Maryland Bar Journal - March/April 2018

Volume M • Number 2

The Law in

Modern Culture

March/April 2018

Volume M • Number 2 Mar./Apr. 2018

16

11

22

4 Published bimonthly by the Maryland State Bar Association, Inc. 520 W. Fayette St. Baltimore, Maryland 21201 Telephone: (410) 685-7878 (800) 492-1964 Website: www.msba.org Executive Director: Victor L. Velazquez Editor: W. Patrick Tandy Assistant to the Editor: Lisa Muscara Advertising Sales: Network Media Partners Subscriptions: MSBA members receive THE MARYLAND BAR JOURNAL as $20 of their dues payment goes to publication. Others, $42 per year.

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.

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

Editorial Advisory Board Courtney A. Blair, Chair James B. Astrachan Hon. Vicki Ballou-Watts Alexa E. Bertinelli Cameron A. Brown Susan K. Francis Peter A. Heinlein Hon. Marcella A. Holland (ret.)

Louise A. Lock Victoria H. Pepper Gwendolyn S. Tate MSBA Officers (2017-2018) President: Sara H. Arthur President-Elect: Hon. Keith R. Truffer Secretary: Dana O. Williams Treasurer: Hon. Mark F. Scurti

“The Law in Modern Culture” Features 4 Proven Strategies For New Concerns

By Ben Schenker

11 Maryland’s Court of Special Appeals Announces New Rules...

By Matt Alsip

16 Title IX On Campus

By Steven K. Fedder

22 Email and the Inadvertent Waiver of Attorney Client Privilege

By Emily Gelmann

Departments 34 Committee on Ethics Ethics Docket No. 2014-05

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.

March 2018

MARYLAND BAR JOURNAL

3

PROVEN STRATEGIES FOR NEW CONCERNS:

How Lessons Learned from the Fight for LGBT Equality Can Help Non-Married Clients

By Ben Schenker The composition of families and of a household has always varied, from multi-generational households, with grandparents assisting in the day-to-day raising of the children; to two women, building a life together; to a single mother with several children and a boyfriend; and of course, to the classic of the American 1950s, of mom, dad, two kids, and a dog.

However, historically, the legal protections of marriage were only conferred on the latter.

There are over 1,000 legal benefits conferred once you are married. Mark F. Scurti, Same Sex Marriage: Is Maryland Ready, 35 U. Balt. L.F. 128, 135 (2005). Before same-sex couples could legally marry, their attorneys creatively developed a variety of legal tools to acquire many of the benefits that are conferred automatically with matrimony. These tools, while no longer necessary for same-sex married couples, can still be utilized by non-married people looking to avail themselves of some of the benefits of legally recognized matrimony.

Today the marriage rate is falling, as more people are choosing, for various reasons, not to get married. However, even without marriage, people are still in relationships, having children, and acquiring property. Attorneys for same-sex couples used alternative strategies to ensure that they could

enjoy some sense of security; without legal marriage, there was no certainty regarding child custody, property division following separation, or inheritance rights. Now, nontraditional families can borrow from these techniques that were developed before nationwide marriage equality and the Civil Marriage Protection Act. It is important for the attorneys of nontraditional families to consider a wide variety of tools to ensure that their clients are secure, and their families’ issues are addressed. This article will discuss some of the strategies developed to provide the benefits of marriage to non-marital families, specifically - multiple parenthood, cohabitation and adult adoption.

Multiple Parenthood

When a child is born to a married woman in an opposite sex relationship, that child is presumed to be the child of both parents. Md. Code Ann., Est. & Trusts, § 1-206. If the birth mother is not married, then the father must either be determined judicially to be the father, or the father must either acknowledge his paternity or recognize that he is the parent of his child. Md. Code Ann., Est. & Trusts, § 1-208.

When two unmarried people are raising a child together, the person who gave birth is the legal mother (surrogacy arrangements aside) and the mother’s partner can make an acknowledgment of paternity.

In 2000, Maryland at least acknowledged a four-part test that could be used to establish a de facto parent in S.F. v. M.D., 132 Md. App. 99 (2000), but since the case focused on visitation and not custody, the court did not establish whether it could be used to establish standing for seeking custody. The Court of Appeals was definitive, however, less than a decade later in Janice M. v. Margaret K., 404 Md. 661 (2008). The case considered two women who were in a committed and longterm relationship. One had adopted a child and the other treated the child as her own but did not adopt. When their relationship ended, the non-adoptive parent sought to assert custody. The Court of Appeals declined the opportunity to establish de facto parenthood as Maryland law.

Then, in 2016, the Court of Appeals reconsidered the question in Conover v. Conover, 450 Md. 451 (2016). That case also involved a committed same-sex relationship, except the child was born to one of the spouses. When the pair sepa-

rated, the birth parent denied visitation to her former partner. The Court relied on Maryland’s recognition of same-sex marriage, the noted difficulties for same-sex parents, and the growing trend among other states to recognize de facto parents to ignore stare decisis and justify its decision to reverse itself and establish de facto parenthood in Maryland.

The test to determine de facto parentage has four parts, which are found in Conover, at 74-75. First, the biological/ adoptive parent must have consented to, and been active in creating, the third-party forming a relationship like that of parent and child. Second, the third party must have lived in the same household as the child. Third, the third-party must have “assumed the obligations of parenthood”, including financially supporting the child. Fourth, the relationship with the child must have existed long enough to establish a “… bonded, dependent relationship parental in nature.” Conover, supra.

With some planning, a family seeking to establish a legal parental relationship between a non-biological parent and their children could establish this. An affidavit can show a legal parent’s consent to the relationship. A driver’s license, March 2018

MARYLAND BAR JOURNAL

5

or utility bills, can show that the parties lived in the same household. A parenting plan can show that the client took on parenting obligations, and bank records could prove financial support. The last requirement, of a “…bonded, dependent relationship parental in nature...” is less easily quantified, but can be demonstrated via an interview with the children (if old enough) or through observation.

There is one key difference between the approach to multiple parents and that of other methods discussed below.

Adult adoption is done with consent, and once it is done, it is done. The contractual relationships that establish property rights between cohabitants are accomplished without the court. However, regarding minor children, the court always has a right to insert itself. Md. Code Ann., Fam. Law § 1-201; Neuwiller v. Neuwiller, 257 MD. 285, 262 A.2d 736 (1970). Even if a client takes every possible step to show that there is a de facto parent relationship, the final discretion is in the court.

Cohabitation

Although the most famous case regarding cohabitation was decided in 1976 in Marvin v. Marvin, 557 P.2d 106 (Cal. 1976), Maryland had already discussed this issue a half-century earlier in Baxter v. Wilburn, 172 Md. 160, 190 A. 773 (1937). In Baxter, the Court of Appeals held that Maryland would not recognize “meretricious relationships” (contracts where the consideration is sex).

The Court of Appeals again addressed cohabitation agreements sixty years later in Unitas v. Temple, 314 Md. 689 (1989).

In Unitas, an unmarried partner sued her former partner’s estate to enforce a verbal agreement they had made where he had promised to support her in his will, in exchange for her reconciling with him following a breakup and for her not seeking employment. The Court of Appeals applied contract law to hold that partial performance of the contract was not sufficient.

