Volume LI â€¢ Number 4
FAITH-BASED LEGAL SYSTEMS
Volume LI • Number 4 September/October 2018
Faith-Based Legal Systems 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: MCI | USA 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 Hon. Vicki Ballou-Watts, Chair Richard Adams Robert Anbinder Alexa Bertinelli Cameron Brown Susan Francis Peter Heinlein Hon. Marcella Holland Louise Lock Victoria Pepper Corinne Pouliquen Sahmra Stevenson Gwendolyn Tate MSBA Officers (2018-2019) President: Hon. Keith R. Truffer President-Elect: Dana O. Williams Secretary: Deborah L. Potter Treasurer: Hon. Mark F. Scurti Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial Board or staff. Publishing an advertisement does not imply endorsement of any product or service offered.
Justice, Justice, You Shall Pursue: Rabbinic Courts as an Orthodox Jewish Faith-Based Approach to Dispute Resolution By Andrew Altman
Buyer Beware: Especially If the Seller is a Church By Thomas E. Starnes
14 Religious Options for Conflict Resolution By Kenneth A. Vogel
20 Faith Leaders: Partnering to Give Access to Legal Services to Parishioners By Suzanne Schlattman and Susan Francis
24 It’s Time We Consider the Best Interest of the Child When Sentencing Parents and Caretakers By the Honorable Cathy Hollenberg Serrette and Jade McDuffie, J.D.
29 Nonjudicial Settlement Agreements: The Many Uses and Potential Pitfalls By Kelly M. Preteroti and Lindsay R. DeMoss D’Andrea
Departments 33 Committee on Ethics Ethics Docket No. 2016-05 Your responsibilities when the parents of a minor child have refused to accept a settlement of the child’s claim that you would believe would be favorable to the child.
34 MSBA Research Notes: Legal Profession Trends Highlights September 2018
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Justice, Justice, You Shall Pursue
Rabbinic Courts as an Orthodox Jewish Faith-Based Approach to Dispute Resolution By Andrew Altman
“Tzedek, Tzedek Tirdof” or “Justice, justice shall you pursue” is the wellknown biblical directive found in Deuteronomy 16:20 which prescribed the establishment of a judicial system for the ancient Israelites, thereby framing the centrality of promoting justice as an eternal Jewish religious and social obligation. From antiquity until modern times, almost all civilizations have mirrored this commitment of making the world a more just and righteous place by enacting and upholding well-regulated, independent, and defined legal systems. While here in the United States, courts with jury trials and traditional litigation are accessible to all citizens for the settlement of civil controversies, the number of people in religious communities turning to faith-based Alternate Dispute Resolution, also called ADR, continues to grow in this 4
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country. Specifically, mediation and arbitration based on religious doctrines are being used to help resolve disputes within churches, synagogues, and mosques, as well as conflicts between individuals who share the same faith. This article describes the origin and nature of a Jewish rabbinic court known as Bais Din (or Beth Din) as a faith-based arbitral body. Specifically, the Baltimore Bais Din in Maryland and similar Jewish religious courts throughout North America are used by Orthodox or strictly observant Jews to resolve personal and commercial disputes as an alternative to both secular courts and conventional arbitration.
The origin of Bais Din is biblical in nature; the Book of Exodus records the prophet Moshe (Moses) serving as a magistrate among the twelve tribes of
Israel during their wanderings in the desert. The newly formed nation was specifically instructed in Deuteronomy 17:8 as follows: If there is a matter too hard from you in judgement, between blood and blood, between ruling and ruling…subjects of controversy within your gates; then you shall arise and go up to the place that God will choose…and you shall come to the…judge…and they shall render the words of the judgement. According to the law in which they shall instruct you and according to the judgement which they shall tell you, shall you do it. As the Israelites settled the land of Canaan, “the place that God will choose” became the Great Sanhedrin which resided on Temple Mount in Jerusalem; comprised of 70 judges, the Sanhedrin originated during the Second Temple Period (circa 530 BCE to
70 CE). Id. at 18. With the destruction of the second Jewish Commonwealth, the Sanhedrin dissolved; however, each Jewish community in the diaspora was still obligated to establish a Bais Din. The authority of Bais Din comes from the Talmud, which is the central body of Jewish rabbinic law; Talmudic jurisprudence is known as Halacha. In accordance with Halacha, Jewish litigants to any dispute, either public or personal, are required to present their claims before a Bais Din. In fact, Talmudic sages and subsequent rabbinic authorities warn, “One who litigates before non-Jewish judges, even though they rule in accordance with Jewish law, is an evildoer; and it is as if he has blasphemed and rebelled against the Torah of Moshe our master.” Rav Yaacov Ariel, Secular Courts in the State of Israel, <http://www.jlaw.com/Articles/SecularCourts.html> (last visited May 14, 2018). A Jew’s litigating in secular court is akin to heresy; it amounts
to a public declaration that a divinely mandated system of justice is somehow inferior and less preferable to a man-made legal system comprised of temporal laws. Even if both parties consent, Halacha prohibits the adjudication between two Jews in secular court with respect to private commercial dealings. Yehonoson D. Hool, Beth Din Commercial Arbitration: The Application of The Jewish Model to Modern Commercial Arbitration 18 (New York: Mosaica Press 2016). Even today, Orthodox Jews take this religious admonishment seriously. Approximately 240,000 Jews live in the state of Maryland; close to 100,000 Jews live in Baltimore, with 32 percent of that population identifying as Orthodox. Laura Vozzella, Survey Finds Growing Jewish Community, Less Engaged Youth, <http://articles.baltimoresun. com/2011-01-16/news/bs-md-jewish-community-study-20110116_1_ northwest-baltimore-jewish-population-jewish-community> (last visited
May 12, 2018). For matters of personal status (marriage, divorce, conversion, and inheritance) or monetary claims (commercial, real estate, landlord-tenant, employer-employee), Orthodox Jews in Maryland can and do avail themselves of the two Jewish rabbinic courts functioning in the state: the Baltimore Bais Din located in Baltimore and the Rabbinical Council of Greater Washington/Capitol K located in Silver Spring.
How a Bais Din Works: The Baltimore Bais Din as a Case Study
The subject matter which the Baltimore Bais Din oversees is limited to personal status and monetary claims; criminal matters are not handled at all since the court does not possess police or enforcement powers. The geographic jurisdiction of the Baltimore Bais Din includes Baltimore and its surrounding suburbs. Litigants are
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generally individual members of the Orthodox Jewish community, though occasionally claims against a Jewish-owned business or synagogue will be heard. Litigants are generally Orthodox Jews, but the Bais Din is open to hear cases from people outside the community. A case in the Baltimore Bais Din begins when a plaintiff calls the administrator of the court and presents a claim. The administrator contacts the defendant and confirms the other side of the claim and any counter-claims. The Bais Din first tries to mediate between the parties. If such mediation is unsuccessful, both parties can request and will be granted a hearing before Bais Din. Prior to this hearing, the parties must sign a binding arbitration agreement which obligates both sides to abide by the ruling of the Baltimore Bais Din. Bais Din judges are not paid, and there are minimal administrative fees charged for instituting proceedings in Bais Din. The “Din Torah” or dispute is generally heard by three rabbis. Each side picks one rabbi among a list posted on the Baltimore Bais Din’s website (http://baltimorebaisdin.org/); those two rabbis then pick a third rabbi. In some cases, the “Av Bais Din” or Head of the Bais Din, Rabbi Mordechai Shuchatowitz, will serve as the third rabbi. A Bais Din judge must be fluent in Halacha, have time to serve as a judge, and be well-respected by the community. There is no requirement for a judge on Bais Din to be lawyer or paralegal or otherwise schooled in law. As the administrator of the Baltimore Bais Din, Rabbi Yossi Rosenfeld remarked in an interview with the author, “Being a rabbi is more important than being a lawyer in deciding a Din Torah. It’s harder for a lawyer to think like a rabbi, but a rabbi can always ask a lawyer for advice.” The Baltimore Bais Din holds its hearings in the basement of a local synagogue, Agudath Israel of Greenspring located in the Cheswolde neighborhood of Baltimore. The hearings are closed to the public. Each side may bring evidence, witnesses, and even 6
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legal counsel. The Bais Din does not entertain motions to dismiss, since it is imperative for both sides to be heard. In addition, the process of discovery is more of a challenge in Bais Din since the court does not have the ability to enforce a subpoena. The court sends out a summons for the defendant to appear before Bais Din, and in most cases that summons is respected. At the same time, if a defendant refuses a summons, there is not much the court can do. The court will send out two more summonses, and after that third summons is ignored by the defendant, the plaintiff is given permission to take his or her case to secular court. In addition, a “seruv” or form of contempt of court order will be issued by the Bais Din against the defendant in an effort to compel action by an individual. This seruv is publicized in local synagogues and throughout the Orthodox Jewish community. After all the proceedings are complete, Rabbi Shuchatowitz renders a formal decision. Enforcement of this verdict relies on the goodwill of the parties. The decisions of Bais Din are not publicized or codified. If a party is dissatisfied with the verdict, there is an appeal system: five judges can be empaneled to reexamine the case from the beginning. According to Rabbi Rosenfeld, one hundred cases were filed with the Baltimore Bais Din this past year, of which one-third received a proper hearing; the other cases were resolved through mediation or dropped.
Religious Courts: An Improvement Over Civil Courts and Civil Arbitration
In recent times, more individuals and even large multinational corporations are turning to ADR to resolve their disputes. The rationale for this trend is that traditional litigation is viewed as costly, inefficient, and burdened with formalities and complications. As found by the Harvard Business Review, “more than 90% of all lawsuits are settled out of court, most of them virtually on the courthouse steps after
Many Orthodox Jews “increasingly sense that secular American society and its courts do not fully comprehend, appreciate, and certainly do no not embrace religious norms and values.” months or years of preparation and expense…huge quantities of time and money are spent preparing for events that don’t occur…the very initiation of a lawsuit…gives rise to the adversarial mind-set…cost, delay, and acrimony.” John R. Allison, Five Ways to Keep Disputes Out of Court, <https://hbr. org/1990/01/five-ways-to-keep-disputes-out-of-court> (last visited May 13, 2018). ADR is attractive to litigants for additional reasons. Firstly, the parties have a wide degree of autonomy in deciding how the arbitration should proceed. Secondly, the parties know the identity of the arbitrators and can set the location, timing, and language of the arbitration. Finally, arbitrations are not as rigid as court proceedings, and the discussion-oriented nature of ADR makes the parties feel like they have had an opportunity to be heard more so than if they had gone to trial. While it may seem that Orthodox Jews do not have the option not to go to Bais Din, there are still many reasons why Bais Din is an attractive option to Orthodox Jews even if religiously mandated. As with other conservative religious communities such as Evangelical Christians and Muslims, many Orthodox Jews “increasingly sense that secular American society and its courts do not fully comprehend, appreciate, and certainly do
no not embrace religious norms and values.” Michael Broyde, The Rise and Rise of Religious Arbitration, <https:// www.washingtonpost.com/news/ volokh-conspiracy/wp/2017/06/26/ the-rise-and-rise-of-religious-arbitration/?utm_term=.288f0698842c> (last visited May 9, 2018). Thus, faith-based arbitration as opposed to secular courts or even civil arbitration appears to be the best way to allow Orthodox Jews to preside over communal relationships in accordance with their religious beliefs and to opt out of those secular cultural and legal standards which they view as incompatible with their values. One litigant, who preferred to remain anonymous and who brought his case to the Baltimore Bais Din regarding a real estate transaction claim, told the author he was “very satisfied with the process because not only did it save me money, it was done in a more sensitive and practical way because of how Jewish law handles things.” Faith-based arbitration is not limited to Orthodox Jews and is becoming a popular option among other religious communities as well. For example, in several states like Texas and New York, Muslims have their disagreements solved by Islamic arbitration under Sharia Law. Jeffrey Bristol, Islamic Law Is Alive and Well in the U.S., <https://www.sapiens.org/ culture/sharia-united-states/> (last visited May 9, 2018). Similarly, customers who buy bamboo floors from Higuera Hardwoods in Washington State must take any dispute before a Christian arbitrator, according to the company’s website. Michael Corkery and Jessica Silver-Greenberg, In Religious Arbitration, Scripture is the Rule of Law, <https://www.nytimes. com/2015/11/03/business/dealbook/in-religious-arbitration-scripture-is-the-rule-of-law.html> (last visited May 9, 2018). While many people would balk at the idea of the Jewish or Christian Bible or Koran deciding law or settling disputes, faith-based arbitration provides a great sense of comfort to many religious Americans.
