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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 G Y � P R AC T I C E M A N AG E M E N T



WINTER 2019 Hon. Keith R. Truffer, President

MSBA MSBA Today and Tomorrow IMPACTING OUR WORLD TODAY PAGE 52 The #MeToo Movement PAGE 30 Emerging Areas of the Law PAGE 14 Inside Annapolis PAGE 35 Career Highlights


Contents WINTER 2019 | VOLUME LII | NUMBER 1

30 Monopoly Money without the Monopoly MSBA UPDATES 3 4 6 14 91

President's Message About the New Bar Journal MSBA in the Community Inside Annapolis MSBA Staff Attorney Profile


64 Representing the Accused in the #MeToo Era

10 24 36 40 42 43 48 80

Member Spotlight Maryland Firm Profile What I’ve Learned Off the Beaten Path Breaking into the Law Out of State Member Profile Career Transitions What are You Reading?


52 The #MeToo Movement and Recent Developments in Employment Law

75 79 87 88 89

Building Your Brand Professional Development Updates from the Judiciary Attorney Grievance Update Recent Ethics Opinion

EMERGING AREAS OF THE LAW 30 A Look at Cryptocurrency 32 “New” Federal Rules for Litigators 72 LGBTQ Estate Planning TECHNOLOGY DEVELOPMENTS 73 Citation at the Modern Law Firm: How to Solve Issues with Linkrot ADVANCING JUSTICE 20 Access to Quality, Legal Information = Access to Justice 86 Excellence Must be Chosen


Best Practices for Employers in the Era of the #MeToo Movement DISCOVER MORE

73 Content, Consistency, Engagement:

The Makings of a Solid Social Media Strategy

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




Published quarterly by the Maryland State Bar Association, Inc. 520 W. Fayette St. Baltimore, Maryland 21201 Telephone: (410) 685-7878 (800) 492-1964 Website: Executive Director: Victor L. Velazquez Editor: W. Patrick Tandy 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


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

Patrick Tandy

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 (2018-2019) President: Hon. Keith R. Truffer President-Elect: Dana O. Williams Secretary: Deborah L. Potter Treasurer: Hon. Mark F. Scurti 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.


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




Welcome to the New Maryland Bar Journal Welcome to the completely new Maryland Bar Journal, one of the many examples of MSBA’s continuing evolution as we chart the Association’s course for the next five to 10 years.


hile the Bar Journal is moving to quarterly publication, each issue will be more robust than ever, packed with informative, relevant content, delivered in a visually engaging style. Here, you will find not only the traditional substantive articles for which the magazine has long been known, but many new segments that speak to all facets of our membership and the legal profession as a whole. Moreover, its enhanced digital platform enables the inclusion of such value-added content as supplementary video, photos, and hyperlinks.

"I hope that you find this new Maryland Bar Journal engaging and a way to forge stronger connections with other members of Maryland’s legal community. " VIDEO EXCLUSIVE


The all-new Maryland Bar Journal is only the latest example of the extraordinary change the MSBA is undergoing. This year, we also continue to focus on three key areas that will help better position the MSBA for the future, including the Policy Review Committee, the Strategic Vision Committee, and the Lawyer Assistance Program, which recently partnered with a nationally recognized provider of counseling services to effectively extend its presence to all localities in the state. Additionally, we are proud to have reaffirmed the MSBA’s mission to promote access to justice for all through our partnering with the Maryland Access to Justice Commission. These initiatives will help continue to assure both the near and long-term health of both MSBA and the legal profession in Maryland. Technology drives virtually any initiative, and our efforts are no exception. This fall, for example, our Judicial Appointments Committe launched a new Judicial Applications Portal, which streamlines the judicial application process like never before. Also, our new Practice Management Portal provides our members with the tools and resources to help them build, grow, and transition their practices in areas including marketing, technology, accounting, social media, human resources, and more. And our new Advocacy page keeps our members apprised of MSBA’s active role in shaping legislation to realize the best possible outcomes for Maryland’s lawyers and legal professionals. Fall 2018 also saw a series of outstanding events designed to enhance the practice of law for our members. In September, we hosted a successful Leadership Orientation in Hanover, Maryland, which provided our Section and Committee leadership with a platform to both learn about all of the services available to them through the MSBA and ask questions. In October, the 59th Conference of Bar Presidents and 11th Young Lawyers Summit gathered in National Harbor, Maryland, to discuss topics of mutual interest and concern in a casual setting. And in November, the 2018 Solo Summit drew more than 100 solo and small firm practitioners for a day of programming ranging from technology to ethics to marketing, and more. This is but a small sampling of the many great things that are taking place at your MSBA, and I invite you to keep apprised of the latest developments through another new initiative, the monthly video President’s Message. Finally, I want to express my deepest thanks to Judge Vicki Ballou-Watts, Chair of the Editorial Advisory Board, as well as all of its members. I hope that you find this new Maryland Bar Journal engaging and a way to forge stronger connections with other members of Maryland’s legal community.

Hon Keith R. Truffer, President MARYLAND BAR JOURNAL | WINTER 2019


ABOUT THE NEW Esteemed Members of the Maryland Legal Community, The Maryland Bar Journal is designed to be a tour de force of legal news and important editorial content representing every practice area. It’s also MSBA’s marquee membership publication, featuring the stories and successes of those in our community. Over the last several months, MSBA has been on a journey to re-vamp this important publication, and I’m very pleased with the result. You’re holding in your hands the very first issue of our new format (and at time of printing, we are already working on the next quarter’s edition). We hope you find this publication valuable. My aim for the Bar Journal is for you to feel more connected to your profession, to your career, and to our member base than ever before. For our members. For the profession.

Victor Velazquez Executive Director Maryland State Bar Association


Member- and profession-driven content that speaks to the diversity of Maryland's legal profession

Career content for all stages of your professional career

Practice content from emerging fields and tech developments to help you more effectively and efficiently run your practice

Community content highlighting the more than 300 events MSBA hosts or takes part in each year

Health and wellness features

Advocacy – MSBA is your voice in Annapolis

Original photography of our members and events

And much more!

WEB EXTRAS Look for these icons throughout the magazine to let you know when companion digital content is available online.


New Video: Our Vision, Our Members, Our Future 100 years of history. transforming profession.

Over A

MSBA, our members, and our partner organizations have and will lead the way. SEE THE TWO MINUTE FILM AT 4



To our friends, clients, colleagues, and the legal community, thank you for the privilege of serving you over the last fifty years! Since 1968, McCarthy Wilson LLP has distinguished itself as a litigation firm of experienced trial lawyers, specializing in a variety of civil and criminal matters throughout the state and federal courts of Maryland, Virginia and the District of Columbia, including personal injury, insurance defense, insurance coverage, construction litigation, business law, products liability, worker’s compensation, asbestos, lead paint, toxic torts, and commercial litigation matters. 301-762-7770 1340 Smith Avenue Suite 300 Baltimore, Maryland 21209

2200 Research Boulevard Suite 500 Rockville, Maryland 20850

1420 Spring Hill Road Suite 600 McLean, Virginia 22102 MARYLAND BAR JOURNAL | WINTER 2019




MSBA in the Community Impacting every sector of the legal profession

Big Law/In-House Counsel LEGENDS OF THE BOARDROOM.The role of in-house counsel is growing increasingly complex, which is why MSBA teamed up with Judicial Events™ to host Legends of the Boardroom, a one-of-a-kind networking and educational program aimed at providing tools for in-house counsel and the outside counsel they retain. The event, which took place on September 28, 2018, at the Downtown Hyatt Regency in Baltimore, featured Maryland-area leaders like Under Armour Managing Counsel Kristin Herber, who took part in a panel discussion on international arbitration, and Meryl Burgin, EVP, General Counsel & Corporate Secretary at CareFirst BlueCross Blue Shield, who spoke to matters of cybersecurity and compliance.

Public Interest WILLS FOR HEROES. Members of the MSBA Young Lawyers Section (YLS), notaries, and the Charles County Register of Wills provided pro bono estate planning services for approximately 30 Charles County first responders and their spouses at the second annual Wills for Heroes event held September 15, 2018, in La Plata, Maryland. Along with co-sponsor Community Legal Services, Trollinger Law and DLA Piper partnered with YLS to bring this service to Southern Maryland. On November 11, YLS, an affiliate of the Wills for Heroes Foundation, teamed up with the Federal Bar Association to provide the service to more than 20 veterans and their spouses at the American Legion in Greenbelt, Maryland. CELEBRATE PRO BONO. Maryland Volunteer Lawyers Service honored its volunteer attorneys, donors, and friends with its annual Celebrate Pro Bono Reception on October 10, 2018, at the American Visionary Arts Museum in Baltimore. Honorees included the Maryland Office of the Attorney General (Law Firm of the Year); Dontrice P. Hamilton (Volunteer of the Year); Thomas J. Minton (Partnership Award); and Christopher N. Moran (Young Lawyer of the Year). More than 250 people attended the event. MLSC ANNUAL AWARDS RECEPTION. More than 200 attorneys and judges from around the state joined the Maryland Legal Services Corporation (MLSC) in honoring the recipients of its 2018 Annual Awards with a special reception on December 3, 2018, at the Lord Baltimore Hotel in downtown Baltimore. BEANS & BREAD. MSBA staff prepared approximately 300 brown-bag lunches for the area’s homeless population and delivered them to St. Vincent de Paul of Baltimore as part of its “Beans & Bread” initiative on December 20, 2018. The day resource program serves 300 people daily with meals, healthcare, showers, laundry, employment services, case management, housing referrals and placements, mail receipt, and telephone access.

Young Lawyers OYSTER RECOVERY PARTNERSHIP. MSBA President Judge Keith R. Truffer joined members of the MSBA Young Lawyers Section (YLS) in presenting a $20,000 check to the Oyster Recovery Partnership (ORP), a non-profit dedicated to consensus-based and scientifically sustainable shellfish ecological restoration, aquaculture, and commercial fishery activities in Maryland waters, on September 20, 2018, during ORP’s 8th Annual Mermaid’s Kiss Oyster Fest fundraiser at the Baltimore Museum of Industry. YLS raised the funds through its 27th Annual Charity Event held on April 20, 2018, at Gertrude’s Chesapeake Kitchen at the Baltimore Museum of Art. WEB EXTRA 6



OUR DAILY BREAD. The YLS Public Service Committee and the Public Awareness Committee kicked off the holiday season by serving lunch to more than 300 homeless men, women, and children on October 20, 2018, at Our Daily Bread Employment Center in Baltimore as part of the joint One Bar | One Community Project. OPERATION WELCOME HOME. Volunteer attorneys joined fellow civilians in greeting returning military personnel as part of Operation Welcome Home and the One Bar | One Community Project on October 11, 2018, at BWI Marshall Airport. Participants provided the servicemen and servicewomen with gift bags stuffed with goodies such as fruit and bottled water. 11TH YOUNG LAWYERS SUMMIT. Today’s young lawyers are tomorrow’s bar leaders. MSBA invests in the future of the legal profession each fall by hosting the Young Lawyers Summit in conjunction with the Conference of Bar Presidents. This year, several up-andcoming lawyers from around the state, at MSBA’s invitation, convened on October 26-27, 2018, at the Gaylord National Resort & Convention Center in National Harbor, Maryland, for the 11th Young Lawyers Summit. The program helped prepare these young attorneys for future success by offering networking opportunities, presentations on wellness, a panel discussion on how MSBA involvement can foster their legal careers, and more. YOUNG LAWYERS SECTION FALL OPEN MEETING. The MSBA Young Lawyers Section hosted its Fall Open Meeting at Kelsey’s Restaurant on November 14, 2018, in Ellicott City, Maryland. Approximately 60 members of the bar and bench turned out for the event, which included a panel discussion on the delicate balance of “Life and Practice”. Panelists Maryland Court of Special Appeals Judge Michael Reed, Judge Lisa Broten, Judge Lisa HallJohnson, and Regine Francois discussed their own experiences and the tools they use to find balance in their lives.

Solo & Small Firm 2018 SOLO SUMMIT. From e-discovery to employee wage issues, the 2018 Solo Summit offered its more than 100 attendees vital knowledge for solo practitioners at every stage of practice at Maryland Live! Casino & Hotel on November 9, 2018, in Hanover, Maryland. The Solo Summit featured three (3) tracks, Start Your Practice, Run Your Practice, and Grow Your Practice, with programming for solo and small firm practitioners in all phases of their careers. At the conclusion of the educational programming, attendees were invited to a networking happy hour at Centerstage at Live! Casino to meet and mingle with other solo and small firm practitioners.

Local & Specialty Bars 25TH ANNUAL MARYLAND HISPANIC BAR GALA. A veritable who’s-who of the Maryland legal community joined the Maryland Hispanic Bar Association in celebrating its silver anniversary at its 25th Annual Gala on September 27, 2018, at Martin’s Crosswinds in Greenbelt, Maryland. Keynote speaker Victor Velazquez, MSBA Executive Director, expounded a recurring theme of the evening – immigration – discussing his own professional and personal journeys, from childhood in Vieques, PR, and the mainland United States through his battle with cancer and, finally, joining the state bar executive staff in early 2017. 59TH ANNUAL CONFERENCE OF BAR PRESIDENTS. More than 140 bar leaders and their guests convened October 26-27, 2018, at the Gaylord National Resort & Convention Center in National Harbor, Maryland, for the 59th Annual Conference of Bar Presidents. Every fall, the two-day program, hosted by the MSBA, invites bar presidents, presidentselect, and their executive directors to share their knowledge, experience, and camaraderie in a casual setting.






FEATURED SPEAKERS Attorneys General Panel Wednesday, June 12, 2-3 p.m.

June 12-15, 2019 Ocean City, MD

BRIAN E. FROSH Maryland Attorney General

KARL A. RACINE A great event for all members: Learning & networking for individuals, a team experience for colleagues and fun for vacationing families. Earn up to 15+ CLE credits with the surrounding MCLE states.

D.C. Attorney General

Thought Leader Series

Friday, June 14, 10-10:50 a.m.

JAYNE MILLER Chief Investigative Reporter, WBAL-TV


Jeffrey Toobin CNN Chief Legal Analyst and Best-Selling Author 8 MSBA.ORG | WINTER 2019


Upcoming Events MSBA LEGAL SUMMIT & ANNUAL MEETING. Engaging, Inspiring, Essential. MSBA’s Legal Summit & Annual Meeting is the biggest event of the year for Maryland’s legal professionals, representing every segment of the legal community. Join us June 12-15, 2019, and enjoy learning, camaraderie, fun, and high-profile speakers, including Jeffrey Toobin, CNN Chief Legal Analyst and Best-Selling Author, on June 13. Register early and save up to $160! PROFESSIONAL EXCURSION, PLAYA MUJERES, MEXICO. MSBA Professional Excursions offer singular travel experiences where you can meet fellow MSBA members, gain valuable learning experiences, and explore beautiful, world-class destinations. Join us from March 31-April 6, 2019, in Playa Mujeres, Mexico, to learn, network, and explore. Visit professional-excursions/ to learn more.



LAWYERS DAY OF SERVICE. On the weekend of April 27-28, MSBA and Local and Specialty Bars from around the State will come together to offer attorneys opportunities to give back to their communities. This first annual event will pull attorneys together, at events around the state, to address homelessness. More details will be available soon on the MSBA website and with your local bar. WEB EXTRA


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KEVIN L. SHEPHERD Senior Partner, Venable LLP Kevin L. Shepherd has spent his entire 33-year legal career practicing at Venable LLP. As a senior partner in the firm’s office in downtown Baltimore, the Wichita native focuses primarily on commercial real estate, particularly acquisitions, dispositions, leasing, and financing.



MR. SHEPHERD, who was recently elected the

American Bar Association’s 2020-2023 Treasurer-Elect nominee, sat down with the Maryland Bar Journal to discuss “career fuel,” deal velocity, and recognizing the smartest people at the table.

ing assets these days. It’s a very competitive market. It demands a lot, and puts a lot of pressure on all of the stakeholders in a transaction to execute it quickly, efficiently, and cost-effectively.

Did your early career bring any surprises?

When I first came to Venable after law school, I was assigned to the senior real estate partner. I said, “Well, there goes my career - I’ll probably last a week or two.” But working with Ronnie Reno was probably the most fortuitous relationship I had as a young attorney. Ronnie was a walking encyclopedia of real estate law. He was the dean of the Maryland real estate bar, and extraordinarily patient in dealing with someone like me who didn’t know anything about real estate law. [I also worked with] Jim Wright, who became the chair of our real estate practice group after Ronnie. It was just amazing to work with those two, because they complemented each other. They had an approach to the practice of law which wasn’t confrontational. It was more, “Let’s work together, collaboratively, to get this deal done.” They were always the smartest people at the table, but they didn’t come off like that, and that struck me as a young attorney, because you always have a vision of how attorneys should act and behave in negotiations. They never pounded the table and they always got the best deal for their client, and that was so effective and memorable.

How has the practice of law changed over the course of your career? What we didn’t have in my earlier career was the deal velocity [of today], meaning that you could send something in the mail, wait a few days, and just sort of relax until then. But now it’s so immediate, and you’re basically on call 24/7. That’s created increased pressure. I’ve also seen increasing pressures in the commercial real estate industry [borne of] clients chasing the same deal. It’s very competitive. It compresses the time period to conclude a deal - just how fast deals need to get done. Also, there’s so much money chas-

They never pounded the table and they always got the best deal for their client, and that was so effective and memorable. What words of advice would you offer to young or up-and-coming attorneys?

Be engaged in the profession. I heard someone refer to building your network when you’re young as “career fuel,” and you want to get as much fuel as you can to make these connections, so it can sustain you during your entire career. I think it’s incumbent on younger lawyers to do that early in their careers, so it becomes a natural thing. It’s not that time-consuming, and it will pay rich dividends down the road. I think it’s also important that you have other interests, [beyond] the practice of law, otherwise you pretty much have a one-dimensional practice. The bar association provides one outlet; [it] helps you get through the day, the week, the month, having that outlet to chat with your colleagues. It’s a powerful opportunity that will augment your professional life.


TERROR FINANCING AND THE VALUE OF NETWORKING Hear about Mr. Shepherd's journey into the world of money laundering. EXCLUSIVE INTERVIEW Read our complete interview with Kevin L. Shepherd online. VISIT MSBA.ORG/KSHEPHERD

Photo courtesy of Beverly Funkhouser Photography







HON. BIBI M. BERRY Family Magistrate, Montgomery County Circuit Court Hon. Bibi M. Berry was appointed as a Family Division Magistrate for the Montgomery County Circuit Court in 2017. She pursued a career in family law following her 2001 graduation from Georgetown Law, and currently serves as one of the Sixth District’s eight representatives on the MSBA Board of Governors.



MS. BERRY sat down with the Maryland Bar Journal to discuss attending law school as a single mother, the law’s role in society, and the role Bar involvement has played in making her who she is today. Why did you pursue a career in the law?

I was pregnant when I graduated from Howard University, and needed to find a way to earn enough money to support myself and my daughter. I didn’t want to be in a position where I was on my feet all day. I wanted to do something professional. There was a legal assistant certification program at Georgetown’s undergraduate school. It was an intensive summer program, so I decided to take it, which would allow me to get a position as a paralegal fairly quickly. Paralegals, particularly in downtown DC, were making pretty good money, and the hours were good.

How did you make the jump from paralegal to lawyer?

I worked as a paralegal in downtown DC for about three years. I saw the influx of new associates coming out of law school, and I decided I could do that. I could have more responsibility, I could make that kind of money. I was able to get into Georgetown Law’s J.D. Evening Program. My job offered me the flexibility, and my mother helped me with my daughter.

MSBA will not only help you to excel in your craft, but you’ll be more comfortable as an attorney. And if you’re more comfortable as an attorney, you’ll be a happier attorney.

After law school, I started out at Joseph, Greenwald & Laake in Greenbelt. I was there for three years, and then transitioned over to Paley Rothman in Bethesda. Paley Rothman became my home, where I “grew up” as a family law attorney, as a litigator, as an attorney in general.

What drew you to your current position?

In March 2017, I lost my father, and around that time I thought, “This life is short; you don’t know when it’s going to end.” Growing up, I had people who were there for me, and I always felt like I wanted to be a mentor to young attorneys. I wanted to be part of the process of bettering the law. I knew that I could give more to the family law community. I knew that I could give more to the community at large.

You view the law as “a cornerstone of our society.” Why?

It’s what we, as a society, have determined are our values. The law provides protection to people. You have to have some rules, and you have to have people who are going to help [other] people protect their rights under those rules. That’s what lawyers do.

What role does the Bar play in helping attorneys succeed?

The MSBA has had a substantial impact in getting me to where I am today. I’ve been an MSBA member for over 17 years. I’ve taken advantage of the education and the networking and the mentorship opportunities. You develop friendships and professional relationships that make work a little bit more than work. It makes it more of a family, in some respects. The MSBA offers so many benefits to any attorney, and certainly young attorneys. You get to know people in the Bar, and those are people who are going to help you. They’ll help you bring in clients. They’ll help to mentor you and make you a better attorney. They’ll help to steer your career where you want it to go. And get involved with the MSBA’s Sections and Committees, because that’s where you’re really going to develop relationships with like-minded people who are involved in similar areas of the law. MSBA will not only help you to excel in your craft, but you’ll be more comfortable as an attorney. And if you’re more comfortable as an attorney, you’ll be a happier attorney.


BE INVOLVED TO FEEL INVOLVED Ms. Berry shares her take on the value of Bar involvement. EXCLUSIVE INTERVIEW Read our complete interview with Hon. Bibi Berry online online. VISIT MSBA.ORG/BBERRY

Photo courtesy of Beverly Funkhouser Photography






Hon. Steven Salant Associate Judge, Montgomery County Circuit Court 14


COMMITTEE ON LAWS Take a look at the Committee on Laws with Steven Salant. LEGISLATIVE ISSUES Hear Steven Salant's take on legislative issues. EXCLUSIVE INTERVIEW Read the full interview online. VISIT MSBA.ORG/SSALANT

Photo courtesy of Beverly Funkhouser Photography


THE LEGAL PROFESSION For more than a century, the MSBA has been the voice of lawyers from across the state, career stages, and demographic. This representation extends into the public policy arena. The MSBA takes an active role in shaping legislation considered in Annapolis and Washington, D.C., to realize the best possible outcomes for Maryland’s lawyers and legal professionals. We do so by leveraging the networks, skills, and knowledge of our members, such as Montgomery County Circuit Court Judge Steven Salant who, with Towson attorney Margaret McKee, co-chairs the Committee on Laws, the driving force behind the MSBA Legislative Program. How does the Laws Committee help to steer the MSBA Legislative Program? The Committee on Laws is really an extension of the State Bar, because there are values that we promote. We want equal justice. We want due process. We want fairness. We want things that will assist the legal profession in its mission. The MSBA Legislative Program encompasses many of those values. I think it’s critical, because legislators do look to us for our position. We may agree with them, we may disagree, but it is crucial for the State Bar to make its position known, and hopefully be persuasive in the legislature. Bills that come up obviously affect different interest groups in different ways. For the Bar, it’s very important for the members’ interest to be represented.

