BARBULLETIN Volume XXXVII, Number 5 • May 15, 2020
What’s Inside Remote Mediation: Best Practices for Lawyers Page 10
Legislative Update: Driver’s Licenses, Auto Insurance, and the Impact of COVID-19 Page 11
Covid-19 Planning Considerations from a Public Health Perspective Page 12
Estate and Trusts Section Demonstrates Remote Execution and Notarization of Documents Page 12
Federal District Court Dismisses Claims That USDA Agency Violated Federal Law in Granting a Loan Guarantee to Maryland Poultry Farm Page 14
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By the Numbers: The Impact of COVID-19 on the Legal Industry BY ANDREA SOLAN, ESQ, MSBA LEGAL CONTENT EDITOR
Data collected by legal technology provider, Clio, shows the very real and significant impact of the COVID-19 pandemic on the legal industry. In a recent webinar, Clio shared some of the results from its ongoing research of consumers of legal services and legal professionals. Attorneys in all practice areas and career settings should pay attention to the numbers.
esults from Clio’s research show that consumers agree that legal services are essential, but that the pandemic has left many without ability to pay for services. In addition, the research indicates that consumers have mixed feelings about virtual legal services, with a majority preferring virtual consultations, while 38% feel that a virtual hearing or trial would result in a negative outcome in their case. To the right is an overview of results from the research on consumers. Clio also gathered data from legal professionals. As courts have closed and much of the country has been under stay-home orders, law firms have necessarily had to rely on technology. Five to 10 years’ of technological advances have taken place over a mere two months, and the legal profession realizes this is about survival, not just convenience. The numbers back this up:
of legal professionals agree cloud technology is necessary for business survival
of legal professionals agree that tech is more important now than it was before the pandemic
agree coronavirus will impact firm operations beyond the pandemic
of legal professionals agree they are using more types of technology
agree they are more comfortable with technology
of consumers would prefer to meet with lawyers either virtually or over the phone rather than meeting in person during the pandemic
of consumers said they cannot afford to pay associated legal costs and fees over the next few months; affordability of legal services is more of an issue than it usually is
of consumers believe that a remote hearing or trial would negatively impact the outcome of a case
The pandemic has also impacted the mental health of legal professionals in ways that cannot be ignored. In normal times, lawyers report a high level of stress, and that has increased during the time of COVID-19. According to Clio’s data, 75% of legal professionals have increased stress and anxiety due to the pandemic. The MSBA has responded to this increase in stress and anxiety by providing mental health & wellness tools on its COVID-19 website, creating a weekly support group, and providing useful webinars to help legal professionals through this unprecedented time. You can find more information on the MSBA COVID-19 page: msba.org/Covid-19/wellness. To see more of Clio’s data regarding the impact of the pandemic on the legal profession, go to www.clio.com/resources/legal-trends/covid-impact.
consumers agree that lawyers 77% ofprovide an essential service
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of consumers believe the lawyers have stopped offering services during the pandemic of consumers agree that they expect to deal with a coronavirus-related legal issue in the future
According to Clio’s data, 75% of legal professionals have increased stress and anxiety due to the pandemic.
BARBULLETIN Volume XXXVII, Number 5
May 15, 2020
LinkedIn & Facebook News Stories Hundreds of attorneys follow us on LinkedIn and Facebook. Join them and receive these useful articles and more in real time at msba.org/linkedin and msba.org/facebook.
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Maryland State Bar Association 520 West Fayette Street Baltimore, Maryland 21201 (410) 685-7878 • (800) 492-1964 TDD 539-3186 E-mail email@example.com • www.msba.org Executive Director Victor L. Velazquez
Supreme Court Arguments A Tech Success, But Format Strangles Usual Give-And-Take
Editorial Staff Anna S. Sholl Editor
‘Zoom fatigue’ is taxing the brain. Here's why that happens.
Video calls seemed an elegant solution to remote work, but they wear on the psyche in complicated ways.
Dana O. Williams President
The U.S. Supreme Court made history Monday. The coronavirus lockdown forced the typically cautious court to hear arguments for the first time via telephone, and to stream the arguments live for the public to hear.
Hon. Mark F. Scurti President-Elect Delegate Erek L. Barron Secretary M. Natalie McSherry Treasurer
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DC Bar Bar Exam Postponed from July, Planned Now For September The District of Columbia Court of Appeals plans to administer the Uniform Bar Examination (“UBE”) on September 9-10, 2020, pandemic-related conditions and restrictions permitting.
Reinventing Your Law Firm: If Not Now, When? "As the demand for legal services lessens, supply will increase, leaving lawyers and law firms that lack strong positioning and differentiation struggling to overcome perceptions that they’re offering nothing more than a commodity."
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COVID-19 Gives Rise to Phishing Scams and Cybersecurity Issues
â&#x20AC;&#x153;The best lawyers/judges make the best mediators/arbitratorsâ&#x20AC;? Honorable Charles G. Bernstein (Retired)
Cybercriminals are taking advantage of the COVID-19 pandemic to exploit remote workers, vulnerable populations and others with increased online scams to extract personal and financial information. These scams may be sent through email, text, and social media. These communications may appear to be from legitimate individuals and organizations, as cybercriminals often try to imitate someone you trust. For additional resources on cybersecurity and how to avoid online scams, please visit msba.org/covid-19 or staysafeonline.org.
The MSBA would like to take this opportunity to remind everyone that the MSBA, including its volunteer leaders and staff, do not send emails soliciting gift, gift cards, or money. It is very important that if you receive an email from the MSBA, its volunteer leaders or staff, that you verify the email address is from MSBA.org. If you are unsure of whether an email that appears to be from the MSBA is legitimate, please contact our membership team at firstname.lastname@example.org or reach us at email@example.com.
As a very active trial lawyer and Circuit Court Judge , Judge Bernstein has over 50 years of varied litigation experience in all State and Federal Courts.
He is now available for mediation/arbitration at extremely competitive rates.
The McCammon Group is pleased to announce our newest Neutral Hon. Alexander Wright, Jr. (Ret.) Retired Associate Judge, Court of Special Appeals of Maryland The Honorable Alexander Wright, Jr. recently retired from the Court of Special Appeals of Maryland after over a decade of distinguished service on that court. He previously served as an Associate Judge on the Circuit Court for Baltimore County and as an Associate Judge on the District Court for Baltimore County. Prior to his judicial service, Judge Wright enjoyed a successful career in both private practice and public service. He is a Fellow of the Maryland Bar Foundation, a former member of the Board of Governors for the Maryland State Bar Association, and a Past President of the Baltimore County Bar Association. Judge Wright now brings this exemplary record of leadership and experience to The McCammon Group to serve the mediation and arbitration needs of lawyers and litigants in Maryland and beyond.
For a complete list of our services and Neutrals throughout MD, DC, and VA, call 888.343.0922 or visit www.McCammonGroup.com
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Together, we are
MSBA’s COVID-19 response efforts include: Advocating for the profession in state & federal judiciary as well as in the legislature
How does the legal profession deal with new challenges?