Criticisms of Faith-Based Arbitration
While faith-based tribunals are more accommodating to religious Americans, there can be some serious challenges with such courts. Specifically, “religious norms and values very often…clash severely with contemporary liberal notions of gender equality, religious liberty, freedom of choice, personal privacy and distributive justice.” Michael Broyde, Criticisms of Religious Arbitration, <https:// www.washingtonpost.com/news/ volokh-conspiracy/wp/2017/06/28/ criticisms-of-religious-arbitration/?utm_term=.8f9c5886cc90> (last visited May 9, 2018). For example, a baker who refuses to make a wedding cake for a same-sex couple would most likely prevail in a Christian court because homosexuality is condemned under biblical values. In contrast, a bakery in Oregon, Sweet Cakes by Melissa, was fined by an Administrative Court for discrimination and civil rights violations in April 2015 because its owners refused to make a wedding cake for a lesbian couple. Maxine Bernstein, Owners of Sweet Cakes File Appeal with Oregon Supreme Court, <http:// www.oregonlive.com/portland/index.ssf/2018/03/owners_of_sweet_ cakes_file_app.html> (last visited May 10, 2018). Another concern with faithbased courts is that they often lack procedural protections which are very common in secular courts and which are necessary to ensure a fair and unbiased legal process. For example, according to Rabbi Rosenfeld, in Bais Din, only a “halachic witness” (defined as a Torah-observant male over the age of 13) may testify. Thus, women, minors, and non-Jews are ineligible to testify in Bais Din. The Baltimore Bais Din does allow women and non-Jews to testify, but it is not clear if such testimony is truly comparable to a halachic witness or if other Bais Dins follow this exemption. Similarly, a secular legal system puts a high premium on attorney-client privilege and confidentiality. One litigant who brought a claim to the Baltimore Bais Din for
fraud and embezzlement alleged to this author that confidential information he provided to the administrator of the Baltimore Bais Din was shared with the defendant. Finally, there is the issue of coercion when it comes to faith-based arbitration. Well- established religious communities are able to exert tremendous pressure on their members to get individuals to arbitrate disputes before religious tribunals. This is particularly true since a person who enjoys being part of a religious community would not want to appear to be going against religious doctrine or authority by refusing to comply with faith-based arbitrations. The litigant above initially brought his case to the Baltimore Bais Din, because he is a “frum (religious) Jew” and “believed this was the correct thing to do from a religious perspective.” While his claim is still pending in Bais Din, the litigant feels his case has already been compromised by a breach of confidentiality. Dropping the case in Bais Din and going to secular courts is still a potential option, but one he feels hesitant about because it could bring a communal backlash.
Overall, faith-based arbitration is an attractive option for religious Americans because such tribunals seem to accurately reflect the spiritual values of its members. In particular, Orthodox Jews turn to Bais Din to settle disputes because it represents a judicial system which is both religiously mandated and most consistent with an observant Jewish lifestyle. Even with certain challenges and inconsistencies as compared to secular court and civil arbitration, it appears that Bais Din will continue to enforce justice among observant Jews, as has been the case since Mosaic times. Mr. Altman is a rising freshman at the University of Maryland, College Park, where he plans to major in Cultural Anthropology. He looks forward to attending law school and doing criminal defense work. He may be reached at email@example.com.
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BUYER BEWARE Especially If the Seller is a Church By Thomas E. Starnes
ot too long ago, the few remaining nuns of a Roman Catholic religious order learned that pop superstar Katy Perry was offering to buy the order’s former convent in Los Angeles for $14.5 million. After observing a few of Ms. Perry’s “provocative” music videos, two of the nuns judged that she was not a suitable occupant of their former home, and they arranged to sell it instead to a local businesswoman for around $10 million, payable over three years. Not to be dissuaded, the indefatigable Ms. Perry—joined by the Archdiocese of Los Angeles, no less—sued the nuns’ chosen buyer. September 2018
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Late last year, a jury awarded Perry and the Archdiocese $5 million in attorneys’ fees incurred and $10 million in punitive damages. Keith Flamer, “Katy Perry’s Bizarre Mission To Buy A Medieval-Style California Convent,” Forbes (March 13, 2018), https://www.forbes.com/sites/ keithflamer/2018/03/13/katy-perrys-bizarre-mission-to-buy-a-medieval-style-california-convent/#13a9c69c70b9. The fame of the litigants in that case may be unusual, but the underlying dispute was not. Whenever a religious organization’s real estate is being sold, potential buyers must make two questions paramount: Does the selling church need permission from some “higher authority” to sell the property? And who, exactly, has authority to execute the transactional documents on the church’s behalf? The answers to these questions are not as readily ascertainable as one might suppose, and the relevant legal authority, in Maryland and elsewhere, can vary widely depending on which religions organization is involved.
The “Higher Authority” Issue
In determining ownership rights to church property, Maryland courts start with the presumption that the local congregation owns its property outright. That presumption is based on the general provisions of the Maryland Code’s Religious Corporations law, which state that a corporation’s own trustees “have the power to . . . [u] se, lease, mortgage, sell, or convey the [corporation’s] assets in the manner that the trustees consider most conducive to the interest of the religious corporation.” Md. Code Ann. Corps. & Ass’ns § 5-306(a)(3). Given that statutory framework, Maryland’s Court of Appeals holds that “Maryland law contemplates a congregational form of church government” insofar as the church’s property is concerned. Mt. Olive African Methodist Episcopal Church of Fruitland, Inc. v. Board of Incorporators of African Methodist Episcopal Church 10
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Who, exactly, has authority to execute the transactional documents on the church’s behalf? Inc., 348 Md. 299, 314, 703 A.2d 194, 201 (1997). The general provisions of Maryland’s Religious Corporations law, however, are just the starting point of the ownership analysis. The Court of Appeals has long recognized that the presumption that a religious congregation fully controls its own property is readily rebuttable. Religious corporations may “by contract—express or implied—adopt a presbyterial or episcopal polity and, if this is done, may provide for the holding of the local church property subject to the provisions of the constitution, charter or bylaws of a denomination and the action of the authoritative agencies of such a denomination.” Maryland & Va. Eldership of Churches of God v. Church of God at Sharpsburg, Inc., 249 Md. 650, 67374, 241 A.2d 691 (1968) (“Eldership I”), vacated and remanded, 393 U.S. 528 (1969), reaff’d, 254 Md. 162, 254 A.2d 162 (1969) (“Eldership-II”), appeal dismissed, 396 U.S. 367 (1970). A variety of mechanisms may be used to establish that local church property “is held in trust for the uses of the parent church and [subject to] its discipline and appointments.” Eldership I, 249 Md. at 663, 241 A.2d at 699. The parent church’s interest may be predicated on trust language, reverter clauses, or other restrictive provisions included in (1) the relevant deeds; (2) the local church’s own charter or bylaws; (3) the parent church’s constitution; or (4) a state statute. Eldership II, 254 Md. at 166-72, 254 A.2d at 166-68. The contractual nature of the parent church’s interest is readily apparent when it is based on the local congregation’s own deeds or corporate charter. But there may also “be an implied consent” to hold the local church’s property in trust for a parent church when the local church has freely aligned itself with a denomination whose “con-
stitution, by-laws, [or] canon law . . . provide to that effect,” or when a state statute so provides. Eldership I, 249 Md. at 663, 241 A.2d at 699. Maryland and U.S. Supreme Court precedent is clear that when any of these devices has been used to “dedicate property by way of trust to the purpose of sustaining, supporting, and propagating definite religious doctrines or principles,” then it becomes “the obvious duty of the court, in a case properly made, to see that the property so dedicated is not diverted from the trust which is thus attached to its use.” Watson v. Jones, 80 U.S. (13 Wall.) 679, 723 (1879); see also Jones v. Wolf, 443 U.S. 595, 606 (1979) (When the deeds, local church corporate charter, or constitution of the general church “include a right of reversion or trust in favor of the general church, . . . civil courts will be bound to give effect to the result indicated by the parties); Brown v. Scott, 138 Md. 237, 242, 113 A. 727, 729 (1921) (church members may not “divert the use of property held in trust for a particular and specified purpose to another and different purpose or use”). The United Methodist Church provides a case study in the various ways in which a “connectional” or “hierarchical’ denomination’s interest in local church property can be established under Maryland law. Express trust provisions have long appeared in The Book of Discipline of The United Methodist Church (“Discipline”), a book of church law that binds all United Methodist clergy and laity and the church’s many affiliated institutions, including local congregations. The Discipline’s “Trust Clause”—as it is commonly known among United Methodists—dates back to the denomination’s founder, John Wesley, who insisted that it be included in all deeds for the first Methodist “preaching houses” established in England. See J. L. Topolewski, “Mr. Wes-
ley’s Trust Clause: Methodism in the Vernacular,” in Methodist History, vol. XXXVII, no. 3 (1999), 144-45. The Methodist trust provisions are regarded as an exemplar of how a denomination’s interest in local church property can be protected, see Jones, 443 U.S. at 600-01 (discussing Carnes v. Smith, 222 S.E.2d 322 (Ga.), cert. denied, 429 U.S. 868 (1976)), and they have been uniformly enforced around the country, see, e.g., Board of Trustees of the Louisiana Annual Conference of The United Methodist Church v. Revelation Knowledge Outreach Ministry LLC, 142 So.3d 353 (La. App. 2014); East Lake Methodist Episcopal Church, Inc. v. Trustees of Peninsula-Delaware Annual Conference of United Methodist Church, Inc., 731 A.2d 798 (Del. 1999); Green v. Lewis, 221 Va. 547, 272 S.E.2d 181 (1980); Western Pennsylvania Conference of United Methodist Church v. Everson Evangelical Church, 454 Pa. 434, 312 A.2d 35 (1973). In Maryland, the efficacy of the Discipline’s trust provisions is reinforced by a state statute. The general provisions governing religious corporations in Maryland comprise Part I of Subtitle 3. Md. Code Ann. Corps. & Ass’ns § 5-301 - 5-313. But the Religious Corporations statute has five additional parts, each containing denomination-specific provisions tailored to correspond to the internal rules of four distinct denominations: Part II covers Roman Catholic parishes (§§ 5-314—5320); Part III covers United Methodist congregations (§§ 5-321—5-328); Part IV addresses Presbyterian congregations (§§ 5-329—5-332); and Parts V and VI cover the two Maryland-based dioceses of the Episcopal Church (§§ 5-333—5-338). Insofar as property rights are concerned, the provisions governing United Methodist congregations state that “[a]ll assets owned by any Methodist Church . . . (1) Shall be held by the trustees of the church in trust for the United Methodist Church; and (2) Are subject to the discipline, usage, and ministerial appointments of the United Methodist Church, as from time to time authorized and declared by the general conference of that church.” Id. § 5-326.