Recently, however, the Court of Special Appeals reached a different decision in Porter v. Zuromski, 195 Md.App. 361 (2010). The parties had been girlfriend and boyfriend, and had decided to buy a house together. When they applied for the mortgage, each party contributed to the down payment, they agreed to split expenses, and act as co-owners. However, only the boyfriend qualified for a mortgage, so only his name appeared on the mortgage application.

When they separated, the girlfriend sued for equitable relief and the circuit court imposed a constructive trust on the property. Id., at 366-367. After the boyfriend appealed, claiming that it was a prohibited action for palimony, the court affirmed the holding, focusing on equitable claims.

A review of these laws and cases shows how crucial it is for non-married families to have an agreement in place. A cohabitation agreement can be used as evidence for a domestic partnership, as found in Md. Code Ann., Health-Gen. § 6-101. And since, in Maryland, the best result that has been

We solve problems.

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

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

6

MARYLAND BAR JOURNAL

March 2018

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

achieved for non-married cohabitants was a constructive may inherit half to all of the property not disposed of by will. trust, it is a good idea to draft a trust or similar agreement Even if there is a will, the surviving spouse is entitled to up at the outset of the relationship. It can be difficult to reduce to half of the estate, even if the spouse is not mentioned in a romantic relationship to strict financial figures, particular- the will. Md. Code Ann. Est. & Trusts, §§ 3-102; 3-203; 3-208. ly towards the beginning of the relationship. However, it is If a person is not married, there are not such protections for generally beneficial in the end. that person’s partner. Instead, that person’s children, if there Perhaps because of the lack of significant case law sur- are any, would inherit, and that includes adopted children. rounding cohabitation Md. Code Ann. Est. & agreements and that Trusts, §§ 1-207, 1-209, The important thing to note is that the legislature had not 3-101, 3-103. provided suitable remEstate planners knew relying on the courts to protect edies for non-married that estate laws protect non-married couples is not a safe bet. partners, Maryland espeople who belong to tablished some rights the decedent’s bloodfor domestic partners when LGBT couples started seeking line. They seized upon the idea of adult adoptions to protect equality of treatment, and those rights are discussed below. someone in cases of intestacy. It’s important to remember that although adoption has existed since at least the Roman Empire, English common law did not provide for it, and so Domestic Partnership To establish a domestic partnership in Maryland, two peo- legal adoption in the U.S. is relatively new, for children and ple, who are not married and are not in a marriage with any- adults alike. It was first established for children in Maryland one else, sign an affidavit to show that they “…agree to be in in 1898 and for adults in 1937. Walter Wadlington, Adoption a relationship of mutual interdependence in which each in- of Adults: A Family Law Anomaly, 54 Cornell L. Rev. 566, dividual contributes to the maintenance and support of the 584 (1968-1969).

Couples in the LGBT community have used adult adopother individual and the relationship…” They must also protion to establish legal relationships since at least the early vide another piece of evidence, such as a relationship or co1980s.

Peter N. Fowler, Adult Adoption: A New Legal Tool habitation agreement. Md. Code Ann., Health-Gen. § 6-101. for Lesbians and Gay Men, 14 Golden Gate U.L.Rev. 667, 708 A domestic partner is treated like a spouse in various situa(1984).

For these couples, inheritance was only one considertions, such as health decisions on behalf of an incapacitated ation: adoptees could receive next-of-kin designation, they partner or taking care of a partner’s remains, for insurance could avoid violating discriminatory housing and zoning purposes, and for specific tax purposes, such as transfer and restrictions, and partners could receive insurance, employinheritance taxes (but not state income taxes or estate taxes). ment, and immigration benefits.

Id. A major advantage that domestic partnership confers is In many states, there are various restrictions that may that, unlike with marriage, dissolution does not require speprohibit adult adoptions, such as required age differences, cific grounds or court intervention. A major advantage that prohibiting adult adoption unless the adoptee is incapacitatdomestic partnership confers is that, unlike with marriage, ed, or requiring a specific relationship.

Jennifer Fairfax, The dissolution does not require specific grounds or court interAdoption Law Handbook: Practice, Resources, and Forms vention However, since there is no status, foreign states do for Family Law Professionals, 204 (ABA, 2013).

Such prohinot have to recognize these decisions. There is also no prefbitions don’t exist in Maryland.

(Although resources refer erence for intestacy laws, so domestic partnership does not to adoption of a child, they generally cover adult adoptions help with estate planning.

To establish marriage like rights concerning property and too). Courts also may be reluctant to grant adoptions to protections in incapacity and for certain tax purposes for adults, especially when the would-be parent and child innon-married couples, there are a variety of remedies. They tend to engage in sexual activity. Id., at 208.

The pitfalls of adult adoption can be significant. First, all require planning such as establishing trusts for sharing adoption is generally irrevocable; it can only be undone if property, or at least a cohabitation agreement for establishthe adopted “child” is subsequently adopted by another ing a domestic partnership. The important thing to note is “parent.”

Md. Code. Ann. Est. & Trusts § 1-207(b); Madethat relying on the courts to protect non-married couples is leine N. Foltz, Needlessly Fighting an Uphill Battle: Extennot a safe bet. sive Estate Planning Complications Faced by Gay and Lesbian Individuals, Including Drastic Resort to Adult Adoption Adult Adoption of Same-Sex Partners, Necessitate Revision of Maryland’s Adult adoption is a more complicated tool to utilize, as Intestacy Law to Provide Heir-at-Law Status for Domestic it is essentially irrevocable. However, particularly in the Partners, 40 U. Balt. L. Rev. 495, 542, at 514-515 (2011). Adopplanning for wills, trusts, and estates, it can be very useful. tion also cuts off the ability for adoptees’ to automatically inWhen a person dies intestate (or property is not disposed of herit from their natural parents. Md. Code Ann. Est. & Trusts by will), consanguinity governs who inherits the decedent’s § 1-207(a); Foltz, supra, at 515-516. Additionally, an adoptee property. Md. Code Ann. Est. & Trusts, § 3-101. A spouse is prohibited from marrying their adopted parent. Same-sex March 2018

MARYLAND BAR JOURNAL

7

“ But flexing our minds, considering all available

options and tools to solve our clients’ issues and making sure that we examine topics beyond the standard expertise can help us as advocates and can help our clients.”

couples who utilized this tool in the past have found that they are now unable to avail themselves of legal matrimony today. Md. Code Ann. Family Law § 2-202; Foltz, supra, at 540. Nonetheless, adult adoption can be a useful tool for clients who want to establish official relationships without marriage, particularly as regarding wills, trusts, and estate planning.

Conclusion

Maryland legislation and judicial decisions establish that marriage is, at its heart, a contract (albeit a special one). In general contract law, however, parties are given freedom to set their own terms, and states are not allowed to interfere.

It is not only understandable that people might not want to subject themselves to state-regulated relationships, it is provable by the rising growth of non-marital families. One major takeaway is that courts (especially in Maryland) will put more emphasis on financial agreements than ones based on family services. Monetizing their relationship may be a 8

MARYLAND BAR JOURNAL

March 2018

tough pill for clients to swallow, but it could be necessary and, overall, beneficial.