MORE ABOUT THE LAWS COMMITTEE The Laws Committee is co-chaired by the Hon. Steven Salant and Margaret McKee, Esq. Each year, the Laws Committee prepares the MSBA Legislative Program, which sets forth the MSBA’s positions on such legislative issues as the regulation of the legal profession, the administration of justice, and the independence of the judiciary, for consideration by the Board of Governors. In addition, it reviews all bills filed during the state legislative session, recommends positions on bills of interest to MSBA and its members, and presents the MSBA’s positions on bills through written and/or oral testimony during the session.

Margaret McKee, Laws Committee Co-Chair

A bill relevant to the legal profession lands before the Committee. Where does it go from there?

The Committee digests it, and we ultimately vote, and majority rules in terms of presenting our argument to the Board of Governors. Now, if there is a difficult question, that is also relayed to the Board, and we will let them know that this was a highly contentious issue and that they may want to consider further. It’s important to note that we are merely making a recommendation to the Board of Governors as to what their position might be. They can agree with us or disagree with us; that’s totally up to them. But we try to do as thorough a job as possible, explaining why we come down in a certain way.

How do you negotiate the demands of the Laws Committee during the Legislative Session with a busy docket?

What has your experience on the Laws Committee taught you?

Well, I’ve certainly learned the way the legislature works, and I’ve learned how bills can be passed right away, [while others] can wait for years and years and years. I’ve learned the importance of our Director of Legislative Services, Richard Montgomery. He has great institutional knowledge. Apart from the legislature itself, I think I’ve just learned to listen a lot better to people who know more than I do. I think that’s an important experience that can be extended outside of the Laws Committee.

I have a very flexible administrative judge. The only time that I really have difficulty is if I’m in a trial and I just cannot get out of it. I’m fortunate that Co-Chair Meg McKee and I can divide up the bills.





2019 Annapolis Summit MSBA helped to kick off the 2019 Legislative Session as Presenting Sponsor of the Annapolis Summit, held January 9 at the Governor Calvert House in Annapolis and presented by The Daily Record. MSBA PRESIDENT Judge Keith R. Truffer set the stage for a line-up that included Maryland Governor Larry Hogan, Senate President Mike Miller, and House Speaker Michael Busch in a 90-minute live conversation with interviewer Marc Steiner that addressed some of the most prominent issues facing the state of Maryland. Sponsors also included Alexander & Cleaver, P.A. (Legislative Sponsor) and AARP Maryland (Supporting Sponsor).



TRUFFER OPENED the discussion by touching upon MSBA's role as the voice of the legal profession in

Annapolis, while Hogan, Busch, and Miller fielded audience questions on topics such as education, job training, the environment, affordable health care, the minimum wage, and more.

WEB EXTRAS ADVOCACY WITH MBSA You can learn more about the MSBA legislative program and pending bills in the state legislature by visiting the MSBA's new Advocacy page. Download the 2019 program or explore positions on our new page. Plus, with TrackBill technology, you can stay up-to-date on the bills we’re following. VISIT MSBA.ORG/ADVOCACY TRACKBILL ON MSBA.ORG MARYLAND BAR JOURNAL | WINTER 2019





Find answers, ask questions, share knowledge, and connect with the entire MSBA community. Your MSBA groups and email lists will now be powered by the new Connect platform.

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

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



Customize all settings, including alerts and email notifications.


of Marylanders who need help with a civil legal problem do not receive it HOUSING DISPUTES


UNITED FOR CIVIL JUSTICE FOR ALL. In civil (non-criminal) legal proceedings, you do not have a right to an appointed attorney, but an attorney can make all the difference in a case.


Still, justice matters to all Marylanders and must be pursued. Always. IMMIGRATION

WHAT DOES THE ACCESS TO JUSTICE COMMISSION DO? We Serve as an Umbrella that brings together all civil justice partners to maximize collective impact. We Change “the System” by improving institutions and laws that protect all Marylanders. We Educate the Public & Decision Makers about the importance of civil legal aid through our thought leadership, communications, and advocacy. We Develop Programs & Implement Innovations to help Marylanders navigate the civil justice system.




NOW, IN PARTNERSHIP WITH MSBA members promote access to justice for all Marylanders – because our profession is rooted in a spirit of fairness and service. We are proud to partner with the Access to Justice Commission.





Access to Quality, Legal Information = Access to Justice Legal Reference at the Public Libraries BY CATHERINE MCGUIRE

PUBLIC LIBRARIES are a natural destination for information seekers. Periodically, public library reference staff are called upon to respond to questions about the law as part of their services. Legal reference requires a specialized area of knowledge and resources, which develops with frequent contact with these types of patrons. However, a generalist in the public library system is not always afforded the opportunity of such contact, and therefore often lacks confidence in addressing legal reference questions. The upward trend in numbers of self-represented litigants (SRLs)—persons managing their legal situations without the aid of an attorney—means more people are seeking legal information than ever before. Initiatives within the legal services community, including clinics, self-help centers, and web-based information resources such as those provided by the Maryland People’s Law Library, the Maryland Judiciary, and the Maryland State Bar Association endeavor to point information seekers to what they need. In addition, lawyer-inthe-library programs supported by Maryland Legal Aid and the Maryland Volunteer Lawyers Service, and independent initiatives like the programs developed by the Anne Arundel County Public Law Library and the Howard County Law Library and Legal Resource Center, help direct and assist people in need. The success of these efforts is reflected in the increased use of these libraries and resources. Despite (or in some situations, because of) these efforts, information seekers arrive at the public library reference desk looking for legal assistance. For branches offering lawyerin-the-library programs, hopeful patrons may arrive during non-lawyer hours, with the belief that they will be able to get legal assistance. In the absence of the lawyer, they turn to the public library reference staff for legal resources and assistance. For others, the public library is simply the natural place to turn for information assistance, no matter what the topic. Public libraries have community reach; they are open, accessible, friendly, have extended hours of operation, and have branches throughout the community. Legal reference is, therefore, like SRL numbers, a growing activity for the public library. Materials provided to help public library staff with legal reference usually consist of lengthy resource lists of websites, books, and databases where the law and materials explaining the law can be found. Resource lists provide a helpful base 20


LINKS TO RESOURCES NOTED IN THIS ARTICLE Maryland Peoples’ Law Library: Maryland Judiciary, Legal Self-Help: Maryland State Bar Association, Legal Information Brochures: for-the-public/legal-information-brochures Maryland Legal Aid: Maryland Volunteer Lawyers Service: Anne Arundel County Public Law Library: law-library Howard County Law Library and Legal Resource Center: circuit/ howard/lawlibrary Conference of Maryland Court Law Library Directors: www.lawlib.state. courtlibs/conference. html Maryland Access to Justice Commission: Maryland Public Library Toolkit: publiclibrarytoolkit.html Law on the Frontlines: Legal Reference for Public Libraries, www.lawlib.state. audiences/publiclibraryreference. html

for simple questions and are a great starting point. Beyond resource lists, and often neglected in legal reference training, is clear guidance about how to approach a legal reference question, what kind of information to elicit from the patron, and how to identify what the library can provide in terms of assistance. Trainings and professional literature strongly warn against providing legal advice. The Maryland State Law Library and other members of the Conference of Maryland Court Law Library Directors have developed first-stop resources for public library staff to use in responding to legal information questions. In addition, in partnership with the Maryland Access to Justice Commission, Maryland court libraries are developing and promoting the guidance and training needed to help public library reference staff explore and strengthen legal reference skills.

reference services. There are sections about understanding the difference between information and advice; choosing and making referrals; understanding and finding legal forms, and more. The webpages are under regular review and development, and are flexible to accommodate updates as needed. Training This year, face-to-face training sessions on legal reference began around the Law on the Frontlines Legal Reference at the Public Library Page. With the support of the Maryland State Library Agency and the State Library Resource Center, Maryland’s law librarians and the Maryland Access to Justice Commission are presenting trainings for interested library staff. The trainings, held throughout the state, mirror the information on the Law on the Frontlines webpages.

In partnership with the Maryland Access to Justice Commission, Maryland court libraries are developing and promoting the guidance and training needed to help public library reference staff explore and strengthen legal reference skills. Resources The Maryland State Law Library’s website hosts a curated resource list, the Maryland Public Library Toolkit. The Toolkit, part of a national project of state-specific legal information guides, aims to point public library staff to the best first-stop resources for a wide range of legal questions. The Toolkit points library staff quickly to links for the text of cases, statutes and regulations, directories for locating lawyers, tip sheets on how to decipher a citation, basic information on government structure, and more. Guidance Building on the Toolkit, the Maryland State Law Library initiated an additional tool— a full toolshed—entitled, Law on the Frontlines: Legal Reference for Public Libraries, which is posted as a series of informational webpages on the State Law Library’s website. Each webpage focuses on one aspect of providing legal

Opportunities While law library staff understand the questions received at our own reference desks, we welcome the opportunity to learn more about what public library colleagues are experiencing. Suggestions for additions or improvements to the Toolkit, Frontlines webpages, and trainings are encouraged. Maryland law librarians are pleased to provide face-to-face trainings for interested public library staff. To schedule a session, you can contact the Maryland State Law Library (, your nearest staffed Circuit Court library (www.lawlib. html), or the Maryland Access to Justice Commission ( Catherine McGuire is Head of Reference and Outreach at the Maryland State Law Library. She may be reached at






M S B A . O R G /J O I N



Fresh Faces

MEGAN MICCO Currently a law clerk for the United States District Court for the District of Maryland. Future plans are still up in the air.

We caught up with a few of the newest members of the Maryland Bar at a recent event. We took the chance to ask them about their plans for the future and their thoughts on the profession. KRYSTLE SANDERS Currently a law clerk for the Hon. Melissa M. Phinn at the Baltimore City Circuit Court. Future plan is to be a litigator.

What are you most passionate about?

What are you most looking forward to in the practice of law?

“I’m looking forward to working with clients and helping them solve the problems that are coming up in their daily lives. Because you speak with so many people and they are always facing some sort of problem and they’re not really sure how to fix it. My job as an attorney would be to help them solve that problem and get the best result for them. That’s what I’m looking forward to the most.”

“I’m most passionate about racial justice, prisoner rights. I think everyone is better than the worst thing they’ve ever done. So preserving those rights for people after they’ve been incarcerated is something I’m passionate about.”

MARIA GOLDER Currently works for the U.S. Social Security Administration. Future plan is to work for a private firm.

What are your hopes for your legal career?

“I’m looking to grow and expand my legal knowledge and expertise. Hopefully after my experience with the Social Security Administration I can get into a private firm where I’ll do business law or real property law.”

BEN OFORI Currently a prosecutor for the Baltimore City Office of the State's Attorney.

What do you think the future of the profession looks like?

“I think the future of the profession is pretty bright. With so many things changing – technology, border laws, and international relations – they are going to need more lawyers who are well-rounded and willing to take on these new opportunities.”

JEREMY BROOKS Currently a clerk for the Baltimore City District Court. Future plan is to practice criminal law.

What do you like most about the practice of law?

“I was a chef for six years. I went to culinary school after undergrad and I just never really felt fulfilled. That’s why I went to law school, it’s that intellectual fulfillment of working on weird cases and trying to figure out complex problems and weird things in the law that I find fascinating.”










Q&A with Thomas C. Dame, Managing Partner Tom Dame developed an interest in law in the 1980s as a college intern at the Maryland General Assembly where he was assigned to committee work and watched state lawmakers hammer out legislation. He joined the Baltimore law firm Gallagher Evelius & Jones LLP after graduating from the University of Maryland Francis King Carey School of Law in 1990. Mr. Dame practices in health law and litigation and he was elected the firm’s managing partner in 2018. AS 2019 ARRIVED, the Maryland Bar Journal sat down with Tom to talk about his first-year experience as an elected managing partner and the historic firm’s strategy for the future.

What have been the key learnings for you this first year as managing partner?

Among the most important lessons is that few desired results happen by accident. It is important for a leader to be vigilant about noticing what’s going on around him or her and to be thoughtful about making assumptions. Deep listening is essential to noticing what’s going on. It’s important to listen to understand a person’s perspective and not just listen to respond.

How did you and your partners reach a new leadership structure?

As we were approaching that transition in leadership we decided it was a good time to undertake a full-blown strategic planning process, which included a new firm-governance structure. We didn’t take any shortcuts. It was a well-planned, thorough, and thoughtful year-long process. We included virtually everybody in the firm in some way, lawyers, and staff. It was, in the end, a reaffirmation of our values, our culture, and the direction of the firm. I have to say, I don’t know many people who get excited about the prospect of strategic planning, but our people – once they got into it – were energized.

Where do you start when developing a strategy for a firm like Gallagher?

The first piece was to take a look at the history of the firm, where we have come from, up until now. We worked with Rick Berndt, who as our managing partner for more than 40 years knows, as you can imagine, a lot of the history of the firm. Next, we assessed the current state of the firm. Most importantly, we interviewed a number of clients to understand their experience of the firm. We engaged an outside consultant to help us to analyze our market and look at our financial performance. We reviewed and assessed our culture and values through a half-day session. With all of this, we developed an assessment of where we are today. Our conclusion was that we have a strong foundation and are well-positioned for the future. The next piece was to develop a vision statement, which is a road map to where we want to be in three years, the near future of the firm. We did that through a collaborative process. We involved everybody who was part of the planning committee, about 18 people, and we worked through about a dozen drafts of a vision statement. The idea was to come up with a very specific, detailed description of what it will be like at Gallagher three years from now, and then that vision became the goal line.

The firm has a strong collaborative culture, which has been an advantage in attracting top talent. Photo courtesy Tracey Brown, Papercamera Photography



HEALTHCARE LAW WHITE PAPER Attorneys from Gallagher, Evelius & Jones LLP, including, James C. Buck, Carl S. Jean-Baptiste, Mallory M. Regenbogen, and Alison J. Best, have joined with the MSBA to produce new content on Healthcare Law. A CLE along with a new white paper related to handling matters with Business Associates are available now on PRACTICE INSIGHTS



Business Associate Primer: How to Determine if a Third-Party is a Business Associate and Some of the Key Issues to Consider When Negotiating a Business Associate Agreement By Mallory M. Regenbogen

Alison J. Best


MSBA Practice Insights: HealthcareLaw

Tom Dame, managing partner of Gallagher Evelius & Jones, discusses his first-year experience as elected managing partner of the firm. Photo courtesy of Tracey Brown, Papercamera Photography



What is that vision?

The vision addresses a number of components of the firm. It’s broad and covers culture, client service, leadership, public service, recruitment of talent, diversity, and inclusion. It describes what we will look like on all of those topics. The vision statement is a way to hold us accountable for staying with the strategic plan. At the end of 2020, we would like the vision statement to match reality. The final step of our process was to develop and prioritize goals that will help us achieve our vision.

Diversity is a challenge these days in the legal profession. Where is the ďŹ rm on diversity and where do you want to be? Today, of our 50 lawyers, about one-third are women and three are African-American. Improving diversity and inclusion in a variety of forms, not just gender and race, is an important strategic goal for us. One of our partners, Camille Parker, is leading our effort as the chair of our diversity and inclusion committee, which includes lawyers and staff. She has made good progress by, among other things, building stronger relationships for us at the two Baltimore-based law schools and other schools in the region.

We have begun an internal education program on diversity topics. We had a firmwide presentation on implicit bias and how that affects everything we do, including recruiting and retention of talent.

"We have decades-long relationships with our clients because they know they can count on us in every way. We are privileged to have those relationships. We worked hard to get them and we are working hard to preserve them in the future." When you talk about community involvement, what does that look like now for the firm and where would you expect it to be in 2020?

As lawyers, we know it’s a privilege to have a license to practice law, and with it comes a responsibility to give back to the community. Virtually all of our lawyers are involved in some form of community service. We now have a firm committee, chaired by Ward Coe, that is charged with promoting our involvement in pro bono and community service. One of the charges of this group is to look for public service opportunities that the entire firm can participate in, not just opportunities for individual lawyers, but something that groups of lawyers, if not the entire firm, can get behind. The plight of immigrants is a big issue today for obvious reasons and that’s something we have been looking at to see how we can help.

How does a firm like Gallagher with deep roots in the City of Baltimore and an impressive client list of local institutions sustain those connections while building a modern, competitive firm into the future? Having deep local roots is a real strength of our firm. We have decades-long relationships with our clients because they know they can count on us in every way. We are privileged to have those relationships. We worked hard to get them and we are working hard to preserve them in the future.

There will always be a demand for the types of services we provide. We’re essentially a full-service firm for regional institutions. We do have some national practices, such as our tax credit and renewable energy practices. Our litigation practice sometimes handles cases outside of our region. But many of our practices – including health care, education, non-profit, real estate – are really focused on Maryland and the surrounding region.

What would be your greatest hope and expectation for the firm and its progress and development over the next four years?

The most important thing is that we retain and expand the client base that we have and we continue to provide high-quality services to those clients and that we continue to attract and retain clients who we admire and who are contributing to the community. It’s a very satisfying law practice when you can say that about your clients. I would like us to advance our culture, not just maintain it. We have had a very strong culture and it has been a draw for us in bringing talent to the firm. I would like our people to feel even more engaged in the firm and with one another, even more supportive of one another. We try to eliminate internal competition to be as effective as possible for our clients. We hope and expect that each lawyer who joins the firm will become a partner. We make partnership decisions based on merit of the individual. Our recruiting and our compensation systems are designed to promote teamwork. This incentivizes our people to work together and to rise and fall together. I would like our people to continue to thrive in an environment that is collegial and team-based, and that they will continue to feel involved in the affairs and direction of the firm. When people feel ownership, they are much more motivated to serve clients and be supportive of one another.


50 YEARS OF EXCELLENCE Learn more about Gallagher, Evelius & Jones LLP LLP. VISIT MSBA.ORG/GALLAGHER

We are able to compete with the larger firms even as they merge and grow, because our distinctive culture and our great client base enables us to attract the same talent they are getting, if not better talent.



F R I DAY, A P R I L 1 2 , 2 0 1 9 6:00 p.m. to 9:00 p.m.

Gertrude’s at the Baltimore Museum of Art Join us for the Young Lawyers Section’s 28th annual philanthropic event, featuring hors d’oeuvres, an open bar, a live band, and a silent auction.

This year’s charity is the Capital Area Immigrants’ Rights (CAIR) Coalition. Our goal is to raise $20,000 for the CAIR Coalition to support their mission of defending immigrant men, women, and children. For silent auction donations or sponsorships, please contact: Jessica Gorsky at Lauren Lake at Kelly Goebel at 28

Get your tickets today at MSBA.ORG/YLS-CHARITY-EVENT


Finance for Lawyers AN MSBA CLE EVENT

Guide the financial strategy for your clients. April 1, 2019 University of Baltimore, Student Center Bogomolny Room, 5th floor 5.5 CLE Credit

Register at


Sheraton Hotel in Columbia | 6.0* CLE Credits *Anticipated credit hours, approval pending: Real Estate 6.0 , American Institute of Certified Planners (AICP) 6.0 & Title Insurance 6.0)

Register today at MARYLAND BAR JOURNAL | WINTER 2019




Monopoly Money without the Monopoly BY ASHLEY WARD

WHAT DO “JEOPARDY!”, DJ Khaled, and Floyd Mayweather all have in common? The answer: cryptocurrency. Cryptocurrency seems to be making its mainstream debut, from recently being featured on an episode of “Jeopardy!” to the U.S. Securities and Exchange Commission fining DJ Khaled and Floyd Mayweather for promoting a fraudulent cryptocurrency. So, what is cryptocurrency? Cryptocurrency is a type of digital currency. Similar to real currency, cryptocurrency is a form of payment that can be exchanged online for goods and services. However, you’ll need to exchange real currency for cryptocurrency to access the good or service. Cryptocurrencies work using a technology called blockchain, also known as distributed ledger technology (DLT). Blockchain is a digital accounting ledger that manages and records transactions. In short, cryptocurrency is a digital medium for exchange1. As of August 2018, there are over 1,900 types of cryptocurrencies2. A few of the best cryptocurrencies to have invested in for 2018 include Ethereum (ETH), VeChain, Ripple (XRP), Digital Cash (DASH), Zcash (ZEC), IOTA, and Monero (XMR).3 But why is cryptocurrency so appealing? The answer is security and anonymity. It is nearly impossible to scam the ledger since altering any single block on the chain will corrupt the entire chain, not to mention the cost of the computing power needed to break into the chain. The computing cost is far more than the value obtained. The anonymity aspect of the blockchain network allows for transactions outside of government surveillance, which likely means there is some unknown criminal activity taking place. Others could also see the appeal of cryptocurrency because it removes central banks from managing the money supply which, over time, might help to restore the value of money. 30


Though cryptocurrency has its appeal, there is a downside to this digital currency. As reported by Harvard Business Review, “The largest cryptocurrencies — Bitcoin, Bitcoin Cash, and Ethereum — require vast amounts of energy consumption to function. Last year, blockchain used more power than 159 individual nations including Uruguay, Nigeria, and Ireland.” 4

The largest cryptocurrencies — Bitcoin, Bitcoin Cash, and Ethereum — require vast amounts of energy consumption to function. Last year, blockchain used more power than 159 individual nations including Uruguay, Nigeria, and Ireland.

panion Senate Bill 1068, together known as the Financial Consumer Protection Act of 2018, will mandate that the Maryland Financial Consumer Protection Commission study the technology and the space. The last time Maryland participated in the discussion of digital currency was in April 2014.6 At that time, Maryland’s Department of Labor, Licensing, and Regulation issued a warning on the risk associated with digital currencies. Maryland urged regulators to do their “homework” and be aware of the risks associated with digital currencies, including volatility, theft, criminal activities and so on. Though the newly passed bills do not have any concrete phrasing on any future regulations involving cryptocurrency, they are becoming a part of this worldwide discussion. ASHLEY WARD is Senior Judicial Law Clerk to the Honorable Donine M. Carrington, Circuit Court for Charles County, Maryland.


James Royal, Crypto what? 7 Things to Know About Digital Currency, Nation Now (Jan.18, 2018, 4:48 PM), https://www.


Cryptocurrency List, CoinLore, all_coins (last updated Dec. 5, 2018).