One might ask whether statutes like these run afoul of the First Amendment’s free exercise or establishment clauses, given that they seem to invoke the power of the state on behalf of particular sects. Such provisions are relatively commonplace. No less than sixteen states have adopted statutes that “provide specific corporate forms for certain named religious denominations.” Paul G. Kauper and Stephen C. Ellis, Religious Corporations and the Law, 71 Mich. L. Rev. 1499, 1534 (1973). And none of those statutes has been held to be unconstitutional. On the contrary, rather than force-fitting all churches into a single, generic “religious corporation” model crafted by the legislature, the enactment of denomination-specific options is a constitutionally legitimate means of accommodating the free exercise right of religious associations “to decide for themselves, free from
state interference, matters of church government as well as those of faith and doctrine,” Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 116 (1952). States may not create a religious establishment that has “exclusive rights and prerogatives,” but “the free exercise of religion cannot be justly deemed to be restrained by aiding with equal attention the votaries of every sect to perform their own religious duties,” including by enacting laws that “more effectually . . . enable all sects to accomplish the great objects of religion by giving them corporate rights for the management of their property and the regulation of their temporal as well as spiritual concerns.” Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 49 (1815). Maryland’s denomination-specific statutory provisions further qualify as accommodations of free exercise rights because those provisions are not state-crafted, but simply reflect rules of church governance that the denominations have adopted to govern them-
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selves. The statutory codification of those rules serves the state’s “obvious and legitimate interest in the peaceful resolution of property disputes,” including disputes involving “the ownership of church property.” Jones, 443 U.S. at 602. Moreover, the statutes do not bestow on the relevant denominations any substantive rights beyond those that would be enforceable in any event under the state’s common law. Maryland precedent is clear that a parent church’s interest in local church property may be enforced when trust or similar provisions appear in the churches’ own governing documents alone, with or without reinforcement in any statute, or even in the relevant deeds. See From the Heart Church Ministries, Inc. v. Philadelphia-Baltimore Annual Conference, 184 Md. App. 11, 964 A.2d 215, cert. denied, 968 A.2d 1064 (Md. 2009) (enforcing trust provisions found in the Book of Discipline of the African Methodist Episcopal Zion Church, against a breakaway congregation that, at the time, was the largest congregation in the denomination); Babcock Mem. Presbyterian Church v. Presbytery of Baltimore of the United Presbyterian Church in the United States of America, 296 Md. 573, 464 A.2d 1008 (1983), cert. denied, 465 U.S. 1027 (1984) (upholding interest of the Presbyterian Church (USA)).
Identifying all the parties that may have a cognizable interest in any given religious congregation’s property is not the only complicating aspect of transactions involving church properties. On a more mundane (but still very important) level, transactional authority issues also abound. A real estate law blogger who brought the Katy Perry-Convent case to my attention—a self-described “Dirt Lawyer”—highlighted the problem this way: Dirt lawyers, you know how your friendly title insurance underwriters are always harping about authority issues? You have to carefully determine that the individuals with authority to sell or mortgage real estate are the individuals who actually sign the deeds and mortgages
involved in your transactions. And you know how the same friendly title insurance lawyers really harp about authority issues involving churches? Hardly a seminar goes by without the mention of a problematic closing or claim involving church property. I always say you should be particularly suspect if anyone, like a preacher, says he or she can act alone to sell or mortgage church property. Church transactions almost always involve multiple signatories. (“Did You Hear the One About Katy Perry and the Convent?” Let’s Talk Dirt (Jan. 17, 2018) (accessed Feb. 21, 2018) (https://letstalkdirtsc.com/2018/01 /17/did-you-hear-the-one-about-katyperry-and-the-convent/). “Dirt Lawyer” speaks wisely. As “Chancellor” of the Baltimore-Washington Conference of The United Methodist Church, I have fielded many calls from conscientious title companies and closing attorneys, asking what boxes need to be checked in order for a United Methodist congregation to buy, sell, or encumber real property. For congregations located in Maryland, one might suppose that the local church trustees have full authority to execute such property transactions on the congregation’s behalf, given that the Maryland Code provides that a religious corporation’s “trustees have the power to . . . [p]urchase, take, or acquire . . . and hold any interest in any assets in the State,” and to “lease, mortgage, sell, or convey the assets in the manner that the trustees consider most conducive to the interest of the religious corporation.” Md. Code Ann. Corps. & Ass’ns § 5-306(a) (2)-(3). But that supposition would be wrong in the case of United Methodist congregations, because the Maryland Code allows The United Methodist Church to insist that its affiliated congregations operate in accordance with the property provisions included in the Discipline. Id. § 5-322 (United Methodist congregations in Maryland “may be incorporated only in conformity with the discipline of the United Methodist Church”); id. § 5-323 (the bylaws of United Methodist churches “[s]hall include, by reference or otherwise,
the discipline of the United Methodist Church” and “[m]ay not be inconsistent with that discipline”). More concretely, the interplay of the Maryland Code and United Methodist Discipline means that a valid sale of a United Methodist church’s property in Maryland requires the following steps: (1) the congregation’s “Charge Conference”—the highest governing body in a local United Methodist Church, and recognized in the Maryland Code as constituting a United Methodist corporation’s “members” (id. § 5-323)—must meet and adopt resolutions approving the sale and authorizing the church’s trustees to execute the transaction on the congregation’s behalf; (2) two local church trustees must execute the transactional documents, because that is what the Discipline requires, even though a single trustee’s signature would suffice for other religious corporations (id. § 5-306(c)); (3) the written consent of both the church’s pastor and the regional bishop’s “district superintendent” must be affixed to the instrument’s conveyance, which serves both to signify that the parent church has authorized the sale and to extinguish the denomination’s beneficial interest the local church’s property. The United Methodist Church is hardly unique in having developed its own rules governing property transactions. In a country that favors religious pluralism, and that guarantees to all religious associations the right “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,” Kedroff, 344 U.S. 94, 116 (1952), it stands to reason that such rules will be various, and the security of real estate transactions involving church property demands diligent identification of the controlling rules in each instance. Mr. Starnes is a litigation partner in the Washington, D.C. office of Drinker Biddle & Reath LLP. He serves as Chancellor of the Baltimore-Washington Conference of The United Methodist Church, which encompasses all United Methodist congregations located in Maryland (other than the Eastern Shore and Garrett County), Washington DC, and the eastern panhandle of West Virginia.
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Religious Options for Conflict Resolution By Kenneth A. Vogel
A rabbi, an imam, and a priest walk into a bar… Not just any bar, but a court of religious law. This article discusses religion in the context of the law, the courts and dispute resolution. Dispute resolution means the method by which parties resolve conflicts. At its most basic, it is the use of force. The first recorded case of dispute resolution is found in the Bible. Genesis 4:8: “And Cain said to Abel his brother, ‘Let us go out to the field,’ and when they were in the field Cain rose against Abel his brother and killed him.” Violence between individuals, tribes and nations is disfavored in most societies. Throughout history the human race has sought better ways to end conflict. Exodus 18:25 - 26: “[Moses] chose capable men from all Israel and made them leaders of the people, officials over thousands, hundreds, fifties and tens. They served as judges for the people at all times. The difficult cases they brought to Moses, but the simple ones they decided themselves.” Violence is the historical norm. Any method other than the use of raw power to force an opponent to do one’s will is a form of alternative dispute resolution. Peace activists wish that countries could settle their conflicts by sending their leaders to do battle, instead of sending their young men to war. That is called “champion warfare,” where the outcome of the conflict is determined by an individual duel between the best soldier from each opposing army. 14
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1 Samuel 17: 1 - 11: tells the story of David and Goliath. “Now the Philistines gathered together their armies to battle, and they were gathered together at Socoh, which belongeth to Judah… And Saul and the men of Israel were gathered together, and pitched in the valley of Elah, and set the battle in array against the Philistines. And the Philistines stood on the mountain on the one side, and Israel stood on the mountain on the other side; and there was a valley between them. And there went out a champion from the camp of the Philistines, named Goliath... And he stood and cried unto the armies of Israel, and said unto them: ‘Why do you come out to set your battle in array? Am not I a Philistine, and you servants to Saul? Choose you a man for you, and let him come down to me. If he is able to fight with me, and kill me, then we will be your servants; but if I prevail against him, and kill him, then shall you be our servants, and serve us.’ And the Philistine said: ‘I do taunt the armies of Israel this day; give me a man, that we may fight together.’ And when Saul and all Israel heard those words of the Philistine, they were dismayed, and greatly afraid.” [Spoiler Alert – Israel sent David as its champion. Goliath lost.]
The American System
Federal and state constitutions require the government, including the courts, to be non-religious. The First Amendment to the United States Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” The Maryland Declaration of Rights, Article 36, provides: “That as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to
protection in their religious liberty; wherefore, no person ought by any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights; nor ought any person to be compelled to frequent, or maintain, or contribute, unless on contract, to maintain, any place of worship, or any ministry; nor shall any person, otherwise
competent, be deemed incompetent as a witness, or juror, on account of his religious belief; provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefor either in this world or in the world to come. “Nothing shall prohibit or require the making reference to belief in, reliance upon, or invoking the aid of God or a Supreme Being in any governmental or public document, proceeding, activity, ceremony, school, institution, or place. “Nothing in this article shall constitute an establishment of religion.”
Religious Alternative Courts
The words Alternative Dispute Resolution (ADR) now mean that the parties have undertaken to resolve their controversies by selecting an alternative to the courts. It is conflict resolution by extra-judicial means, outside of a civil courtroom. There is no governmental official legal system to resolve disputes of a religious nature. Parties in the US may voluntarily go into religious courts. Litigants selecting their own private judge is not new. Groups such as the American Arbitration Association; Construction Dispute Resolution Services; and others, provide arbitrators upon request. Litigants in arbitration may choose an arbitrator based on his or her subject matter expertise. For example, if the subject of the controversy is a construction dispute, the parties might select an arbitrator experienced in building and development. Arbitration awards are enforceable in court per statutes such as the Federal Arbitration Act, the Maryland Uniform Arbitration Act, the International Commercial Act and others. Maryland attorneys are also referred to MD Rules of Procedure, Title 17 - Alternative Dispute Resolution. If the parties wish their dispute to be decided on the basis of religious law, they have every right to do so provided
If the parties wish their dispute to be decided on the basis of religious law, they have every right to do so provided that the result does not come into conflict with federal, state or local laws. September 2018
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that the result does not come into conflict with federal, state or local laws. Penal violations have no place in American religious courts. A religious court cannot make criminal any conduct based on a violation of church law. It cannot administer a physical punishment such as confinement, corporal punishment or capital punishment. This misconception has fueled much anti-Sharia legislation around the country. No one needs to fear having his hand cut off for stealing or being executed by stoning. The parties may use as an arbitrator a cleric or a trained lay leader to hear the matter. The decision maker may use whatever religious or secular laws or procedures are agreed upon by the parties. Civil courts are prohibited from deciding religious questions when resolving disputes within religious organizations. Presbyterian Church in United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969). Judges may not interpret religious doctrine or rule on theological matters. They may defer to the church’s own court system, or courts may resolve church property disputes using “neutral principles of law.” This means that a court may examine any materials that it would examine in cases involving a similar dispute in a secular organization, such as property deeds, articles of incorporation, or any other legal documents, as long as the court does not need to interpret religious doctrine in assessing these sources. Jones v. Wolf, 442 U.S. 595 (1979). Many religions have courts which govern internal disputes of a religious nature within their congregations, such as disciplining its leaders or members for misconduct. Some religious courts handle other types of disputes upon the consent of the parties or if in accordance with an organization’s rules and by-laws. Discipline such as excommunication cannot be appealed to or enforced in a secular court. An ecclesiastical court, also called a court Christian or court spiritual, is part of the Catholic Church. The Western (Latin) Church and the Eastern Catholic churches each have systems 16
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of canon law. Formal tribunals hear cases. Bishops appoint judges, led by a priest known as the judicial vicar or officialis. Ecclesiastical courts hear cases related to church activities, rather than hearing general disputes between congregants, but the jurisdiction does not have to be so limited, and in other Christian denominations it is not. St. Paul’s First Letter to the Corinthians urged believers to bring their grievances to fellow believers, rather than to outside authorities. At 1 Corinthians 6:1 - 8, he writes: “When any of you has a grievance against another, aren’t you ashamed to bring the matter to be settled before a pagan court instead of before the church? Don’t you know that Christians will one day judge the world? And if you are to judge the world do you consider yourselves incapable of settling such infinitely smaller matters? Don’t you also know that we shall judge the very angels themselves - how much more then matters of this world only! In any case, if you find you have to judge matters of this world, why choose as judges those who count for nothing in the church? I say this deliberately to rouse your sense of shame. Are you really unable to find among your number one man with enough sense to decide a dispute between one and another of you, or must one brother resort to law against another and that before those who have no faith in Christ! It is surely obvious that something must be seriously wrong in your church for you to be having lawsuits at all. Why not let yourself be wronged or cheated? For when you go to law against your brother you yourself do him wrong, for you cheat him of Christian love and forgiveness.”