The attorneys who developed these tools were incredibly creative when employing concepts from family law, contracts, estate planning, and equity to solve their clients’ problems. While Maryland attorneys are supposed to be generalists and to not specialize, many attorneys do limit their practice fields and gain expertise in very specific areas. There is nothing wrong with that; it is impressive to see colleagues understanding and interpreting the ins and outs of very precise legal situations. But flexing our minds, considering all available options and tools to solve our clients’ issues and making sure that we examine topics beyond the standard expertise can help us as advocates and can help our clients.

Mr. Schenker is a family law and estate planning attorney focusing on the LGBTQIA/GSM community and alternative, non-traditional, and polyamorous families. He can be reached at ben@ mdschenkerlaw.com. The author wishes to acknowledge the contributions of Bill Singer to this article.

Engaging.

Inspiring.

Essential.

Maryland State Bar Association Legal Summit & Annual Meeting 2018

June 13-16, 2018 | Ocean City, MD Focused learning for all practice areas Major speakers from across the profession Fun for individuals, groups and families

MSBA’s Legal Profession Summit & Annual Meeting is the biggest event of the year for Maryland’s legal professionals.

Join a thousand lawyers in all aspects of the profession, judges, and other legal professionals from across the state at this annual tradition for the Maryland legal community, combining learning, community, and fun.

See you at the beach.

To register, go to

AnnualMeeting.MSBA.org March 2018

MARYLAND BAR JOURNAL

9

Maryland’s Court of Special Appeals Announces New Rules Addressing Personal Jurisdiction Over Foreign Corporations and Non-Resident Directors of Maryland Corporations

By Matt Alsip On November 29, 2017, the Court of Special Appeals issued a reported opinion in Stisser v. SP Bancorp, Inc., 234 Md. App. 593, 174 A.3d 405 (2017). Stisser provides a thorough review of Maryland and federal principles of personal jurisdiction applicable to foreign corporations and non-resident directors of Maryland corporations. Stisser also answers important questions of first impression in Maryland concerning the circumstances under which foreign corporations and non-resident directors of Maryland corporations may be subject to suit in a Maryland court.

10

MARYLAND BAR JOURNAL

March 2018

March 2018

MARYLAND BAR JOURNAL

11

PODCASTS WITH A

PURPOSE 1-Hour Audio CLE from MSBA in partnership with WebCredenza LEARN MORE: msba.org/CLEaudio A different kind of retirement plan.

The ABA Retirement Funds Program is different from other providers. It was established to meet the unique needs of the legal community.

• As a not-for-profit corporation led by volunteer lawyers, we ensure decisions are made in the best interest of law professionals who are saving for retirement.

• We leverage the size and scale of the legal community and our member clients to make retirement plans affordable for firms of all sizes, even solos.

• We provide law firms with the most comprehensive protection from fiduciary liability under ERISA. Find out what many law firms like yours already know.

It’s good to be different.

Contact an ABA Retirement Funds Program Regional Representative today.

866.812.1510 www.abaretirement.com joinus@abaretirement.com

12

MARYLAND BAR JOURNAL

March 2018

M A RY L A N D S TAT E BA R AS S O C I AT I O N

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

Please read the Program Annual Disclosure Document (April 2017), as supplemented (July 2017), carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@ abaretirement.com.

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

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

CN1018-37928-1119D - 2017

Factual Background

Gary Stisser and Fundamental Partners filed a shareholder class action in the Circuit Court for Baltimore City challenging the terms of a corporate acquisition. The named defendants were SP Bancorp, Inc. (“SP”), a Maryland bank holding company of which Stisser and Fundamental Partners were shareholders; SP’s non-resident corporate directors (the “Directors”); Green Bancorp, Inc. (“Green”), a Texas bank holding company that had acquired SP; and Searchlight Merger Sub, Inc. (“Searchlight”), a Maryland corporation formed by Green for the sole purpose of facilitating the acquisition of SP. In substance, the plaintiffs alleged that the Directors breached their fiduciary duties by agreeing to the transaction; that the transaction was structured in a way that benefited the Directors’ personal interests at the expense of the shareholders’ interests; and that Green “aided and abetted” the Directors in their alleged breaches of fiduciary duty. (Although named as additional defendants, the Complaint did not allege a claim against SP or Searchlight.)

The Circuit Court granted the defendants’ motions to dismiss based on a lack of personal jurisdiction over Green and SP’s Directors, and a failure to state a claim upon which relief could be granted. The plaintiffs appealed.

The facts pertinent to the personal jurisdiction inquiry were undisputed.

Green was a bank holding company incorporated and headquartered in Texas. It had no branches, offices, employees, or business in Maryland.

The negotiations for Green’s acquisition of SP took place outside of Maryland, primarily in Texas. Green’s only connection with Maryland was its incorporation of a merger subsidiary (Searchlight) in Maryland for the exclusive purpose of facilitating the acquisition of SP. Once the acquisition was complete, Searchlight was merged out of existence. In other words, Green had “no contact in Maryland save

for the fleeting existence of its merger subsidiary, Searchlight.” 234 Md. App. at 624.

SP’s Directors were all non-residents of Maryland. They lived and worked elsewhere. They served on SP’s Board of Directors, but never entered Maryland in connection with any business related to SP. Furthermore, although SP was incorporated in Maryland, it was headquartered in Texas. SP had no branches, offices, employees, or business in Maryland. SP negotiated with Green outside of Maryland.

The Court’s Opinion

General and specific personal jurisdiction.

The Court began its analysis by examining the core principles of Maryland and federal law applicable to personal jurisdiction. The Court reviewed Maryland’s long-arm statute and federal Due Process requirements, as well as recent Supreme Court case law addressing the concepts of “specific” and “general” personal jurisdiction. The Court held that general jurisdiction – i.e., jurisdiction that can be exercised regardless of the nature of the cause of action – can be exercised over corporations only when those corporations are “at home” in the jurisdiction. The Court explained, “‘the paradigm forums in which a corporate defendant is ‘at home’ . . . are the corporation’s place of incorporation and its principal place of business.’” 234 Md. App. at 616 (quoting BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1558 (2017)). “A court with general jurisdiction over a company may hear any claim against that company, even if all of the activity that gave rise to the claim occurred in a different state.” Id. at 616-617 (citing Bristol Myers Squibb Co. v. Superior Ct. of Cal., S.F. Cty., 137 S. Ct. 1773 (2017)).

In contrast, specific personal jurisdiction can be exercised only “when the claim ‘arises out of or relates to the defendant’s contacts with the forum.’”

234 Md. App. at 617 (quoting Helicopteros Nacionales de Colom., S.A. v. Hall,

104 S. Ct. 1868, 1872 n.8 (1984)). For a Maryland court to exercise specific jurisdiction over a foreign corporation, it must be shown that exercising such jurisdiction would comply with Maryland’s long-arm statute (Md. Code Ann., Cts. & Jud. Proc. § 6-103) and the federal Due Process Clause. Making such a showing requires an analysis of several factors, including: the burden on the defendant, the forum state’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies.