On the heels of a legislative victory against sales tax on services, March 2020 presented a new challenge: a global pandemic. MSBA exists to support and empower the entirety of the legal profession every day, even more so when it is facing unprecedented challenges.
M S B A . O R G / S T R O N G E R TO G E T H E R 4 | BAR BULLETIN
Communicating with the Governor’s office on key orders, including remote notarization and remote witnessing Providing 20+ complimentary webinars, with over 15,000 participants (and growing) from across the profession Sharing resources and tools to navigate your practice during the pandemic Guiding firms in their transition to a remote practice, and helping plan for recovery and post-COVID business strategies Opening MSBA’s entire on-demand CLE catalog of 150+ titles, the Maryland Bar Journal, and other resources, to everyone at no cost Convening the state’s legal services organizations to guide the public and self-represented litigants during this unprecedented time Your MSBA has been fighting for you long before this pandemic, and will keep fighting long after. If you haven’t already, we would love for you to join the growing number of attorneys who call MSBA home. Because together, we are stronger.
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New Study Highlights Proven, Cost-Effective Way to Reduce Post-Pandemic Evictions BY REENA K. SHAH, ESQ.
Establishing publicly funded legal services for low income families in housing court would be a cost-effective measure that would prevent homelessness, decrease evictions and give poor families a fair shake. Matthew Desmond, Pulitizer-Prize Winning Author of Evicted: Poverty and Profit in the American City
COVID-19 and Evictions
n the wake of COVID-19, housing advocates are forecasting an unprecedented tsunami of evictions. With unemployment numbers rising every week, COVID-19 has unleashed an economic and legal maelstrom that, if not responded to effectively, has the potential to bring pandemic recovery to a standstill. Effective pandemic recovery must include a plan to minimize evictions because evictions will impact and disrupt every other part of recovery. Most immediately, even as emergency restrictions necessitated by COVID-19 may start to ease, the threat of a COVID-19 resurgence looms large and demands every effort to keep people housed, for the sake of personal and public safety. Post-pandemic, while the state will need to restart the economy and spur job growth, evictions will cause job loss; and while the state will attempt to redouble its efforts to cure disparities in educational outcomes, evictions will solidify poor educational outcomes for the large numbers of Marylanders impacted. In fact, in addition to job loss and poor educational outcomes, evictions have been proven to cause homelessness, declining credit, and deteriorating health; contribute to children entering foster care; and lead to poor credit scores, loss of personal and financial assets and local support systems (e.g., family networks, child care). This avalanche of eviction-related consequences will prevent post-pandemic economic stabilization - not just for those directly impacted, but the state as a whole.
Right to Counsel in Evictions: A Proven, Cost-Effective Way to Reduce Evictions
Policy-makers in Baltimore City and the state, should apply lessons from a new study that highlights a proven, cost-effective way to reduce evictions. Even before COVID-19, Baltimore City alone was evicting families at a rate above 2.5 times the national average. In Maryland, the only legal mechanism to achieve an eviction is through court order. In eviction-related court matters, only 1% of tenants have legal representation, compared to 96% of landlords. More than any other factor, the inequities in legal representation have proven to
6 | BAR BULLETIN
lead to evictions. A potent and cost-effective solution to reduce evictions is by addressing the inequities in legal representation by providing a right to counsel in eviction matters. Other jurisdictions that have implemented a right to counsel have seen impressive results: • New York City began a phased implementation of a right to counsel in evictions in 2018. Evictions have since dropped 29% in zip codes where the right to counsel was implemented. In zip codes with right to counsel, tenants remained in their homes in 84% of the cases. • Right to Counsel is being implem ent ed in oth er jurisdictions including Philadelphia, San Francisco, Cleveland, and Newark. It is also being considered in numerous others, including state-wide efforts in California, Connecticut, Massachusetts, Minnesota, New Jersey, Ohia, Washington state; and city-wide efforts in Los Angeles, Santa Monica, Boulder, D.C., Kansas City, Detroit, Jersey City, New York City, Toledo, Oklahoma City and San Antonio. It is no surprise that attorneys matter and make a difference in the outcome of a legal case. A new report from Stout Risius and Ross (The Stout Report) concludes that for an annual investment of $5.7 million in a right to counsel for Baltimore City tenants facing
An annual investment of $5.7 million in a right to counsel for Baltimore City tenants facing eviction yields $35.6 million in benefits or costs avoided to the City and State. eviction, yields $35.6 million in benefits or costs avoided to the City and State including: • $10.6 million related to homeless shelters, transitional housing, and mental/physical health institution housing costs; • $12.5 million in Medicaid savings related to emergency room and in-patient care; • $2.3 million related to lost state funding to City schools due to the chronic absence of students experiencing homelessness; • $2.4 million in transportation costsavoidedrelatedtostudents experiencing homelessness in City schools; and • $7.7 million in foster care costs related to children placed in foster care because of eviction.
At a time when policy-makers will be seeking to trim budgets, while improving outcomes, they will need to employ proven and cost-effective solutions to ensure public health and economic stability. A right to counsel in evictions offers an effective solution to stem the tide of post-pandemic evictions. The Stout Report shows a return on investment of 624%. With an investment of $5.7M, Baltimore City and the state of Maryland would see a combined cost savings or value of services estimated at $35.6M, with $17.5M benefitting Baltimore City and $18.1M benefitting the state as a whole. The Maryland Access to Justice Commission (A2JC) supports a right to counsel in eviction cases. We are part of the coalition of over 20 organi-
zations that spearheaded and informed The Stout Report. We have been active in promoting the benefits of right to counsel since 2009 and led a Taskforce to Study Implementing a Civil Right to Counsel in Maryland, submitting a report in 2014. We have advocated for the right to counsel in the Maryland General Assembly and are active in the effort to quantify the economic benefit of the right. A2JC strongly recommends including the right to counsel in evictions cases as a proven and cost-effective policy solution to post-pandemic economic stabilization and recovery.
Get Maryland’s daily statewide source for law, business, government and real estate news. Behind the compromise Here’s how lawmakers found a way to expand post-conviction relief. 10A
A TEDCO boost
Baltimore medical device startup joins program to help get FDA approval. 3A
Volume 129 | Number 137
Wednesday, April 18, 2018
Maryland’s trusted source of business, legal and government news for 130 years.
Roselyn Aker-Black, Psy.D.