There are a number of other religious institutions which offer arbitration. Jewish law is called Halacha, meaning “the path” or “the way.” It is based on the Torah, the five books of Moses. The Talmud and the Mishna are compilations and explanations of oral law, writings and teachings of the rabbis. Sholom Aleichem, the Yiddish author and playwright whose stories formed the basis of the musical Fiddler on the Roof told a story of two men who went to see the village rabbi to settle their dispute. The first man told his side of the story, and the rabbi said “You’re right.” Then the second man then told his side of the story and the rabbi said “You’re right.” A passerby over heard the exchange and exclaimed “Rabbi, how can they both be right?” The rabbi said to him, “You’re also right!” Today, rabbinical courts follow a more formal process of case evaluation and religious jurisprudence. A rabbinical court is called a Bet Din. Bet Din translates as “House of Judgment.” The concept of a Bet Din traces its history to the Second Temple period and its establishment is attributed to the Prophet Ezra, circa 480 BCE. The arbitrators, all Rabbis, interpret contracts based on principles of the Torah, Talmud and other sources of Jewish Halachic law. The rabbis adjudicate financial claims and commercial disputes including employer-employee disputes, landlord-tenant disputes, real property disputes, and claims regarding business interference, breach of contract, breach of fiduciary duty, investor mismanagement, defective merchandise, and unfair competition. The West Coast Bet Din, based in Los Angeles, arbitrates disputes where the amount in controversy ranges from the hundreds to the millions of dollars. It conducts proceedings in English, Hebrew, Yiddish, Spanish, French, Arabic, German, Hungarian, or Russian. Sharia is Islamic law, a code of religious belief and conduct derived from the Qur’an. The Sunnah are the Prophet Muhammad’s recorded actions. The Hadith are the Prophet Muhammad’s
recorded sayings. Sunnah and Hadith are used as persuasive authority to interpret the Qur’an. There are several different schools of jurisprudence which interpret Sharia in different ways. Sharia is comprised of five main branches which governs all aspects of a Muslim’s life. The fourth branch, mu’amalat, addresses contracts, transactions, real and personal property law, civil suits, wills, estates, business transactions and other non-criminal matters. In the United States, organizations such as the Islamic Institute of Boston handle matters which might otherwise be resolved in secular courts, such as inheritance disputes and child-custody cases. The Islamic Tribunal in Dallas, Texas serves as an arbitration provider, including business disputes. As with all arbitrations, the process is voluntary. Decisions of the Islamic Tribunal are enforceable in civil courts.
The Higuera Hardwoods Company, located in Washington State, sells bamboo flooring online and through dealers nationally. Its customers are bound by the following dispute provision in its contract: “Arbitration. It is the intention of the parties that any claim, action or proceeding arising under or in connection with this agreement or the transactions contemplated hereunder or out of the distributorship relationship between principal and customer or the end of that relationship, shall be resolved by final and binding arbitration. Arbitration shall be by a single arbitrator experienced in the matters at issue and selected by principal and agent in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation, a division of Peacemaker Ministries. The decision of the arbitrator shall be final and binding and may be enforced in any court of competent jurisdiction.” (Edited. Emphasis added) Teen Challenge is a “Christ-Cen-
tered, Faith Based Solution for Youth, Adults, and Families struggling with Life-Controlling Problems, Such As Addiction.” Nicholas Ellis died after attending a Teen Challenge camp in 2012. Nicholas was over the age of 18 at the time. The contract for his admission to Teen Challenge included the provision that: “The undersigned parties accept the Bible as the inspired Word of God. They believe that God desires that they resolve their disputes with one another within the Church and that they be reconciled in their relationships in accordance with the principles stated in First Corinthians 6:1– 8, Matthew 5:23–24, and Matthew 18:15–20. Accordingly, the undersigned parties hereby agree that, if any dispute or controversy that arises out of, or is related to this agreement is not resolved in private meetings between the parties pursuant to Matthew 5:23–24 and 18:15, then the dispute or controversy will be settled by biblically based mediation and, if necessary, legally binding arbitration, in accordance with the Rule[s] of Procedure for Christian Conciliation (rules) of the Association of Christian Conciliation Services. The undersigned parties agree that these methods shall be the sole remedy for any dispute or controversy between them and, to the full extent permitted by applicable law, expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision, or to enforce this dispute resolution agreement. Any mediated agreement or arbitrated decision hereunder shall be final and binding, and fully enforceable according to its terms in any court of competent jurisdiction.” (Edited. Emphasis added) Pamela Spivey, Nicholas’s mother sued Teen Challenge for wrongful death. The trial court granted Teen Challenge’s motion to compel arbitration, finding that “the arbitration agreement did not deprive a participant of due process or access to secu-
lar law and did not implicate Ms. Spivey’s First Amendment rights.” In Spivey v. Teen Challenge of Florida, Inc., 122 So.3d 986, 992 (Fla. App. 2013), the District Court of Appeal of Florida, First District, upheld the arbitration agreement finding “Next, we make two observations. First, we note that “[c]ourts are required to indulge every reasonable presumption in favor of arbitration recognizing it as a favored means of dispute resolution.” This presumption extends to private religious arbitration, which is exceedingly common in our pluralistic religious society—most major religious denominations have some method of private dispute resolution within their domains, some going back hundreds of years. As one commentator notes, the “current and continued existence of religious arbitration in the United States is not disputed, as it has been utilized for decades within a variety of religious communities.” Amanda M. Baker, A Higher Authority: Judicial Review of Religious Arbitration, 37 Vt. L.Rev. 157, 157 (2012); see also Michael A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, 86 N.Y.U. L.Rev. 1231, 1242 (2011) (examining the “deferential treatment U.S. courts afford to religious arbitration awards and the institutional role religious arbitration plays in religious communities.”). Indeed, courts routinely uphold agreements to submit disputes to religious arbitration in the absence of fraud, duress, or corruption. See, e.g., Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343, 359–64 (D.C. 2005) (applying D.C. Uniform Arbitration Act to synagogue, and reversing order dismissing action to compel arbitration before Beth Din); Jabri v. Qaddura, 108 S.W.3d 404, 412–14 (Tex.App. 2003) (ordering Islamic arbitration to determine the enforceability of a marriage contract); Encore Prods., Inc. v. Promise Keepers, 53 F.Supp.2d 1101, 1111–13 (D.Colo. 1999) (analyzing the Rules of Chris-
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LEGAL CAPITAL, 4th Ed Bayless Manning, Late Former Dean, Stanford Law School James J. Hanks, Jr., Partner, Venable LLP, Baltimore Legal Capital is widely credited with pioneering the introduction of the balance sheet and equity solvency tests, as well as other reforms in the Model Business Corporation Act and corporation statutes in over 30 states. This edition adds new historical material, updates the statutes and caselaw on dividends and other distributions in the U.S., and compares the evolution of legal capital in countries around the world.
“Legal Capital turns on a basic tension around the corporate form — how the concept of limited liability can place creditors’ and shareholders’ interests at odds, and how that tension is resolved through statute, case law, and private contracting. It is a must-read for corporate law students, academics, and practitioners, and a must-have for law firm and university libraries.” Charles K. Whitehead Myron C. Taylor Alumni Professor of Business Law Cornell Law School
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tian Conciliation under the Federal Arbitration Act, and granting a motion to dismiss on the basis that the parties agreed to arbitrate under the Rules); see also Ainsworth v. Schoen, 606 So.2d 1275, 1276 (Fla. 3d DCA 1992) (reversing summary judgment confirming an arbitration award because it was unclear whether the award was final, but recognizing that the parties “agreed to be bound by Jewish law”). “Second, we note that the arbitration agreement at issue in this case requires compliance with the Rules, which appear to be indistinguishable in almost every respect to those of secular arbitration organizations. The Rules consist of ten pages of single-spaced text covering every major aspect of standard secular mediation and arbitration processes. Boiled down to their essence, the Rules differ from those of secular groups only because of a scattering of religious elements added to solemnize the process and to promote and advance conciliation as a spiritual goal. “Turning back to the specific religious objections, Ms. Spivey first points to Rule 4, which states: “Conciliators [arbitrators] shall take into consideration any state, federal, or local laws that the parties bring to their attention, but the Holy Scripture (the Bible) shall be the supreme authority governing every aspect of the conciliation process. (Emphasis in original). We emphasize the word “process” because nothing in this provision suggests that the Bible is to provide decisive substantive guidance on principles of negligence, wrongful death or the collateral source rule, for examples. On its face, instead, Rule 4 envisions that secular laws are given consideration and that the Bible is to be the authoritative guide for shepherding a case through the arbitration process. That religious precepts will guide the arbitration process does not create a constitutional issue that would preclude enforcement of a voluntary agreement between private parties to arbitrate accord-
ing to spiritual principles. Nicklaus and Teen Challenge were free to choose, as they did here, a religious process they deemed appropriate to resolve their disputes. Their doing so does not raise a concern that the resolution of their dispute would be inconsistent with any federal or state substantive law. (“Once the parties agree to submit to arbitration, the [Florida Arbitration Code] limits the authority of the court to interfere in the process prematurely.”).” (Edited. Internal citations removed. Emphasis added) The plaintiff also objected to a provision in the Rules providing for prayer as a normal part of the mediation and arbitration process. She argued that she, as personal representative, should not be forced to engage in a process involving Christian prayer (even though she herself is a Christian) because she contended that court enforced mediation would violate principles prohibiting governmentally-coerced religious acts. She asserted that her right to the free exercise of her personal religious beliefs is inalienable and cannot be waived, even in the context of her duties as the plaintiff estate’s personal representative. In effect, the plaintiff claimed the legal right for her personal religious views to nullify and thereby trump the religious arbitration agreement into which her son and Teen Challenge voluntarily entered. The Court did not accept this argument. It ruled that “a personal representative generally cannot object that fulfilling the deceased’s wishes offends the religious sensibilities of the personal representative; personal representatives serve the estate’s interests, not vice-versa.” [Id. at 994]. If Mrs. Spivey felt that she could not act in compliance with the agreement because of her religious views, she would need to resign or ask the probate court to appoint suitable individuals who could carry out the decedent’s wishes. The Maryland Court of Special Appeals considered the issue of upholding a religious arbitration award in Lang v. Levi, 16 A.3d 980 (2009). The parties, Ms. Lang and Mr. Levi, entered into a Maryland secular mar-
riage and a Jewish marriage. At that time they executed a prenuptial agreement and an arbitration agreement, electing that the arbitration should be held by a Jewish court, a Bet Din, and that the decision of the Bet Din shall be made in accordance with Jewish Law (Halacha) and general principles of arbitration and equity (Pesharah) customarily employed by rabbinical tribunals. The Circuit Court for Montgomery County, Maryland issued a consent order granting the divorce and resolving custody and visitation disputes. The Circuit Court also issued an order related to alimony, payment of their child’s expenses and denied both side’s attorney’s fees requests. After the Circuit Court’s ruling, the husband demanded arbitration before a panel of three rabbis regarding the religious divorce and the parties’ conflicting interpretation of their prenuptial agreement. The Bet Din gave Ms. Lang a partial award. Both sides appealed to the head of the Bet Din for a modification of the award in accordance with the internal Rules and Procedure of the Bet Din of America. Ms. Lang lost, whereafter she appealed to the Montgomery County Circuit Court. The Circuit Court upheld the ruling of the Bet Din, including the modification by the Av Bet Din, its most senior jurist. Ms. Lang then appealed her Circuit Court loss to the Court of Special Appeals. The Court of Special Appeals upheld the Bet Din’s award. First, the Court of Special Appeals found looked at the standard for vacating an arbitration panel’s decision and found that the Bet Din’s decision was not tainted by any of the standards warranting an arbitration reversal. Id. at 985, finding that “factual findings by an arbitrator are virtually immune from challenge” and that decisions on issues are law are not a basis for a court to disturb the award. The head of the Bet Din was found to have appropriately exercised his authority within the confines of the organization’s own rules and procedures. Next, the Court looked at the First Amendment’s Free Exercise and Established Clauses and the religious question doctrine, finding that it
was prohibited from interpreting the underlying religious dogma. Finally, the Court examined whether the Bet Din denied Ms. Lang basic procedural protections afforded to her under the Maryland Uniform Arbitration Act (“MUAA”). It held that the Bet Din did not need to strictly comply with the MUAA as long as the parties knowingly and voluntarily agreed to the arbitration procedures and the arbitration procedures conformed with notions of basic fairness and due process. Kovacs v. Kovacs, 633 A.2d 425 (Md.App. 1993), cert denied.