234 Md. App. at 617 (internal citations omitted).

No jurisdiction over the foreign corporation, Green.

The Court of Special Appeals held that Green was not subject to general or specific jurisdiction in Maryland.

First, the Court found that Green was not subject to general jurisdiction in Maryland because it was not “at home” in this State. The Court rejected the plaintiffs’ argument that Green’s incorporation and ownership of a Maryland subsidiary, Searchlight, made Green “at home” in Maryland.

Applying Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the Court concluded: “a nonresident parent corporation is not subject to general jurisdiction in Maryland based solely on its incorporation of a subsidiary within Maryland.” 234 Md. App. at 624 (emphasis added).

The Court rejected the plaintiffs’ argument that Searchlight, the Maryland subsidiary, was merely an “alter ego” for Green, the Texas parent company.

The plaintiffs maintained that the trial court should have pierced Searchlight’s corporate veil and considered Searchlight and Green to be the same entity for personal jurisdiction pur-

March 2018

MARYLAND BAR JOURNAL

13

The Court’s opinion in Stisser is important precedent that addresses significant jurisdictional questions applicable to complex litigation involving foreign corporations and non-resident directors of Maryland corporations. poses. (There was apparently no dispute that Searchlight was subject to general jurisdiction in Maryland by virtue of having been incorporated in Maryland.) The Court held that there were no facts to support piercing the corporate veil. Even if there were such facts, the “evanescent existence of Searchlight in Maryland” as a merger subsidiary that ceased to exist after the SP acquisition was completed was not sufficient to make Green “at home” in Maryland for purposes of general jurisdiction. 234 Md. App. at 625.

Second, the Court held that Green was not subject to specific jurisdiction in Maryland. The only action taken by Green in the State of Maryland was filing Articles of Incorporation for Searchlight with SDAT. The plaintiffs argued that Green’s incorporation of Searchlight in Maryland qualified as “transact[ing] business” under the long-arm statute. The Court of Special Appeals disagreed, holding that “the subsidiary [Searchlight] . . . was not intended to do business in Maryland and nothing about the formation of the subsidiary was directed at residents of Maryland.” 234 Md. App. at 639-40.

Even if filing Articles of Incorporation qualified as doing “business” in Maryland, it was “at best . . . only tangentially related” to the plaintiffs’ underlying claims against the defendants. Because specific jurisdiction can be exercised only with respect to causes of action that arise from the corporation’s contacts with a forum, such a tangential connection is insufficient for Maryland to exercise jurisdiction.

234 Md. App. at 640. Drawing on Supreme Court case law, the Court add14

MARYLAND BAR JOURNAL

March 2018

ed that it would not attribute Searchlight’s jurisdictional contacts to Green: To impute to Green the specific jurisdictional contacts of its subsidiary (absent a showing of fraud or a clear disregard of the corporate fiction) would run counter to the Supreme Court’s holdings in Daimler, 134 S. Ct. at 759-60, Goodyear, 564 U.S. at 929, 131 S. Ct. 2846, and World–Wide Volkswagen Corp. v.

Woodson, 444 U.S. 286, 295-99, 100 S. Ct. 580, 62 L.Ed.2d 490 (1980). …

Clearly, Searchlight’s filing of the Articles of Merger is not, by itself, sufficient to confer jurisdiction over Green in Maryland.

Once we remove Green’s filing of Searchlight’s Articles of Incorporation from our jurisdictional equation, there are no alleged activities

by Green in Maryland – or directed at Maryland – left to consider.

234 Md. App. at 641 (emphasis in original).

Notwithstanding these holdings, the Court indicated that a different fact pattern could have led to a different result: “We do not say that the act of forming a subsidiary in Maryland cannot subject a parent company to personal jurisdiction in Maryland, but the quality and quantity of contacts required to support the exercise of personal jurisdiction will depend upon the nature of the action brought and the nexus of the contacts to the subject matter of the action.” 234 Md. App. at 639 (emphasis added; citations omitted). In other words, Green may have been subject to specific jurisdiction in Maryland if Searchlight had been something more than a merger

subsidiary formed for a short period of time for the exclusive purpose of facilitating an acquisition between two bank holding companies that conducted no business in Maryland.

No jurisdiction over the non-resident directors of a Maryland corporation, SP. Finally, the Court rejected the plaintiffs’ argument that SP’s non-resident Directors were subject to personal jurisdiction in Maryland merely by accepting directorship positions in a Maryland corporation.

The Court held that these directors lacked fair notice that they would be subject to suit in a Maryland court merely by agreeing to serve as a director of a Maryland corporation that transacted no business in Maryland and was headquartered in Texas. Noting that Maryland does not have a “director consent” statute that specifically subjects directors of Maryland corporations to the jurisdiction of Maryland courts, the Court concluded: it would violate the due process rights of nonresident defendants to subject them to personal jurisdiction in Maryland based solely on their directorship in a company incorporated in Maryland. Without a director-consent statute, the out-of-state SP Directors had no reason to expect to be haled before a Maryland court when their only contact with Maryland was their directorship in a company that, although incorporated in Maryland, was headquartered in Texas and conducted all of its business outside Maryland.

234 Md. App. at 649 (emphasis add-

When you have to be right

ed; citations omitted).

The Court likewise rejected the plaintiffs’ contention that the directors were subject to suit in Maryland by virtue of directing SP to file Articles of Merger with SDAT. Similar to Searchlight’s filing of Articles of Incorporation, SP’s filing of Articles of Merger was only tangentially related to the underlying causes of action alleged in the Complaint. 234 Md. App. at 650-51. Additionally, according to the Court, the SP personnel who filed the Articles of Merger were corporate agents and not agents of the individual Directors, such that the filing could not be attributed to the Directors for jurisdictional purposes. Id. “We determine that the SP Directors – all nonresidents – who never entered Maryland in connection with SP business, did not purposefully avail themselves of the privileges and protections of Maryland law by negotiating a merger in Texas with Green, a Texas corporation, or by sending its shareholders a proxy statement and notice of shareholder meeting from Texas, because all of the relevant activity occurred outside of Maryland.” 234 Md. App. at 651-52.

In sum, the Court’s opinion in Stisser is important precedent that addresses significant jurisdictional questions applicable to complex litigation involving foreign corporations and non-resident directors of Maryland corporations. Commercial and products liability litigators who practice in Maryland’s courts would be well served to read the opinion and consider its application in future cases. Corporate attorneys who practice in the mergers and acquisitions area could likewise benefit from understanding the holdings in Stisser.

Mr. Alsip is counsel in Venable LLP’s Commercial Litigation practice in Baltimore, Md., where he focuses on the defense of clients in class action and complex commercial litigation involving federal securities law, consumer claims, shareholder derivative litigation, lender liability actions, land use litigation, contract disputes, and other matters. For more information, visit www.Venable. com.

Wolters Kluwer Legal & Regulatory Solutions U.S. Proudly Announces the 2017 Supplement to

Maryland Corporation Law

by James J. Hanks, Jr., Partner, Venable LLP

MARYLAND • CALIFORNIA • NEW YORK • WASHINGTON DC • VIRGINIA • DELAWARE

Celebrating 28 years of Publication!