George Shnurenko, 10 Best Cryptocurrencies to Invest in 2018, U Today (May 24, 2018),


Marc Blinder, Making Cryptocurrency More Environmentally Sustainable, Harvard Business Review (Nov. 27, 2018), https://


Nikhilesh De, Maryland Bills Call for Study, Possible Regulation of Blockchain, CoinDesk (Mar. 20, 2018), https://www.


Md. Dep’t of Labor, Licensing, and Regulation Advisory Notice 14-01, (April 24, 2014),


MSBA CLE: Explore emerging cryptocurrencies and blockchain technologies that will impact how your clients do business successfully today and tomorrow! VISIT MSBA.ORG/CRYPTOWORLD

Refer to counsel you can trust... ...when the estate administration turns to litigation.

Cryptocurrencies use a lot of energy because there are no banks to regulate it. The process goes as follows: “Miners used their computers to verify transactions by solving cryptographic problems, similar to complex math problems. Then, they combined the verified transactions into ‘blocks’ and added them to the blockchain to document them.” As cryptocurrency continues to grow, so does the amount of energy being used by machines to handle these transactions. As the energy consumption increases, the cost of running these networks does, too. The good news is that there are organizations pushing a variety of alternatives to help cut cost. The Maryland General Assembly has passed two bills that call for the state to study and possibly regulate blockchain technology.5 House Bill 1634 and its com-

5300 Dorsey Hall Drive, Suite 107 Ellicott City, Maryland 21042 Phone: 410-696-2405 Fax: 877-732-9639 •





“New” Federal Rules Litigators Should Be Following BY DIANE KILCOYNE, ESQ., CEDS

The Federal Rules of Civil Procedure (FRCP) underwent several significant changes a few years ago which impact the conduct of litigation in federal courts. Despite the importance of these rule amendments, which went into effect in December of 2015, many attorneys remain unaware of the changes. This article will highlight three significant changes that litigators should know about. FIRST, CHANGES TO RULE 26 highlight the need to be con-

cise with what you ask for in discovery – as the scope of discovery has been clarified to be more narrowly defined. Second, changes to FRCP 34 spell the end of boilerplate discovery objections. Finally, the changes to Rule 37 regarding sanctions for discovery failures have lessened the fear of being sanctioned for losing data in the everyday course of business, and have at least partially stopped the needless over-preservation of data that was rampant in litigation in years past. Litigators who ignore these three significant rule changes risk being sanctioned by the courts. Changes to the Scope of Discovery One of the most fundamental changes to the FRCP is the proportionality component added to definition of what is “discoverable” in litigation. While proportionality was actually always part of Rule 26, listing this factor in the definitions section, the first part of the rule, makes it clear that parties must consider proportionality before making discovery requests. Another significant change to Rule 26 is the removal of the language which read, “Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” This phrase “reasonably calculated” was often incorrectly cited as grounds for seeking discovery of information that was not relevant to the case at hand, as attorneys had confused relevance with admissibility. The Rules Committee has corrected this by simply removing the language. Since December 2015, the scope of discovery is simply this: 1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Informa-



tion within this scope of discovery need not be admissible in evidence to be discoverable.” Litigators, at least in federal courts, should no longer be citing to old case law or putting forward any argument with the phrase “reasonably calculated to lead to the discovery….” To do so is to risk sanctions. Two recent cases shed some light on how courts are interpreting the rules on proportionality and scope. The first deals with backup tapes being available to locate relevant information. In The Physicians Alliance Corp. v. Wellcare Health Insurance of Arizona, Inc., et al., No. 16-203-SDD-RLB (M.D. La. Feb. 27, 2018,) the defendant had identified certain custodians whose ESI would have been periodically saved to backup tapes, and represented that restoring those backup tapes would cost approximately $332,400. The plaintiff filed a motion to compel production of all data from the backup tapes at defendant’s expense, or for permission to have its expert examine the backup tapes, arguing that the backup tapes contained information both relevant and proportional to the needs of the case. The defendant opposed the motion, arguing that the discovery sought was not proportional to the needs of the case as it was likely to be cumulative of prior productions, and that it was not reasonably accessible, and may not be recoverable at all. Although the defendant argued in pleadings that the information on the backup tapes was likely to be cumulative of prior productions, at oral argument its counsel represented that only 71 percent of the data recovered had been duplicative of other information produced. Therefore, the court found that it should produce the material from the backup tapes. A key takeaway from this case is that specificity is critical when making, and opposing, proportionality arguments; and that unsupported claims that the production will be burdensome or duplicative will not be successful. The second case deals with whether a defendant is entitled to obtain plaintiff’s entire “private” Facebook account, which defendant contended was material and necessary to the defense of the case. In Forman v. Henkin, 30 N.Y.3d 656 (2018), plaintiff alleged she was injured when she fell from defendant’s horse, suffering serious

"For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.” physical and cognitive injuries. At her deposition, she stated that she had previously posted ‘‘a lot’’ of photographs on her Facebook account showing her pre-accident active lifestyle, but that she deactivated the account about six months after the accident. The plaintiff also testified she had become reclusive as a result of her injuries and had trouble using a computer and composing coherent messages. Plaintiff refused to provide authorization to her account, and defendant moved to compel, arguing that the Facebook material was relevant to the scope of plaintiff’s injuries and her credibility. The court in Forman held: “[W]e reject the notion that the account holder’s so-called ‘‘privacy’’ settings govern the scope of disclosure of social media materials.” The court also held that, “For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.” The court ultimately ordered the access to the Facebook account, finding that: “[D] efendant more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence. … The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive.”

Changes to Rule 34 - No Boilerplate Objections to Discovery FRCP 34 was modified in three major ways: 1) the responding party must state with specificity any objections to each discovery request; 2) the responding party must further state whether any items are being withheld on the basis of these specific objections; and 3) they must state when they will produce any un-objectionable responsive items pursuant to each request. Courts enforcing these new rule changes have understandably become more upset with the lack of attorney compliance as more time passes. For example, in Fischer v. Forrest, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017), Magistrate Judge Andrew Peck issued a "wake-up call" to attorneys about their responsibilities under the revised Rule 34. Judge Peck made it clear in this ruling that boilerplate objections to everything under the sun are not effective, and do not comply with the “speedy and efficient” requirement of Rule 1. "General objections should rarely be used after December 1, 2015, unless each such objection applies to each document request (e.g., objecting to produce privileged material)." Id. Additionally, in Liguria Foods, Inc. v. Griffith Labs., Inc., 2017 WL 976626 (N.D. Iowa March 13, 2017), District Judge Mark Bennett found, in a case where both sides had improperly used boilerplate, MARYLAND BAR JOURNAL | WINTER 2019


that: "both parties' reliance on improper 'boilerplate' objections is the result of a local 'culture' of protectionist discovery responses, even though such responses are contrary to the decisions of every court to address them." The Judge then added that he understood

data, such as email or text messages. As a result of several very large sanctions cases roughly eight years ago, parties have been afraid to risk exposure to sanctions for deleting data, and have therefore over-preserved data – keeping everything that might even foreseeably relate to any legal matter that might arise.

Courts enforcing these new rule changes have understandably become more upset with the lack of attorney compliance as more time passes.

In order to ameliorate the costs and burden of over-preservation of data by large corporations, Rule 37 was amended to require that a person seeking sanctions show as a preliminary matter that: 1) the lost evidence is relevant to the matter and therefore should have been preserved; 2) it cannot be restored or replaced through backups or other sources. Only then can the court’s analysis turn to the extent of the prejudice to the deprived party, and the intent of the depriving party, to determine the proper sanction. The current rule reads:

how "such responses arise, at least in part, out of 'lawyer paranoia' not to waive inadvertently any objections that might protect the parties they represent" but held that "such 'boilerplate' objections do not, in fact, preserve any objections." (Id., emphasis added.) The Judge declined to impose sanctions in this case; however, he noted that he will not tolerate such abuses in his court in the future, stating: "NO MORE WARNINGS. IN THE FUTURE, USING 'BOILERPLATE' OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS." (Id., capitalization in original.) Therefore, litigation counsel should immediately stop using old templates or forms in responding to discovery requests. Each response must be more carefully tailored to respond fully to the information being sought, in light of the rule changes, and to give an informative answer as to what is being produced as well as what is being withheld based on an objection. The best way to be able to comply with this new rule is to know your client’s data from the outset of your case. Meeting with your client to discuss this at the beginning of the litigation process will accomplish two major goals. First, you will be able to get a handle on what responsive data the client is likely to have, including the type (email, spreadsheets, structured database data, cloud- based data) and where it is all stored; and second, you will be able to ensure that it is properly preserved for the litigation, so that you can avoid spoliation sanctions. Spoliation Sanctions More Difficult to Get Under the New Rule 37 Parties have a duty to preserve potentially relevant evidence whenever litigation is reasonably foreseeable. Any party that fails to preserve potentially relevant evidence runs the risk of being justly accused of spoliation — which is the destruction or material alteration of evidence, or the failure to preserve an item for another's use as evidence. It is important to remember that both the party and his/her attorney may be subject to sanction for spoliation. These preservation obligations apply to physical items, such as the car involved in a crash, for example, as well as to electronic



(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Caselaw on this new rule has been scattershot – as judges try to apply the new sanction matrix to broadly diverging facts and varying levels of culpability. Some courts have held that they retain inherent authority to sanction at will for discovery abuses, despite the strict proof required by this new rule. The majority of courts, however, seems to hold that the routine deletion of data will not result in sanctions, but intentional bad conduct will. Shortly after the Rule 37(e) amendments went into effect, U.S. Magistrate Judge Jim Francis (SDNY) issued an opinion in CAT3 v. Black Lineage where he asserted that courts’ inherent authority to bring sanctions for spoliation of evidence survived, despite the Advisory Committee’s apparent indication. One year later, the U.S. Supreme Court addressed spoliation sanctions issued under a court’s inherent authority, in Goodyear Tire & Rubber Co. v. Haeger, ruling that such sanctions can be issued, but only upon a showing the fees were incurred because of a party’s misconduct. The impact of the Rule 37(e) changes are still being determined, but counsel should be aware that clients can have less fear that any truly innocent loss of data will result in game-changing sanctions.

Career Highlights Career Transitions

Out of State ProďŹ le Profiles of MSBA members with practices outside the state of Maryland. What I’ve Learned

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.









CAREER IN LAW BENJAMIN ROSENBERG is the Founder and Chair of Rosenberg Martin Greenberg,

LLP, a full-service, business-oriented law firm located in downtown Baltimore. He handles major cases in state and federal trial courts, and has argued many significant appeals. In 2018, MSBA President Judge Keith R. Truffer appointed Mr. Rosenberg to serve as Chair of the MSBA Strategic Vision Committee as part of his initiative to chart the Association’s course over the next five to 10 years. Mr. Rosenberg obtained his J.D. from the University of Maryland School of Law in 1969 and was admitted to the Maryland Bar that same year. He recently sat down with the Maryland Bar Journal to impart a bit of the experience and hard-earned wisdom that stem from his nearly 50 years of practicing law.

What have been the greatest challenges over the course of your career?

As an attorney, the cases I’ve been involved in have been almost uniformly challenging, because by the time they get to me, people are pretty serious about resolving the dispute. The other challenge was managing the growth of our firm. We started out with four lawyers; now, we’re about 40. Until I stepped aside as managing partner, about eight or 10 years ago, I really had two fulltime jobs - one, dealing with a very active law practice, and two, dealing with a rapidly growing law firm and all the challenges that that presented. You describe the law as “not just a job,” but “a calling.” It gives the lawyer who’s serious about it a window into how our society works, and an opportunity to influence how society works.

Photo courtesy of Beverly Funkhouser Photography

You believe that professional development is not limited to the office. I strongly advocate for the lawyers in my office to do something other than come into the office every day, handle the work that’s on your desk, and go home at night. You have to get involved in the community. Some of the most rewarding experiences I’ve had have not been directly related to the practice of law, but to other community-oriented activities. For instance, some years ago, a friend of mine came to me and asked if I would like to join the board of the Enoch Pratt Free Library, and I was really flattered by the suggestion. As a kid growing up in Baltimore, outside of school, the library was the most important institution that I encountered and was engaged with. So I joined the board. About two years ago, they asked me to chair the board, and it has been a thrilling and incredibly rewarding experience.

"Some of the most rewarding experiences I’ve had have not been directly related to the practice of law, but to other community-oriented activities." WEB EXTRAS

HOW DID YOU GET INTO THE LAW? Benjamin Rosenberg reflects on his journey to the profession. LAW SCHOOL PROBLEMS? Hear what Benjamin Rosenberg learned in (and out of) law school HOW TO BE FIRST IN THE FIRM NAME Learn how to be "number one." EXCLUSIVE INTERVIEW QUESTIONS Hear more from Benjamin Rosenberg. VISIT MSBA.ORG/BROSENBERG



What role did the Bar play in your professional development? [The MSBA] really expanded my horizons in terms of meeting lawyers and judges from all over the state. During the years that I spent on the Board of Governors, I met and developed relationships with so many lawyers from all over Maryland. It’s amazing how that comes back to you in great measure, for example, in going to Washington County and knowing somebody who had just recently been appointed a judge, or who was the new state’s attorney, or whatever. President Judge Keith R. Truffer appointed you to chair the Strategic Vision Committee, one of his key priorities this year. Tell us about that. Keith had probably been out of law school two years when I first met him, and he and I worked together on a number of very large, complicated cases. I got to know Keith very well, and have maintained my friendship with him. After he became President [in June 2018], he called me up and asked me to chair a special ad-hoc committee to develop a strategic vision for the MSBA. And we’ve been actively working on that, with the hope that we can present something to the Board of Governors in spring 2019. Has your work with the Committee thus far led to any personal revelations? The thing that has really struck me are the demographics of the State Bar Association how many members are getting up there in age, like me. Like any other organization, if you don’t have fresh, young, interested, and engaged people coming in at some point, the demographics are going to overtake you. So our job is to figure it out. How to overcome that is a real challenge. What words of advice do you have for new or up-and-coming attorneys? If you’re going to be a lawyer, be a good one. Don’t just think you can go through the motions and that good things are going to happen, because they’re not. Making the law work for you requires a lot of work. You have to learn to be a good lawyer. You have to learn the subject matter in which you’re practicing. There’s no substitute for the hard work of becoming knowledgeable and skilled in whatever it is that you’re doing. 38


STRATEGIC VISION COMMITTEE Ben Rosenberg is the chair of the Strategic Vision Committee. The committee is charged with developing four to six strategic priorities and objectives that will guide the MSBA over the next three to five years. The committee is comprised with a diverse group of attorneys including past-presidents, large firm members, solo & small firm members, public interest attorneys, in-house counsel, and state & local government attorneys. The committee is working hard, and is scheduled to present its recommendations at the May Board of Governors retreat.


STATE OF THE LEGAL PROFESSION Our profession is changing. Are you ready? Today’s attorneys are facing unprecedented challenges and opportunities: NEW TECHNOLOGY • DEMOGRAPHIC SHIFTS • EDUCATIONAL CHANGE MSBA’s State of the Legal Profession Report paints a comprehensive picture of the trends and developments shaping the future of our work – across the country and right here in Maryland.

Stay ahead of the change. MEMBERS: Access the State of the Legal Profession Report at


Not a member? Join MSBA for access to this and other member benefits at MSBA.ORG/JOIN .









LESS TRAVELED With her legal background and editorial eye, Ramses House Publishing LLC founder Tatia L. Gordon-Troy has built a career out of helping fellow lawyers succeed. TATIA L. GORDON-TROY never set out to be a publisher … or a lawyer, for that matter. Indeed, with a newly minted bachelor’s degree in business administration, her younger self reasoned that the next logical step would be to earn her MBA and become a certified public accountant. But a funny thing happened on the road to accountancy - she grew bored with it. At the suggestion of a relative, Gordon-Troy decided to enroll in the University of Baltimore School of Law. It was there that she first truly recognized her aptitude for writing - and the events of the day informed how she might best utilize it. “While I was in law school, the O.J. Simpson trial was happening in real time,” she recalls. “For a law student that was really important, because we actually got to see trial advocacy and courtroom procedure happening in real time.” With each new development, news outlets would inevitably summon attorneys to translate the legal proceedings into lay terms better suited for public consumption. “I said to myself, ‘Maybe that’s something I can do.’” Gordon-Troy took some journalism courses at Towson University during her 2L and 3L years. Later, following a fruitless foray into TV journalism, she took a job at The Daily Record, where she further honed her writing skills and “learned a lot about journalism.” “Those classes that I took at Towson University really came in handy there, but [the job] also allowed me to network, go to events, and meet people,” she explains. That networking brought further opportunities, including an associate position at a small Baltimore law firm and a six-month stint as press secretary for Congressman Elijah E. Cummings. But her love of words still beckoned. Gordon-Troy eventually took an editorial position with the American Immigration Lawyers Association (AILA) in Washington, D.C. Working her way up to become Director of Publications, she turned it into a publishing powerhouse, with more than 70 titles. She left AILA in 2015,

having set the stage for her current role as founder and proprietor of Ramses House Publishing LLC, a consulting firm that helps attorneys to showcase their expertise through self-publishing and strategic marketing. “As a lawyer, I’m able to really get into the heads of other lawyers because I understand the legalese, and the obstacles and expectations that they’re facing every day,” she says. “I may not necessarily have the experience in practicing in that particular field of law, but I understand it because I’m thinking analytically. I’m thinking like a lawyer, like they would be.”

“I’m thinking analytically. I’m thinking like a lawyer.” Gordon-Troy has since parlayed her more than 20 years of publishing experience into a successful enterprise that helps attorneys throughout Maryland and across the country grow their practices through publishing books and ebooks, articles, blogs, whitepapers, newsletters, and more. “A lot of people don’t realize how much [effort] goes into self-publishing,” she says. “My intention is to ensure that they put out a product that is as good as any traditionally published product would be, because my background is in traditional publishing.” Gordon-Troy attributes the success of Ramses House to having recognized her own strengths all those years ago. “I never thought I’d be a publisher, but when you have a law degree, doors open for you,” she muses. “Your mind opens to possibilities, and you [can] end up walking a totally different path.”


IF YOU DON'T LIKE PRACTICING LAW, DO SOMETHING ELSE Tatia Gordon-Troy offers insights on non-traditional law careers. VISIT MSBA.ORG/TGORDON

Photo courtesy of Beverly Funkhouser Photography






BAR TENDENCIES Tracy L. Steedman worked as a bartender, server, and restaurant manager for 15 years before entering law school. The skills she developed then continue to play an active role in her present career as a construction law attorney in the Baltimore offices of Adelberg Rudow. What did you enjoy most about tending bar?

The great thing about bartending was that it gave me the income and the freedom to travel. There is also no limit to where you can work in that industry. So, I worked in a few states in the U.S., plus Spain and Greece.

Why did you decide to enter the law?

It was the only job I could think of that interested me that offered a different challenge every day, while helping people – that didn’t involve blood (e.g., doctors, police officers, military). Before I decided to take the LSAT, it was a toss up between going to the 2000 Summer Olympics in Australia or going to law school. I think I made the right decision, although attending the Olympics in Los Angeles, Atlanta, and Barcelona were unforgettable events.

What were the greatest challenges moving from food service to the law?

I was 10-15 years older than most of the law students - which turned out to be fine, because I became the person people came to for advice on life (not school). I also became pretty close with the other two oldest students in our class (who were both older than me). The biggest surprise? How hard it was. The school made a big deal 42


at orientation of making sure family, significant others, friends, and the students knew that law school was time-consuming and would change us, but I don’t recall them saying how hard it would be.

What do you most enjoy about being a construction law attorney?

I love my clients. They take pride in their work, and it’s a fascinating field that continues to evolve. This is especially true with my subcontractor clients. They are oftentimes the most forgotten, but most important people in the construction world. Simultaneously, they often have the least supporting resources in terms of advice and consulting. There comes a moment early on with most of my client engagements where they realize that I'm on their team. I’m there to help them make deals, not break deals, and their reaction to the discovery of that being possible with a lawyer is always very gratifying. How have the skills you built during your time working in the food service industry served your legal career? I used to joke that I kind of have the same job - meeting new people on a daily basis, long hours, offering advice to folks with problems. What’s different? Now, I can be sued for my advice. Also, my life experience has been vital to communicating with not only CEOs and business owners, but employees on the ground, and everyone in between.

Any advice for those considering a similar leap?

Don’t take yourself too seriously. I bought a book about non-legal jobs for lawyers and kept my bartending uniform, just in case. Never had to open the book or wear the uniform again. Take notes by hand, not on your laptop - it’s proven you learn better that way. Also, buck the “what you are supposed to be doing while in law school” advice. Do what’s right for you. Photo courtesy of Beverly Funkhouser Photography




COMMUNICATOR 3.0 Photo courtesy of Barlow Productions



Deborah J. Weider-Hatfield spent 12 years serving as an Assistant Attorney General in the Saint Louis office of the Office of the Missouri Attorney General before retiring from her post on December 31, 2018. Her background in communications and higher education served her well in representing the Missouri Family Support Division and handling cases involving the establishment, modification, and enforcement of child support orders. Tell us about your previous career.

I earned my Ph.D. from Purdue University in 1978 and served in tenured faculty positions at the University of Georgia and the University of Central Florida. I taught courses in communication research methods, communication theory, interpersonal and organizational communication, interviewing, small group communication, and communication and conflict. My research focused on communication and conflict processes in various contexts.

What drew you to the law?

My teaching and research in communication and conflict, in particular my research on divorce mediation in the 1980s, drew me to the law. While I always enjoyed my university students and my responsibilities as a faculty member, I was ready for a new challenge in 1996. At age 49, our good fortune brought my late husband, Dr. John D. Hatfield, and me to the University of Baltimore. John served as Dean of the Merrick School of Business, and I attended the University of Baltimore School of Law. I am grateful for my second career as a lawyer for many reasons, but most of all because it has kept me going since my husband’s passing in 2003.

How did your background in communications and higher education help to prepare you to practice law?

My previous career as a teacher and research of communication processes informs my career as an attorney in many ways. I think about the communication choices I have and the goals I attempt to achieve in each interaction I manage with the representatives of our client FSD, other attorneys, unrepresented custodial and noncustodial parents, the courts before whom I appear, and the courts’ staffs. I recognize my role in contributing to creating shared understanding and shared meaning. I look closely at the Lawyer’s Oath, the Principles of Civility, and the Rules of Professional Conduct for guidance in deciding upon my communication choices as a lawyer.

Any words of advice for fellow latecomers to the law?

While in law school, make every effort to identify what you want to do with your law degree. Do you want to practice law? If so, what area will be your focus? Besides taking classes and participating in campus organizations related to your area of interest, find ways to interact with and work

"If you want to use your law degree to achieve a goal other than the practice of law, make the necessary connections and learn from those who provide good examples." What were your biggest challenges in making the transition?