An injured person might transfer his grievances into violence. Access to the courts helps temper this rage. When an aggrieved person has an opportunity to have his case heard by an independent judge who can dispense justice, that injured person does not have to take justice into his own hands. He can leave it to the system to dispense judgment in accordance with society’s goals. Vigilante justice is prevented. Religion has always been an integral part of the American experience. In creating a tolerant society, secular law replaced religious law. Voters elect legislators who, with constitutional safeguards, pass laws which reflect societal norms. For some, secular law does not address their legal needs and personal values. For them, having an opportunity to voluntarily enter into a religious court, with a cleric acting as the judge, to decide a matter in accordance with the parties’ ethical belief system is a tremendous opportunity for the parties to have their dispute resolved. The parties are not forced to participate in a secular system with which they do not agree. If the participants have a buy-in to the alternative system, which they themselves chose, they are far more likely to accept with the outcome, even if adverse. That is the ultimate form of justice for all. Mr. Vogel is a Maryland and Washington, D.C. attorney whose practice consists of business transactions and civil litigation, with an emphasis on construction. He acts as a mediator and as an arbitrator.
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Partnering to Give Access to Legal Services to Parishioners By Suzanne Schlattman and Susan Francis
Faith leaders are often called upon to address the entire breadth of their congregants’ lives and provide much needed community support. Congregations play a key role in keeping their surrounding neighborhoods and communities healthy, engaged and stable. In order to fill the gaps in resources, some faith communities partner with each other and other community-based organizations to provide a rich diversity of services and resources from education to health care to workforce development. Partnerships between faith leaders and legal services providers are vital to overall community health and wellness. Legal services providers have a commitment to educate community members about their rights, and additionally to provide legal services to clients with high financial need. Partnership with faith leaders is often the best solution to help legal services providers engage with communities at a grassroots level where they can build trust and communicate the importance of legal services in an accessible, engaging manner.
A Difficult Topic Embraced Through Collaboration
Estate planning is an example of a legal issue that can best be addressed through collaboration among congregations and legal services providers. Estate planning is not 20
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just important for individual families, it can improve the health and security of a whole neighborhood. Estate planning can be an important tool to stabilize entire communities by ensuring that families are able to continue living in the homes they’ve owned for decades after the passing of a loved one. Bishop Douglas Miles of Koinonia Baptist Church, who is well-versed in these conversations, shared his experience, “In my role as a pastor, I have been at the bedside of dying congregants and have witnessed the difference estate planning can make, both for the person at the end of life and for their families. I can do a lot to help my congregants be ready for life after death. Estate planning can, and should, be an important part of that conversation.” While connecting with and convincing low-income residents to do estate planning may seem overwhelming, the answer is found through collaboration – something that is natural for faith leaders and legal services providers. Legal services organizations can partner with faith leaders to maximize estate planning—a move that can benefit individuals, families and the broader community.
Debunking End-of-Life Planning Myths
Common myths about estate planning came to light when the Maryland Faith Health Network (MFHN) of 70 congregations in the Northwest Baltimore region partnered
with the Maryland Volunteer Lawyers Service (MVLS) to raise awareness about advance directives as a part of comprehensive estate planning. During the early stages of the educational campaign, congregants perceived that it is prohibitively expensive to work with a lawyer or that “estate” planning is just for the wealthy or elderly. This reinforced the lack of enthusiasm for having difficult conversations about death. Congregants may have heard about friends or neighbors who had lost loved ones and endured legal and financial hardships, but did not realize estate planning could have helped them avoid those hardships. While MFHN had originally wanted to host informational sessions just about advance directives, due to the organization’s health care focus, they quickly learned through conversations with their legal services partner that these end-of-life conversations were not limited to just health care considerations, but raised broader legal questions impacting community stability. Working with MVLS, MFHN connects congregants with free legal resources to help them get all of their affairs in order. Through an ongoing partnership between MFHN and MVLS, faith leaders and attorneys work together to provide ongoing presentations about the importance of advance directives as a part of comprehensive estate planning. MFHN facilitated educational sessions with congregations so faith leaders could share compelling testimonials, offer spiritual guidance and encourage their congregants to make estate planning a priority. Faith leaders are great allies in motivating people to do estate planning, as a place of worship is a natural and appropriate place to discuss end-of-life, and faith leaders can serve as trusted ambassadors to their communities. While the program is still ongoing, MFHN has reached more than 300 Baltimore metro residents to guide them through the end-of-life legal planning process. This thriving collaboration is being recognized at the MSBA Annual Meeting, where the MFHN is being honored with the Non-Legal or Organizational Involvement Award as part of the Maryland Pro Bono Service Awards ceremony. The partnership has also given faith leaders more tools to help their parishioners protect their families and to minimize family stress during difficult times. While these faith leaders serve as critical support during troubling times, they rely on partnerships with legal services providers to identify estate planning tools that can save the family’s home or ensure everyone in the family is clear on their loved ones wishes.
Part of this collaboration has resulted in faith leaders being able to advocate for more housing stability in their communities through estate planning. It is critically important for low and middle-income families to do advanced planning. According to a 2016 study by Pew Research Center, 64 million or one-in-five Americans lived with multiple generations under one roof (Pew Research Center, 2016).
Black and brown families are living in multi-generational homes at much higher rates than white families (Pew Research Center, 2016), a statistic that is further complicated by a history of segregated housing, redlining, and racial discrimination in housing markets dating back to the 1930s (National Community Reinvestment Coalition, 2018). In Baltimore City, homeowners with high financial need can very easily lose their homes to foreclosure or tax sale. In some cases, it could be an unpaid bill of just $700 that tips the scale and sets off a chain of troubling events for a family trying to save their home. In a multi-generational home, the grandparent is typically the owner of the home with their name on the deed. However, because they have not begun the estate planning process, the grandparent typically does not add the inheritor of their choice to the deed of the home before they pass away. Estate planning can truly make all the difference between keeping a home in the family, or losing it through foreclosure or tax sale. When someone passes, and other family members are living in that home, they may lose access to the statewide Homeowner’s Property Tax Credit and see their property taxes increase significantly, they lose eligibility for the Baltimore City water credits, and no longer qualify for any federal, state or local home repair programs. Without the home in the rightful inheritor’s name, they cannot qualify for these credits and mortgage payments rise quickly. Oftentimes, the inheritor cannot afford the cost of the higher mortgage payments, which leads to unpaid payments and results in foreclosure and/or tax sale notices. This situation leaves the family at serious risk of losing their home where many generations are currently living. In order to transfer the home into their name, opening an estate can cost between $400-500 (and often more) and the process can take nearly a year to complete. Because of the high risk of home loss in these communities, the MFHN and MVLS stress the importance of life estate deeds in their presentations and provide legal assistance to low-income homeowners so that they can ensure their families will be able to stay in their family home by utilizing a low-cost alternative that permits passing the multi-generational house from grandparent to parent to future generations.
A Bevy of Collaborations in Maryland
The benefits of this kind of collaboration are deeply appreciated in other areas of the legal services community. Partnerships between faith leaders and legal services organizations may be more widespread in Maryland than you would think. There are great examples of faith-based groups in Maryland partnering with legal service providers on issues including, but not limited to, foreclosure prevention, expungement, immigration and domestic violence. The Pro Bono Resource Center of Maryland (PBRC), the pro bono arm of the MSBA, provides another example of this type of partnership on a local level. While PBRC created a series of estate planning clinics in March 2016, they’ve September 2018
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had experience co-sponsoring clinics with churches as a part of their foreclosure project dating back as early as 2008. PBRC’s estate planning clinics are a part of Project Household, a collaborative project with Senior Legal Services, Maryland Volunteer Lawyers Service (MVLS), and Maryland Legal Aid to help Baltimore’s older adults age in place. Through hosting these clinics at churches, PBRC provides free legal advice to seniors in an environment they trust, in their communities. Churches help spread the word to their members about this free opportunity to create a will, financial power of attorney and advance health care directive. The first major expungement clinic held on October 1, 2015,the day the expungement law changed dramatically, was held at the New Psalmist Baptist Church, where several legal services providers, including the Homeless Persons Representation Project (HPRP), Maryland Legal Aid, Maryland Volunteer Lawyers Service and the Maryland Office of the Public Defender, came together to help more than 1,000 clients on that one day. Several legal services programs have regularly partnered since then to conduct expungement clinics in their churches. For example, the Community Legal Services (CLS) of Prince George’s County conducted an expungement clinic at Reid Temple AME Church, where more than 100 individuals were assisted with expungements. CLS has another church expungement clinic slated for September 2018. Maryland Legal Aid has partnered with many religious congregations in Baltimore City, Baltimore County, and Montgomery County to host expungement clinics for congregants. Amy Petkovsek, Director of Advocacy for Training and Pro Bono at Maryland Legal Aid, shared that, “All of these partnerships have been extremely successful, as the places of worship are already locations of trust for their congregants. Allowing attorneys providing free civil legal services to enter these sacred institutions and engage members breaks down barriers, improves communication, and facilitates a powerful attorney-client relationship that can lead to positive life changes for clients.” Many religious organizations have worked in partnership with immigration legal services programs. For example, World Relief manages faith-based organizations providing immigration legal services. All of the providers are churches or other faith-based organizations. Patricia Chiriboga-Roby, a Senior Attorney at World Relief, stated, “This work has been accomplished by engaging numerous evangelical churches to advocate for and serve immigrants and is creating a widening understanding of the obligation to have compassion towards vulnerable immigrants.” Similarly, the Catholic Immigration Network Inc. (CLINIC) includes agencies that are Catholic, Protestant, non-denominational, Jewish and entirely secular. In addition, PBRC’s Maryland Immigrant Legal Assistance Project relies heavily upon church leaders for its out-of-court clinics. Churches have helped by providing space for its clinics as well as assistance with outreach. Cate Hulme, who manages this project, elaborated on this partnership’s impact: “The space 22
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is particularly valuable to serving undocumented immigrants because churches are sensitive locations, which offer a certain level of protection from an immigration related arrest. The outreach support also helps PBRC gain the trust of the community. Undocumented families often feel more comfortable requesting PBRC’s services because of a faith community member referral.” Since 2013, the Interfaith Domestic Violence Coalition has engaged with faith leaders to provide training and connections to service providers to combat domestic violence. The Coalition organizes a free conference each October focused on different subjects including legal topics to help faith leaders better understand domestic violence and how it affects members of their organizations. This work is important because many survivors will reach out to their faith leaders first and the leaders need to be knowledgeable on this important topic and be able to provide professional resources to survivors. The conference continues to grow each year with more and more counties added with a local judge heading the committee to engage each county’s leaders.