Maryland Corporation Law, including 2017 Supplement, #9780735545595, $575.

Cited by Judges and Lawyers in Maryland and Elsewhere

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

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

The book contains many easy-to-use forms, including articles of incorporation, bylaws, organizational and other minutes, board and stockholder resolutions, articles of merger, articles of amendment, articles of transfer, and articles of dissolution. All are specific to Maryland. The 2017 Supplement also includes the author’s analysis of recent statutory and case law developments.

“Theleading leading commentator on Maryland Corporation “The commentator on Maryland Corporation Law” Law” JudgeRobert Robert Sweet Judge W.W. Sweet United District Court for the District of NewofYork UnitedStates States District Court for Southern the Southern District New York “Scholarly, authoritative andexploration practical ...ofthe bestasthing “A comprehensive and scholarly thenext subject, well toan a unanimous Court of Appeals as invaluable practical tool, writtendecision!” by the dean of Maryland corporation law.”

Max Stul Oppenheimer Professor of Law M. Harner Judge Michelle University of Baltimore SchoolCourt of Law United States Bankruptcy for the District of Maryland To order call 800-234-1660 or visit WoltersKluwerLR.com/store

March 2018

MARYLAND BAR JOURNAL

15

TITLE IX ON CAMPUS A RIDDLE WRAPPED IN AN ENIGMA

By Steven K. Fedder

16

MARYLAND BAR JOURNAL

March 2018

March 2018

MARYLAND BAR JOURNAL

17

Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681, et seq., was enacted by Congress and signed

by President Nixon. The purpose of the Act was to provide equal access to educational opportunities to men and women.

Title IX provides No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program receiving Federal financial assistance. 20 U.S.C. § 1681(a).

At first, Title IX was connected with opportunities to participate in intercollegiate athletic activities. Colleges and universities were compelled to add women’s athletic teams in an effort to equalize opportunities for women athletes. But gradually, the focus of the United States Department of Education turned to the provision of an educational environment free of sexual harassment and violence.

There have been highly publicized cases involving some of the most prestigious universities in the world, including Stanford, Duke, Virginia and Columbia, to name a few. As of February 14, 2018, there have been at least 57 decisions from federal courts involving claims of violations of Title IX arising out of claims of sexual assault or sexual harassment in the educational setting.

Title IX has been invoked both by persons claiming to be victims and persons claiming to be aggrieved by false charges. For example, in Doe v.

Salisbury University, 123 F. Supp. 3d 748 (D. Md. 2015), Chief Judge Bredar refused to dismiss the Title IX claim brought by two students disciplined by the university for non-consensual contact with a female student. Having exhausted their right to appeal within the university’s disciplinary procedures, they filed suit for violations of Title IX, claiming, among other things, that the outcome of the disciplinary proceedings was erroneous based upon gender discrimination. In Doe ex rel. A.N. v. E. Haven Bd. Of Educ.,

18

MARYLAND BAR JOURNAL

March 2018

200 Fed Appx. 46 (2nd Cir. 2006) the court affirmed the judgment of the district court in favor of a high school student who claimed that the school acted with deliberate indifference to student on student sexual harassment after the victim reported that she had been the victim of off-campus rape. In ruling in favor of the student, the court found fault with the school district’s deliberate indifference to known acts of harassment that was so severe, pervasive, and objectively offensive that it effectively barred her access to an education.

In the infamous “Mattress Project” case at Columbia University, when an alleged rapist was found “not responsible” by the university, the student accusing him of rape submitted and

As of February 14, 2018, there have been at least 57 decisions from federal courts involving claims of violations of Title IX arising out of claims of sexual assault or sexual harassment in the educational setting. received approval for a senior thesis project in which the student carried a mattress around campus for the avowed purpose of “get[ting] my rapist off campus.” Despite having been found not responsible for sexual assault, the plaintiff brought suit against the university under Title IX for deliberate indifference to gender-based harassment. He claimed that by approving the senior thesis, Columbia discriminated against him by giving credit for the Mattress Project. In dismissing the case, the court found that

deliberate indifference could not be found unless the response to student harassment was “clearly unreasonable in light of the known circumstances” and motivated by discrimination based upon gender. Nungesser v. Columbia University, 244 F. Supp. 3d 345 (S.D.N.Y 2017).

These are but a few examples of claims that have been brought seeking redress for violations of Title IX. In order to understand the case that can be successfully brought, it is important to understand the scope and purpose of the legislation, its application, and its interpretation by the courts.

Covered Institutions

The key phrase in Title IX is “any education program receiving Federal financial assistance.” At first, coverage was limited to the specific program receiving federal assistance. In 1984, the Supreme Court limited the coverage of Title IX to the specific program within an institution receiving Federal funds. Grove City College v. Bell, 465 U.S. 555, (1984). But Congress swiftly acted to overrule the Supreme Court’s interpretation of the Act, enacting changes to 29 U.S.C. § 794 (b)(2). As a result, Title IX now applies to (A) a college, university, or other postsecondary institution, or a public system of higher education; or (B) a local educational agency (as defined in section 8101 of the Elementary and Secondary Education Act of 1965 [20 USCS § 7801]), system of career and technical education, or other school system.

See, Doe ex rel Doe v Coventry Bd. of Educ., 630 F. Supp. 2d 2I26 (D. Conn.

2009).

It is not necessary for the institution or system itself to receive direct Federal funding. If Federal aid is available to students in the form of grants, loans, or scholarships, the school must comply with the requirements of Title IX. See, e.g., Griffin v. Gen. Elec. Co., No. 1:15-CV-4439-AT, 2017 U.S. Dist. LEXIS 157098, at *15 (N.D. Ga. Jan. 6, 2017).

Title IX Requirements

By regulation, the Department of Education has established a framework for compliance with Title IX: § 106.8 Designation of responsible employee and adoption of grievance procedures. (a) Designation of responsible employee. Each recipient shall designate at least one employee1 to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to such recipient alleging its noncompliance with this part or alleging any actions which would be prohibited by this part.

The recipient shall notify all its students and employees of the name, office address and telephone number of the employee or employees appointed pursuant to this paragraph. (b) Complaint procedure of recipient. A recipient shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part.

34 CFR § 106.8.

In 2011, the Department of Education issued a Dear Colleague Letter (“DCL”) advising schools of its interpretation of the requirements 1

of Title IX. The DCL, with which virtually all institutions complied, mandated the use of a preponderance of the evidence standard for determining guilt or innocence. It allowed accusers a right of appeal if the respondent were found not responsible. It denied the accused the right to cross-examine his or her accuser. And it made clear that schools did not have to allow the accused to have a lawyer present for the investigation. Many of these provisions are now under review by the Department, which has already announced that schools could, but need not, adapt a standard of proof that is more stringent than the preponderance standard.

The Role of the Courts in Title IX Enforcement

The Supreme Court has recognized an implied private right of action for violations of Title IX. Cannon v. University of Chicago, 441 U.S. 677 (1979).

In addition to the availability of compensatory damages and injunctive relief, the prevailing party is entitled to the recovery of attorneys’ fees and costs. 42 U.S.C. § 1988(b). (“In any action or proceeding to enforce a provision of . . . title IX of Public Law 92-318 [20 U.S.C. § 1681 et seq.] . . . the court,

in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . “).