LaKeecia Allen Magistrate Jo Ann Asparagus *Christine D. Aspell Jody S. Berg Maureen M. Black Samantha Bowling, CPA, CGMA Oana A. Brooks Shelley Brown Patricia A. Browne Judge Sharon V. Burrell Renay L. Butler Judge Donine Marie Carrington Dr. Jocelyn Chaney-Gainers Erin Charles, CPA Michelle Coates Michele L. Cohen Alyce Dailey Natasha M. Dartigue Suzzanne W. Decker *Diane Devaney Dr. Tracey L. Durant Barbara Ebel Donna S. Edwards Lynda Ellis Wendy Elover Aileen Eskildsen Tiffany Esther Carolyn Evans, Esq. Jodi Finkelstein Sandy Fitzgerald-Angello Bernadette Fowlkes-Bridges Swata Gandhi
Dr. Kathleen A. Getz *Abby Glassberg Elizabeth Scott Glenn Dr. Michele Guyton Catherine Y. Hamel Kay N. Harding Cassandra Jones Havard *Marie Hartman Geanelle Griffith Herring Aubreana Stephenson Holder Jan Holt Jeannie L. Howe *Betsey Hurwitz-Schwab Asma Inge-Hanif *Lisa A. Hall Johnson Erica Joseph Lexy Kessler Amy Kleine Shawn Kros *Mary Beth Lennon *Cylia Lowe-Smith, Esq. Kathleen McClernan-Walz, Esq. Jill McClune Laurie McDonald Pat Bonner McElroy *Denise K. Mersinger Barbara Pisano Messing Vanessa Milio Janice Miller *Kathleen Momme Terry H. Morgenthaler Shannon M. Neal Kathleen Maletic Neuzil Kim Y. Oldham Tenyo Pearl
*Karen Pecora-Barbour Delegate Joseline Peña-Melnyk Sabita Devi Persaud Lily Qi Ann Quinn Gina Ramsey Johnette Richardson Valda Ricks *Dr. Tonja L. Ringgold Kimberly Y. Robinson Donna Stevenson Robinson Angela Rose Heather B. Sachs *Lynn B. Sassin Laurie-Anne Sayles Tammy S.J. Schneider, CPA *Leslie Simmons, R.N., F.A.C.H.E. Carol Ann Smith Erin Stauder Karen G. Sugar Jessica Wolf Suriano Gustava “Gusty” Taler C. Marie Taylor Rebecca Teaff Maureen van Stone, Esq. MS Judge Cathleen Vitale Annette Campagna Walter Sonya Whited Christina Williams Flavia Williamson Renée M. Winsky Michele K. Wolff
Transportation contract delayed after questions raised Rahn’s handling of selection process under scrutiny By BRyAn P. seARs BSears@TheDailyRecord.com
Transportation Secretary Pete K. Rahn is defending the process by which a $69 million contract is set to be awarded to a group headed by his former employer.
ANNAPOLIS — A $69 million state contract to oversee the largest public-private highway project in the country has been pulled from
the Board of Public Works’ schedule after questions were raised over Transportation Secretary Pete K. Rahn’s relationship with the winner of the contract and his handling of the bidding process. The withdrawal of the contract with a consortium headed by Kansas City, Missouri-based HNTB comes as officials express concerns
about the speed of the procurement, the waiving of standard competitive bidding processes and the relationship between the company and Rahn, who previously worked for HNTB. There are also new questions regarding apparent discrepancies between Rahn’s public statements about his ownership and sale of stock
L A R G E S T L AW FIRMS
* Circle of Excellence honorees
from his former employer and public financial disclosures filed with the Maryland State Ethics Commission. “Members of the Board of Public Works had questions about the procurement process and the department is going to and should and will address those questions,” SEE RAHN 8A
Harford company awarded $45M in rubble landfill dispute with county
Government plans to file appeal in latest ruling in 30-year legal battle By AnAmikA Roy ARoy@TheDailyRecord.com
A Harford County jury Tuesday awarded $45 million to a company that has been battling the county government for nearly 30 years over the right to use a property as a rubble landfill, one of the largest jury awards in county history. After an eight-day trial and nearly five hours of deliberations, the jury found that the county government’s decision to prevent Maryland Reclamation Associates from using the property near Havre de Grace as a rubble landfill was a regulatory taking of property for which the company
THE DAILY RECORD’S MARYLAND’S TOP 100 WOMEN 2018 1
The southbound Fort McHenry Tunnel toll plaza on Interstate 95 in Baltimore. FILE PHOTO
MARYLAND EXPLORES CHANGING TOLLS TO ELECTRONIC ONLY
SEE VERDICT 12A
A DIFFERENT VIEW FROM THE CORNER OFFICE
Q&A with female managing partners, page 2
By kAtheRine BRzozowski Capital News Service
ANNAPOLIS — The Maryland Transportation Authority is exploring phasing out all cash toll booths across the state. Today, tolls are collected three ways: by cash, or electronically, by either
The rise in lateral moves, page 6
an E-ZPass transponder or by video tolling — when the state uses a license-plate photo and mails drivers their bill. Transportation officials say that the transition to all-electronic, high-speed toll collection will: save drivers time on their commute, save the state money, re-
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10B 6A 10A
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duce accidents at toll plazas, and reduce CO2 emissions as less fuel is being burned, according to a national study by the University of Central Florida. Drivers in Maryland could start seeing new plazas that only collect tolls electronically at highway speeds by the summer of 2019, said 4A N/A 9A
Lawyer to lawyer Public notice Bids
Kevin Reigrut, executive director of the Maryland Transportation Authority. However the state has no specific timetable or budget for all-electronic tolling at this time, Maryland Transportation Authority Communications Director Cheryl M. Sparks told Capital News
11A 1B 3B
Plaintiff’s attorney Brett Ingerman: ‘The jury was persuaded that what (Harford County) did here was wrong. It was wrong back in 1990 and they thought it was wrong today.’
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PRO BONO PROFILE
PBRC PARTNER PROFILE:
Snehal Massey, Esq.
MSBA Member; PBRC Volunteer Can you tell me a little about your private practice? I practice family law at Turnbull, Nicholson, & Sanders in Towson.
How has the COVID-19 outbreak impacted your practice? COVID-19 has forced our staff to work remotely. The court closures have postponed many of our cases. We have been working diligently with opposing counsel to reach agreements to provide more immediate resolution. An interesting aspect is that we have often been able to resolve all or most issues in matters that previously didn’t seem resolvable.
With which of PBRC’s projects do you volunteer, and what do you do there? Most recently, I’ve been volunteering remotely with PBRC’s Tax Sale Prevention project. I signed up for one of the first remote sessions and was astounded by the ease of doing it remotely. I was very grateful for the training and assistance that the team provided before, during, and after the session. Even from home, I didn’t feel like I was alone at all! I have since volunteered twice more and am looking forward to doing so again. With this outbreak and the uncertainty of so many things, the opportunity to serve with PBRC really reminded me WHY I became an attorney.
How does remote volunteering compare with in-person volunteering? Although it is always nice to be face-to-face with the clients we are helping, the remote volunteering provides a different sense of satisfaction. To see how grateful the clients are to hear from us reminded me that we are all in this together. Volunteering remotely does not diminish the impact we have on our clients. If we can each just help one person at a time – and we can – it makes a world of difference. There are few opportunities as attorneys where we can make a difference in someone else’s life from our living room!