Lessons Learned, a Way Forward
From these partnerships, faith leaders and legal services providers alike have not only been able to reach communities from new angles by playing off of their strengths, but have been able to learn from one another. For faith leaders, there was prior knowledge that this need existed but they now can benefit from a foundational legal understanding leading to less barriers from lack of knowledge for their parishioners. For legal services providers, they have learned the importance of finding more spiritual approaches as well as using more inclusive language for clients of faith. These providers have learned from the grounded practical experiences of the church attendees that reflect their community’s experiences and struggles. Whether it is a legal services program, an attorney in private practice, or an attorney serving in another capacity, the experiences of the legal services programs discussed above can be a learning lesson for the legal community. Faith leaders can play an important role in connecting their parishioners to legal assistance that can help not only the individual client, but also our community at large. To learn more about the collaboration between legal services providers and faith-based communities, reach out to the Maryland Faith Health Network (MHFN) at http:// healthcareforall.com/get-involved/maryland-faith-community-health-network/. If you’re an attorney who would like to provide pro bono services to faith-based communities, you can find a list of legal services providers on the Maryland Legal Services Corporation website at https:// www.mlsc.org/legal-help/. Ms. Schlattman is Deputy Director for Development for Maryland Citizens’ Health Initiative Education Fund, Inc. Ms. Francis is Deputy Director for Maryland Volunteer Lawyers Service (MVLS).
The following attorneys are recognized for
Excellence in the field of Alternative Dispute Resolution
Hon. Monty Ahalt Annapolis
Douglas Bregman Bethesda
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Hon. Carol Smith Timonium
Scott Sonntag Columbia
Richard Sothoron Upper Marlboro
Snowden Stanley Baltimore
James Wilson Rockville
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It’s Time We Consider the Best Interest of the Child When Sentencing Parents and Caretakers By the Honorable Cathy Hollenberg Serrette and Jade McDuffie, J.D.
It is axiomatic in the family law arena that the best interest of a child be ascertained when the courts make a determination impacting the care and custody of a child. Thus, for example, in the seminal Maryland case on the issue of legal custody, the court emphasized: “[W]e have variously characterized this standard as being ‘of transcendent importance’ and the ‘sole question.’ The best interest of the child is therefore not considered as one of many factors, but as the objective to which virtually all other factors speak.” Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964, 970 (1986). Similarly, in the international arena, the U.N. Convention on the Rights of the Child provides, inter alia, that: “In all actions concerning children, whether taken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.” Article 9 of the convention mandates that states “respect the rights of the child who has been separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.” Article 12 mandates that children be permitted to express their views freely in judicial and administrative proceedings that affect them. U.N. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S 3. The Convention was signed, but not ratified, by the United States.) Despite recognition of the paramount importance of placing the best interest of the child first and foremost, in most states, consideration of the well-being of the child is
absent or merely tangential in criminal law and procedures. Why does this matter? “More than five million children, or approximately seven percent of all U.S. children, have had a parent who lived with them go to jail or prison. This percentage is even higher among black, poor, and rural children.” David Murphey and P. Mae Cooper, Parents Behind Bars, What Happens to Their Children?, Child Trends, October 2015, at 1, https://www.childtrends.org/wp-content/uploads/2015/10/2015-42ParentsBehindBars.pdf. Nearly 2.6 million children had an incarcerated parent in 2012, with the number of children with incarcerated parents having grown fivefold from 1980 to 2012. See Bryan Sykes and Becky Petit, Mass Incarceration, Family Complexity, and the Reproduction of Childhood Disadvantage, The ANNALS of the American Academy of Political and Social Science, 654, no. 1, (2014) at 127-49). Even more striking, the Bureau of Justice Statistics reported that the number of incarcerated parents with minor children increased by 79 percent between 1991 and midyear 2007, and the number of children with incarcerated parents grew by 80 percent. Parents in Prison and Their Minor Children, Bureau of Justice Statistics, March 30, 2010. Children who experience parental incarceration have been found to be vulnerable to an array of deleterious health and educational outcomes, including attention deficit disorder and attention deficit hyperactivity disorder, September 2018
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behavioral problems, learning disabilities, anxiety, and developmental delays. See Kristin Turney, Stress Proliferation Across Generations? Examining the Relationship Between Parental Incarceration and Childhood Health, Journal of Health and Social Behavior, 55, no. 3, (2014) at 302-19). Children whose fathers were incarcerated were found to be over five times more likely to be suspended or expelled from school. Pew Charitable Trust, Collateral Costs: Incarceration’s Effect on Economic Mobility, 2010 (citation omitted). Incarceration of a household member has been identified as one of the adverse childhood experiences (ACEs) that can impact a child’s development and lifelong health. Other ACEs include physical abuse, sexual abuse, emotional abuse, physical neglect, emotional neglect, intimate partner violence, violence against one’s mother, substance misuse within the household, household mental illness, and parental separation or divorce. U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA), https://www.samhsa. gov/capt/practicing-effective-prevention/prevention-behavioral-health/adverse-childhood-experiences. ACEs have been linked to risky health behaviors, chronic health conditions, low life potential, and early death. The greater the number of ACEs, the higher the risk of these outcomes. Centers for Disease Control and Prevention, Violence Prevention, https://www.cdc.gov/violenceprevention/acestudy/about_ace.html. Given that children of incarcerated parents are associated with a higher number of other major, potentially traumatic life events, see Murphey and Cooper, supra, at 2, it is imperative that our criminal laws and procedures give due consideration to reducing the trauma and stigma these children experience as a result of our criminal justice system, not only for the sake of our children but as a matter of public health and safety. Accordingly, when sentencing a parent or caretaker with dependent children, the impact on the children should be a requisite consideration. While most states have yet to do so, there are jurisdictions that consider the impact of parental incarceration on children. In North Dakota, among the factors that are to be considered in sentencing is whether imprisonment would entail undue hardship to the defendant or the defendant’s dependents. North Dakota Century Code § 12.1-32-04. In Oregon, the Department of Correction oversees the Children of Incarcerated Parents Project, a 12-year-old public-private initiative that includes Head Start programs, mental-health services, and educational opportunities for children with incarcerated parents. See http://www.oregon.gov/DOC/OMR/PROGMS/pages/oam_children. aspx. San Francisco employs a family impact statement at sentencing, focusing on the family’s strengths and assets as well as their challenges. The San Francisco Children of Incarcerated Parents Project created a bill of rights for children of incarcerated parents. The bill declares that children have the right to be heard when decisions are made about 26
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them and to be considered when decisions are made about their parents. San Francisco Children of Incarcerated Parents Project, http://www.sfcipp.org/. Thanks to the efforts of the Osborne Association, since 2014, “Family Responsibility Statements” are highlighted as a best practice in the New York State Office of Probation and Correctional Alternatives training for new probation officers. Washington State has passed a parenting sentencing alternative for primary caretakers with a child under the age of 18 at the time of the offense. If a parent is found to be eligible, imposition of the sentence is waived and the parent is sentenced to 12 months of community custody. Among the conditions that may be ordered are parenting classes, chemical dependency treatment, mental health treatment, vocational training, and life skills classes. Revised Code of Washington 9.94A.655. Evidence from Washington State suggests that family-centered sentencing provides a progressive alternative to incarceration that would otherwise separate children from their parents, while serving as an effective recidivism reduction tool resulting in substantial savings. Katherine Eitenmiller, Bending the Bars for Mothers: How Prison Alternatives Can Build a Stronger Oregon, 92 Or. L. Rev. 755-81 (2014). Offenders who report higher levels of family contact and positive family relationships have better post-release employment outcomes and lower recidivism rates. Nancy La Vigne, Elizabeth Davies, and Diana Brazzell, Broken Bonds, Understanding and Addressing the Needs of Children with Incarcerated Parents, Urban Institute Report (Feb. 2008). In Maryland, the Governor’s Office for Children has identified the reduction of the impact of parental incarceration on children, families, and communities as a priority, and Maryland’s Justice Reinvestment Act provides a philosophical foundation for the adoption of reforms such as child impact statements, community based alternatives to incarceration, and other family focused initiatives. In Prince George’s County, the Circuit Court has teamed with the Department of Social Services and the Division of Parole and Probation to implement a pilot project that provides for the inclusion of a section on caretaking responsibilities in presentence investigations and an offer of voluntary family preservation services to families in which a caretaker is incarcerated. However, statewide, we have yet to sufficiently adopt policies and practices that appropriately consider and reduce the harmful impact of our criminal justice system on our children. Michelle Alexander’s The New Jim Crow, Mass Incarceration in the Age of Colorblindness meticulously documented “the rebirth of a caste-like system in the United States, one that has resulted in millions of African Americans locked behind bars and then relegated to a permanent second-class status—denied the very rights supposedly won in the Civil Rights Movement.” Michelle Alexander, The New Jim Crow, Mass Incarceration in the Age of Colorblindness (2010); see also Newjimcrow.com/about. Among the victims
Just as therapeutic jurisprudence has been widely adopted in the family law arena, therapeutic jurisprudence in support of children and families should be applied in the criminal law arena. are the children of those ensnared, many of whom may also end up in this caste-like system of incarceration as a result of the trauma and loss resulting from the incarceration of their parents or caregivers. And while there are local and state initiatives demonstrating the viability of sentencing policies that require consideration of defendants’ children and a plethora of well researched articles documenting the harm our current policies impose on children, for the most part, criminal justice legislation and policies fail to mandate that the best interest of children be considered. Just as therapeutic jurisprudence has been widely adopted in the family law arena, therapeutic jurisprudence in support of children and families should be applied in the criminal law arena. We have seen the successful application of therapeutic jurisprudence with problem-solving courts. National Institute of Justice, Specialized Courts, https:// www.nij.gov/topics/courts/pages/specialized-courts. aspx. The lessons learned in the family law arena and from problem-solving courts should be broadly incorporated into criminal procedures, especially when children are involved. An important first step would be a requirement that judges be advised of the needs of defendants’ children and that the impact of a sentence on a defendant’s children be considered at sentencing. This does not mean shorter sentences for all defendants who have children or giving parents preferential treatment over nonparents. Rather, consideration of the impact of a sentence upon the children of a defendant adds a heretofore too often neglected consideration of the broader consequences of our sentences, reinforces our obligation as a community to promote the welfare of our children, and begins to address the fact that there are over two million children in this country suffering from having lost a parent to jail. To be sure, in some cases it is in the best interest of a child for a parent who has
committed a violent offense to be incarcerated. But there are many parents whose presence in their children’s lives is key to the children’s well-being, and the imposition of a sentence of incarceration extracts too high a toll. In order to properly consider the impact of a sentence, children/family impact statements should be a requisite component of presentence investigations. See Urban Institute’s Children of Incarcerated Parents Project’s Toolkit for Developing Family Impact Statement, June 2015, http://www.urban.org/sites/default/files/publication/53651/2000253-Toolkit-for-Developing-Family-Impact-Statements.pdf. Community-based sentencing options should be expanded, and when incarceration is imposed, the sentence should be designed to minimize the detrimental effect on children. In jurisdictions with sentencing guidelines based on points, consideration of parental or caretaking responsibilities could be factored into the calculations. When a parent or primary caretaker is removed from the home, consideration should be given to the location in which a sentence will be served, and visitation policies should be family/ children friendly. Child- and family-focused sentencing is a vital component in protecting millions of children injured by our current criminal justice policies. Clearly, however, the revision of sentencing practices is not enough. Consideration of the best interest of the child should be inserted into every aspect of the criminal justice system from arrest to re-entry. For example, New Mexico has adopted protocols outlining the treatment to be afforded children in specific kinds of arrest situations. See http://nmlea.dps.state.nm.us/safePursuitAct/docs/Children%20of%20Arrested%20Parents%20 Protocol.pdf. Many of the tools we have incorporated into family law, such as parenting classes, substance abuse treatment, mental health treatment, mediation, community conferencing, and employment training should also be employed in the criminal law arena, with the understanding that the well-being of the child, the family, and the community are intricately related. Judge Serrette is vice-chair of the Maryland Judicial Conference Domestic Law Committee, Model Court coordinator for the Circuit Court for Prince George’s County, and a member of the Court of Appeals Standing Committee on Pro Bono Legal Services and the Maryland Access to Justice Commission. She co-chairs the Juvenile Justice and Child Welfare Committee of the National Association of Women Judges (NAWJ), serves on the steering committee of NAWJ’s Maryland Correctional Institution for Women (MCIW) Re-entry Conference, and served as Family Division Coordinating Judge for the Circuit Court for Prince George’s County from 2009 to 2017. Ms. McDuffie is a policy analyst in Annapolis, Maryland. She earned her law degree from the University of Maryland Francis King Carey School of Law in 2016 and a degree in mass communications from the University of South Carolina in 2012. Prior to working in policy, Ms. McDuffie worked as a reporter for the Post and Courier newspaper in Charleston, South Carolina, and clerked for the Honorable Cathy H. Serrette.