Most circuits recognize five categories of claims justiciable under Title IX: hostile environment, deliberate indifference, erroneous outcome, selective enforcement, and archaic assumptions.

Hostile Environment A Title IX hostile-environment claim is analogous to a Title VII hostile-environment claim.

Under this theory of liability, the plaintiff must allege that his educational experience was “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive [so as] to alter the conditions of the victim’s” educational environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), quoted in Doe v. Miami Univ., No. 17-3396, 2018 U.S. App. LEXIS 3075, at *16 (6th Cir. Feb. 9, 2018).

Deliberate Indifference In 1999, Justice O’Connor, in a 5 to 4 decision, enunciated the basis for a private damages action for student on student harassment.

We consider here whether a private

The designated employee is referred to as the “Title IX Coordinator.”

March 2018

MARYLAND BAR JOURNAL

19

damages action may lie against the school board in cases of student-on-student harassment. We conclude that it may, but only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities. Moreover, we conclude that such an action will lie only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.

Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633, (1999).

Under the deliberate-indifference theory, a plaintiff must demonstrate that an official of the institution who had authority to institute corrective measures had actual notice of, and was deliberately indifferent to, the misconduct. Doe v. Miami Univ., No. 17-3396, 2018 U.S. App. LEXIS 3075, at *17-18 (6th Cir. Feb. 9, 2018).

Erroneous Outcome It is important to note that a claim of erroneous outcome is not an appeal of the determinations of a campus Title IX investigation. Not only must the plaintiff prove that the outcome was wrong, but that the erroneous determination was reached because of gender discrimination.

To plead an erroneous-outcome claim, a plaintiff must allege: “(1) ‘facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding’ and (2) a ‘particularized . . . causal connection between the flawed outcome and gender bias.’ Doe v. Miami Univ., No. 17-3396, 2018 U.S. App. LEXIS 3075, at *21 (6th Cir. Feb. 9, 2018) (internal citations omitted).

In Doe, a male student was suspended for violations of the campus’ sexual assault policy. He then filed suit against the university, alleging that the female student had created a hostile environment, that the university was deliberately indifferent to the harassment, and that the finding against him was defective as a result of discrimination against him on the basis of his 20

MARYLAND BAR JOURNAL

March 2018

gender. The Sixth Circuit affirmed the district court’s dismissal of the hostile environment and deliberate indifference claims – finding that the student had not alleged sufficient facts to support a claim that his educational experience was permeated with discriminatory intimidation. But, the court reversed the district court’s dismissal of the third claim, finding that statistical evidence supported a reasonable inference of gender discrimination in the application of the university’s enforcement of Title IX. The Court held In order to survive a motion to dismiss on this claim, John must also allege facts showing a particularized . . . causal connection between the flawed outcome and gender bias. Such allegations might include, inter alia, statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that also tend to show the influence of gender.

Id., at **24-25.

Plaintiffs must be careful to distinguish gender discrimination — in which men and women are treated differently — as compared to alleged victim/perpetrator discrimination — in which alleged victims are treated differently than alleged perpetrators. The first is actionable, while the second is not. Doe v. Salisbury University, 123 F. Supp. 3d 748, 768 n. 10 (D. Md. 2015) Selective Enforcement In selective enforcement cases, the plaintiff does not need to allege his innocence, only that the university engages in a pattern of disciplining only members of one sex and ignoring complaints of similar violations by the other sex. Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). Courts have interpreted that standard to require a plaintiff to “allege particular circumstances suggesting a meaningful inconsistency in punishment and particular circumstances suggesting that gender bias was a motivating factor behind the inconsistency.” Doe v. Columbia Univ., 101 F. Supp. 3d 356, 374 (S.D.N.Y. 2015), reversed and remand-

ed on other grounds. 832 F.3d 46 (2nd Cir. 2016).

Archaic Assumptions The ‘archaic assumptions’ standard, which has only been applied where plaintiffs seek equal athletic opportunities, finds discriminatory intent in actions resulting from classifications based upon archaic assumptions.” Doe v. Baum, 227 F. Supp. 3d 784, 821 (E.D. Mich. 2017). Would he be able to provide an example of an archaic assumption?

The Underlying Problems with Title IX and its Enforcement

Critics of Title IX, as interpreted by the Department of Education, will point out that a student charged with sexual assault or harassment is at risk of being deprived of an education without being provided with a fundamentally fair hearing. If a student reports a sexual assault to law enforcement, the report will be screened by highly trained investigators, medical evidence will be gathered, and if sufficient grounds are found to exist for criminal charges to be brought, the alleged rapist will be afforded full due process rights under the Fifth and Fourteenth Amendment. These include the right to be notified of the charges, the right to confront witnesses, the right to present evidence, the right to a trial by jury, and the presumption of innocence. Guilt is established by proof beyond a reasonable doubt. None of those protections are afforded to those charged in school or university Title IX investigations.

Many victims fear, or resist being involved in the criminal process. According to statistics compiled by the United States Bureau of Justice Statistics, only between 16 and 35 percent of all sexual assaults are reported to the police. The number is even smaller where the assault involves an intimate partner. Often, when the assault takes place on a college campus, one or both of the parties is under the influence and legally incapable of giving consent, or for that matter, asking for it. One-on-one as-

saults happen mostly where there are no witnesses to the act. So the victims often justifiably fear reprisal, ostracism by their peers, or not being believed by the investigating authorities. Title IX was enacted in order to provide an educational environment free of sexual violence, and there is no requirement that the police be notified in the event of an assault. Furthermore, if an assault is reported to any campus personnel, he or she must report the assault to the Title IX Coordinator.

Once reported to the Title IX Coordinator, and an investigation begins, the persons conducting the investigation are usually untrained in determining outcomes, assessing penalties, investigative techniques, forensics, or the law. The ostensible right to appeal is generally from the Title IX Committee to a Dean or other academic authority, not to the courts. Once charged, and found responsible, by a preponderance of evidence standard alone, the purported assailant has little recourse

The purported assailant has little recourse without proof that the finding was a result of discrimination based on the person’s gender. without proof that the finding was a result of discrimination based on the person’s gender.

Common Law Recourse

In addition to the rights granted by Title IX, there are several common law causes of action worth investigating.

In Doe v. Salisbury University, John Doe and Richard Roe brought suit against the University and the complaining students for defamation, negligence, civil conspiracy, and intentional inflic-

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

tion of emotional distress. While those claims were dismissed on facts specific to the case, it should be noted that Title IX does not preempt those common law claims, at least insofar as are made against the individual rather that the institution receiving federal funds.

In a recent case tried in Baltimore County, the plaintiff, who , in a Title IX proceedings had been found to have committed non-consensual anal intercourse,, sued his victim for defamation, claiming that despite the college’s findings, the claim of rape was false and defamatory. After a trial on the merits, the court entered judgment in favor of the defendant, finding that it could not determine by a preponderance of the evidence that the allegations of rape were false. In rendering its decision on the merits, the court was careful to explain that although it could not conclude that the allegation of rape was false, it was not making a finding as to whether the rape occurred. Mobus v. Jane Doe, Circuit Court for Baltimore County, Case No. 03C15005319.

