continuing to focus on the health, practices and professional success of our members. We are gaining a lot of momentum thanks to these efforts, powered by our President, Officers, Board of Governors, staff, volunteer leaders and the voice of our members. If you would like to lend your voice and effort feel free to get involved through a committee or Section and as always, we’d love to hear from you at feedback@msba.org.

NEW BAR JOURNAL LEADERS

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We’re indeed gaining so much momentum. The only thing I hope to stop gaining are these pounds. Suggestions on that also welcomed. WW W.M SBA

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Victor L. Velazquez, Executive Director

FEEDBACK REQUESTED

WE WANT TO HEAR FROM YOU: Send an email to FEEDBACK@MSBA.ORG to make your voice heard. MARYLAND BAR JOURNAL | ISSUE 3 2019

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Mid-Year Meeting Envisioning the Future of Our Association

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Profile for Maryland State Bar Association

Maryland Bar Journal – Volume 1 Issue 3  

Maryland Bar Journal – Volume 1 Issue 3