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Nonjudicial Settlement Agreements: The Many Uses and Potential Pitfalls By Kelly M. Preteroti and Lindsay R. DeMoss D’Andrea Introduction
Effective October 1, 2016, Maryland law allows interested persons to enter into binding nonjudicial settlement agreements (NJSAs) with respect to matters involving trusts. Md. Code Ann., Est. & Trusts § 14.5-111. Maryland’s NJSA statute is identical in every material respect to Section 111 of the Uniform Trust Code (UTC). NJSAs encourage resolution of disputes relating to trusts by nonjudicial means by giving them the same effect as if approved by the court. Unif. Trust Code § 111, comment (2010). In Maryland, an NJSA is valid to the extent the agreement does not violate a material purpose of the trust and includes terms and conditions that could be properly approved by the court under the Maryland Trust Act, found at section 14.5 of the Estates and Trusts Article of the Maryland Annotated Code (the MTA), or other applicable law. Md. Code Ann., Est. & Trusts § 14.5-111. Still, lawyers are creative, and because the statute does not provide an exhaustive list of the ways in which NJSAs can be used, the list in § 14.5-111 merely provides a guideline.
Who are “Interested Persons”?
Section 14.5-111 of the MTA defines “interested person” as a person whose consent would be required in order to achieve a binding settlement were the settlement to be approved by the court. This definition is intentionally vague due to the great variety of matters to which an NJSA could be applied. Unif. Trust Code § 111, comment (2010). As a practical matter, an NJSA is only binding against parties to the agreement, whether acting on their own behalf or bound through representation. So, in addition to the parties to the lawsuit, practitioners should consider the persons against whom they would seek to enforce the agreement when determining who to include as interested persons. For instance, what if an interested person has adult descendants who have an interest in the trust, but who are not parties to the underlying litigation or mediation? Depending on the intended effect of the NJSA, the adult descendants may be necessary parties to the agreement. In a trust administration context, the parties to an NJSA will ordinarily include the trustee, current beneficiaries, and remainder beneficiaries, in addition to any other persons interested in the subject of the NJSA.
The Role of Representation
A practitioner drafting an NJSA must consider the role and importance of representation in binding all parties with an interest in the subject of the agreement. See, Md. Code Ann., Est. & Trusts, § 14.5-301, et seq. The concept of representation in judicial proceedings is not new. See Restatement (First) of Property §§ 180-186 (1936). However, the coverage and scope of representation both under the UTC and MTA is more comprehensive.
The MTA provides that “notice to a person that is authorized to represent and bind another person under this subtitle has the same effect as if notice were given directly to the other person unless the person represented objects to the representation by notifying the trustee and the representative before the notice would otherwise have become effective.” Md. Code Ann., Est. & Trusts § 14.5-301(a). Additionally, “consent of a person that is authorized to represent and bind another person under this subtitle is binding on the person represented unless the person represented objects to the representation by notifying the trustee and the representative before the consent would otherwise have become effective.” Id. at 14.5-301(b). The MTA makes clear that representation is available in judicial proceedings and in other nonjudicial contexts. Id. at 14.5-301(d). There are different types of representation within the MTA, including representation of certain persons by (i) the holder of a qualified power of appointment, (ii) the guardian of the property of a minor or disabled person, (iii) the guardian of the person of a minor or disabled person (if no guardian of the property has been appointed), (iv) an agent with specific authority to act with respect to trust matters, (v) the trustee of a trust that is the beneficiary of another trust, and (vi) a parent if no guardian of the person or property has been appointed. Id. at §§ 14.5-302-14.5-303. Additionally, a grandparent or more remote ancestor may represent and bind a minor, an incapacitated, unborn, or unknown individual or an individual whose location is unknown and not reasonably ascertainable who is not otherwise represented. Id. at § 14.5-303(7). Except for the case of a September 2018
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holder of a qualified power of appointment, representation is only permitted to the extent there is no conflict of interest between the representative and person being represented. Virtual representation is addressed under § 14.5-304 of the MTA, which provides that a minor, an incapacitated or unborn individual, or an individual whose identity or location is unknown and not reasonably ascertainable who is not otherwise represented may be represented by and bound by a representative having a substantially identical interest with respect to a particular question or dispute, but only to the extent that there is no conflict of interest between the representative and the individual represented with respect to the question or dispute. The MTA also provides for court-appointed representatives where an interest is not represented or the otherwise available representation might be inadequate. Md. Code Ann., Est. & Trust § 14.5-305. New § 14.5-306 of the MTA, effective October 1, 2017, now permits the settlor of a trust to: 1. Designate one or more persons who may serve as a representative or successor representative of a beneficiary of the trust; 2. Designate one or more other persons who may designate a representative or successor representative of a beneficiary of the trust; and 3. Specify the order of priority among two or more persons who are authorized under this title to serve as a representative or successor representative of a beneficiary of the trust. A trustee may not serve as the representative of a beneficiary of the trust. Id. at 14.5-306(b). This new provision provides an opportunity in the estate planning stage for a settlor to designate representatives or name a person who can designate representatives, especially if the settlor knows or has suspicions that a beneficiary may later cause trouble. The following is a sample provision for a trust agreement that would allow the trustee to designate representatives: “REPRESENTATIVES. The trustee may designate a representative or successor representative to act on behalf of any beneficiary of any trust established under this agreement, other than the trustee of such trust, whether or not a judicial proceeding concerning the trust is pending. Notice to the representative shall have the same effect as if notice were given directly to the beneficiary represented, unless the beneficiary objects to the representation by notifying the trustee and representative in writing before the notice would otherwise have become effective. Consent of the representative is binding on the beneficiary represented, unless the beneficiary objects to the representation by notifying the trustee and the representative in writing before the consent would have otherwise become effective. In making decisions on behalf of a represented beneficiary, the representative may consider the general benefit accruing to the living members of the beneficiary’s family. Any representative or successor 30
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This new provision provides an opportunity in the estate planning stage for a settlor to designate representatives. representative who undertakes or agrees to represent a beneficiary shall not be liable to the beneficiary represented while acting in good faith, but shall only be liable to the beneficiary for action or inaction resulting from intentional wrongdoing by the representative or made with reckless indifference to the purposes of the trust or the interests of the represented beneficiary.” It is important to note that while appointed representatives can be a useful tool in binding beneficiaries, as one would expect, a representative appointed under § 14.5-306 would be liable for intentional wrongdoing and actions taken in bad faith or with reckless indifference to the purposes of the trust or the interests of the represented beneficiary. Id. at § 14.5-306(c).
How Can NJSAs Be Used?
NJSAs are a powerful tool in resolving fiduciary litigation matters. NJSAs have also found increasing utility in trust administration, even in the absence of a bona fide dispute. Section 14.5-111 of the MTA provides a non-exhaustive list of the matters that may be resolved through an NJSA, including: 1. The interpretation or construction of the terms of the trust; 2. The approval of a report or accounting of a trustee; 3. Direction to a trustee to refrain from performing a particular act or the grant to a trustee of a necessary or desirable power; 4. The resignation or appointment of a trustee and the determination of the compensation of a trustee; 5. Transfer of the principal place of administration of a trust; and 6. Liability of a trustee for an action relating to the trust. In practice, NJSAs are being used in the following ways: A. To resolve litigation (or threatened litigation) involving trusts, such as • Challenges to the conduct of a fiduciary (see MTA § 14.5-901 (To remedy a breach of trust by the trustee that has occurred or may occur, the court may compel certain action, including surcharging)); • Challenges to the trust instrument (i.e., claims of lack of capacity, undue influence, fraud, etc.) (see § 14.5-
402 (A trust is created only if: (1) The settlor has capacity to create a trust; (2) The settlor indicates an intention to create the trust); see also § 14.5-405 (A trust is void to the extent that the creation of the trust was induced by fraud, duress, or undue influence)); Actions to remove a trustee (see MTA § 14.5-706 (The settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on the court’s own initiative)); Disputes over distribution to or treatment of beneficiaries (see MTA § 14.5-203 (A court may review an action by a trustee under a support provision or a mandatory distribution provision in the trust)); Partition actions involving real property owned in whole or in part by a trust (see MTA § 14.5-411 (The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust)); and Questions surrounding the proper interpretation of a trust provision (MTA § 14.5-201 (A judicial proceeding involving a trust may relate to a matter involving the administration of the trust, including a request for instructions and an action to declare rights)). To resolve issues in trust administration, such as Trust terminations (see MTA § 14.5-410(a)(1) (noncharitable irrevocable trust may be terminated on consent of the trustee and all beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust); Id. at § 14.5-410(b) (existence of a spendthrift provision does not prevent a termination of a trust)). Trust modifications (see MTA § 14.5-410(a)(2) (noncharitable irrevocable trust may be modified on consent of the trustee and all beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust), including: □□ Division of single trust with multiple beneficiaries into one or more separate trusts. □□ Changes to provisions relating to the trustees, including: resignation of trustees; appointment of successor trustees; appointment of co-trustees; compensation of trustees; require fewer or more trustees to serve; grant or eliminate powers of the trustee (power to appoint own successor, power to grant general power of appointment); give a person the right to remove and replace the trustee. □□ Modify distribution provisions and shift beneficial interests. However, any settlement that modifies distribution provisions or shifts the beneficial interests of the parties must take into account the transfer tax consequences of doing so. There may also be resulting income tax consequences. Furthermore, in the absence of a controversy ap-
pealed to the highest appeals court in the state, a Federal authority may ignore any resolution approved by a state trial court or via settlement. See, e.g., Comr. v. Est. of Bosch, 387 U.S. 456 (1967) (holding that where the federal estate tax liability turns upon the character of a property interest held and transferred by the decedent under state law, federal authorities are not bound by the determination made of such property interest by a state trial court). Parties may wish to obtain a private letter ruling in cases where certainty regarding the transfer tax aspects of a settlement is critical. In bona fide disputes, parties may fall under the exception for “a sale, exchange or other transfer of property made in the ordinary course of business (a transaction which is bona fide, at arm’s length, and free from any donative intent),” which would be “considered as made for an adequate and full consideration in money or money’s worth.” Treas. Reg. § 25.2512-8; but see, e.g., PLR 9308032 (taxable gift results where parties surrender rights to benefit adversaries in excess of what local law would have provided). However, where an NJSA is used outside of a litigation context to shift beneficial interests, a gift will likely occur absent an exception. Treas. Reg. § 25.2511-1. Practitioners should also exercise caution when modifying a grandfathered GST exempt trust to avoid jeopardizing the trust’s exempt status. Treas. Reg. § 26.2601-1(b)(4) (providing four “safe harbors” for modifications that will not affect the exempt status of a grandfathered trust). These are just a few examples of the many ways NJSAs could be used to resolve disputes and other substantive issues related to trusts. As the MTA was enacted on January 1, 2015, and MTA § 14.5-111 was later added on October 1, 2016, meaningful appellate case law has not yet developed on the permissible uses of NJSAs, so parties will likely test the limits of the statute.