Defendant’s attempts to dismiss the defamation claim on the basis of collateral estoppel were rebuffed by the court, which noted that unless the plaintiff was provided due process in the Title IX proceedings, the decision of the administrative body could not be given preclusive effect.

The Title IX Riddle

As you might conclude, we are a long way from finding an answer to the significant question of how to provide an educational environment free of sexual harassment and sexual violence, and a long way from providing a just and equitable means for determining who did what to whom, and for deciding the appropriate punishment.

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

Mr. Fedder of Fedder & Janofsky, LLC is a trial lawyer who practices in state and federal courts and before administrative agencies throughout the United States.

His diverse practice includes a wide variety of contractual disputes, business torts, professional liability, and counselling. He may be reached at sfedder@mdcounsel.com.

March 2018

MARYLAND BAR JOURNAL

21

Email and the Inadvertent Waiver of Attorney Client Privilege Protecting the Attorney-Client Privilege in the Digital Age

By Emily Gelmann

We have all done it. At least once.

Your client’s name is something like Jack Branch, your opposing counsel’s name is something similar like James Bruins; their email addresses are just a few letters apart, and your email program auto-populates the “to” field. You send off the email to your client without too much thought – possibly from your cell phone while waiting in line at the grocery store – only to realize one second too late that the email intended for your client just landed in opposing counsel’s inbox.

If that has not happened to you yet – and it will – perhaps you have had the client who relishes in copying the opposing counsel in his emails to you 22

MARYLAND BAR JOURNAL

March 2018

venting or complaining about the opposing party, making suggestions on how to approach the litigation, and asking for your advice.

Or, maybe, in a 2,000-plus-page document production, you did not catch the e-mail exchange between you and your client buried in a sea of email communications between the parties.

That email is Bates stamped, and then produced to the other side.

In any of these all too familiar scenarios, opposing counsel now has either your thoughts and legal advice, or your client’s thoughts and requests for legal advice. It is undeniable that digital communications, electronically stored evidence, and electronic dis-

covery make it too easy to accidentally produce or send something that is otherwise privileged to the other side. The dilemma that lawyers face is: can this type of careless error serve as a waiver of the attorney/client privilege?

The attorney-client privilege is one of those ubiquitous concepts that everyone seems to know about (thank you, Law & Order), but you may not fully understand where it comes from.

In fact, the attorney-client privilege is the “oldest of the privileges for confidential communications known to the common law.” E.I. du Pont de Nemours & Co., 351 Md. 396, 414 (1998). In Maryland, the attorney-client privilege is codified in Courts and Judicial Proceedings § 9-108, which states that “a person may not be compelled to testify in violation of the attorney client privilege.” The true meaning of this privilege is further explained in the case law.

The attorney-client privilege applies where “legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his insistence permanently protective from disclosure by himself or by the legal adviser, except the protection may be waived.” Peterson v. State, 444 Md. 105, 159 (2015). At its most basic, the privilege is a rule of evidence that prevents the disclosure of such a confidential communication. Haley v. State, 398 Md. 106, 125 (2007).

However, the attorney-client privilege is not absolute, and can be waived.

Newman v. State, 384 Md. 285, 302 (2004). That waiver may be intentional or, importantly, it may be unintentional. Greenberg v. State, 421 Md. 396, 404 (2011). While the attorney-client privilege belongs to the client and, therefore, can generally only be waived by the client, an inadvertent disclosure by the client or the attorney may constitute an implied waiver of the privilege. Beckette v. State, 31 Md. App. 85, 89 (1976). The Court of Special Appeals has explained the rationale behind the implied waiver as follows: “There is always also the objective consideration that when his [the client’s] conduct touches a certain

It is undeniable that digital communications, electronically stored evidence, and electronic discovery make it too easy to accidentally produce or send something that is otherwise privileged to the other side. point of disclosure, fairness requires that his privileges shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.” Fraidin v. Weitzman, 93 Md. App. 168, 228 (1992) Maryland Rule 2-402(e) addresses the inadvertent disclosure of privileged information. It states that “a disclosure of a communication or information covered by a privilege or protection does not operate as a waiver if the holder of the privilege or work product protection (A) made the disclosure inadvertently, (B) took reasonable precautions to prevent disclosure, and (C) took reasonably prompt measures to rectify the error once the holder knew or should have known of the disclosure.”

Maryland law and jurisprudence on this issue takes a middle ground approach. The law in other jurisdictions is conflicted over what type of disclosure constitutes a privilege waiver. Some courts find that a disclosure must be intentional to be a waiver; other courts hold that in order to constitute a waiver, the disclosure must have been the result of carelessness on behalf of the disclosing party; and a minority of jurisdictions hold that any mistaken disclosure of protected information constitutes a waiver without regard to the protections taken to avoid the disclosures. See Hopson v. City of Baltimore, 232 F.R.D. 228 (D. Md. 2005).

Following this middle-ground approach in determining whether the attorney-client privilege is waived by

inadvertent disclosure, courts examine the following factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; and (5) whether the overriding interests of justice would or would not be served by relieving a party of its error. Elkton Care Center Associates Limited Partnership v. Quality Care Management, 145 Md. App. 532, 545 (2002).

In Elkton Care Center, the Court of Special Appeals held that the inadvertent disclosure of a privileged document by the attorney, accidentally produced in his document production during the discovery phase, constituted a waiver of the attorney client privilege. The Elkton Court focused on counsel’s delay in rectifying the disclosure, which was not raised until the second to last day of trial when the document was offered into evidence.

The Maryland courts have yet to issue a published opinion regarding inadvertent disclosures made via email.

However, based on the factors set forth in Courts and Judicial Proceedings 9-108, and by the Elkton Court, the analysis is likely different depending on who made the inadvertent disclosure – the attorney or the client.

In the first scenario, where an attorney accidentally emails a communication intended for the client to opposing counsel (or copies opposing counsel, accidentally forwards opposing counsel a privileged communication, etc.), and promptly asks opposing counsel to delete and disregard same, it likely does not constitute a waiver. The attorney must take care to follow the steps that are statutorily proscribed to maintain the privileged nature of the communication: the lawyer must notify each party who received the information of the claim of privilege and the basis for it, and request that the recipient return, sequester, or destroy the information.

Maryland Rule 2-402(e)(2). However, should this happen repeatedly, one could argue that the attorney failed to “take reasonable precautions to pre-

vent the disclosure” as evidenced by the number of inadvertent disclosures.

In the second scenario, where a client knowingly includes an opposing counsel on email communications, the client has likely waived his attorney-client privilege. In that case, the disclosure is not inadvertent, and is being made by the individual who holds the privilege.

If you are the recipient of such a communication that will significantly help your client’s case, you may propound discovery for the remaining privileged information such as the attorney’s other emails with the client. If the attorney or client claims that the email communication was privileged, Rule 2-402(e) provides for the filing of “a motion under seal requesting that the court determine the validity of the claim.” It is advisable to file such a motion if the goal is to establish that the opposing party has waived their attorney-client privilege for the entire case. Before taking such an approach, carefully consider such a case strategy: obtaining a waiver of the opposing party’s privilege with his/her attorney will conflict that opposing counsel out of the case, which may not make strategic sense. It is clear, that it is imperative, in every case, to advise clients not to ever copy opposing counsel on emails, or communicate via email or any other means with opposing counsel. Some clients may need to be reminded more than once.