What did you find helpful about PBRC’s process? I was amazed at how thorough PBRC’s team was in designing the remote process – they thought of every possible contingency and addressed it, so the volunteer attorneys were fully equipped to provide assistance to the clients.
What did you like most about this volunteering experience? This experience helped me provide some steadiness to the clients during such an unpredictable time.
What is your first memory of doing pro bono work? Service has always been a major part of my life – as an attorney, one of my first cases was a pro bono family law case. The gratitude and appreciation that my client had for me at the end of that trial helped me understand how much my time and resources could impact someone’s life.
What do you think other people should know about PBRC? Even though volunteering may seem daunting at first, especially if it is outside your normal practice area, the PBRC team is simply fantastic in providing ALL the resources necessary for success. They provide online and in-person trainings, and the staff attorneys are available throughout to assist and answer any questions you may have during your service.
How has doing pro bono work changed you? Pro bono work has taught me to be non-judgmental in my practice and life.
What message would you give to attorneys thinking about volunteering? If you are thinking about volunteering, please give PBRC a try – I promise that it will ignite a pro bono bug in you. Also, if you haven’t been fully supported in past volunteer experiences, or you are new to pro bono work, you will benefit from the PBRC model. There is no “sink or swim” with PBRC. They want success for the client just as much as they want the volunteer attorney to enjoy the experience.
We recognize the importance of assisting individuals with disabilities regardless of age or disability. For the Individual with disabilities we offer a Pooled Special Needs Trust to protect assets and preserve eligibility for benefits. For the Individual’s family, we offer a Third Party Special Needs Trust to help you plan for the future. • We facilitate case management and care coordination as needed. • We distribute funds to increase the Individual’s quality of life and enhance independence. • We provide a corporate alternative to the Individual Trustee, for both Pooled Trusts and Individual Trusts.
The First Maryland Disability Trust, Inc., a Non-Profit organization.
The gratitude and appreciation that my client had for me at the end of that trial helped me understand how much my time and resources could impact someone’s life.
PBRC’s featured service opportunity
Volunteer remotely during the COVID-19 emergency: probonomd.org/remote-service For more information about volunteering in Maryland, contact: Annie Speedie, PBRC Deputy Director: email@example.com, 443-703-3051.
The Pro Bono Resource Center of Maryland will match your skills with a wide range of pro bono opportunities. The Center welcomes new volunteers dedicated to addressing issues impacting low income families and their communities.
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Remote Mediation: Best Practices for Lawyers BY JOHN MCCAMMON
n the blink of an eye, the Pandemic changed everything. Even courts have curtailed their activities. Yet, the disputes confronting our citizens have not abated. Lawyers have responded to these challenges by using phones, desktops, laptops, and tablets to mediate remotely. It’s working! Cases are settling. Importantly, people are safe. Lawyers and Mediators are now refining the Best Practices for Remote Mediation.
Developing a Technology Plan
In the initial Pre-Mediation Conference Call, the Mediator facilitates a conversation among the Lawyers to create a Technology Plan for the Mediation. This Plan should consider the nature of the dispute, the number of Parties and participants, and their locations. It must also consider the technological capabilities of those involved. The Lawyers may have different levels of experience with video conferencing, different preferences, and different hardware. A variety of video conference platforms are available, and various configurations of technology may be considered. Flexibility is the watchword. The Lawyers configure and adopt a Technology Plan and control its implementation. The Mediator facilitates the Mediation Session with the support of the Technology Plan.
The Mediator chairs the Opening of the Mediation Session involving all the participants. Typically, the Lawyers will present their respective views of the dispute. The chosen video conference platform enables everyone to participate remotely. One of the Lawyers or a third-party technician will handle the technical aspects, that is, “host” this video conference.
After the Opening, the Parties separate into caucuses. The Mediator goes back and forth remotely among the caucuses, discussing the case and facilitating the negotiation of a resolution. Many caucus configurations can be used. The simplest caucus configuration involves two Parties, both individuals, each in a room with their respective Lawyer. The Mediator could work with each caucus simply by phone (with speaker, Facetime?). For many reasons (preference to visually connect with team members, their
10 | BAR BULLETIN
number or location, etc.), Lawyers often choose to convene the caucus with a video conference including the Mediator and all the team members. The Lawyers need not choose a single technology applicable to all caucuses. One Lawyer and Party may communicate with the Mediator by phone. The adverse
Lawyers may be uncomfortable with that arrangement. Alternatively, the Lawyers may retain as host a third-party technician (court reporting service, IT firm) who is not affiliated with any of the Parties. Increasingly, Lawyers are using this last model: video platforms (with “breakout rooms”) hosted by a third-party technician.
The Lawyers need not choose a single technology applicable to all caucuses.
Lawyer and Party may communicate by video conference with the Mediator and numerous others ( family members, insurance adjusters, etc.), all in separate places. Caucuses using any of these methods are often called “silos” because there is no electronic connection among the caucuses. This can be comforting to Lawyers because it eliminates any concern about the risk of electronic seepage of confidential information from one caucus to another. An alternative to “silos” uses more sophisticated technology. Some video conference platforms enable the host to place each caucus into a virtual “breakout room.” The host can facilitate the Mediator’s entry and exit into each of these “breakout rooms.” Only the participants in the same “breakout room” can see and hear each other. Lawyers often prefer this model because it can provide a smoother and more efficient process than the silo approach particularly in cases that involve more people and/or added complexity. These “breakout rooms” can be hosted by one of the Lawyers, however, adverse
When agreement is reached, the Lawyers should memorialize it during the Mediation Session. The drafting process involves the same remote techniques as those used throughout the day. Drafts can be exchanged and reviewed via email, text message, or video conference.
If the Parties are unable to reach agreement during the Mediation Session, the Mediator follows up with phone calls, emails, and video conferences, as needed.
Team Members’ Capabilities and Expectations – Lawyers should determine the competence and comfort of their team members with the techniques to be used. Counselling them on what to expect is important. Lawyers are free to arrange an ex parte (video) conference, preceding the Mediation Session, to allow the Mediator to explain to an anxious Party how the process will unfold.
Trial Run – It is very important that sometime before the day of the Mediation Session, the Lawyers and the Mediator convene a “trial run” of the Technology Plan to fix any glitches. Agreement to Mediate – It is the responsibility of the Lawyers to sign the Agreement to Mediate, procure the signatures of all affiliated participants, and send this documentation to the Mediator. This should be accomplished before the day of the Mediation Session. Use of Documents – It is important that, before the day of the Mediation Session, Lawyers distribute to opposing Lawyers and the Mediator copies of any documents to be used in the Mediation Session. Preparing to Paper the Deal – It is helpful to distribute a template for the contemplated Settlement Agreement sometime before the day of the Mediation Session.