I came back to the Midwest to be with my mother after my husband passed away in Connecticut in 2003. My mother passed away in 2004. In 2006, I started my work as a Missouri AAG. I don't recall any big challenges in making the transition. From the outset, I liked everything about my new career: the people with whom I work, my appearances in courts in the counties I cover, the opportunity to help people, and the fact that I am always learning something new.



for lawyers practicing in your area of interest. If you want to use your law degree to achieve a goal other than the practice of law, make the necessary connections and learn from those who provide good examples. Realize that you have the opportunity to help others and to make a difference.

So, what’s next for you?

While I could “retire” – I am 71 – I describe my next step as a “relaunch”. My backgrounds in communication and the law will set the stage for my next adventure.




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James P. Nolan


JAMES P. NOLAN is a Director of the law firm of Council, Baradel, Kosmerl & Nolan, P.A. in Annapolis. His practice includes general civil and criminal litigation, administrative law, business and commercial law, corporate law, construction law, real estate and land use law, and personal injury law.

Mr. Nolan served as MSBA President in 2002-2003. He recently sat down with the Maryland Bar Journal to share what the experience - as well as a legal career spanning more than four decades - has taught him.




AT THE TABLE You were admitted to the Maryland Bar in December 1974. What was your early career like? When I started out I did anything and everything I could possibly get my hands on in order to earn a living. It was a very broad scope of practice, but over the years I refined it and worked it down to being predominantly involved as a business and business litigation attorney. Tell us about your history of Bar service. After helping to start a young lawyers group in Annapolis, I [eventually] served as President of the Anne Arundel County Bar Association. Later, I served on the MSBA Board of Governors, and kind of got hooked on MSBA working with the Program Committee, as well as other Committees. After being elected as MSBA Secretary, I worked my way up to become President, which is a huge honor. Afterward, I developed an interest in the American Bar Association. I served 18 years as a member of the ABA House of Delegates before I decided to step down in August 2018. It was time to let somebody else get involved. During that interim, I also served on the Executive Council of the National Conference of Bar Presidents, and was very honored to serve as its President in 2009. What have your various roles within MSBA’s leadership taught you? Being an Officer as well as serving on different Committees gave me an understanding of the organization. It taught me that the MSBA is comprised of really wonderful and dedicated people - the Executive Director, all the members of the staff. What I learned was that if you’re going to get into state bar politics or organizational work - just like with your own businesses, quite frankly - hire competent people, and then let them do their jobs. As bar leaders, Photo courtesy of Beverly Funkhouser Photography

we have to understand that, when you’re President, for instance, you’re President for one year. There are plenty of Presidents who have come before you, and there are plenty of Presidents who will come after you. Remember, you’re there for one year, so let the staff do its work. They’re going to make you look good, and you’ll actually learn from them, and realize that our organization, just like our communities, is made up of lots of different people in the practice of law. We have big-firm lawyers, solo practitioners, people who do transactional work, people who do litigation work...but everybody has a place at the table. It doesn’t matter who you are, I think that we should always remember to keep an open mind and be inclusive. The other big thing I’ve learned is that it’s so important to communicate, and communicate effectively. Reach out to your constituents, communicate, let them know about the organization. Let them know all the things that are being done for them. I really do think that they appreciate it, and that’s what makes the organization sound and vibrant. I think one of the biggest things the MSBA can do is to effectively communicate to everyone. The organization of the Bar itself needs to make sure that we’re constantly communicating the message that we are here not only for our members, but for the public at large. What words of advice would offer new or up-and-coming attorneys? My advice, very simply, is work hard. Be ethical. Don’t cut corners - it’s simply not worth it, and it won’t get you anything good in the long run. Have some passion for what you do, about being a lawyer and about the profession. I think that’s one of the most important things that any of us can have and exhibit. At the end of the day, I think we all need to understand that what we do is extremely important, but I don’t think that we have to

take ourselves too seriously. Take what we do seriously, but not necessarily ourselves. The other part of the journey, if you will, has been giving back. I think that is one of the most important things that any of us, as lawyers, can do. We should give back to our profession, give back to our community - whatever works for us, but we should be doing something.

"We should give back to our profession, give back to our community – whatever works for us, but we should be doing something."


CIVILITY IN THE LAW James P. Nolan shares his plan to make the world better PRACTICE OF LAW Is law a business or a profession? EXCLUSIVE INTERVIEW QUESTIONS Hear more from James P. Nolan. VISIT MSBA.ORG/JNOLAN





Talley H-S Kovacs


Talley H-S Kovacs recently moved from private practice to working in the Office of the Attorney General of Maryland. As an Assistant Attorney General, Ms. Kovacs provides counsel to the Department of Natural Resources (DNR) and the Maryland Environmental Trust (MET). Her practice encompasses three areas: legal review and drafting for real estate transactions for the DNR and MET; advising units within the DNR on state and federal laws impacting resource management, real estate asset issues, and compliance; and handling litigation in state and federal court for the DNR and MET.




SUCCESSFUL TRANSITIONS What types of transitions have you made on your professional journey? My career path is woven from experiences working with entrepreneurs, large corporations, family-owned businesses, academic institutions, state and federal government, non-profits and, most recently, a mid-sized law firm. In March 2018, after seven years in private practice, I transitioned into the Maryland Office of the Attorney General.

What has been the greatest challenge of your transition from private practice to the OAG? I continue to handle state and federal litigation, which I did in private practice, but now I'm also responsible for real estate transactional work. Fortunately, I have accomplished and generous colleagues who are amazing resources for substantive legal questions and process questions in that area.

What do you most like about your current position?

DNR is a large, dynamic, and influential state agency, which makes it an interesting client.

Does your experience in private practice inform your current career path?

I've always been a "jill-of-all-trades" kind of person, so everything I have done in the law, and otherwise, has impacted where I am today. I believe that my current job more closely aligns my personal values with my professional goals, which makes each day rewarding.

What are the skills necessary for an effective career transition?

I’ll give four, although I'm sure there are more. First, organize your personal life to give yourself extra time and mental space to process the changes. Second, don't burn bridges if you can help it, but be frank with your employer if there is constructive feedback you can offer about your experience as an employee. Third, accept that some will not understand or support your decision to make a change, but, if you are confident in your purpose, then the truly supportive colleagues and friends will have nothing but encouragement for you. Finally, approach your first few weeks in your new role with as much energy and attention to detail as you can, so that you can begin to build relationships and demonstrate your value in an authentic way.

"Your intellect, though, cannot help you get eleventh-hour filings done or coordinate complicated deposition schedules, so being a team player and investing in your colleagues is just as important." What have you learned from the transition?

Being flexible and cordial is key. In my view, most lawyers can become competent in new areas of law through study, practice, and collaboration. Your intellect, though, cannot help you get eleventh-hour filings done or coordinate complicated deposition schedules, so being a team player and investing in your colleagues is just as important.

Photo courtesy of Beverly Funkhouser Photography

What words of advice would you offer fellow attorneys who are considering a career transition? Take stock of why you want to leave your current position. Talk to trusted friends, family members, and colleagues about your process, so that you are forced to articulate what you are looking for in your work. Then, dive as deeply as you can into prospective opportunities so that you can be confident you are making a change that will align your work with your values. MARYLAND BAR JOURNAL | WINTER 2019




Kimberly Smalkin Barranco ASSOCIATE ADMINISTRATOR,



JOB MOBILITY In her current role as Associate Administrator of the Baltimore City Circuit Court, Kimberly Smalkin Barranco is responsible for directing and coordinating the case management and other administrative operations for the Criminal Division of the Circuit Court. Her career path has run the gamut from Assistant Public Defender to Director of Continuing Legal Education Programs at the now-defunct Maryland Institute for the Continuing Professional Education of Lawyers (MICPEL) to Executive Director of the Baltimore City Criminal Justice Coordinating Council. Ms. Barranco presently chairs the MSBA Criminal Law & Practice Section. 50 MSBA.ORG WINTERFunkhouser 2019 Photo courtesy of |Beverly Photography

Photo courtesy of Beverly Funkhouser Photography

Please tell us about the various transitions that have defined your professional journey.

Upon graduation from law school, I served as an Assistant Public Defender in Baltimore County for 10 years. Toward the end of my tenure there, I was fortunate to be able to work part-time after the birth of my first daughter. I enjoyed the job, but when I had my second daughter, I felt that it would be better for my family for me to move to another position with a more flexible schedule than what was feasible working as a criminal defense attorney. I served as Director of CLE Programs at the Maryland Institute for Continuing Professional Education of Lawyers (MICPEL) for seven years, producing continuing legal education programs for attorneys in Maryland, which allowed me to have a much more flexible schedule for my young family. In that position, I was fortunate to work with judges and premier attorneys from across the state who were tops in their fields. It also exposed me to many areas of law outside of criminal law. After a time, I began to miss the criminal law arena, and was hired as the Executive Director of the Baltimore City Criminal Justice Coordinating Council (CJCC), a position I held until the Council was disbanded in 2017. As Executive Director of the CJCC, I facilitated the implementation of directives, programs, and initiatives of the Council, which was comprised of 21 state, local, and federal criminal justice officials.

Do you miss any aspects of your previous areas of work?

In my present job I deal exclusively with criminal law and procedure. My previous positions as an Assistant Public Defender and Executive Director of the CJCC prepared me well with this knowledge. I do sometimes miss being in a courtroom and advocating for a client, and I miss the collegiality of working closely with other attorneys regularly.

What was the greatest challenge in transitioning to your current position? Adjusting to the fact that I now work exclusively for the Circuit Court, whereas with my previous position, I answered to 21 different agency heads, elected officials, and the judges of the District and Circuit Courts in Baltimore City.

What do you like most about your current role?

I can see immediate results when I am responsible for assisting the court in ensuring that a defendant has a hearing, and making a difference with facilitating an outcome.

What have your various career transitions taught you?

It is hard to move into a new position, especially if you have been in your previous job for many years. But change is good, although difficult sometimes, and ultimately fulfilling. A career transition is an opportunity to learn new skills, develop new contacts, and deepen existing relationships.

How does your prior experience inform your current career path?

In my case, my prior experience as a criminal defense attorney and in the Baltimore City criminal justice arena is absolutely critical to effectively doing my current job. Although I have been in this position for six months, I am still learning new things about the system every day. I believe that a successful transition can be made to a completely different line of work, but it will be difficult to convince an employer that you are the best person for the job, rather than someone who has experience in that particular area. In this current job market, prior experience matters. The key to a successful transition is finding a position that utilizes the particular area of expertise that you have in a different setting.

"It is hard to move into a new position, especially if you have been in your previous job for many years. But change is good, although difficult sometimes, and ultimately fulfilling. A career transition is an opportunity to learn new skills, develop new contacts, and deepen existing relationships." What are the skills necessary for effective transition?

Flexibility to do things differently, conscientiousness and a strong work ethic, diligence, and good listening skills.

What words of advice would you offer to attorneys who are considering a career transition? No position is permanent. If you are not happy in your current position and seek more opportunity or professional growth, then make the move and look for another position. Use your professional network not only as references, but also as sources for potential employment leads. Consider all aspects of your professional life, including bar association involvement and how it will be impacted if you choose to no longer practice law.







The #MeToo movement is generally discussed in the context of sexual harassment against women in the workplace, spawning from accounts about abusive behavior by highprofile men in the media and entertainment industries. The conversations which followed from those revelations dealt with the culture of workplace harassment as well as the legal mechanisms by which their accusers were silenced. Ronan Farrow, From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers Tell their Stories, New Yorker Magazine, Oct. 23, 2017. Other commentators have articulated the #MeToo movement more broadly, in terms of challenging the workplace norms that perpetuate inequality between the sexes. Jennifer Calfas, 10 Powerful Women on How #MeToo Has Changed the Fight for Equal Pay, Time Magazine, April 10, 2018. In those discussions, the conversation turns from sexual harassment to the persistent gender based pay inequity, and to the underrepresentation of women in leadership positions in businesses.





onversely, there is a tendency among labor and employment law practitioners to talk about the #MeToo movement as not heralding anything particularly new with regard to the legal mechanisms which exist to address sexual harassment and wage disparities. The Federal Equal Pay Act has prohibited gender based pay disparities for more than 50 years. Title VII has prohibited discrimination on the basis of sex since 1964. Meritor Savings Bank, FSB v. Vinson, the first case at the Supreme Court to codify sexual harassment as a theory of liability, was decided when Justice Thurgood Marshall was on the Supreme Court. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). However, the renewed attention to these persistent problems have caused many in state and federal legislatures to reexamine whether the law provides sufficient tools to address these problems. This article provides a brief overview of many of the current laws, proposed laws, and social trends addressing the prevalence of the wage gap and sex harassment in the workplace. Persistent Pay Disparities; Disincentives for Women Negotiating Salaries Nationwide, women persistently make less than men in wages— famously, 79 cents on the dollar of their male peers. According to a Baltimore Sun article timed to correspond with the 2018 anniversary of Equal Pay Day, a day which commemorates the wage gap, Maryland women who are employed full time earn $10,074 less than their male counterparts per year in wages. Lorraine Mirabella, Women in Maryland Earn 84 Cents for Every Dollar Earned by Men, THE BALTIMORE SUN, April 9, 2018. These disparities are significantly worse for people of color. African American women make 63 cents on the dollar compared to their white male peers, and Hispanic females make roughly half—53 cents on the dollar. Kevin Miller, The Simple Truth about the Gender Pay Gap, AMERICAN ASSOCIATION OF UNIVERSITY WOMEN (2018). These pay disparities persist, to varying degrees, irrespective of education level, type of job, or location. It gets worse as women age—according to one study, the wage gap is about 10 percent for women within the age group of 18-25, but significantly more for the age groups 44-50 and 51-55. Id., see also Patrick Button, Written Testimony of Patrick Button Assistant Professor Dept. of Economics Tulane University (2017), (Informative study on the intersection of gender and wage discrimination provided to the EEOC). Past discriminatory practices with regard to wages have a cumulative effect on their future employment. Employers often ask about a prospective employee’s prior salary during salary negotiations. Salary discussions which are informed by an artificially lower prior salary tends to produce lower salaries. Women generally ask for 63 percent less than their male peers during salary negotiations, and far more men negotiate their



AT THE FEDERAL LEVEL, THERE HAS NOT BEEN A SIGNIFICANT AMOUNT IN THE WAY OF NEW LEGAL REMEDIES TO ADDRESS WAGE DISPARITIES. opening salary than women—7 percent of women, versus 57 percent of men, according to one study. Linad Babcock & Sara Laschever, Women Don’t Ask, Princeton Univ. Press (2003). However, a series of studies evaluating gender and salary negotiations found that women pay a penalty for engaging in salary negotiations, while their male peers are rewarded for the same behavior. According to four studies conducted by Hannah Bowles, Linda Babcock, and Lei Lai of the Harvard University Kennedy School of Government, women who negotiate salary were often perceived as operating outside of their gender norms. The women who negotiated often faced significant resistance, especially from the male decision makers. Hannah Riley Bowles, et al., Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes it Does Hurt to Ask, 103 ORGANIZATIONAL BEHAV. AND HUMAN DECISION PROCESSES 84 (2007); see also Maria Konnikova, Lean Out: The Dangers for Women Who Negotiate, THE NEW YORKER, June 10, 2014. In many cases, according to the study, job offers were rescinded for women who sought to negotiate for a higher wage or for some additional benefit. The same result did not hold true for their male peers; indeed, they were rewarded for the same behavior. Voluntary Corporate Practices to Reduce the Wage Gap A recent Forbes article also timed for the anniversary of the Equal Pay day identified several voluntary corporate practices aimed at reducing the wage gap. Selena Rezvani, Six Companies Hacking the Gender Wage Gap, FORBES, April 13, 2018. Four of them bear highlighting: 1. Publish salaries to employees: Buffer, a software company, used a wage auditing software to identify any wage disparities which might be attributed to gender, and later publishing the salaries of all employees, on the theory that disclosing all employees’ pay leads to accountability and also creates a workplace culture that honors gender equity. The Next Evolution of Transparent Salaries: Our New



Remote-First Formula and Updated Salary Calculator, BUffER (Feb. 6, 2018), 2. Don’t rely on employees’ prior salary data in determining the wage for new jobs; provide a salary range for applicants: Starbucks does not inquire into past salaries when setting new job salaries, and in offering new positions to employees, it provides them with a salary range for the incumbent in the position. Fact Sheets: History of Partner Investments at Starbucks, STARBUCKS (2018), facts/starbucks-history-of-partner-benefits. 3. Diversity recruitment goals: Intel audited its workforce, noted that it had a significant wage disparities for women and minorities in its company, and disparities for women and minorities which it hired, and it addressed that with a long-term plan to recruit a more diverse pool of candidate and to retain them. Danielle Brown, Reflections on Intel’s Diversity & Inclusion Journey: 2016 Diversity & Inclusion Annual Report, Intel (Feb. 28, 2017), csr/2017/02/annual-report-2016/. 4. Flag employees for promotion: GoDaddy builds into its management program a requirement that managers inquire to their subordinates about whether they are ready for a promotion at designated intervals, and, if not, what feedback the supervisor has provided which might help the employee to be ready for a promotion. Kate Tornone, After Helping Overhaul GoDaddy’s Culture, its VP of Inclusion Sets Out on her Own, HR DIVE (Nov. 16, 2017), https://www.

Existing Federal Legislation to Address Wage Disparity At the federal level, there has not been a significant amount in the way of new legal remedies to address wage disparities. The Equal Pay Act has not undergone significant amendment since its creation in 1963. Title VII provides for similar guarantees of nondiscrimination in wages on the basis of sex; Congress amended Title VII to provide for sex to mean things related to pregnancy, however it has not since amended Title VII or the EPA to provide for additional protections. In 2016, the EEOC drafted a regulation which would require employers to confidentially report the rates of pay of their employees on the basis of gender. Those regulations were put on hold during the advent of the present administration. In the 2018 omnibus federal appropriations bill, Congress increased the budget of the EEOC by $16 million, the first increase in eight years. The increase was widely reported as being in response to the #MeToo movement. Jennifer Calfans, A $16 Million Win for #MeToo and #TimesUp was Slipped into Trump’s Budget, Money Magazine, March 29, 2018. Recently, in Rizo v. Yovino, 887 F.3d 453, 460 (9th Cir. 2018), the Ninth Circuit Court of Appeals overturned a prior decision which many courts had relied upon, Kouba v. Allstate, which stood for the proposition that an employer could rely on the past salary history of an employee in making a determination about subsequent salary history without running afoul of the Federal EPA. Kouba v. Allstate Ins. Co., 691 F. 2d 873 (9th Cir. 1982). In Rizo, the court reasoned that employers could not obtain the benefit of the EPA’s “other than sex” defense in the case of prior salary histories because “[p]rior salary is not job related and it perpetuates the very gender-based assumptions about the value of work that the Equal Pay Act was designed to end. This is true whether prior salary is the sole factor or one of several factors considered in establishing employees’ wages.” Id. at 468. It remains to be seen as to whether the Fourth Circuit, which has never cited Kouba in a published opinion, will adopt or reject the Ninth Circuit’s reasoning with regard to prior salary inquiries. As of the date of this article, the Supreme Court is considering a petition for certiorari in Rizo.

Maryland Equal Rights Amendment and Employment Litigation The Maryland Equal Rights Amendment has not been widely used in the context of an employment discrimination litigation. However, the Amendment bears discussion in the context of the #MeToo movement as another potential tool to remedy workplace harassment and pay disparities. Maryland amended its state constitution in 1972 to provide for equality in the law regardless of gender, asserting in the Maryland Declaration of Rights that “equality of rights under the law shall not be abridged or denied because of sex.” The Maryland Court of Appeals described the purpose of the Equal Rights Amendment as to “frustrate state action that separates men and women into discrete classes for disparate treatment as between the sexes.” Conaway v. Deane, 401 Md. 219, 270, 932 A. 2d 571 (2007) (abrogated on other grounds); see also Giffin v. Crane, 351 Md. 133, 148, 713 A. 2d 1029 (1998) (“The basic principle of the Maryland Equal Rights Amendment, thus, is that sex is not a permissible factor in determining the legal rights of women, or men, so that the treatment of any person by the law may not be based upon the circumstance that such person is of one sex or the other.”). The Amendment restrains state action, rather than that of private enterprise. The Court asserts that the Amendment “invalidates governmental action which imposes a burden on, or grants a benefit to, one sex but not the other one.” Burning Tree Club v. Bainum, 305 Md. 53, 64, 501 A. 2d 817 (1985). Using the same analytical frame as the federal state actor doctrine, the Court of Appeals has largely cordoned off the reach of the Equal Rights Amendment to address solely actions in which the state was the dominant actor. Citing the U.S. Supreme Court decision of Lugar v. Edmonston Oil, the Maryland Court of Appeals stated that for the state actor doctrine to apply, the deprivation of rights must be caused by the exercise of some right or privilege created by the state or by a person for whom the state is responsible, and second that the party charged with the deprivation must be a state actor. The court further defines a state actor as one who a) is a state official, b) has acted in collusion with a state official, c) has received significant aid from a state official, or d) because the person’s actions are otherwise chargeable as being a product of the state. Burning Tree Clud, 501 A.2d at 827 (citing Lugar v. Edmonston Oil Co., 457 U.S. 922, 937 (1982)). The fact of a company’s regulation by the state, without anything more, does not qualify as state action. Id. at 74 (citing Moose Lodge No. 107 v Irvis, 407 U.S. 163, 173, 175 (1983)). There are few cases addressing the Equal Rights Amendment in an employment context. The two principal ways in which one might imagine the Equal Rights Amendment litigation to occur is in the context of the state as an employer — whether as a direct employer or a hirer of contractors, and secondly, in the case of the government as a regulator of persons and fair administrator of justice. There are a few examples of the latter,





none of the former. In Turner v. State, the Court invalidated a law which prohibited women from working in a bar, ruling that the criminal law was based on a gender based distinction which imposed different burdens and benefits on men and women, in violation of the Maryland ERA. Turner v. State, 299 Md. 565, 574, 474 A. 2d 1297 (1984). In Vick v. Pioneer Oil Corp., Western Division, 569 S.W. 2d 631, 633 (Tx. App. 1978) the court, pursuant to the Texas Equal Rights Act, invalidated a statute which provided overtime pay to women, but not to men. Id. One might imagine that in the context of the state as an employer, the Maryland ERA might be plead to bolster either an EPA claim or a Title VII claim. Arguably any distinction which the state makes on the basis of gender, whether in the discipline it imposes to men versus women, or to their rates of pay, or with regard to the manner in which it investigates their claims of discrimination, might be subject to a Maryland ERA charge. Further, there has been relatively little research done into the reach of the Maryland ERA for state contractors. California, Washington State, and Maryland “Fair Pay” Laws California recently passed a “fair pay law,” modeled after a similar ordinance which progressed through the San Francisco city legislature, which the drafters describe as intended to remedy the pay disparity by prohibiting an employee from being yoked 56


to their former employer’s prior discriminatory wage choices. The California statute prohibits employers from inquiring into the prior salaries of their employees during hiring process. The statute also requires employers to provide, upon request, a pay band, or a salary range, for the position in question. It penalizes employers $500 for noncompliance in the case of an unintentional violation, and $2,000 for an intentional one. The statute went into effect in early 2018. Washington State passed a similar fair pay statute, however it did not include the provision requiring employers to provide the salary range for the position at issue. The Washington State statute did, however, prohibit employees or prospective employees from having adverse employment action taken against them because of their discussions related to rates of pay. While California is the largest state to ban inquiry into prior salary history, it is not the first. Delaware, Massachusetts, New York, Puerto Rico, and Oregon have similar prohibitions. In 2016, the Maryland legislature enacted a fair pay statute, the “Equal Pay for Equal Work Act,” which was designed to address the pay disparity. Md. Code Ann. Lab. & Emp., §§ 3-301, 3-309 (2017). The statute received media attention because it prohibited employers from discrimination on the basis of gender identity, however its effects are farther reaching than that. The statute also expanded the definition of similar pay to include all forms of compensation, not just wages. It also prohibits employers from penalizing employees because they have inquired about their wages, disclosed their own wage, inquired about another employee’s wages, or discussed with another employee their wages. The Act narrows one of the commonly raised defenses to wage disparities: that the comparators exist in different geographic locations and therefore they are not similar for the purposes of a wage comparison. The Act states that persons working within the same county are considered to be working at the same location. The Act also prohibits an employer from steering employees to a worse career track on the basis of their gender. Unlike the California statute, Maryland does not prohibit an employer from inquiring into an employee’s prior salary; it also does not require an employer to state what the prevailing wages are for the position they are seeking. Finally, under the Maryland statute neither race nor ethnicity are protected bases, however the Maryland state Title VII analogue prohibits employment discrimination, inclusive of wages, on the basis of race, color, and national origin. There is no Maryland state law analogue to the proposed federal rules change requiring employers to provide pay data on the basis of gender, however the Maryland Equal Pay Commission, created in 2016 in concert with the 2016 revision to the state