Given the ease and speed of communications in the digital age, attorneys must take extra care to ensure those communications are going to the correct recipient. Attorneys should also caution clients not only to keep communications with counsel to themselves, but not to have direct communications (via cc, bcc, or direct email) with opposing counsel. While the appellate courts have yet to deal with the issue of inadvertent waiver of the attorney-client privilege due to email communications, they are likely to do so soon – and you don’t want to be the test case.

Ms. Gelmann is a family law attorney with the law firm of Offit Kurman. Ms. Gelmann practices in Maryland and D.C.

March 2018

MARYLAND BAR JOURNAL

23

24

MARYLAND BAR JOURNAL

March 2018

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS ETHICS DOCKET NO. 2014-05 A number of state bar committees have issued opinions addressing the ethical issues relating to attorneys’ use of social media, and, recently, regarding the specific website LinkedIn (www.linkedin.com). See, e.g., New York State Bar Ass’n Comm. on Prof’l Ethics, Op. 972, 6/26/13 (LinkedIn); Philadelphia Bar Ass’n, Prof’l Guidance Comm., Op. 2012-8, 11/12 (LinkedIn); South Carolina Ethcis Advisory Comm., Op. 09-10 (social media and endorsements). As lawyers adopt and use social media for advertising at an increasing rate, this Committee is issuing this advisory opinion to help Maryland attorneys determine how to use LinkedIn and similar social media sites without violating Rule 7.1 (forbidding misleading advertising) or 7.4 (permitting, with restrictions, the listing of practice areas in advertisements).

LinkedIn is a social networking website with over 200 million members, 74 million of whom reside in the United States. Like most other social media sites, LinkedIn allows users to create individual profiles. Because LinkedIn is intended primarily for use as a professional networking tool, the focus of the LinkedIn profile is the user’s professional experience and background. These profiles have predefined sections, including, among others, “Experience,” “Education,” and “Skills & Expertise.” The user can fill in text, add hyperlinks, and/or upload photos relating to their work in these predefined sections, but cannot change the headings of the sections. In addition, other LinkedIn users can provide “endorsements” for skills or expertise listed in a user’s profile, essentially providing a vote in favor of the user’s work in the area endorsed, and are also invited to provide written recommendations that appear on the user’s profile.

Individual endorsements, the entire endorsement section, and/or recommendations can be hidden by the user so they are not seen by others. Businesses and companies, including law firms, may also create LinkedIn pages; these pages are similar to individual profiles, but include different sections, including a section called “Specialties” in the “About” section.

Rule 7.1 of the Maryland Rules of Professional Conduct states that “[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”

Any statements on a LinkedIn profile for a Maryland attorney or law firm, or any other similar website, must com-

ply with this Rule, and thus be truthful and not misleading. In ensuring that the obligations of Rule 7.1 are met, attorneys should be mindful that this obligation applies to content that is under their control that is placed on their LinkedIn profile by third-parties, whether in the form of endorsements or recommendations or other comments on the attorney’s profile. We remind attorneys that statements in advertising are misleading under Rule 7.1 if they omit a fact necessary to make the statement as a whole not materially misleading, are likely to create an unjustified expectation about results the lawyer can achieve, or compare the lawyer’s services with other lawyer’s services, unless the comparison can be factually substantiated. It is incumbent upon the attorney to monitor his or her LinkedIn profile to ensure that third-party content that becomes part of the profile conforms with this rule.

Whether and how an attorney may make use of the part of the LinkedIn profile entitled “Skills & Expertise” or how law firms may use the “Specialties” section of the Law Firm profile is a more complex question. Maryland Rule 7.4(a) permits an attorney to communicate that he or she does or does not practice in a particular field of law. However, this Rule was amended in 1992 to add the restriction that “[a] lawyer shall not hold himself or herself out publicly as a specialist.” It may be reasonable for attorneys to be concerned that listing a practice area under a title that includes the word “expertise” or “specialties” could constitute holding oneself out as a “specialist,” in violation of 7.4. 1 This Committee does not find this to be case. Rather, it seems clear that including a list of areas in which an attorney practices under either of these heading is permissible under 7.4.

The likelihood of misleading the public by listing areas of practice in such sections is, in the view of this Committee, low, despite the heading. Viewed together with other sections in a personal LinkedIn profile (Experience, Education, Languages, etc.) or Company profile (Headquarters Location, Website, Industry, Company Size, etc.) the Skills & Expertise or Specialties section is easily understood as providing factual information about the user’s practice, not a claim to be a specialist.

We hope that the foregoing is helpful to the lawyers in this State.

The absence of the word “specialist” or “specializing” in the heading is not dispositive. As this Committee explained in Ethics Opinions 92-52 and 00-21, the prohibition is not so narrow as to only apply when the word “specialist” or “specialization” is used; it is equally improper to use the word “expert” or other words that violate the spirit of 7.4(a) because they “connote that a firm or individual “specialized.’”

March 2018

MARYLAND BAR JOURNAL

25

The Advertising Index

ABA Retirement Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Dugan, Babij, Tolley & Kohler . . . . . . . . . . . . . . . . . . . . . . .Cover 3 King Hall LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 LawPay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cover 2 MSBA Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 MSBA Audio CLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 The Law Offices of Julie Ellen Landau . . . . . . . . . . . . . . . . . . . . . 6 The McCammon Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cover 4 Venable LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

26

MARYLAND BAR JOURNAL

March 2018

March 2018

MARYLAND BAR JOURNAL

27

Maryland State Bar Association, Inc. 520 West Fayette Street Baltimore, Maryland 21201

Nonprofit Organization U.S. Postage

PAID

Maryland Bar Journal

Address Service Requested

The McCammon Group is pleased to announce our newest Neutral Hon. Daniel M. Long (Ret.) Retired Judge, Circuit Court for Somerset County The Honorable Daniel M. Long recently retired after over thirty years of distinguished public service. Judge Long served as Judge for the Circuit Court of Somerset County for twenty-six years, during which time he served as Circuit Administration Judge and County Administrative Judge. Prior to his appointment to the bench, Judge Long was elected as a Member of the Maryland House of Delegates, where he served admirably for seven years while also maintaining a successful private law practice in Somerset and Worcester Counties.

Judge Long is a Recipient of the Judge Anselm Sodaro Judicial Civility Award from the Maryland State Bar Association, and he was selected as 2015’s “Judge of the Year” by the Litigation Section of the Maryland State Bar Association. Judge Long now brings this exemplary record of service and achievement to The McCammon Group to serve the mediation, arbitration, and special master needs of lawyers and litigants throughout Maryland and beyond.

Leaders in Dispute Resolution For a complete list of our services and Neutrals throughout MD, DC, and VA, call (888) 343-0922 or visit www.McCammonGroup.com 28

MARYLAND BAR JOURNAL

March 2018