We don’t know when the Pandemic will end. However, we now know that there is an effective way to resolve disputes in the meantime. The professionalism of Lawyers and Mediators, effectively using available technology, will get us through. John McCammon is the founder of The McCammon Group, a company providing retired judges and lawyers to serve as neutrals in Virginia, Maryland, DC and beyond since 1995.
Legislative Update: Driver’s Licenses, Auto Insurance, and the Impact of COVID-19 BY CHRISTOPHER SWEENEY
This session, the Maryland General Assembly introduced a number of important bills relating to auto insurance and driver’s licenses. Though a great deal of legislation has been stalled due to the COVID-19 outbreak, a few bills are worth highlighting. And given the closures happening across our state, legislation related to MVA citations and judgments, auto insurance, and REAL ID could be particularly impactful.
enate Bill 234 - which passed and has gone to the Governor’s desk - limits the Motor Vehicle Administration’s ability to suspend driver’s licenses. A bill with bipartisan support, and one endorsed by the Maryland Attorney General (see ‘Brian Frosh, lawmakers push for legislation...’ The Baltimore Sun. Jan. 15, 2020), this legislation prohibits the practice of suspending driver’s licenses for certain unpaid traffic fines. Calling current practices a form of “the criminalization of poverty,” the bill’s proponents cited how those with low income were significantly more susceptible to racking up fines, receiving a license suspension, and then being faced with criminal charges if they drove. Driving on a suspended license carries the possibility of incarceration, which means that, without this law, unpaid traffic citations could effectively result in jail time. The legislation
also allows those with over $150 in eligible fines to enter into an installment payment plan. If the Governor signs it, the law will go into effect October 1st. A number of driver’s license and insurance-related bills were not heard due to the truncated legislative session. Nevertheless, they are worth consideration since they proposed noteworthy updates to Maryland law. Senate Bill 17 would have ended auto insurance adjusters’ ability to consider a person’s credit history in calculating a quote. Given that COVID-19 has left Maryland, and the rest of the country, with an unprecedented spike in unemployment, credit scores are likely to suffer. And despite the many protections for consumers – eviction moratoria, prohibitions on reporting certain unpaid debts to credit bureaus – many Marylanders will likely take a blow to their credit. When the next legislative session comes
around, this bill, if reintroduced, may be as timely as ever. Senate Bill 687, which would have allowed for the expungement of suspended license convictions, also did not make it through the required hearings before the COVID-19 shutdown. After sweeping expungement legislation in 2018, which made certain misdemeanor and felony convictions expungeable for the first time, this bill would have added one conviction that was noticeably absent – driving on a suspended license. Some advocacy groups see the omission of sus-
pended license violations from the enumerated list of eligible convictions as an oversight with wide-reaching consequences. As it currently stands, a conviction for a suspended license violation is enough to block the expungement of a more serious crime, if the former occurred within ten to fifteen years of the latter. Meanwhile, two felonies within a few years of each other could potentially both be expunged after fifteen years from the second offense. Were this bill to have passed, the expungement update would have been a complement to the above-mentioned SB234, which passed, further reducing the penalties for driving on a suspended license, which some
have deemed too onerous. Finally, failure to pass Senate Bill 173, which dealt with REAL ID implementation, may have an impact in light of COVID-19. The bill would have required a law enforcement officer who confiscates a driver’s license for REAL ID noncompliance to issue a recall notice, which can be carried in lieu of a valid driver’s license for ten days. With the widespread shut-downs across Maryland, accessing the MVA for REAL ID or any other issue will undoubtedly be difficult. Thankfully, this issue may be irrelevant since Governor Hogan requested, and received permission, to have the Federal REAL ID deadline extended by one year. Marylanders now have
Given the impact that COVID-19 will have on Maryland’s economy, the bills that were left on the drawing board this year will be ripe for reconsideration next session. until October 1st, 2021 to comply. This will hopefully provide ample time for everyone, and allow the General assembly to reconsider SB173 next session. The General Assembly has announced that there will be no special session this summer. Given the impact that COVID-19 will have on Maryland’s economy, the bills that were left on the drawing board this year will be ripe for reconsideration next session. The prohibition against suspending licenses for unpaid citations, if the Governor signs it, may have an even broader impact than imagined in the wake of the coronavirus pandemic. Christopher Sweeney, Workforce Development Project Coordinator at Maryland Volunteer Lawyers Service.
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Covid-19 Planning Considerations from a Public Health Perspective BY ANDREA SOLAN
he MSBA hosted Trudy Henson, the Public Health Program Director for the University of Maryland Center for Health and Homeland Security, for a crucial and timely free webinar titled “Covid-19 Planning Considerations from a Public Health Perspective,” on May 4, 2020. MSBA President Dana Williams introduced Ms. Henson, whose work focuses on legal and policy responses to disasters. She holds a law degree from the University of Maryland Francis King Carey School of Law and has written about mass fatality planning and legal considerations. Ms. Henson talked about what we know about the SARS Cov-2 (Covid-19) virus, including that it can live on surfaces four to 72 hours depending on the type of surface; it can stay in the air through aerosolized droplets for up to three hours; and it can
travel in the air depending on temperature, air currents, and humidity. Epidemiological modeling shows sneezing, coughing, and even talking loudly can project aerosolized droplets containing the virus up to nine feet in the air. A study in China and Singapore, both of which have strict testing protocols, showed that up to 50% of people infected with Covid-19 contracted it from pre-symptomatic people. We also know that preexisting conditions such as hypertension, diabetes, and obesity put individuals at higher risk of complications from Covid-19; these conditions are not necessarily small subsets of the population. Ms. Henson also talked about what we don’t yet know about Covid-19, including how to treat it or when we’ll have a vaccine or herd immunity. Even when there is a vaccine, priority will
likely be given to people based on their risk of complications. It is unknown whether people who have recovered from Covid-19 have lasting immunity, similar to the chicken pox, or whether the immunity will wear off, similar to seasonal flu. What we do and do not know about Covid-19 have implications for law firms and other businesses as they plan to reopen while protecting employees. Ms. Henson noted that to call this a “new normal” is almost a disservice … it is just “new.” Business owners should create a culture of safety for those who return to work. This should include developing policies for employees returning to work after a positive or presumptive case of Covid-19 (or even just known exposure to Covid-19). All employers will need to do a wholesale assessment of their offices’ safety issues,
Ms. Henson’s presentation, and the rest of MSBA's COVID-19 webinars, can be viewed in its entirety at msba.org/webinar-playlist.
including the flow of the office, the setup and use of office furniture, and whether employees can be sufficiently distant from others. If physical distance is difficult, employers may want to add plastic sneeze guards, require the wearing of masks, or implement fixed, staggered scheduling, which would make it easier for employees to avoid close contact and for employers to conduct contact tracing if necessary. Employers should understand and work with employees
who are medically vulnerable or live with those who are; also, the mental health of employees cannot be ignored. As other states begin to reopen, law firms and other businesses in Maryland will have benefit of observing the health impact of reopening businesses and possibly learn and adjust based on what occurs.