Equal Pay Act, has within its mandate a directive to “establish a mechanism for the commissioner to collect data from employers in the state, which will be used to assist the commission in its efforts to evaluate [gender pay] disparities.” (www.dllr. (accessed last December 2018)). Unfortunately, it is too soon to evaluate the impacts of the Maryland, Washington, or California fair pay statutes with regard the reduction of the wage gap. Using the most recent Census data, drawn from the 2016 American Community Survey, women overall made 84 cents on the dollar for their male peers, making the Maryland wage gap the ninth lowest in the country. The Wage Gap, State By State, NATIONAL WOMEN’S LAW CENTER (2016), wp-content/uploads/2017/09/Wage-Gap-State-By-State-2017. pdf. Drawing from the same data, California’s wage gap was 88 cents on the dollar, making it number two, and New York ranked at number one, with women making on average 89 cents on the dollar for their male peers. Id. There are no published cases which discuss the recently enacted changes to the Equal Pay for Equal Work Act, so its effects are hard to quantify at this point. Disclosing Sexual Harassment in the Workplace Act of 2018 In response to public furor over complaints of sexual harassment claims, in 2018 the Maryland General Assembly passed the “Disclosing Sexual Harassment in the Workplace Act”. The Act is aimed at providing more transparency to claims of sex harassment. First, it prohibits employers from requiring that any complaints of sexual harassment be resolved through arbitration in lieu of civil litigation. The act makes all such provisions in contracts void, and it prohibits employers from taking adverse action against an employee who refuses to sign an agreement which requires that such disputes be resolved by arbitration. The errant employee is liable for the employer’s attorney’s fees and costs. The second provision requires that employers report to the Maryland Commission on Civil Rights (MCCR) a list of all of their settlements of claims of sex harassment, the number of times that there has been a monetary resolution for those claims due to the same employee’s alleged conduct over the last ten years, the amounts of those settlements, whether the agreements included a nondisclosure agreement, and whether the employer took action against the employee who was the alleged bad actor giving rise to the lawsuit or threat of lawsuit. The MCCR must then report this information, in aggregate form, to the General Assembly in 2020 and 2022. The records of the actual employers’ submissions shall be available to the public upon request. Concerning the mandatory arbitration clause waiver, it likely will invite a federal court challenge in light of the Supreme Court’s recent rulings on the applicability of the Federal Arbitration Act. The Supreme Court, in AT&T Mobility v. Conception, and later in DIRECTV v. Imburgia, held that state laws banning arbitration clauses outright were preempted as violative of the Federal Arbitration Act. AT&T Mobility v. Conception, 563 U.S. 333, 341 (2011) (“When state law prohibits outright the arbi-

tration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.”); DIRECTV Inc. v. Imburgia, 136 S. Ct. 463 (2015) (affirming AT&T Modility). Much like the rationale for the Maryland disclosure act, the California legislature found that mandatory arbitration agreements which did not provide class-wide relief were unconscionable, and therefore void on public policy grounds. The Supreme Court asserted that those public policy reasons were insufficient to abrogate the contract. 2018 Federal Tax Law Disincentivizes Sexual Harassment Litigation and Settlement Among the lesser discussed provisions of the federal tax law recently passed is a provision which removes the deduction which employers and employees relied upon for their legal expenses in bringing and settling claims of sexual harassment. The new tax law prohibits persons from deducting “any settlement or payment related to sexual harassment or sex abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.” I.R.C. §162(q) (2017). While Senator Menendez, the author of the original amendment, championed it as a way to disincentivize non-disclosure agreements in sexual harassment claims, the way that the law is currently written provides arguably a greater disincentive to plaintiffs and their counsel. Julia Jordan & Christina Anderson, New Law Limits the Deductibility of Harassment Settlements: Where Will the Law of Unintended Consequences Take Us?, NEW YORK LAW JOURNAL, Feb. 23, 2018. A plausible reading of the law may be that plaintiffs are taxed on 100 percent of their recovery in settlement, rather than the gross amount, discounting the significant portion of that recovery of that contingency fee for which attorneys often negotiate. While it remains to be seen whether the IRS will adopt that reading of the tax law, one commentator suggested that a potential outcome in the interim will be for plaintiffs to style the allegations in their complaint as a sexual discrimination case, rather than as a sex harassment case, for fear of the significant tax consequences upon a settlement with a non-disclosure agreement. Id. JOHN ALVIN HENDERSON is an Administrative Judge with the Equal Employment Opportunity Commission (EEOC). All opinions expressed herein are his, and do not reflect the views of the United States or the EEOC.


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My Husband Rapes #MeToo The Persistence of the Marital Rape Exemption BY CHRISTINA KENNEDY AND DEENA HAUSNER

The #MeToo movement has shone a long-overdue spotlight — floodlight, perhaps — on the issues of sexual harassment and sexual assault, particularly in the context of the workplace. #MeToo recognizes that sexual violence takes many forms and can happen to anyone. As important as this focus has been and hopefully will


remain, a related issue that yet lingers in the shadows is that of spousal rape.

s a society, we often overlook, forget or outright ignore that women are also raped not by their acquaintances or bosses, but by their spouses. While recent changes in Maryland’s sexual assault statutes have broadened protections for rape survivors in a number of ways, acts of sexual violence that society would most likely label rape when they occur between strangers are somehow seen as murkier in the context of marriage. Maryland codifies this fallacy in the form of its “marital rape exemption”, a long-outdated law that should be repealed.

raped her. Most rapes are committed by someone known to the victim rather than by strangers. Sack, Emily J., Is Domestic Violence a Crime?: Intimate Partner Rape as Allegory, 24 St. John’s J.L. Comm. 535, 548 (Spring, 2010) (citing U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Criminal Victimization in the United States, 2006 Statistical Tables, National Crime Victimization Survey, Table 34 (2006) (“54% of all rapes in 2006 were committed by someone well known to or a casual acquaintance of the victim, as compared to 34% committed by strangers.”)

A woman wakes up to find a man on top of her, having sex with her. She tells him to stop and tries to push him off. He says, “I will stop when I am finished.” She keeps trying to push him off, keeps telling him to stop, until he eventually holds her arms above her head so she can no longer resist. When he has finished, he rolls over and lies next to her for a moment.

Society’s short shrift of spousal rape is rooted in antiquated notions of women as belonging to or existing under the single legal identity of their husbands. Sack, at 549-50 (quoting William Blackstone, 1 Commentaries on the Laws of England 442 (1765) “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.”) Although these ideas eventually gave way,

Most people, upon hearing this description, are likely to imagine a stranger breaking into a woman’s house in the middle of the night and assaulting her, or perhaps a date-rape involving college students. However, this scene is actually a recounting by a House of Ruth client of the night her husband 58


they were soon replaced by the rationales of domestic tranquility and marital privacy. Sack, at 551. These same beliefs endure today in the way law and society respond to intimate partner violence and sexual assault.

The persistence of these beliefs is no more evident than in Maryland’s still-codified “spousal defense” which provides: (a) In general. -- Except as provided in subsections (b) and (c) of this section, a person may not be prosecuted under § 3-303 [rape in the first degree], § 3-304 [rape in the second degree], § 3-307 [sexual offense in the third degree], or § 3-308 [sexual offense in the fourth degree] of this subtitle for a crime against a victim who was the person's legal spouse at the time of the alleged rape or sexual offense. (b) Separation or use of force. -- A person may be prosecuted under § 3-303(a), § 3-304(a)(1), or § 3-307(a)(1) of this subtitle for a crime against the person's legal spouse if: (1) at the time of the alleged crime the person and the person's legal spouse have lived apart, without cohabitation and without interruption: (i) under a written separation agreement executed by the person and the spouse; or (ii) for at least 3 months immediately before the alleged rape or sexual offense; or (2) the person in committing the crime uses force or threat of force and the act is without the consent of the spouse. (c) Limited divorce. -- A person may be prosecuted under § 3-303, § 3-304, § 3-307, or § 3-308 of this subtitle for a crime against the person's legal spouse if at the time of the alleged crime the person and the spouse live apart, without cohabitation and without interruption, under a decree of limited divorce. Md. Criminal Law Code Ann. § 3-318. This spousal rape exemption, originally enacted in 1976 when Maryland first codified the common law crime of rape, has evolved over the years to offer a bit more protection to rape victims. In its original form, the spousal defense to rape was available except in cases where the parties were living separate and apart pursuant to a decree of limited divorce. Lane v. State, 348 Md. 272, 288 (1997) (citing Md. Code, Art. 27 § 464D). In 1989, the Maryland General Assembly expanded the circumstances in which a perpetrator could be prosecuted for sexual assault against his spouse, including when the perpetrator is acting with force or the threat of force and the act is without the victim’s consent, or the parties are separated for a certain period of time or pursuant to a written separation agreement. Id. at 290. This same law was re-enacted with only minor changes as recently as 2004. Md. Criminal Law Code Ann. § 3-318. The continued existence of the spousal defense to rape and other sexual offenses supports society’s view that spousal rape is somehow a less important crime than stranger or acquaintance rape. “The continued disparity in the treatment of marital rape has important symbolic value, for it indicates that the law continues to view rape by an intimate partner as less serious and less of a crime than stranger rape. Just as criminalizing conduct sends a message to both would-be perpetrators and the community at large that certain behavior is unacceptable, failure to criminalize certain

“A woman who is raped by a stranger lives with a memory of the horrible attack; a woman who is raped by her husband lives with her rapist.” conduct makes clear that it is tolerated.” Sack, infra, at 556. To the contrary, spousal rape can be even more detrimental to a victim than stranger rape. “A woman who is raped by a stranger lives with a memory of the horrible attack; a woman who is raped by her husband lives with her rapist.” Mahoney, Patricia and Williams, Linda M., Sexual Assault in Marriage: Prevalence, Consequences, and Treatment of Wife Rape (1998), in Jasinski, J.L. and Williams, L.M. (Eds.), Partner Violence: A Comparative Review of 20 Years of Research. Thousand Oaks, CA: Sage (citing Finkelhor and Yllo (1983)). #MeToo has brought forward the reality that a person can be a victim of rape even if she previously consented to sex with her assailant. This is equally true in the context of marriage, yet the marital rape exemption stands for the proposition that women irrevocably consent to sex when they say “I do.” Lane v. State, infra, at 280 (citing Edward Hyde East, A Treatise on the Pleas of the Crown 446 (1806) “[A] husband cannot by law be guilty of ravishing his wife, on account of the matrimonial consent which she cannot retract.”). It is time that society’s views – and laws – reflect an understanding that rape of a spouse is no different, and should not be prosecuted differently, than rape of any other individual. As lawyers and judges, we should become educated about the prevalence and myriad negative effects of spousal rape. Our laws should be designed to offer the highest level of support and protections to all survivors of sexual violence. For married rape survivors, this necessitates a repeal of the marital rape exemption. CHRISTINA KENNEDY is a legal advocate at the House of Ruth Domestic Violence Legal Clinic. She may be reached at Deena Hausner is Associate Director of the House of Ruth Domestic Violence Legal Clinic. She may be reached at


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Best Practices for Employers in the Era of the #MeToo Movement BY TERESA D. TEARE, ESQ. AND COURTNEY B. AMELUNG, ESQ.

It is undebatable that the #MeToo movement has impacted employers across the country. Since Hollywood producer Harvey Weinstein was accused of sexual assault in October 2017, the number of claims of sexual harassment in the workplace has continued to grow.


lthough the publicity of the #MeToo movement has encouraged and empowered more employees to speak out against their harassers, employers have been confronted by sexual harassment claims for many years. Title VII of the Civil Rights Act, which was enacted in 1964, prohibits employment discrimination based on sex, among other protected characteristics. And in 1986, the United States Supreme Court recognized, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that sexual harassment could constitute a violation of Title VII. Two subsequent decisions of the Supreme Court, Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), explained when employers can be held liable for sexual harassment perpetrated by a supervisor with authority over the plaintiff-employee. Over the years, therefore, employers have been dealing with claims of sexual harassment in the workplace and many have been diligent in adopting policies and practices aimed at preventing sexual harassment. MARYLAND BAR JOURNAL | WINTER 2019


Nonetheless, the #MeToo movement has reminded employers of the importance of employee education and training, and the adoption of sound policies and procedures for addressing sexual harassment. Indeed, an employer’s response to a sexual harassment claim can significantly impact its reputation, employees’ morale, and its ability to attract and retain talent. Thus, it is vitally important that employers implement proper policies and procedures to address such claims. In particular, best practices include the distribution of written sexual harassment policy, mandatory sexual harassment training, prompt and thorough investigation of sexual harassment claims, and an effective public relations strategy. Sexual Harassment Policies Two decades ago, the United States Supreme Court issued two decisions, Burlington Industries, Inc. v Ellerth, 524 U.S. 742 (1998) and Faragher v City of Boca Raton, 524 U.S. 775 (1998), which provided guidance on an employer's liability for sexual harassment. In Ellerth and Faragher, the court established that when a supervisor’s sexual harassment results in a tangible employment action (promotion, demotion, termination, etc.) (otherwise known as quid quo pro harassment), the employer is automatically liable for the supervisor’s conduct. On the other hand, when no tangible employment action is taken, the employer will not be liable if it can show that (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the

An employer’s response to a sexual harassment claim can significantly impact its reputation, employees’ morale, and its ability to attract and retain talent. employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. This affirmative defense has translated into a requirement that employers have sound policies prohibiting harassment and mechanisms for employees who are subject to harassment to complain. In implementing a sexual harassment policy, employers must ensure that their sexual harassment policies are effective—that is, that their policies clearly define the type of behavior that constitutes sexual harassment and establish mechanisms that encourage victims and witnesses alike to report issues in the workplace. A sexual harassment policy should explicitly set forth the types of behavior that are prohibited in the workplace. In making that determination, employers would be wise to consult the Equal Employment Opportunity Commission’s (EEOC) guidelines for defining sexual harassment ( 62


Notably, employers often assume the best sexual harassment policy is a “zero tolerance” policy. However, although zero tolerance policies are well meaning, they may not be most effective. Such policies might actually deter an employee from reporting sexual harassment, because the employee may not want to be responsible for getting someone fired. On the other hand, not every situation warrants termination, as there is a spectrum of behavior that can be deemed inappropriate. An employer is best served by assessing every complaint on its own merits. A sexual harassment policy should contain an effective complaint procedure. To that end, the policy should designate multiple individuals to whom complaints of sexual harassment can be made. It should also contain alternative reporting mechanisms, such as an employee survey or hotline, which allow employees to anonymously report. Lastly, although distribution of a sexual harassment policy is important, it will be inconsequential if employees do not know what it says. Therefore, employers should educate their employees on the policy so that they are aware of the applicable procedures and know how to file a complaint if necessary. Sexual Harassment Training In addition to implementing an effective sexual harassment policy, employers should also consider providing sexual harassment training to all of their employees. Indeed, some states and localities, for example California and New York, have enacted laws that require all employers to provide sexual harassment training on an annual or biannual basis. Even in states without such legislation (including Maryland), employers are best served by conducting sexual harassment training on a periodic basis. Training should focus on the type of behavior that is and is not tolerated in the workplace. It should be robust and engaging. The training should include the portrayal of different scenarios that demonstrate inappropriate workplace behavior. If feasible, the training should occur in person, as opposed to online, as it is likely to be more memorable and effective. Crucially, because corporate culture has a trickle-down effect, management-level employees should be required to attend training. Employers should consider the pros and cons of conducting managers and supervisors separately, so as to train management to identify sexual harassment in the workplace and appropriately respond to complaints. Investigations Employers also need to ensure that when there is a complaint of harassment, they are conducting thorough and prompt investigations, whether done internally or by a third party. In instances where the person investigating the complaint reports to the accused, it is particularly beneficial to engage an outside investigator in order to maintain impartiality. WEB EXTRA

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An investigation should be initiated as soon as the employer receives notice of a potential issue. Reacting to potential sexual harassment complaints requires a delicate balance, as the employer should not blindly conduct apparent baseless investigations against its employees. However, an employer is not required to wait for a formal complaint before it begins to investigate. If rumors are circulating about an employee’s inappropriate behavior, or the employer has observed the troubling behavior, it is incumbent upon the employer to communicate with its employees and begin to gather relevant information. In addition, any investigation should be well documented, as such documentation will be relied upon should litigation ensue. Additionally, the employee who filed the complaint should be informed of the progress of the investigation and the conclusion reached. Sexual harassment complaints are often “he said-she said” situations in which it can be difficult to determine the truth. To that end, employers should not be afraid to use their judgment and make an appropriate credibility determination once the investigation has been completed.

Public Relations Sexual harassment claims can make for “juicy” news stories. The press may take an interest in these claims, especially if the alleged harasser is a high profile individual in the community or industry. However, the unsolicited publicity may damage an employer’s reputation when questions arise about what an employer did or did not do in addressing the sexual harassment claims, and call into question the employer’s work environment. It can also lead to a rush to judgment about the facts, which can cause a trying of the case in the public sphere, and can negatively impact the due process entitled to the accused and the accuser. Employers must take special care when the press takes interest in a matter. Specifically, the employer must be thoughtful about any statements made on its behalf. Employers can benefit from engaging a public relations consultant to assist with communications with the press. Counsel should be involved in the discussions with the public relations firm and due care should be taken to preserve the attorney-client privilege in these circumstances.


Not only is sexual harassment prevention training the right business decision, but many states require companies to offer sexual harassment training for employees. Required for all employees Some training requirements Recommended, not required

Herba, Agnes. “State-specific sexual harassment training requirements (United States).” OpenSesame, 5 Jan. 2018,

After the investigation has been conducted, the employer must take appropriate action against the accused, if necessary. Importantly, any discipline imposed should be proportionate to the specific circumstances. Sexual harassment complaints need not always result in termination of the accused; indeed, there are often situations in which a valid complaint has been made, but termination is not warranted. Finally, it is not sufficient for an employer to simply conduct an investigation and appropriately discipline the harasser. The employer must also ensure that the complainant and any employees who cooperated or participated in the investigation do not become victims of retaliation, especially if the accused employee is not terminated. Employers also need to make sure the appropriate steps have been taken to prevent the inappropriate behavior from re-occurring.

Conclusion Employers will be feeling the effects of the #MeToo movement for years to come. Accordingly, employers should take the opportunity to review their sexual harassment policies, complaint procedures, training materials, and investigative process. Now more than ever, it is time for employers to be self-reflective about the workplace culture they promote, as a sexual harassment claim could be imminent. If the #MeToo movement has taught us anything, it is that no industry or individual is immune from sexual harassment claims. TERESA D. TEARE is a partner at Shawe Rosenthal, LLP who represents employers and management in labor and employment-related litigation. Courtney B. Amelung is an associate at the firm.