Estate and Trusts Section Demonstrates Remote Execution and Notarization of Documents On May 1, 2020, the MSBA’s Estates & Trusts Section presented A Brave New World: Remote Execution of Estate Planning Documents. This webinar discussed the legal and practical implications of emergency orders for the remote notarization of documents in general, and of estate planning documents in particular.
ore than 400 participants watched as attorneys Leanne Broyles (Frost Law), Jonathon Lasley (Stewart, Plant & Blumenthal), Lynn Sassin (Gordon Feinblatt) and David Sessions (Franke, Sessions & Beckett) reviewed the Governor’s orders, and addressed the challenges and opportunities they present for practitioners and their clients during the COVID-19 emergency. They discussed technological considerations, made best practice recommendations, and concluded with a step-bystep videotaped demonstration of a remotely notarized and
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witnessed document execution. Mr. Lasley provided the legal context, describing the interplay between the executive order authorizing remote notarizations, and a separate order temporarily abrogating statutory live witnessing requirements for wills and advance medical directives (which do not need to be notarized), and powers of attorney (which do). He walked through the exacting requirements for a valid remote notarization contained in the order and in guidance offered by the Secretary of State, and the less technical but equally important requirements
for remote witnessing. Among the key concepts discussed throughout the presentation were the requirements that all signers be in each other’s “electronic presence” during the execution, and that the “supervising attorney” eventually assemble the executed documents to create a certified copy of them. With the legal framework in place, Ms. Sassin addressed pre-execution planning and protocols for managing the document signing process. She discussed the need to assemble the execution team in advance, CONTINUED ON PAGE 19
The full presentation, which included a 30 minute question and answer period, can be viewed at msba.org/webinar-playlist.
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Federal District Court Dismisses Claims That USDA Agency Violated Federal Law in Granting a Loan Guarantee to Maryland Poultry Farm
n 2017, Food and Water Watch (FWW) challenged the approval of a loan guarantee by USDA’s Farm Service Agency (FSA). FWW argued that FSA had violated the National Environmental Policy Act (NEPA) in reviewing the environmental impacts of a proposed poultry farm seeking USDA loan guarantees. Recently, the Federal District Court for the District of Columbia dismissed all the NEPA claims brought by FWW. FWW may still appeal this decision, but this decision could effectively end FWW’s NEPA claims against FSA in this case (Food & Water Watch v. USDA, No. 17-1714 (BAH), 2020 WL 1479462 (D.D.C. Mar. 26, 2020)). In this case, FWW is arguing that the Environmental Assessment (EA) is incomplete for not taking into account how the poultry house will impact the quality of life for the neighbors and additional water problems caused. FWW is also arguing that FSA failed to list an adequate range of alternatives. The court found that FSA properly relied on mitigation measures even if the plans, such as the Stormwater Management Plan, Nutrient Management Plan, and Conservation Plan, were in draft form at the time. Past court decisions had found that NEPA did not require an agency to rely on final plans. Draft plans in question were necessary to comply with state regulatory requirements. Here was reasonable to rely on draft plans for the state permits, Maryland Departments of Agriculture and the Environment could not issue final plans until after completing the loan guarantee and completing the sale of the land to the farm to develop the CAFO. FSA also discussed the mitigation measures in sufficient detail to ensure adequate evaluation of environmental consequences. Although the state regulatory plans were not final yet when the final EA was issued, there was substantial progress that FSA could address environmental impacts and how the features of the plans would address those impacts. Previous court decisions allowed for this and pointing features considered with the exact application on a site-specific basis. FSA could also rely on the state regulatory scheme for CAFOs in Maryland that would require the implementation of mitigation mea-
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sures as a part of the permitting process. The court also disagreed that FSA failed to take a hard look at the possible environmental impacts of the proposed poultry farm. FSA properly relied on federal and state standards to determine the effect of the proposed farm on surface waters and groundwaters. Designing the proposed farm to prevent discharges and FSA did not violate NEPA by declining to evaluate the impacts. FSA also did not violate NEPA by not considering the impacts of off-site manure disposal since it was unknown who buyers of the poultry manure would be at the time of the loan guarantee application. At the same time, FSA addressed the air quality issues raised by FWW. FSA took into account the air emissions from poultry litter and mortality management with odor and dust control practices developed in the nutrient management and conservation plans. At the same time, FSA was not required to consider the potential impacts of increased motor traffic during operation because FSA found this would only happen for a short time. The potential ammonia impacts were addressed by the mitigation measures in the farm’s design and required plans. Other air quality issues raised by FWW were discussed in the permitting plans and would be mitigated. The court deferred to FSA’s review of only the impacts on migratory birds and not more broadly to include other biological resources. The court highlights that an agency’s NEPA review is often a series of judgment calls and line-drawing decisions. NEPA allows the agency to determine which wildlife resources to consider, and the court defers to FSA’s judgment to only consider the migratory birds. The court also agreed that the FSA had considered the
cumulative impact of the proposed farm. FSA, according to the court, was reasonable in only finding the impacts on Caroline County, location of the farm, and not on the entire Chesapeake Bay watershed as FWW wants. FSA also correctly determined that the cumulative impacts would be minor based on the proper implementation and adherence to the proposed farm’s conservation plan. Based on all this information, FSA completed a hard look at the proposed farm’s environmental impacts and fulfilled FSA’s NEPA requirements. Based on the analysis done by FSA, it was reasonable to determine that the proposed farm would have no significant effect on the environment. The court agrees that FSA is not required to complete an EIS. FWW had presented evidence from researchers at John Hopkins University during FSA’s review of the proposed farm of potential impacts the proposed farm could have on the environment from the concentration of pathogens and manure to show that an EIS was required. The court points out that FSA addressed these concerns by pointing out that the mitigation measures in the proposed farm’s required plans would adequately control these issues. FSA also adequately reviewed the reasonable alternatives to building a proposed poultry farm. The other options reviewed met the requirements of USDA’s loan guarantee program. The court finally dismissed claims that FSA had not adequately complied with applicable procedures in reaching this decision. The court dismissed FWW’s NEPA claims and ruled in favor of FSA.
Continuing Legal Education Opportunities
Department of Learning: Raising the Bar for Education
Available Soon Criminal Pattern Jury Instructions (Update) — Available Late Spring 2020 Civil Pattern Jury Instructions (Update) — Available Summer 2020
BY ANDREA TERRY, ESQ.