People often assume that the rapid rise in the visibility and public recognition of the #MeToo movement has translated into a significant increase in potential clients contacting our firm alleging sexual harassment. Much more significant, however, has been the increase in the number of calls we have received from “the accused”— typically individuals seeking legal counsel in response to a fellow employee filing an internal complaint of sexual harassment or misconduct against them.


t is important to note at the outset that, although the majority of calls we receive from individuals accused of sexual harassment are from men, women are also accused of harassment, and men can be victims as well. According to a 2016 report, “[t]he least common response of either men or women to harassment is to take some formal action – either to report the harassment internally or file a formal legal complaint.” See Chai R. Feldblum & Victoria A. Lipnic, Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace 16 (2016), available at: https://www. In practice, regardless of gender, it is not common for individuals to pursue false or baseless allegations of sexual harassment. For these reasons, plaintiff-oriented employment attorneys may be hesitant to take on clients accused of sexual harassment, believing that representing the accused would run counter to their strong advocacy for victims of sexual harassment. Those same firms, however, are also often committed to advocating for the rights of all employees to be treated fairly. Moreover, plaintiffs’ attorneys are best suited to represent individuals accused of sexual harassment or other related misconduct, because these cases require attorneys interested and experienced in advocating for individual persons against powerful organizations. Many obstacles encountered in representing complainants in sexual harassment cases also arise in representing the accused, including barriers to gathering accurate data and information and the reluctance of witnesses (often coworkers) to provide statements that conflict with the employer’s interests or account of events. The clearest distinction between representing the accuser and the accused, however, is that the formal rights of the accused may be more limited. An individual who is falsely accused of sexual harassment and suffers an adverse employment action as a result of the accusation generally has a narrow set of remedies available, depending on the circumstances of each case. Not surprisingly, representing the accused can be difficult, and clients are often frustrated by what they view as an unjust process. In addition to the weight of the evidence against the client, the outcome of the investigatory or disciplinary process often depends on the accused’s value to the employer and the employer’s tolerance for risk. In order to determine what remedies may be available to an accused client, the first question the attorney should ask is whether the client is protected under a collective bargaining agreement or employment contract. If a collective bargaining agreement provides any remedies for the client, those remedies should be pursued first. Similarly, if the employer has entered into an individual employment contract with the client, the attorney should carefully examine its language to determine whether any remedies are available under contract law. In either instance, the terms of the agreement may require the employer to investigate the complaint or follow certain steps in the disciplinary process prior to disciplining or terminating the accused employee. In Maryland, however, in the majority of circumstances in which the accused seeks out legal representation, our state’s at-will employment principles will apply. When an attorney begins his or her representation of an accused client early in the process, the most valuable role the attorney fulfills is the client’s guide through the internal investigation and disciplinary MARYLAND BAR JOURNAL | WINTER 2019


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A D I N F O @ B A LT I M O R E M AG A Z I N E . N E T

process. The accused’s ability to have his or her account of events considered during the investigation is paramount. It is therefore incumbent on the attorney to explain to the client the importance of his or her full cooperation in the investigation. The attorney should ensure that the client is prepared to handle interviews with investigators, control his or demeanor, and provide honest answers to the questions asked. The client is much better off disclosing potentially embarrassing circumstances when asked than risking the employer discovering later that the employee lied during the investigation. Further, the client should be advised to document as much as possible, put together a timeline, and take contemporaneous notes as events occur going forward. A difficult aspect of this process in some cases is that the client may not know the identity of his or her accuser, which can make it difficult to know what facts may be relevant. If the client knows or suspects the particular events that likely prompted the complaint, however, the attorney should work with the client to compile a list of witnesses who might be willing to support the client’s version of events. No law in Maryland, however, prohibits an employer from terminating or otherwise disciplining an employee accused of sexual harassment without thoroughly investigating the complaint. The employer may decide to terminate the employee even if an internal investigation produces no evidence of the alleged misconduct. Instead, an accused client who is terminated, demoted, transferred to an undesirable location, or otherwise disciplined as a result of a false allegation is generally limited to collateral or indirect claims and remedies.

Not surprisingly, representing the accused can be difficult,... the outcome of the investigatory or disciplinary process often depends on the accused’s value to the employer and the employer’s tolerance for risk. The most common claim that clients in these circumstances pursue is a complaint for defamation against the employer, the accuser, or both. One reason so many clients seek to pursue defamation claims is that they often feel the greatest harm from the damage to their reputations. In Maryland, however, “the burden of proving falsity falls upon the plaintiff, rather than the burden of proving the truth of the alleged defamatory statement falling upon the defendant.” Seley-Radtke v. Hosmane, 450 Md. 468, 472, 149 A.3d 573, 575 (2016) (citations omitted). As most attorneys understand, that feat, alone, is difficult to accomplish. Additionally, an employee who accurately relays an accuser’s allegations to a third-party is not liable for defamation. See Lindenmuth v. McCreer, 233 Md. App. 343, 361, 165 A.3d 544, 555 (2017). Even if the plaintiff can establish a prima facie case of defamation, employers are entitled to certain conditional privileges

under Maryland law. An employer is not “held liable for disclosing any information about the job performance or the reason for termination of employment of an employee or former employee . . . [t]o a prospective employer of the employee or former employee at the request of the prospective employer . . . .” See Md. Code, Cts. & Jud. Proc. § 5-423. Moreover, defendants are generally entitled to a common law conditional privilege if the statement was published to a third-party “who shares a common interest” or when the statement is made “in defense of oneself or in the interest of others.” Gohari v. Darvish, 363 Md. 42, 57, 767 A.2d 321, 329 (2001) (citation omitted). To overcome these privileges, the accused must meet Maryland’s stringent standard for showing that the defendant abused the privilege by publishing the statement with “malice” – i.e., with “knowledge of falsity or reckless disregard for truth.” See Marchesi v. Franchino, 283 Md. 131, 139, 387 A.2d 1129, 1133 (1978). Attorneys should therefore emphasize these obstacles to an accused client. Other potential remedies for an accused client relate to causes of action that allege that the employer’s adverse employment action was based on some prohibited factor, rather than the allegation of sexual harassment itself. For example, the attorney should determine if any comparators exist for purposes of bringing a claim under Title VII, such as if the employer treated another employee outside of the client’s protected class more favorably than the client, despite being accused of similar misconduct. Additionally, if the accused can provide evidence that he or she engaged in certain protected activities immediately prior to the allegation of sexual harassment or adverse action, the client may have a claim under a pertinent anti-retaliation provision, such as those under Title VII, the Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADA), Family Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), and a number of state and federal whistleblower laws, to name a few. Although these secondary claims may provide a few potential paths for recourse, representing the accused has its obvious challenges. Even when an allegation of sexual harassment does not result in an adverse employment action, the accused employee may suffer other consequences from the allegation. When the representation of an accused client begins early in the process, however, the most important aspect of the attorney’s job is to assist the client in responding to the allegations in an honest and cooperative manner. Doing so will not only increase the odds of a favorable outcome to an internal investigation, but it will also help prevent the client from sabotaging his or her chances of success under some other indirect remedy in the future. JOYCE E. SMITHEY is Managing Partner and Lisa L. Walker is an associate attorney at Smithey Law Group, LLC, a labor and employment law firm in Annapolis, Maryland, serving clients in all areas of Maryland and the District of Columbia.



Swiss-Army Knife Lawyering for the #MeToo Era One of the best things about being a lawyer is that we are always “practicing”—as in, we cannot possibly “have it all down” or avoid being called upon to expand. BY KATHLEEN CAHILL, ESQ.




hat reality is most evident in the demands of keeping current day-to-day with ever-evolving substantive law. But in the #MeToo Era, more than in any other chapter in my years of practice, I have found it essential to expand broadly in new ways. Along with that, the #MeToo Era has provided me, as a lawyer dedicated to working on social justice issues, an extraordinary opportunity to assist in this historic movement.

It has been astounding and sobering the numbers of people who have reached out to share traumatic sexual experiences, some dating from decades ago. Many had never revealed their experiences before. Most conveyed that they had no idea what their options were or the impact of the passage of many years. All conveyed the heavy toll and lasting burden of their experiences. This groundswell of important prospective clients posed a new challenge for me with regard to claims assessment and prospective client communications. For starters, while it is my standard practice on prospective client intake calls to quickly get the basics necessary to assess statutes of limitations and to wrap up the intake quickly but gracefully for time-barred claims, it was clear to me that that approach was not appropriate with these callers. I vowed to engage with every #MeToo Era caller and take whatever time was needed to listen to their story, given the weight of what they called to share and the courage and trust exhibited in their choosing to do so. In turn, that trust had to be met first with patience and compassion, but then with the “true facts” regarding the reality of what, if any, legal options are available and the risk, time, and hardship they might entail. For the callers who had to be advised that their civil claims were time-barred, interestingly, some were discernibly relieved to have called and asked and been advised they had no formal legal options remaining. But for those who really wanted to “just do something” or “ensure no one else goes through this with him,” where appropriate, I tried to provide counsel and advise on other possible options beyond the traditional path of legal claims or settlement negotiations. For example, I assisted one intrepid woman who called because she wished to make a full and strong statement to her longtime employer about how it had betrayed her in falling well-short of its legal obligations to address her complaint years back. I was able to assist her by reviewing and refining her communications and providing advocacy coaching for the follow-up meetings with her employer, while also providing the legal advice necessary to guard against possible retaliation or vicious defamation claims. I also have assisted women in deciding whether to confront a wrongdoer years later and, if so, crafting the approach, again, while also helping to avoid danger or risking defamation claims. I have advised women about the perils of spontaneously resorting to social media or other risky confrontation as a last-ditch

effort where formal options are shut off. And as always in sexual harassment and sexual assault cases, I have connected callers to specialized counseling and non-profit resources. In one case involving a serial-offending rabbi that played out in press, I fielded heartbreaking calls from women all over the country of decades-old accounts of abuse. After being left initially with sadness, frustration and the feeling of helplessness, given the time-bar of

It has been astounding and sobering the numbers of people who have reached out to share traumatic sexual experiences, some dating from decades ago. all claims, criminal and civil, when another synagogue stepped up and organized a community healing service and offered mental health counseling assistance, I at least was able to help connect the survivors to those meaningful services. In other instances in which criminal charges might still be viable, I offer to assist in explaining the general steps in exploring that course of action. It is my uniform practice where a prospective client has possible civil claims but also has potential criminal charges or has brought criminal charges, that the criminal charges take precedence. I initially offer only to assist informally during the criminal process by lending general support and guidance while monitoring the proceedings. I never become formally engaged or commence providing legal services until the completion of the criminal case in order to avoid the prospective client being undermined on cross-examination about her economic incentive in the MARYLAND BAR JOURNAL | WINTER 2019


outcome due to pending civil claims. In addition, the criminal case provides a unique preview including free discovery and help in valuing the civil claims, and the ensuing civil case is much easier to resolve following a criminal conviction.

They remain very difficult claims for sensitive clients who need help, not headlines.

It is important to clarify that I have not changed my case assessment and selection process for workplace sexual harassment claims. The #MeToo movement has not changed the fundamentals of the law of sexual harassment or sexual assault claims. I believe lawyers would be misguided in assuming that such claims have become easier to pursue or are suddenly more lucrative. It remains essential to be disciplined, thorough and realistic in analyzing a prospective claim under the well-established controlling law. These claims are no less risky and require no less work, experience, or skill by virtue of this social movement. Further, valuing cases remains a considerable challenge given the confounding stew of modest economic damages and low caps on non-economic damages, coupled with very limited availability of public data given that most matters resolve in confidential settlements. So I strongly caution against seeing these claims as newfound “bell-ringers” because of the #MeToo Era – in fact, they remain very difficult claims for sensitive clients who need help, not headlines. But still, a lot has changed, particularly because of the massive confusion sown in our client base by #MeToo Era headlines. One of the hardest challenges has been explaining finer points lost in the gob-stopping press accounts. For example, I have gotten these lines down pat: “No, the Bill Cosby conviction decades later does not mean your civil statute of limitations has not expired,” or “The fact that female TV news anchors got many millions does not mean there is no cap on damages or that you can get millions too; rather, they had very lucrative employment contracts driving the economic 70


damages and the settlement way up.” With these quite understandable misimpressions, it has become much more challenging to manage client expectations and gain trust when you must state, “No, I cannot possibly get you $750,000, given that you lost $5,000 and the Title VII cap on non-economic damages for that size employer is $50,000,” or “Yes, I saw that multi-million-dollar verdict in the paper, too, but the reporter did not include that the judge must dramatically reduce the award because of the $100,000 cap on damages.” The legal analysis and basic valuation process of these cases have not changed because of Cosby or Weinstein or O’Reilly. That said, what has changed, in my view, is that a case might settle more quickly, and in some circumstances, there might be a premium assigned to the valuation if the company genuinely fears press or social media and consumer backlash, or investor backlash or the sprawl of more follow-on claims. It might be easier to get other survivors or witnesses to risk stepping up as well, given the momentum of the movement. So, in some instances there might be additional leverage in the #MeToo Era, but there remain the same incongruous and unyielding legal limitations on the size of awards and settlements in these cases. So I say: #KeepItReal! These claims remain a slog through tough terrain while requiring the sensitivity of a social worker’s heart. We are not cowgirls; we are not agents of a #MeToo reckoning. We are disciplined professionals being asked to assume a heavy responsibility in people’s lives, many of them quite fragile and some facing tragedy. We are being invited in at a crossroads where people deserve our best judgment and professional support while they explore the possibility of accountability, compensation, and justice in full – or are left to turn around and put their nightmare back in the box, hopefully with some valuable guidance and perspective from their engagement with a lawyer. KATHLEEN CAHILL has had the good fortune of practicing employment, civil rights, and tort law for over 35 years, with the hope for many more to come. She may be reached at

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The Importance of LGBTQ Estate Planning BY RICHARD L. ADAMS, ESQ.

A PROPER ESTATE PLAN is critical for everyone, no matter their level of wealth or income. At its core, estate planning is not really about the value of assets involved, but the desire to control and ensure that your wishes are honored when you are no longer able to speak for yourself. Don’t let yourself be silent by failing to plan for the inevitable. With this in mind, the following documents should be in place for all, regardless of wealth or income status: 1. Last Will and Testament. This document allows you to control how the assets held in your name alone will be distributed upon your death. You can also nominate Guardians of your minor children and name a Personal Representative of your choosing to handle your affairs. A Will allows for incredible flexibility as to bequests to individuals or entities that you wish to benefit from your estate upon your death, regardless of their family relationship to you. 2. Personal Financial Power of Attorney. This document allows you to appoint someone else to handle your financial affairs on your behalf. It grants very broad powers to this Attorney-in-Fact, giving them the authority to basically do anything you can do financially, but with the duty to perform such action in your best interest. This document also helps to avoid the need to petition the Circuit Court for guardianship over you when you are no longer able to handle your affairs, as the Attorney-in-Fact can perform such actions on your behalf. 3. Advance Medical Directive/Living Will. This document allows you to appoint someone else to make medical decisions on your behalf, in the event you are unable to do so. It also allows 72


your agent to interact with your medical professionals, serving as a resource to you related to ongoing medical needs. The document also provides guidance as to your end-life wishes. Depending on your specific situation, you may also wish to implement the following documents: 1. Trusts (Revocable/Irrevocable). Trusts can be created to serve a variety of purposes, for the benefit of your spouse, children, or other family members. Unlike a Last Will and Testament, which must be publicly filed when you pass away, a Trust is a private disposition of your assets. It can also be a useful tool to protect funds for those with special needs, or from those that are not responsible with money. Trusts are very useful tools, when used for the proper reasons. 1. Deeds. The titling of real estate is important to any estate plan. There are different ways to hold property that may coincide with your goals, such as holding property as tenants-by-the-entirety with your spouse, or by owning a life interest in your property so that upon your death, the property would flow directly to your children, by operation of law.

Essential to any estate plan discussion is a careful review of how your assets are titled, including the beneficiary designations currently in effect for your retirement accounts and life insurance policies. All of these financial pieces need to be reviewed and considered when putting a plan into place. In Maryland, if you do not have these documents in place, then the decisions related to your body and assets, both when you are alive and when you pass away, are controlled by the State of Maryland, rather than you. Sometimes, this can mean that a family member who does not agree with your membership in the LGBTQ community, or would not honor your wishes, is granted broad authority over you. Current law assumes that such power should be granted based on blood relation, rather than personal connection. Thus, it is essential that members of the LGBTQ community have such documents in place. RICHARD L. ADAMS is an Associate at the law firm of Rosenberg Martin Greenberg, LLP in Baltimore.



Citation at the Modern Law Firm IN 2014, professors at the Harvard Law School conducted a study to scope and address the prevalence of link and reference rot in the legal field (“Perma: Scoping and Addressing the Problem of Link and Reference Rot in Legal Citations” perma-scoping-and-addressing-the-problem-of-link-and-reference-rot-in-legal-citations/#_ftn2 archived at Link rot, which is the phenomenon of a website no longer serving up any content when a user clicks on a URL or visits the site directly, is widespread on the internet. It is a problem many of us have experienced, and its close cousin, reference rot, is even more prevalent, though less obvious to the naked eye. It refers to the fact that sometimes a website isn’t completely gone, just changed: copy may have been altered, an image changed, or an author left a company, prompting the removal of their content. As an internet user, these occurrences are a nuisance, but in the context of the law, they can have major consequences. The 2014 study examined link rot in two of the law’s major outlets: academic journals and opinions of the court. Both link and reference rot were found to be rampant in the samples examined by researchers. Of all the links ever referenced in a United States Supreme Court opinion, 50 percent of them no longer pointed to the intended content. The rate was even higher for the scholarly journals published at Harvard: 70 percent of those references had changed or disappeared over the course of 14 years. The Problem The premise of the study rested on the understanding that the legal profession as well as any form of scholarship relies on the persistence of references and citation. Journal articles and court opinions being able to accurately reference sources is obviously essential. But of course the problem is not limited to those areas of the law. Law firms use web references in everything from marketing materials to their briefs. Any time a web resource is used, there is a risk of it rotting. Traditionally, institutions such as libraries, archives, and courts have collected and housed physical items for reference. These organizations have missions to preserve these materials for the long term. Books, journals, newspapers, and government documents, amongst other things, were gathered and stored as centrally as possible. However, as the world (and inevitably aspects of the law) migrate online, the gatekeeping of information has become more widely distributed. The internet is a powerful tool, giving users and authors much more autonomy with their information, but it is much more fragile than many might think. The reality now is that authors, lawyers, and scholars all need to be far more responsible for their own references, else they disappear from the web. There are many causes for link rot. They include new internet protocols, domains being purchased, page owners lapsing on maintenance, or intentional removal of pages. For example, it has become very common practice for law firms whose attorneys produce content for a blog to remove said content once that attorney has moved on to another job. On the surface, this seems like a logical step taken by the employer, but the ripple effect of removing that post could be bigger than considered. Any person who has referenced that blog post in their own work or had relied on it for information will no longer have access. The ramifications of this can be felt both as a hindrance to scholarship and as a prob-

The internet is a powerful tool, giving users and authors much more autonomy with their information, but it is much more fragile than many might think. lem for marketing. How many marketing departments want to hear that their website is riddled with dead links? Visitors are met with a frustrating “404: Error” page, often with no way to know what next step to take to find what they’re looking for. Plus, search engines often take into account broken links when optimizing results, which has a negative impact on internet presence. As clients flock online to make decisions about representation, having a good web presence is essential. Dead links make for an unprofessional website. One solution is to simply never cite content from the web. But as legal blogs become more and more important to a firm’s marketing practices, and briefs inevitably must reference activity on the ever-present internet, a better solution should be sought than simply trying to avoid web references.



One Solution for Citation A direct result of this study in 2014, (https://perma. cc/) is a project that was developed at the Harvard Law School. A group of coders, lawyers, and librarians at the Library Innovation Lab have created it as a service that allows users to take internet preservation into their own hands in an accessible way. Perma preserves the integrity of citations and links to digital sources by converting your unreliable traditional links into unbreakable Perma Links. Essentially, a user logs into the web interface with a username and password, they paste a URL in, and Perma returns a new link to them. This new link, also known as a Perma Link, points to a record of the website that has been captured and stored as part of our permanent collection at Harvard. The new link is short, easily used in citation, and will always point to the user’s record containing the web content and information about time of capture.

Perma preserves the integrity of citations and links to digital sources by converting your unreliable traditional links into unbreakable Perma Links. This process is distinct from simply capturing a screenshot or using a service like the Internet Archive’s Archive-It button in several ways: 1. A Perma record is a “high fidelity” capture of the web - when someone views a Perma Link, they’re able to interact with the site like the original. You can click through images, see animations, and scroll down with the content. 2. You don’t have to worry about hosting or storing the archived webpage yourself - it becomes part of the Harvard collection and is accessible to anyone who has the link. 3. You have control over privacy of your records, making them invisible to the public until you’d like them to be available. At its core, comes from a library looking to extend its services into the digital age. Libraries are about preserving information and making it accessible for all. As the internet creates more autonomous content creators and readers, the goal is to empower authors to protect their content. is a solution for a piece of the internet health puzzle. For lawyers, firms, and information professionals concerned with producing good, solid arguments, it can be an invaluable tool - plus, it’s recommended by both the Blue Book and the Chicago Manual of Style! So far, over 250 academic libraries have joined the Perma. cc community and administer accounts to their students and professors. The Library of Congress and the U.S. Department 74


of Justice are both using Perma for their work. In Maryland, the Maryland State Law Library is a partnering institution, providing accounts for their own internal users and those at the State Reporters Office. Over 10,000 journal and law review articles found on Westlaw contain Perma Links. Of the 891 cases on Westlaw that reference with, 208 of them are from Maryland. Of the 618 briefs filed with citations, 41 are from Maryland. As more and more young lawyers are graduating from school already having used, the service will be expanding its commercial availability to law firms and non-academically affiliated individuals. Organizational subscriptions allow attorneys, paralegals, or entire teams to create Perma records on a collaborative platform. Individual users can also access Perma via a paid account - or do a test run for free at In the coming months, the Perma team will be hosting workshops and sharing content in partnership with the MSBA about the effects of internet health on the legal field and to discuss solutions. Please join to learn more about how your law practice can benefit from being proactive about sustainable web citation. Contact Clare Stanton, Communications and Outreach, at for more information.

Perma and MSBA When Baltimore County sole practitioner Stuart Levine learned of Perma CC, he recognized that the service, designed to provide reliable reference points for cited material online, “could influence a large portion of the work that lawyers do.” “It’s particularly important to lawyers, because we cite a great deal of material that, over time, is migrating to the web,” says Levine, noting that Perma CC offers “a sense of permanence” to the citation of online resources.” To help spread the work among his fellow attorneys, Levine turned to the MSBA, which is consequently exploring options for providing the service to its members. “MSBA can act as a collective bargaining agent for its members in getting them resources,” says Levine, who has been an MSBA member for over 40 years. “MSBA’s responsiveness to my suggestions has been absolutely phenomenal, in my opinion. They’re taking these things seriously, and they want to provide value and service for their members.” WEB EXTRA

CHAT WITH AN EXPERT: Hear from Stuart Levine, Law Offices of Stuart Levine LLC about VISIT MSBA.ORG/SLEVINE



Content, Consistency, Engagement: The Makings of a Solid Social Media Strategy BY TATIA GORDON-TROY, ESQ.

Social media platforms have changed the way people choose lawyers. Gone are the days when someone in search of a lawyer reached for the local directory and called the one with the largest advertisement.


Top Three Social Media Platforms

TODAY, PEOPLE GOOGLE YOU. They read your LinkedIn profile and your posts.

They read your tweets and look you up on Facebook. They visit your website to learn more about your firm and practice area. And they do all of this before they call you for a consultation.

LinkedIn ٚ Launched in 2003 ٚ 146 Million Users in the U.S. ٚ 562 Million Users Worldwide

Why? They want to get to know you before reaching out. Many of your potential clients are not relying on face-to-face communication anymore, so why are you? Face-to-face networking can only reach a limited number of people, hence the reason why social media is so popular. A social media presence will help you reach hundreds, if not thousands, of people at a time.

(September 2018) (

Facebook ٚ Launched in 2004 ٚ 241 Million Users in North America ٚ 2.2 Billion Users Worldwide (2nd qtr. 2018) (

Twitter ٚ Launched in 2006 ٚ 68 Million Users in the U.S. ٚ 336 Million Users Worldwide (1st qtr. 2018) (


Top Sites For Lawyers Recent surveys show LinkedIn, Facebook, and Twitter as the top choices for lawyers when cultivating business leads (see Fig. 1). For three years running, the annual survey performed by has shown an increase in the percentage of lawyers using social media for business: 60 percent in 2015, 68 percent in 2016, and 70 percent in 2017. Lawyers who regularly use social media as part of their marketing strategy reported using LinkedIn at least 84 percent of the time, with Facebook coming in second at 80 percent, and Twitter with a respectable 59 percent. Solo practitioners seem to lean toward using LinkedIn more often than Facebook. But the most interesting numbers refer to what platform lawyers think is working for them in terms of bringing in new business. Facebook took first place with 31 percent, followed by LinkedIn at 27 percent, and Twitter coming in at a low 5 percent.

SHARE YOUR WISDOM: Send your marketing tips to Patrick Tandy, Director of Content & Delivery, at for possible inclusion in future publications. MARYLAND BAR JOURNAL | WINTER 2019



Character Counts And Length Restrictions LinkedIn ٚٚ 1,300 characters or less ٚٚ Ideal length 50–100 characters ٚٚ Ideal time to post Wednesdays, 3:00–5:00 pm

Facebook ٚٚ 63,206 characters or less ٚٚ Ideal length: 40–80 characters ٚٚ Ideal time to post: Wednesdays, noon and 2:00 pm, Thursdays, 1:00 pm and 2:00 pm

Twitter ٚٚ 280 characters or less ٚٚ Ideal length: 100 characters or less ٚٚ Ideal time to post: Fridays, 9:00 am–10:00 am Sources:,,

Social media is your opportunity to grow your network, increase your visibility, and, ultimately, gain more clients. 76


Social Media is Long-Term According to, most lawyers, especially solos, continue to manage their own social media presence. This is all the more reason why a solid social media strategy is so important. You wouldn’t want to spend an inordinate amount of time on a platform where very few of your ideal clients can be found, nor would you want to lose precious billable hours trying to maintain an active and consistent presence on every platform. Whichever platform you choose, research it first to ensure that you will have ample opportunity to build relationships with those whom you want to cultivate as clients. But don’t expect to achieve overnight success—social media is for long-distance runners, not sprinters. Know that you’re in it for the long haul. Social media can be a waste of time if done haphazardly or without a trackable system. A well-planned strategy is key to understanding whether your efforts are paying off. As part of your strategy, always include calls to action, links to landing pages, or trackable URLs in your social media postings.

Use these examples to get you started: 1. Calls to action, or CTA, can be as simple as saying, “Follow this link to sign up for a free …,” or “Call or text … to talk to an expert now,” or “Click here to schedule an appointment with … .” Action words are imperative because not only do you want your posts to educate your readers, you ultimately want to turn those readers into clients. 2. Use your CTA to send readers back to your website or to a landing page where you can capture their contact information using an online form. Entice them with a free newsletter, a downloadable information sheet, or a more extensive FAQ. 3. One of the simplest ways to incorporate trackable URLs is to use or to generate shortened URLs that can be customized for easy recognition. These websites will track the number of times the URL is clicked.

Social Media is Marketing To survive in this vast sea of professionals, a lawyer needs to be a savvy marketer and a savvy business owner. Social media is all about marketing yourself and your firm by building relationships and allowing people to get to know you long before they ever need your services. As a lawyer, social media is your opportunity to grow your network, increase your visibility, and, ultimately, gain more clients. But to be successful at social media, a long-term strategy is required, one that consists of three things: (1) content; (2) consistency; and (3) engagement. Content: What to Post Video. Social media is all about video! It is the most favored content on all platforms. LinkedIn and Facebook have developed their algorithms to push out video before pushing out other posts. Video is the best

way to get to know someone aside from in-person contact. Below are several types of lawyer videos that are posted to social media: 1. Explainer or educational video: solves a problem, explains a concept, presents a “know your rights” concept. 2. Hero video: positions you as the one who will fight for the client no matter what and stand up for what’s right. 3. Authoritative video: demonstrates expertise in a particular topic, responds to specific questions, uses client scenarios. 4. Thought leadership video: uses timely topics, “in the news” topics, breaks down a verdict or a specific adjudication. 5. Client testimonial video: offers a personal account and shows your trustworthiness.

6. Personal history video: tells your audience about you, your firm, and the people who work for you. Short-form posts. Short-form posts are highly favored on all platforms, as they are designed to be concise and take up as little of the reader’s time as possible. Short-form posts consist of three lines or less. Most people add a space between lines in order to create an even easier and faster read. Research shows that short posts receive higher engagement. According to data from Buddy Media, tweets with 100 characters or less get 17 percent higher engagement than longer tweets. states that Facebook posts containing 40 characters or less see 86 percent more engagement (see Fig. 2).

If you desire to post something long form, such as an article you’ve written, place the article on your website and use a short URL in your social media post. Include a summary of three lines or less and ask people to follow the link to read your article. This will gradually direct more traffic to your website. Other people’s content. Feel free to post links to other people’s content, news articles, and the like. Caveat: Never post just a link! People hate that and the algorithms do, too. Always include a synopsis; better yet, include your thoughts on the subject along with the link.

Images. Use relevant images with text posts for higher impact. Text posts can get lost among all the videos you’ll see in your news feed. A striking image associated with your text post will catch the eye of the reader as he or she scrolls. Your firm’s logo can be used as the image. For royalty-free images, try,, and

Consistency: How Often to Post Being consistent with sharing content is just as important as the content being shared. The only way to build relationships without face-to-face communication is to be seen and heard on a consistent basis on social media. Weekly posting is recommended, but more frequent posting is even better. Here is where most people find social media to be time consuming. Below are some suggestions to make your social media implementation easier:

Long-form posts. Long-form posts are any text posts of four lines or more. Platforms, such as LinkedIn and Facebook, tend to lower the visibility of long-form posts because shorter is better. That doesn’t mean that you won’t see any posts with more than four lines or that you shouldn’t post text that is more than four lines long. Long-form posts simply aren’t as favored.

1. Start with posting content once or twice a week. 2. Decide what types of content you’d like to post to inform, educate, and connect with readers. 3. Build a social media calendar. For example, you could post your thoughts on relevant case law or news items on Tuesdays then post short “know your

rights” videos on Thursdays. 4. Block out time each week to create and/ or curate content. 5. Research each social media platform and decide where you might find and connect with the most potential clients. Then spend majority of your social time on that platform. 6. Delegate the regular posting to someone in your office if you can. But, above all, do not delegate your engagement. People are not building a relationship with your assistant; they need to build that all-important “know, like, and trust” factor with you. Engagement: Like, Follow, Share, Comment Your posts should be consistent but your engagement must be constant. Social media thrives on engagement; it is how you will build your online community. Engage with those who like, follow, share, and comment on your posts—there’s nothing worse than leaving a comment for the poster only to have it ignored. And be sure to reciprocate by commenting, liking, retweeting, and sharing others’ posts as well. Invite people to connect with you. Remember: Someone is more apt to accept a personalized request to connect if the person sees that you’ve taken the time to read his or her profile. You might even find something you have in common; if so, mention that in your connection request. As a lawyer, beware of offering legal advice on any social media platform. If people have questions, kindly invite them to contact your office to schedule a consultation. Check with the bar or your ethics panel if you have questions regarding social media engagement. Things to remember: To be successful with your social media strategy, start with a plan. And for those do-it-yourselfers out there, don’t try to split your time between all platforms—you’ll never get any work done. TATIA L. GORDON-TROY, ESQ. is a member of the Maryland Bar and a regular contributor to MSBA publications. She helps develop attorneys into authors as a way to market themselves and their practices. Tatia runs her own publishing and marketing firm, Ramses House Publishing LLC, MARYLAND BAR JOURNAL | WINTER 2019


Practice Management


TAKE YOUR PRACTICE TO THE NEXT LEVEL. MSBA’s Practice Management Portal provides tools & resources to help you run your law practice. Our library of whitepapers, articles, checklists and other exclusive content is designed to help you manage every part of your practice. New content is uploaded every month.






Too Busy for Books? Find the Time with Technology Two things often in short supply for lawyers are time and money. Harried schedules chase away things lacking immediacy. One thing I sacrificed was pleasure reading. Between family, work, and other commitments, sitting down to read a book was a lost joy. BY JEFF SCHOENBERGER, ESQ.

THANKFULLY, WITHIN THE LAST SEVERAL YEARS, books have adapted themselves to our chaotic lives. Here are some ways that you can find time to read and learn while still moving at a frenetic pace.

1. Pocket / Instapaper / Safari Reading List. For those looking to enjoy web-based articles on the go, without the annoying ads, I recommend taking a look at Pocket, Instapaper, or iOS Safari's built-in Reading List. Each of them is a variation on a theme. Safari's feature is free, while the other two cost nominal monthly amounts. Each allows you to "save" a webpage, such as a news article or blog post, for later reading. The webpage is downloaded and saved, usually in plain text, sans ads and other annoying Internet dreck. As you save articles, you create a customized "newspaper" of stories you'd like to read. The app keeps them handy, in a single location. Whenever you find yourself with downtime, just fire up the app and read an article. It's a great way to take that "sometime I'll read this" pile of articles and put them someplace you actually can read them, even without an Internet connection. 2. Kindle / iBooks. Since its launch in November 2007, Amazon’s Kindle has grown from a single hardware device to an entire ecosystem of software and devices across all major smartphone, tablet, and computer platforms. Now that books are electronic, we can easily read a bit, whether you're curled up on the couch, waiting at the doctor's office, or just standing in line at the grocer. In addition to reading everywhere, digital books offer the opportunity to highlight and take effective notes in a way far superior to writing in a book's margins. Additionally, with both Kindle and iBooks (Apple's competitor to Kindle), you can import PDFs or other non-book documents into the app for easy reading right alongside published works. 3. Audible. For those “on the go” non-stop, Audible turns the time you would otherwise be listening to inane DJs into reading time. Audible is a subscription service where, for $16 per month, you get a new audiobook of your choice. Audible has apps for iOS (and CarPlay), Android (and Android Auto), Kindle eReaders, and even Echo/Alexa speakers. No matter whether you're stuck in traffic, at the airport, or just out for a walk, you can incorporate audiobooks into your daily routine. 4. Overdrive. This service is a combination of eBooks and au-

diobooks. Best of all, it's free. Really. Overdrive partners with libraries around the country to provide electronic resources to patrons. If you're a member of your local library and they've partnered with Overdrive, you can reserve eBooks in Overdrive or Kindle format or audiobooks in Overdrive format, download them, and read them over the lending period for free in the Overdrive app available on iOS and Android. There can be waitlists, as with any popular title at a library, but you get books and audiobooks in modern, digital formats, that you can read for free. What's not to like? JEFF SCHOENBERGER, ESQ. is a member of Affinity Consulting Group’s document automation team. He may be reached at





Imagine It Forward: Courage, Creativity and the Power of Change REVIEW BY PATRICIA MCHUGH LAMBERT

Commercial litigator Patricia McHugh Lambert finds the future beyond the bedside table. I HAVE BEEN SO BUSY recently that

we must embrace change, be creative, and engage in frequent strategic planning. This book is absolutely relevant. While it may not have all the answers, it raised a lot of questions that I, as an attorney, need to begin thinking about, as well as a roadmap to consider such issues.

I have had little time to read. When I do read, I seem to focus on legal periodicals (to stay current with my practice), historical biographies (in order to have something interesting to say in conversations), and fluff books that are simply mind-candy.

I have already recommended Imagine It Forward to community leaders, MSBA leaders, and members of my firm. Young or old, whether new to the practice or an established leader, this book should open people’s eyes. However, a word of caution: as Comstock indicates in her book, change-makers and visionaries do not have an easy road. Inertia is a powerful force, and those who seek change need to understand this force. Avoid this book if you do not want to think about change.

Imagine It Forward: Courage, Creativity and the Power of Change, by Beth Comstock, is not the type of book I typically read. I started reading it (okay, I began listing to it on Audible) because the author, former Vice-Chair and Head of Marketing and Innovation at General Electric, was going to be the speaker at Executive Alliance’s 25th Annual Women of Excellence Dinner in October. As President of Executive Alliance, I thought I needed to read Comstock’s book in order to host her at the dinner. But as I listened to Imagine It Forward, I realized that it was the type of book that I need to be reading - a book on how I could be more innovative in my work, a book to help me imagine the future, and a book to help me inspire others to be comfortable with change. I listened to the Audible book twice, and now I am actually reading it to allow all the innovation lessons to seep in. When I first started “reading” Imagine It Forward, I was thinking that it might




be interesting to learn how an economic engine such as GE handles challenges. But as I listened further, I kept making notes to myself about how the practice of law will change. It already is changing, and will continue to change due to such factors as technology (think artificial intelligence and process mapping), non-traditional competitors to our business, and the demands of a new workforce mentality. To be relevant,

Second, this book should be an important read to all those who mentor. I would suggest that anyone who is trying to mentor the next generation should work to inspire creativity and change. Imagine It Forward left me wondering what the practice of law will like 10, 20, and 30 years from now. That might make for an interesting discussion. PATRICIA MCHUGH LAMBERT is a Principal at Pessin Katz Law, P.A. in Towson, Maryland.

SHARE YOUR FAVORITES: What’s caught your interest lately? Send book, magazine, or article reviews to Patrick Tandy, Director of Content & Delivery, at



For nearly 40 years, the Baltimore-based MSBA Lawyer Assistance Program (LAP) has worked tirelessly to preserve and promote the professional, physical, and emotional health and well-being of all Maryland attorneys, judges, and law students by providing free, confidential counseling on issues affecting those in the profession:


Now, LAP has brought its services home, no matter where you are in Maryland. As part of MSBA President Judge Keith R. Truffer’s yearlong focus on lawyer assistance, LAP has partnered with a nationally recognized provider of counseling service to effectively expand its presence to every corner of the state.


We have resources to help. Take advantage of our network of experienced providers. The MSBA Lawyer Assistance Program is available to all lawyers in Maryland. If you or someone you know is in need of LAP’s free and confidential counseling services, please contact us for free: 24/7 TOLL-FREE LINE

1-888-388-5459 James P. Quinn, Director 443-703-3041 Lisa Caplan, LCSW-C, Counselor 443-703-3042 MARYLAND BAR JOURNAL | WINTER 2019




The Lawyer Assistance Program Lawyers, like anyone else, face stress, burnout, and depression. Too often, they have nowhere to turn before the problem gets worse, and a career and life are lost to substance abuse, addiction, or mental health complications. The MSBA Lawyer Assistance Program can make a difference, offering assessment, referral, short-term counseling, and continued support to insure the long-term success of all Maryland lawyers. MSBA President Judge Keith R. Truffer has made lawyer assistance one of his key initiatives. Last fall, LAP partnered with a nationally recognized counseling services provider to expand its reach into every locality across the state.

Jay D. Miller


Jay D. Miller is a medical malpractice and personal injury attorney with the Law Offices of Peter Angelos, P.C., in Baltimore City, and, with Montgomery County District Court Judge William Simmons, co-chairs the MSBA Committee on Lawyer Assistance. From confidentiality to financial assistance, he notes, help is just a phone call away.




TO LAWYER ASSISTANCE How did you become involved with the Lawyer Assistance Program?

At one point they were there for me, so I felt it was my responsibility to give back, to see what I could do to help others. LAP will help with any kind of problem that you’re having. We can help people with mental health issues, depression, problems with stress if the job is overwhelming you. I’ve seen our program counselor, Lisa Caplan, help people with marriage problems. Now, we’re not a marriage counseling service, but the point is that sometimes you find out there’s an underlying problem, so you treat it.

What if I can’t afford treatment?

A lot of times, when lawyers object to going into rehab it’s because they no longer have health insurance, because, when you have problems with drugs and alcohol, what’s the first thing that goes? You stop paying things. You stop paying your health insurance. So they’ll look at us and say, “I’d love to get help, but I can’t afford it.” We are gifted with something called the Bates/Vincent Foundation, which is an endowment available to the Lawyer Assistance Program. We can write them a check and get them into rehab. It’s a loan - once people get back on their feet, they’ll pay the money back.

But what about confidentiality? Will seeking help from LAP hurt my career or professional standing?

One of the problems we face is this fear that if I call the Lawyer Assistance Committee, my name is going to be put up on a chalkboard and everybody’s going to sit around and talk about me. However, we have no need to discuss people’s names; we have sheets with numbers on them. When we sit around a table, we discuss numbers, we don’t discuss people. The only people in our group who need to be aware of a lawyer’s name are the lawyer and the director who may be working with that lawyer. The Maryland Code prevents us from having to be forced to testify against anyone, regardless how bad the problem is. The Attorney Grievance Commission has a diversion program so that rather than disciplining the lawyer, they’ll send the lawyer to us. If the lawyers agrees to work with us, they can stay out of grievance issues.

Many of these issues can be traced back to the earliest stages of an attorney’s legal career. Does LAP make any efforts to connect with law students? Photo courtesy of Beverly Funkhouser Photography

Lawyers on our oversight committee will go to the University of Maryland Francis King Carey School of Law and the University of Baltimore School of Law and speak to the students to try to educate them. We [try] to get them early on, because when you become a first-year lawyer, you’re not interested in learning about these committees yet - you’re trying to earn a living. We hit them with some stories about how younger and younger lawyers are coming into our program earlier and earlier, and we let them know that you can nip that in the bud, that you can do something about it. We’re also here for law students who’ve already had a problem - they’ve had a DWI, or two DWIs, which is going to prevent them from being admitted to practice. We work with them, get them the help that they may not have had, and we assist them in getting admitted to the Bar.

How do Maryland’s lawyer assistance efforts measure up to the rest of the nation?

Having had the opportunity to travel and see what other states have, I will tell you that Maryland continues to lead the way. We were the first state to ever have a lawyer assistance program with a paid director, Richard Vincent; the Bates/Vincent Foundation is named after David Bates and Richard Vincent, the two who really started the whole concept of lawyer assistance in the entire country. We are also the first lawyer assistance program to have a foundation and endowment that enables us to help lawyers afford to go to rehab. And we are blessed because we have a President of our Maryland State Bar Association, Judge Keith Truffer, who has made wellness and recovery and lawyer assistance his platform. We have come a long way. WEB EXTRAS

WHAT MAKES LAP SPECIAL Jay Miller shares how to get your life back. THE EVOLUTION OF LAP Hear about the history of the program. STRESS MANAGEMENT Hear about Jay Miller's meditation revelation. WANT TO READ MORE? Read our complete interview with Jay D. Miller online. VISIT MSBA.ORG/JMILLER






The Honorable Charles H. “Chip” Dorsey, III, is an associate judge for the Baltimore City Circuit Court. For 16 years he has served as a member of the MSBA Committee on Lawyer Assistance, which provides oversight of the Lawyer Assistance Program (LAP), of which Dorsey himself is a former client.


WANT TO HEAR MORE? Read our complete interview with the Hon. Charles H. Dorsey, III, online MSBA CLE: The MSBA Elder Law & Disability Rights Section and the MSBA CLE Department deliver important information on issues with dementia, mental health directives, and more with "Mental Health and the Law." VISIT MSBA.ORG/CDORSEY 84


"Because if you don’t deal with stress and anxiety in a healthy way, stress and anxiety will find an unhealthy way to deal with you."


DEALING WITH STRESS AND ANXIETY How did you become involved with the Lawyer Assistance Program?

I was a LAP client approximately 18 years ago. I had issues dealing with stress and anxiety in a healthy way, and the Lawyer Assistance Program was there to help me. [Former LAP Director] Richard Vincent kind of nudged me, and told me that I was going to give back what was given to me. Now, I mentor students, other judges, or lawyers who may have stress, anxiety, alcohol/drug/depression issues. It’s been a very rewarding way of giving back. I never thought I’d be giving back in this arena, but it’s been very rewarding for me to help the program in any way possible. We used to call that “volun-told”.

How have you seen LAP change over the years?

Maryland has always been progressive. LAP started off by Richard Vincent basically being reactive to individuals who had DWIs, or hear through some other third party that they may have an alcohol abuse problem. And then we realized that we were missing a vast majority of the issues that lawyers and law students had, and we evolved into a more holistic program where we deal with anything from bipolar depression and dementia to financial issues, relationship problems, stress from taking the bar exam. We wanted them to know that if you need to see a therapist, if you need to go to treatment, if you need someone to sit down and give you tools to deal with stress and anxiety in a healthy way, that they have a confident, competent, professional resource available to you. Previously, money and location limited the ability to use these services, because you had to come to Baltimore. The big change now is that because it’s become such a priority, you don’t have to come to Baltimore to receive services. If you’re in Western Maryland, we’ll get you counseling in Western Maryland. If you’re in St. Mary’s County, we will get you counseling in St. Mary’s County. If you need counseling on the Lower Eastern Shore, or Cecil County, you don’t have to come to Baltimore City to receive services. And money isn’t an issue. It’s more important to us that you get the services than be limited because you don’t have the money to receive those services.

Why use the Lawyer Assistance Program, rather than going through a private healthcare provider?

Lawyers are usually Type-A personalities - very hard to help. Starting in law school, we are brought up in an adversarial environment, which is very stressful and really antisocial. We’re taught to Photo courtesy of Beverly Funkhouser Photography

be very defensive, argumentative. The Lawyer Assistance Program was set up directly for lawyers. A lawyer is wired differently from other individuals, so it is probably easier for another lawyer or a judge to identify the denial issues and understand the defense mechanisms that somebody may use when addressing their issues. The program is set up to break down those defense mechanisms that we use to deny that we have an issue.

What do you want to tell attorneys that may be struggling, but remain hesitant to reach out to LAP?

I used the program for substance abuse. I was challenged in the beginning because I feared it wouldn't be confidential, that there were people who were going to try to take away my law license. So it was very hard for me to accept the help. But LAP is a totally confidential program based on helping the individual through a holistic approach. We deal with attorneys probably better than any other entity.

You educate law students about lawyer assistance. Have you noticed any sort of evolution in those audiences’ awareness or understanding of these issues over the years?

I graduated from the University of Baltimore School of Law in 1988, and no one at that time came to the law school to say, “Look, this is an adversarial system that causes stress and anxiety, so if you experience stress or anxiety, or you have a drug problem or depression, come to the Lawyer Assistance Program.” It was more of a reactive program. Today, LAP is a proactive program. We reach out to law students and explain to them some of the symptoms that they may experience later in their careers, or which they may be going through right now. I’d say at least half of our clients are law students.

How does LAP help lawyers deal with the stress of practicing law?