The MSBA has offered more than twenty free, live streamed webinars between March and May to its members covering topics related to the pandemic, ranging from technology issues facing lawyers practicing remotely, to health and safety issues while serving clients, and substantive law. In April, we opened our on-demand catalog of 150+ programs, free to all lawyers, in recognition of the difficult financial times being faced by the entire legal industry, and a desire to support the continuing professional development of our members and non-members during an unprecedented time. This will continue through June 30th. To access use coupon code: FREECLEMSBA at checkout. As the summer begins we’re excited to offer new programming. This will include our new “Legal Summit Series”, that will start in June, to feature many of the outstanding programs that we had planned to offer at our Annual Meeting and Legal Sum-
NEW & RECENT PUBLICATION UPDATES (All titles available in print and electronically)
mit live, before that event had to be cancelled. These will all be virtual, as the MSBA is resuming in-person September 1st, and is monitoring the public health situation. Many of our “Legal Summit Series” programs will be available on-demand in the CLE
catalog as the summer progresses, so look for new titles spanning all practice areas each month. MSBA Passport members will be notified of all new content as it’s added, and will have free access to the on-demand as well as all live CLE programming offered all year long. The virtual live, in-person live, and on-demand programming will all carry credit with the surrounding MCLE states as it always has. We look forward to continuing to bring you the top lawyers, judges, and educators to help you on your professional journey, together in a challenging time. Keep an eye on the MSBA website msba.org/cle-catalog for all upcoming programs.
UPCOMING LIVESTREAM WEBCASTS • Civil Practice in the District Court | June 22, 2020 | 9:00 a.m. - 1:30 p.m. • Criminal Practice in the District Court | June 24, 2020 | 9:00 a.m. - 1:30 p.m. • Hot Topics in Elder Law | July 7, 2020 | 9:00 a.m. - 1:00 p.m. (registration opening soon)
UPCOMING PROGRAMS • 40-Hour Basic Mediation Training | September 21-25, 2020 | Baltimore • The New Maryland Parenting Plan | September 25, 2020 | Columbia • Deposition Practice and Procedure | December 3-4, 2020 | Baltimore
NEW AVAILABLE ONLINE-ON DEMAND • Maryland’s New Elective Share Law: Adjustments and Opportunities - presented live on November 4, 2019 • Advanced Real Property Institute - presented live November 7, 2019 • Maryland Federal and State Employment Law Update - presented live November 21, 2019 • Premarital Agreements – Drafting and Negotiating from the Estates/Trusts and Family Law Perspectives - presented live December 3, 2019 • Financial Issues in Divorce – Taxation, Valuation, Equalization: Navigating Potential Asset and Income Obstacles in Divorce Negotiations - presented live January 30, 2020 • Software Licensing and Cloud Computing Boot Camp: Successful Contracting in an Ever-Changing Environment - presented live February 19, 2020 • Mediation of Complex Commercial and Insurance Disputes - presented live March 5, 2020 For more information and to register go to www.msba.org/cle-catalog
Now Available Electronically Stored Information in Maryland Courts— Both the law and the profession have raced to keep pace with technological changes that define the early 21st century. While these changes have had a profound impact on every practice area, issues inherent in the transition from hard-copy to electronically stored information (ESI) came quickly to the fore in the context of civil discovery. After years of common law development, amendments to the rules of procedure, and sustained effort of practitioners, jurists and academics to address these issues, a principled, rules-based discovery regime eventually brought some order to the chaos that had been causing litigation costs to soar, and striking terror in the hearts of attorneys traversing the previously uncharted terrain of ESI. The journey, detailed in Electronically Stored Information in Maryland Courts, contains lessons for all. Judgment Avoidance: Exemptions And Lien Stripping What Every Maryland Attorney Should Know Lien Stripping — Every lawyer has a client, family member or friend heading toward or already under financial stress. Consumer debt from credit cards, mortgages, and auto loans is on the rise, exceeding levels experienced in the years leading up to the 2008 financial crisis. This, in turn, leads to increased collection efforts by creditors, and a corresponding increase in judgements against debtors. While bankruptcy remains an option for individuals facing economic ruin, there are more than 50 non-bankruptcy “exemptions” available to shield assets from debt collectors. Properly employed in state court, these exemptions might help keep the debtor out of bankruptcy court. The nature and source of these exemptions, and the interplay of state and federal laws that protect both creditors and debtors, are among the subjects addressed in Judgment Avoidance: Exemptions and Lien Stripping, What Every Maryland Attorney Should Know, written by attorneys Mark Robert Kivitz and Jan Ingham Berlage, published by the MSBA in April 2020. Maryland Divorce & Separation Law, Tenth Edition— Updated in 2019, the Tenth Edition of this definitive work is the Family Law practitioner’s comprehensive reference book and guide on divorce and separation law in Maryland. The book sets forth the legal principles and procedures for handling family law actions, including divorce, separation, child custody, child support, adoption and paternity matters, from the initial contact with a potential client through appeal. Updated by expert practitioners, it provides tips and forms and is an easy-to-follow guide on Family Law. Practice Manual for the Maryland Lawyer, Fifth Edition—This first update since the 2012 Fourth Edition brings the Practice Manual up to the minute! The best how-to-guide and fundamental reference on the essentials of Maryland law practice, the Practice Manual is the ultimate practical, nuts and bolts resource. Since 1981 it has served as both a cornerstone for new lawyers who are building real-world CONTINUED ON PAGE 19 Order your copies today at www.msba.org/cle-catalog
MSBA.ORG | 15
MSBA Lawyer Assistance Program Wellness TipSheet
Letting Go of the Need to Control BY LISA CAPLAN, LCSW-C
hat do we actually have control over? When I ask my clients why they need to be in control, I get a lot of answers, but one common response is that it helps them feel calmer and more relaxed when they know what is going on. If they don’t have control, they feel agitated, nervous, frustrated, scared and even angry. So, I’m concluding that most people are on an emotional rollercoaster - feeling relaxed when they think they can control a situation and it goes their way, and anxious when they can’t. It seems like this approach to life may result in a constant state of uncertainty, because we actually have control over very little. I’m guilty of trying to control too, but think about it, the only things that we can actually control are our own actions and choices. We can’t control other people, the weather, society, etc. Letting go of that need to control can free you from a lot of angst that you don’t need. Here are some tips to help you to start letting go of the need to control:
Admit to yourself that you need control.
The first step in changing anything is to admit that you do it. Once you do, you can begin to make changes. Make a list of how you feel when you think you have control of a situation and when you don’t.This can help you recognize the feelings behind your need to control. 2 Let go of the need to control. Once you recognize that you like to be in control, letting go of that need is empowering. When I realize that I don’t have control over a situation I feel a sense of calm. I often ask myself if I have control over a situation, and, if the answer is “no,” then spending a lot of emotional energy on it is exhausting. Like anything, this takes practice and patience to look at a situation and decide to let go instead of trying to control. 3 Break it down. Since you know that you can control your own actions and choices, break down the situation to see what you can control. Usually what you find is that you can change your reaction to the situation and decide what is best for you. 4 Your way isn’t necessarily always the best way. We often believe that we know
best, and holding onto that belief can cause a lot of anxiety and emotional struggle. It can also cause us to make choices that don’t
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turn out and may have had a better outcome if handled differently. History repeats itself. If you often make choices that don’t turn out well, then you will probably continue to do so. Maybe it is time to not control, and listen to someone else's ideas.
who I know are having a very rough time but you would never know from looking at their social media. You have to decide what is best for you, but if looking at social media leaves you feeling bad about yourself, maybe you need a social media vacation.