For us to be able to take on the brokenness of society you have to have healthy tools to deal with the stress and anxiety that clients or society may bring upon you. Instead of waiting for an individual to break down, we become proactive, and give you a new toolbox to deal with stress and anxiety in healthy ways. Because if you don’t deal with stress and anxiety in a healthy way, stress and anxiety will find an unhealthy way to deal with you. We aren’t machines.





Excellence Must be Chosen BY DAVE PANTZER, ESQ.

“AN ATTORNEY HAS A PROFESSIONAL responsibility to render pro bono

publico legal service.” This is the message of Maryland Rule 19-306.1. The rule provides several examples of such service, which revolve largely around serving people of limited means, and protecting the rights of individuals and organizations. A careful reader, however, will point out that this rule, by its own terms, is “aspirational, not mandatory.”

PBRC’s Commitment to the Bar Pro Bono Resource Center came into being in 1990 in response to a crisis. Considering the appalling lack of legal representation among the poor, leaders of the judiciary and the bar discussed the nature of an attorney’s obligation to perform pro bono legal work. When the MSBA opposed a rule mandating pro bono service, the judiciary charged the MSBA to create a body that would oversee and coordinate the private bar’s response to the needs of Marylanders of limited means. That body was PBRC. In the intervening decades, PBRC has provided recruitment, training, and resources to many thousands of attorneys, and has provided and coordinated services and resources to scores of Maryland’s rich array of legal service organizations. During the foreclosure crisis of the last decade, PBRC coordinated the response of over 1,400 attorneys and dozens of organizations. More recently, PBRC has helped thousands more respond to crises in housing, rent court, immigration, and services to the elderly in partnership with other legal services organizations, governmental agencies, faith-based entities, and elected officials.

At a glance, it seems strange that an attorney has a professional responsibility, but that that responsibility is aspirational, not mandatory. Indeed, a non-mandatory rule seems like an oxymoron. But the pattern this rule reflects is a common one. Across the breadth of adult human experience, we actively choose to shoulder our deepest responsibilities – true excellence in the areas that matter most will not be forced upon us. Promoting Excellence in the Profession Since its inception, the Pro Bono Resource Center of Maryland (PBRC, www. 86

MSBA.ORG | WINTER 2019 has provided Maryland’s attorneys with support as they rise to the challenge of professional excellence. Historically and today, PBRC exists to help Maryland attorneys both fulfill their professional responsibility and lend a willing hand to our disadvantaged neighbors. As a member of MSBA, your dues support the work of PBRC. As the pro bono face of the bar, PBRC continues to support and train Maryland attorneys; to provide opportunities and strategic coordination; and to work with MSBA and Maryland’s legal services organizations to respond to the needs of all Marylanders.

A Chosen Excellence Most of us juggle many roles – we are officers of the court; perhaps we are parents, adult children of parents, spouses, friends; we are employees or employers; we are public citizens. Within each of these roles, we choose the level of our commitment – of our excellence. All attorneys have the responsibility to serve; all attorneys have the opportunity to stand for equal justice. PBRC exists to support those who choose to rise to the challenge. DAVE PANTZER serves as PBRC’s Director of Education, Outreach, and Technology.



Court News

(September 1, 2018, through January 1, 2019) New Maryland Rules Shift Pro Bono and IOLTA Reporting for Attorneys to Fiscal Year Cycle The Court of Appeals of Maryland has adopted new rules to make it easier for attorneys to comply with annual reporting and payment requirements using the Attorney Information System (AIS). As a result, annual pro bono and IOLTA reporting forms will no longer be mailed to attorneys in January. Instead, beginning in 2019, attorneys will receive a single email notice to use AIS to pay their Client Protection Fund (CPF) assessment and submit their pro bono and Interest on Lawyers Trust Accounts (IOLTA) reports. Under the new rules, the reporting schedule for pro bono and IOLTA reports will be by fiscal, rather than calendar year, which aligns with the current schedule for CPF assessments. Attorneys will be asked to report annually for the prior fiscal year (July 1 – June 30). A notice will be sent via email to all attorneys no later than July 10 of each year, with reports due by September 10. This consolidated notice and reporting schedule will make it easier for Maryland’s more than 40,000 registered attorneys to remember these annual requirements and maintain their good standing. To accommodate this shift, the next reporting cycle will cover an 18-month period. Attorneys will be notified in July 2019, and instructed to use AIS to complete their pro bono and IOLTA reports for January 1, 2018, through

June 30, 2019. Those reports must be completed by September 10, 2019. New Court Rules Refine Court Processes Regarding Guardianships of Vulnerable Marylanders Changes to court rules refining court processes and procedures for guardianships took effect January 1, 2019. Guardians are appointed by the court to make personal or financial decisions on behalf of a person who is unable to manage those matters because of age, disease, or disability. The changes apply to court-appointed guardians, guardianships, and attorneys. The changes include: • A new procedure for expedited hearings for the appointment of a guardian of an alleged disabled person in connection with non-emergency medical treatment (amendments to Md. Rules 10-104, 10201, and 16-302). • Changes to hearing and exhibit requirements for proceedings for the appointment of a guardian (amendments to Md. Rules 10-202, 10-205, 10-301, and 10-304). • Changes implementing 2018 Md. Laws, Chapter 749, which added “adverse immigration action” as a new basis for establishing standby guardianship of a minor (amendments to Md. Rules 10-403, 10-404, 10-405, and 10-106.1, and new Md. Rule 10-405.1, as well as conforming amendments to Md. Rule 10-402).

Judicial Appointments Governor Larry Hogan has appointed the following individuals to the Maryland bench (September 1, 2018, through January 1, 2019): ٚ Pamela Knoop Alban, Anne Arundel County Circuit Court ٚ Andrew Martin Battista, Baltimore County Circuit Court ٚ Sidney Allen Butcher, Anne Arundel County District Court ٚ Wytonja “Tonja” LaCheryl Curry, Prince George’s County Circuit Court ٚ Patrick Joseph Devine, Charles County Circuit Court ٚ Christopher Curtis Fogleman, Montgomery County Circuit Court ٚ LaTina Burse Greene, Baltimore City District Court ٚ ShaRon Marie Grayson Kelsey, Prince George’s County Circuit Court ٚ John Joseph Kuchno, Howard County Circuit Court ٚ Jared Michael McCarthy, Prince George’s County Circuit Court ٚ Kerwin Anthony Miller, Sr., Harford County District Court ٚ Elizabeth Sheree Morris, Anne Arundel County Circuit Court ٚ Eric William Schaffer, Frederick County District Court ٚ Joseph Michael Stanalonis, St. Mary’s County Circuit Court ٚ Robert Jeffrey Thompson, Anne Arundel County Circuit Court


WANT TO READ MORE? Read more Updates from the Judiciary online. VISIT MSBA.ORG/JUDICIARY





Sexual (Mis)conduct Sexual Conduct and the Rules of Professional Responsibility BY LYDIA E. LAWLESS, BAR COUNSEL

WHILE THE #METOO MOVEMENT has brought national

attention to the widespread prevalence of sexual assault and harassment1, the Court of Appeals of Maryland has been disciplining attorneys for inappropriate sexual behavior for more than 25 years. In Attorney Grievance Commission v. Goldsborough, 330 Md. 342 (1993), Mr. Goldsborough was found to have engaged in a pattern of sexual harassment and abuse directed at his secretary and two clients. The abuse included routine spankings of his secretary, as well as spanking one client and kissing another client without her consent. Writing for the majority, the Honorable Howard S. Chasanow, stated that Mr. Goldsborough’s conduct “is unacceptable under any standard” and “certainly violates the rigorous standards we impose upon members of the Bar.” In concluding that his behavior was prejudicial to the administration of justice in violation of Rule 8.4(d) of the Rules of Professional Conduct, Judge Chasanow wrote: Goldsborough’s conduct exemplifies the arrogance that so frequently underlies instances of sexual harassment and abuse. Unfortunately, the legal profession is not yet entirely free of such arrogance or such behavior. The courts and the bar must be aware of our obligation to keep the legal profession free of sexual harassment. Since attorneys are its officers, this Court has the duty to insist upon the maintenance of the integrity of the bar and to prevent the transgressions of an individual lawyer from bringing its image into disrepute. Id. at 363-64 (internal citations and quotations omitted).

Since 1993, numerous Maryland lawyers have been sanctioned for sexual misconduct, which the Court has routinely held brings the profession into disrepute in violation of Rule 8.4(d). Attorneys have been sanctioned for having sexual relationships with their clients2, sending clients or opposing parties inappropriate and sexually suggestive text messages (sexting)3, exchanging a prescription pain pill for a sexual act4, and attempting to solicit sex from a person the attorney believed to be under the age of consent.5 In Attorney Grievance Commission v. Marcalus, 442 Md. 197 (2015), Mr. Marcalus sent a self-represented opposing party suggestive text messages, including requesting photographs of her in a bathing suit and asking whether she would perform sexual acts with a “sugar daddy.” In concluding that the attorney’s conduct violated Rule 8.4(d), the Honorable Shirley M. Watts, writing for a

unanimous Court, expressed that even where the parties involved engaged in consensual conduct and believed their statements to be a “joke,” such conduct would have a negative impact on the perception of the legal profession by members of the public. Judge Watts wrote, “No reasonable member of the public would expect a lawyer to engage in ‘sexting’ and suggestive conduct with a self-represented party in litigation in which the lawyer represented the opposing party.” Id. at 206. Maryland is one of 21 jurisdictions with an anti-discrimination Rule. Specifically, Maryland Rule 19-308.4(e) provides that it is professional misconduct for an attorney to: knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this section[.]

"A commitment to equal justice under the law lies at the very heart of the legal system.” Although the Court has yet to decide an attorney discipline case involving Rule 8.4(e), the Comments indicate that this Rule may also be implicated in cases of sexual misconduct. Comment [3] to the Rule provides that “Sexual misconduct or sexual harassment involving colleagues, clients, or co-workers may violate section (d) or (e) of this Rule. This could occur, for example, where coercion or undue influence is used to obtain sexual favor in exploitation of these relationships.” Comment [4] provides that Rule 8.4(e) “reflects the premise that a commitment to equal justice under the law lies at the very heart of the legal system.” Over the past decades, the Court of Appeals has made it clear that attorneys who engage in sexual misconduct, whether in their professional or personal lives, may be subject to the Rules of Professional Conduct. Sexual harassment, abuse, and other forms of discrimination “manifest a lack of character required of members of the legal profession.6” Each of us bears the obligation, as Judge Chasanow stated, to keep the legal profession free of sexual misconduct and to demand the maintenance of the integrity of our bar.


See (last visited December 4, 2018)


Attorney Grievance Commission v. Culver, 381 Md. 241 (2004); Attorney Grievance Commission v. Hall, 408 Md. 306 (2009); Attorney Grievance Commission v. O’Leary, 433 Md. 2 (2013)


Attorney Grievance Commission v. Marcalus, 442 Md. 197 (2015)


Attorney Grievance Commission v. Marcalus, 414 Md. 501 (2010)


Attorney Grievance Commission v. Greenleaf, 438 Md. 151 (2014)


Comment [4] to Rule 8.4.





Maryland State Bar Association, Inc.

Committee on Ethics ETHICS DOCKET NO. 2018-05


your representation of real estate developers you may, under Maryland Rule 19-304.2 (“Rule 4.2”), petition the Mayor, Planning Director, and/or Council member(s) of a city (“the City”) for assistance in working to obtain permits in a timely fashion where an application had previously been denied. You have related that it is your experience for one or more City Attorneys to claim you may not speak to such individuals as they are represented parties who may bind the City by their statements, even at early stages of the permitting process where “foundation letters” or other initial documents have been denied but no formal litigation or appeal has been initiated. You desire to contact government officials to encourage approval of the permit in order to avoid lengthy litigation that will unduly delay the development process. Such contact may be permissible so long as it meets the requirements of Rule 4.2(c). Rule 4.2 of the Maryland Rules of Professional Conduct, states: (a) Except as provided in section (c) of this Rule, in representing a client, an attorney shall not communicate about the subject of the representation with a person who the attorney knows is represented in the matter by another attorney unless the attorney has the consent of the other attorney or is authorized by law or court order to do so. (b) If the person represented by another attorney is an organization, the prohibition extends to each of the organization’s (1) current officers, directors, and managing agents and (2) current agents or employees whether the communication falls within the “government official redress” exception in subsection (c) to Rule 4.2’s general prohibition on direct contact with a represented client; and (3) whether the

disclosures required by Rule 4.2(b) have been made. First, whether or not a government entity is represented by counsel can be a fact specific inquiry. [1] The Rule applies where a lawyer “knows” that a person is represented by another lawyer. See Rule 4.2(a). In working with a government agency, Rule 4.2 does not apply until an attorney is notified by the agency or its counsel that the agency is represented or the facts otherwise give the non-government attorney such knowledge. Under the facts as stated here, attorneys representing the City have expressly informed you of their representation. [2] Second, the “government official redress” exception in Rule 4.2(c) may still allow direct contact with government officials such as a Mayor, Planning Director, or Council member so long as the appropriate preconditions are met. In particular, the contacted individual must have “the authority to redress the grievance” about which the attorney seeks to communicate. Rule 4.2(c) and its comments do not directly address the question of when a government official has “the authority to redress the grievance” about which an attorney seeks to speak, and the Court of Appeals also has not addressed the issue. However, Comment 9 to Rule 4.2 does provide details as to the reasons why direct access to government officials is permitted in some circumstances where such direct discussions would not be permitted between an attorney and a represented private person: Section (c) of this Rule recognizes that special considerations come into play when an attorney is seeking to redress grievances involving the government. Subject to certain conditions, it permits communications with those in government

having the authority to redress the grievances (but not with any other government personnel) without the prior consent of the attorney representing the government in the matter. Section (c) of this Rule does not, however, permit an attorney to bypass attorneys representing the government on every issue that may arise in the course of disputes with the government. Rather, the section provides attorneys with access to decision makers in government with respect to genuine grievances, such as to present the view that the government’s basic policy position with respect to a dispute is faulty or that government personnel are conducting themselves improperly with respect to aspects of the dispute. It does not provide direct access on routine disputes, such as ordinary discovery disputes or extensions of time. (Emphasis added). Based upon this Comment, it is reasonable to conclude that the attorney’s communications with a represented government official will need to be tailored to the particular official’s proper scope of authority, whether that is executive, administrative, or legislative. While we are unable to conduct a detailed review of the specific City processes to which the inquiry refers, the Committee can say that a Mayor, a Planning Director, or a City Council member certainly may have authority over different aspects of a specific zoning dispute, the conduct of government personnel, or the zoning process itself. One official may have the power to reverse the denial of a permit, another may have the power to oversee the government employees engaged in the permitting process, and another may have legislative oversight authority over the processes or the authority to enact changes to those processes. The attorney who chooses to communicate with a government official directly, knowing that the government MARYLAND BAR JOURNAL | WINTER 2019


official is represented by counsel, will need to ensure that such communications relate to the substance of the grievance for which redress is sought (and not ancillary issues such as ‘extensions of time,’ see Rule 4.2, Comment 9); and that the communications are appropriately limited to those matters within the official’s scope of authority. Third, the attorney who seeks to communicate under Rule 4.2(c) must “first make the disclosures specified in section (b) of this Rule.” Under Rule 4.2(b), the attorney must disclose to the government official “the attorney’s identity and the fact that the attorney represents a client who has an interest adverse to the organization.” The attorney also has an obligation to conduct such discussions in a manner designed not to solicit or cause disclosure of confidential attorney client communications. See Rule 4.4(b).

gives opposing counsel advance notice of the impending communication so that they can give appropriate advice to their clients as to how to respond to the inquiry. Id. The Maryland Rules Committee codified the first of these requirements into Rule 4.3(c), which narrows the permissible communications to the substance of the dispute and the authority of the official, but it did not adopt the second requirement that an attorney must inform opposing counsel prior to such communications. Maryland’s exception is broader than that adopted by the ABA Committee. At the same time, the Committee suggests that an attorney who seeks direct interaction with a public official should consider notifying counsel with whom the attorney has been dealing on a matter. An attorney may wish to consider including opposing counsel in such direct communications

even where not strictly required – by doing so, the attorney may avoid accusations that he or she delved into matters outside of the official’s authority or sought protected communications. Finally, Rule 4.2(c) does not provide an ‘exception’ to substantive or procedural rules that may limit contacts with public officials or allow communications that may be prohibited by other ethical considerations. An attorney who seeks to contact a public official directly within the context of a proceeding should make sure that such contact is permitted under the rules applicable to that type of proceeding and should consider rules such as Rule 3.5(a) (which addresses certain ex parte communications and other limitations when interacting with a tribunal).

An attorney also should consider notifying opposing counsel in advance of such communications. Maryland’s version of Rule 4.2 does not require such notice. Rule 4.2 is based upon the Model Rules promulgated by the American Bar Association (“ABA”). The ABA’s Rule 4.2 does not contain a subsection (c) or an express exception that would permit an attorney to engage in direct discussions about a pending matter with a public official represented by counsel. The ABA created such an exception in 1997 however, in an opinion by the ABA Standing Committee on Ethics and Professional Responsibility, which concluded that such an exception was required to protect a citizen’s First Amendment right to petition the government in controversies with government officials. See ABA Formal Opinion 97-408 Communication with Government Agency Represented by Counsel (1997). The ABA Committee concluded that lawyers may communicate with represented public officials without seeking permission from opposing counsel so long as: (1) the officials to be contacted are in a position to take or recommend action in the matter and the substance of the communication relates to policy issues including settlement; and (2) the communicating lawyer 1



Please note that the Committee has broadly addressed issues raised by Rule 4.2 in its advisory opinion 2017-02, which is available online at Nothing in the inquiry implies that the City and County Attorneys are not in fact representing the City or County in the matters at hand, and the Committee does not need to consider the effect that a “bad faith” assertion of representation may have on the application of Rule 4.2.





MSBA Staff Member Daria Zane Daria Zane is the Publications Attorney in the MSBA Continuing Legal Education Department. Daria’s role involves performing legal research and analysis, editing, drafting, updating, and cite-checking reference guides and books published by the MSBA. She also puts her legal skills to good use through teaching and volunteerism. When did you decide to pursue a career in the law, and why? While in high school in Prince George’s County, I had an opportunity to observe lawyers in court, and I was captivated. Immediately, my attention shifted to legal studies and law-related subjects. In my senior year of high school, I began to take paralegal and political science courses at the local community college, furthering my interest in the law. Although my undergraduate degree was in Business, at the University of Maryland I took more paralegal and political science/government courses on subjects such as legal research and writing and constitutional law, knowing I intended to go to law school upon graduation.

Lawyers are often challenged by things beyond their control. Faced with these situations, one of the greatest challenges is to be able to organize work effectively, remain flexible and, at the same time, maintain a work-life balance. What do you consider the highlights of your legal career? I have been fortunate to have a fulfilling, varied, and challenging legal career. Upon graduation from law school, I clerked for a trial judge in the D.C. Superior Court. I then was hired by the U.S. Department of Justice through the honors program, where I served as a trial attorney in the Environment & Natural Resources Division, where I handled high-profile cases involving public lands and natural resources across the country. I then became an Assistant United States Attorney in the District of Columbia, handling civil and criminal cases. I was named a Special Master MARYLAND BAR JOURNAL | WINTER 2019


with the Court of Federal Claims, where I heard and decided cases involving claims from injuries as a result of vaccines. I have used the skills I developed as a litigator to handle cases on a broad range of areas of the law, ranging from environmental cases, such as a challenge to the expansion of the Woodrow Wilson Bridge from Prince George’s County to Virginia (the second span that exists today) to criminal cases involving retaliatory gang shootings.

Center of Maryland (PBRC), with its District Court Consumer Protection Project in Baltimore and Upper Marlboro. I have previously assisted in the name-change clinics conducted at Whitman Walker. It is important to volunteer, whether it is be through representing clients pro bono, teaching or providing advice because it helps to further what is the fundamental purpose of the legal profession—that justice is done. And, it is rewarding to help others.

Years later, I left government service to pursue work where I could use my legal skills to give back to the community. I represented indigent individuals in appeals of criminal convictions as part of the criminal justice appellate panel. I also began working for Whitman Walker Health, a federally-qualified healthcare facility, where I represented and provided legal services to patients ensuring they could focus on getting well rather than worrying about legal issues. I also began teaching as an adjunct professor at the University of Baltimore, where today I continue to teach writing to first-year law students.

What words of advice would you offer those considering a career in the law? Early on, I was given certain invaluable advice to keep in mind when approaching any legal issue, essentially, that there are four important factors when handling any legal matter that a lawyer needs: Knowledge, Experience, Wisdom, and Integrity. You need to ensure you have the requisite knowledge of the particular legal subject; you need to prepare and not “fly by the seat of your pants”. You need to either have experience or consult with those who have experience so you can anticipate issues that will arise and handle them effectively. You need to have wisdom, essentially common sense, to come up with practical solutions to a legal problem. Finally, and perhaps most important, you need to have integrity, to be truthful and honest, even when it is not in your client’s best interest. The legal community is small and close-knit, and you cannot afford to compromise your reputation.

Why do you consider it important to volunteer your lawyering skills? It is important to volunteer because not only is it a professional responsibility to provide pro bono legal services (see Md. Rule 19-306.1, Maryland Attorneys’ Rules of Professional Conduct), but it is important to ensure generally that individuals as well as charitable, religious, civic, community, governmental, or educational organizations with limited means have effective legal representation. I currently volunteer through the Pro Bono Resource

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WANT TO READ MORE? Read our complete interview with Daria Zane online. VISIT MSBA.ORG/DZANE





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The McCammon Group is pleased to announce our newest Neutral

Hon. Gerald Bruce Lee (Ret.) Retired Judge, U.S. District Court, Eastern District of Virginia The Honorable Gerald Bruce Lee (Ret.) admirably served for nineteen years on the bench of the U.S. District Court for the Eastern District of Virginia. Prior to his appointment to the federal judiciary, Judge Lee served for over six years as a judge for the Fairfax Circuit Court, and before that, he was a trial lawyer representing individuals and businesses in complex civil disputes. Throughout his illustrious career, Judge Lee served his community on various boards and committees, including the Board of Directors of the Metropolitan Washington Airports Authority, as Chairman of the Virginia Judicial Conference Judicial Education Committee, and as a member of the Virginia Circuit Court Judges Benchbook Committee. Judge Lee now brings his record of excellence and achievement to The McCammon Group to serve the mediation, arbitration, special master, and judge pro tempore needs of lawyers and litigants in Maryland, DC, and Virginia.

Leaders in Dispute Resolution For a complete list of our services and Neutrals throughout MD, DC, and VA, call (888) 343-0922 or visit

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