Take a mental and physical break.
7 Listen to your body. I tell my clients that your body will talk to you, and if it needs to slow down and you don’t listen, it will slow down for you. This may come in the form of an illness or injury. If you feel tired, resting will help you accomplish more, where pushing on won’t allow you to do your best.
Sometimes we just need to take a step back physically and emotionally from a situation to get clarity. Everyone does this differently. I start each day with less than 10 minutes of yoga and stretching. It helps to ground me before I start my day. It also helps me manage the rest of my day and be able to take a deep breath when my day gets stressful. You may want to step away from your desk and go for a walk around the building or down the hall, find a hobby, exercise, or practice a breathing exercise. Find tools to build into your life that allow you to take a step back.
Cut back on social media. Social media will suck the life right out of you. I think I might offend some people by saying that I prefer to live in the real world, not the virtual world. Social media is all about comparing yourself to other people and their lives. First of all, most of what you read is hype. Most people don’t advertise the rough parts of their life on social media. They talk about all the “great things” going on and often exaggerate. I have talked with many people 6
8 Stay in the moment. Focusing on the past and everything that has happened can cause depression, and focusing and worrying about the future can cause anxiety. The only thing you really have is right now. So that you don’t miss out on what is going on now, pay attention to it. 9 BREATHE. As long as you are alive, you can breathe. Try this: take a deep breath through your nose, filling yourself up from your feet to your head, hold, and release very slowly though your nose or mouth. 10
Call your Lawyer Assistance Program.
Each person is unique and we can help you come up with a way to help you let go of the need to control.
For more tips on wellness check out the Wellness Portal www.msba.org/wellness-portal
For assistance, please contact the Lawyer Assistance Program for free, confidential counseling. We have a network of counselors throughout Maryland. Lisa Caplan, LCSW-C, Director, (443) 703-3042, email@example.com. Toll Free 1(888) 388-5459. We offer financial assistance for mental health and substance abuse treatment. Please feel free to reach out to our LAP Committee Members and Volunteers www.msba.org/health-and-wellness Lisa Caplan, LCSW-C has over 20 years experience in her field, and extensive experience working with lawyers and judges in the areas of mental health, substance abuse and trauma. In her free time she enjoys spending time with family and friends, paddle boarding, sailing, rock climbing and doing triathlons.
MSBA.ORG | 17
Debra A. Thomas, Esq.
Governor Larry Hogan has appointed Debra A. Thomas, Esq., of Baltimore City, to the Maryland Legal Services Corporation’s nine-member Board of Directors. Ms. Thomas is an attorney and the owner of the Law Offices of Debra A. Thomas, P.C. in Towson. Prior to opening her own practice, she worked as a trial lawyer for Allstate Insurance Company. Ms. Thomas also serves as a hearing examiner for the Baltimore City Employees’ and the Fire and Police Department Retirement Systems. She currently serves on the Judicial Nominating Commission of Baltimore County, and has served as chair of the Family Law Committee of the Bar Association of Baltimore City and on the Bench/ Bar Committee of the Baltimore County Bar Association. Ms. Thomas received her bachelor’s degree from Goucher College and her J.D. from the University of Baltimore School of Law.
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Estate and Trusts
CONTINUED FROM PAGE 12
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communicate their roles, ensure their technological competence, and prepare the client, the witnesses and the notary for what to expect. She made several suggestions for managing chain of custody issues that arise when participants are in several locations, rather than together where the attorney can fully control the process. The need for the attorney to understand, test and practice with the technology, Ms. Sassin explained, is paramount as functionality can vary depending on who set up the meeting or the devices used by the participants. The execution process, Mr. Sessions suggested, can be reasonably straightforward if everyone is properly prepared. He addressed the practical con-
siderations of remote execution, including the need to adjust camera angles and screens to enable all participants to see each other and the documents they are signing, and ultimately to witness the execution itself. Methods for determining who is in the room (in anticipation of later undue influence allegations), confirming what each person is signing, clarifying the intention of the client both to execute the document and have it witnessed or notarized remotely, and for formally affixing the signatures were also discussed. Throughout their presentations, Mr. Sessions and the other presenters compared the features of several different video conferencing and CONTINUED ON PAGE 19
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Estate and Trusts
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document signing technologies. Ms. Broyles then addressed post-execution issues, beginning with the need for the supervising attorney to assemble the executed documents and prepare the supervising attorney certifications. She emphasized the need
for the client to understand that the document is not legally executed until this has been accomplished, and to ensure the means and manner for all participants to get their documents back to the attorney promptly. Document retention practices were discussed,
and sample supervising attorney certifications recently prepared by the Estates & Trusts Section Council for the remote execution of a will, an advance directive, and a power of attorney were provided.
CONTINUED FROM PAGE 15
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Have an Idea for an Article or Program?
SBA, as the home of the legal profession in Maryland, works hard to deliver relevant content to legal professionals. Every year, the MSBA holds 40+ live, in-person CLE programs, as well as dozens more live-stream programs and recorded programs for its On-Demand Catalog in a variety of practice areas. In many cases, MSBA members, as subject matter experts, serve as faculty for these programs. Similarly, MSBA publishes hundreds of articles written by its members each year through its various channels, including the eWeekly Newsletter and its premier publication, the Maryland Bar Journal. MSBA is also working on developing a Learning Library where even more substantive articles will be published and accessible by its members. MSBA has made it easier for members to submit their articles and program ideas through a new content submission portal. if you have an idea for an article or program, please visit our content portal today! Please note that for the next edition of the Maryland Bar Journal, we are looking for articles related to the Evolution of the Legal Profession. Example topics include: 1) how technology has impacted a particular practice area, 2) a significant change in the law, or 3) COVID-19 implications on law practice or a particular practice area, and others. We would love to hear from you if you have an article that matches this theme. Please submit your ideas through the content portal today: www.msba.org/content-portal
WE REPRESENT INJURED WORKERS
More than $10 million recovered for injured workers in 2019
Byron B. Warnken, Jr.
Rebecca L. Smith
MSBA.ORG | 19
BARBULLETIN Volume XXXVII, Number 5 • May 15, 2020
By the Numbers: The Impact of COVID-19 on the Legal Industry
New Study Highlights Proven, Cost-Effective Way to Reduce Post-Pandemic Evictions
Letting Go of the Need to Control
How will you respond?
Our victories don’t make headlines. Our clients don’t boast about our work. But, behind the scenes, lawyers have trusted our responses for years.
When an applicant’s character is under scrutiny, this question may be more difficult than any contained on the bar exam. Bar applicants have the burden of proving their fitness to practice law. That That’s where we come in.
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