Anticipating and Dissipating Disputes Using NJSAs
One creative way to use an NJSA may be in cutting off disputes before they occur. That is exactly what testators seek to accomplish in antemortem probate proceedings ( or a fuller discussion on antemortem probate, see Preteroti, Kelly M. and Lindsay R. DeMoss D’Andrea, Where There Is a Will, Is There a Way? Getting the Last Word on Your Estate Plan, Tax Management Estates, Gifts, and Trusts Journal, Vol. 46, 11, 314, 11/09/2017.). In short, antemortem probate is a judicial proceeding in which an interested person seeks a declaratory judgment confirming the validity of a testator’s last will and testament while the testator is still alive. If September 2018
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the proceeding is successful, then upon the testator’s death, her will must be admitted to probate. The procedure provides some certainty to the testator that her last will and testament will be shielded from challenges after she dies. In the same way that antemortem probate provides this certainty, an antemortem NJSA may provide certainty for a settlor that her trust agreement will not be subject to litigation.
Most states, including Maryland, have enacted the UTC or another form of statutory trust law, that includes a statute permitting the use of NJSAs. The comment to UTC § 111 states that its purpose is to facilitate the making of NJSAs by giving the agreements the same effect as if approved by a court. Given that an NJSA has the same effect as an agreement approved by the court, based on the wording of the Maryland statute, it appears that it could be used to bind the parties to the validity of the trust instrument in the same manner as a declaratory judgment in an antemortem probate proceeding.
An antemortem NJSA has many of the same advantages of antemortem probate. If all the necessary parties were included, the NJSA would serve as a basis to dismiss an action by a signatory to the agreement attempting to challenge the validity of the trust instrument. Thus, establishing a trust’s validity prior to the settlor’s death by agreement would prevent a challenge to the trust in the same way antemortem probate prevents a will caveat after the testator’s death. Additionally, an antemortem NJSA could resolve evidentiary issues relating to the settlor’s capacity, whether there was any undue influence surrounding the execution of the trust, and issues relating to the settlor’s intent. The best witness – the settlor – is available at the time of the NJSA to state that the trust document is his trust agreement, that he knows what it says, that it reflects his wishes, and that he signed it according to law. Furthermore, if the anticipated challenger(s) has entered into the agreement, an antemortem NJSA ensures that the settlor’s wishes remain intact. If the settlor knows in advance that a particular beneficiary could upset his intent, binding that beneficiary to the trust agreement through an antemortem NJSA could stop a challenge before it has an opportunity to fully ripen. Finally, an antemortem NJSA can be done without the involvement of the court, yet have the same effect as if the issues determined in the agreement were decided by the court.
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However, an antemortem NJSA presents some of the same challenges as antemortem probate, along with some new challenges. While less adversarial than a court proceeding, an antemortem NJSA could still be perceived as adversarial. Additionally, the settlor would have to disclose the terms of his trust agreement (something that many settlors seek to avoid) in order to achieve a binding agreement. Having relatives weigh in on the settlor’s plans may cause turmoil and resentment within the family. Additionally, an antemortem NJSA would only resolve disputes related to the trust agreement and any amendments in existence at the time of the NJSA. Subsequent changes to the trust agreement would not be addressed by the prior NJSA, unless an amendment to the NJSA is executed as well. Furthermore, obtaining the consents of each interested person could present problems.Unlike an antemortem probate or declaratory judgment proceeding, where parties can be bound through service of process, you cannot force parties to enter into a contract. Consequently, difficult family members who are would-be challengers may simply refuse to sign. Still, for a settlor who is concerned that the terms of his trust agreement could become subject to challenge, an antemortem NJSA could be a powerful tool to use before disputes arise.
NJSAs are and will continue to be a vital tool in resolving disputes relating to trusts and solving problems in trust administration. Practitioners should look to NJSAs where a court proceeding would normally be required and ask whether the situation is ripe for a resolution through nonjudicial means. If so, due consideration should be given to the parties who must be involved and the tax consequences that may arise. Lastly, in cases where a settlor anticipates a dispute, the settlor should consider using an antemortem NJSA to prevent a later challenge. Ms. Preteroti is a shareholder at Baker Donelson’s Baltimore office who focuses her practice on fiduciary litigation, representing corporate fiduciaries (such as banks and trust companies), individual fiduciaries (such as trusted advisors and family members), and beneficiaries and assists them in resolving complex disputes over trusts and estates. She may be reached at firstname.lastname@example.org. Ms. D’Andrea is an associate at Baker Donelson’s Baltimore office who concentrates her practice on estate planning, estate administration, and charitable giving, representing individuals and families in all aspects of estate planning and estate and trust administration. She may be reached at ldandrea@ bakerdonelson.com.
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COMMITTEE ON ETHICS ETHICS DOCKET NO. 2018-01 You have asked for an opinion regarding your responsibilities when the parents of a minor child have refused to accept a settlement of the child’s claim that you would believe would be favorable to the child. We believe that you are required to follow the instructions of the parents, as the guardians of the child, but that you may withdraw if you are strongly opposed to the parent’s course of action. You represent a minor child who sustained a broken leg in an automobile accident, and are pursuing claims against the driver of the striking vehicle. It was not clear form the question whether you also represented the parents for claims directly on their behalf, but the father of the minor child signed the retainer agreement. The insurer of the adverse party has offered to settle the claim. After medical and legal expenses are deducted from the settlement proceeds, the child will receive in excess of $5,000. In accordance with Maryland’s Estates and Trust’s Article, that amount would be placed in a trust account to be released when the child turns eighteen. The father objected to the trust, and has threatened to walk away entirely from the proposed settlement unless the funds are disbursed directly to him. You have asked how the Rules of Professional Conduct affect your response to the father’s decision not to accept a favorable settlement of the child’s case. You have proposed two solutions: 1. Petitioning the court for a guardianship for the minor child; 2. Paying the parents some of the settlement proceeds directly to compensate them for medical expenses for which they would have been responsible but in fact never incurred, because the medical expenses were paid by Medicaid. Two prior ethics opinions, 1994-25 and 1992-36, deal with the abuse of a minor’s settlement proceeds, but offer no particular guidance in this situation. 1994-25 states that the “inquiry cannot be addressed completely without identifying the individual or individuals with whom you have an attorney-client relationship.” However, since MD Code, Family Law Section 5-203 states that the “parents are the joint natural guardians of their minor child,” it makes no difference whether the attorney-client relationship is with
the parents or the child. If the relationship is with the parents, then the attorney’s general duty is to abide by their “decision concerning the objectives of the representation.” MRPC 1.2. If the relationship is with the child, the parents, as natural guardians of the minor, are nonetheless responsible for making the decisions about the course of the litigation. Therefore, in either situation, the attorney’s duty is to abide by their decisions, except as otherwise explained below. Maryland Rule 19-301.14 provides some circumstances in which an attorney representing a client with diminished capacity has an obligation to seek a guardianship or other remedy before the client comes to harm. In this case, however, the parents are already acting as guardians of the child. A court cannot establish a guardianship since one or more of the parents are still alive and their parental rights have not been terminated. See In Re Guardianship of Zealand W., 102 A.3d 837 (2014). Based on the facts that you have presented, we do not believe that you have any obligation or grounds to seek court intervention with respect to the parent-child relationship. With respect to the second avenue that you propose, it seems as if some payment directly to the parents from the settlement proceeds cannot be done in good faith, since the parents have not actually incurred any expenses. If you are fundamentally opposed to the decision of the parents not to go forward with the settlement, you may withdraw from the representation. See MRPC 1.16(b)(4). If the parents agree to the settlement, but refuse to have the proceeds held in trust, you may be required to withdraw, to avoid participating in a violation of the statutory obligation to keep such funds in trust. See MRPC 1.16(a)(1).
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MSBA RESEARCH NOTES: Legal Profession Trends Highlights Informing our members and curating content to make more efficient use of their time is an important role for the MSBA. We hope this MSBA Research product provides insightful data and trends as you consider the evolving nature of the legal profession.
MSBA asked an open-ended question in the survey conducted between April and May 2018 about current challenges facing attorneys in the MSBA. Responses included: • Incivility/lack of professionalism between attorneys and within the profession • Stress/work-life balance • Financial concerns (e.g., student loans, decreasing income) • Time management • Client acquisition (Source: MSBA Strategic Planning Survey, April-May 2018)
Maryland Legal Trends
E-Filing (MDEC): Maryland Electronic Courts, or MDEC, is currently operational in 20 Maryland Counties; these include: Allegany Anne Arundel Calvert Caroline Carroll Cecil Charles Dorchester Frederick Garrett
Harford Howard Kent Queen Anne’s Somerset St. Mary’s Talbot Washington Wicomico Worcester
MDEC is anticipated to launch in Baltimore County - the largest jurisdiction yet to implement the e-filing system - in February 2019. According to MDCourts.gov, the Maryland Judiciary is on track to reach its goal to bring MDEC to every court by 2021. (Source: mdcourts.gov/media/news/2018/pr20180416)
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Uniform Bar Exam: Maryland will implement the Uniform Bar Exam (UBE) in 2019, which will ideally increase the number of people who sit for the Maryland bar. Currently, 28 jurisdictions administer the UBE, which allows for increased mobility and job opportunities as UBE scores in one jurisdiction are transferable to other jurisdictions that also administer the UBE. Each state sets its own passing rate and determines how recently the test must have been taken. The test consists of three sections - the Multistate Bar Examination (MBE), which includes 200 multiple choice questions; two Multistate Performance Test (MPT) tasks, which are 90-minute sections that test applied skills; and six Multistate Essay Examination (MEE) questions. In addition, 10 jurisdictions, including Maryland, will administer sections on local state law. “The Uniform Bar Examination, along with the Maryland law component, will assure that applicants possess the knowledge and skills necessary to practice law in Maryland, plus afford those who pass the exam the portability of transferring their results to other jurisdictions that have also adopted the Uniform Bar Examination,” says Chief Judge Maryland Ellen Barbera, Court of Appeals of Maryland. (Sources: www.nationaljurist.com/national-jurist-magazine/more-states-are-adopting-ube-giving-lawyers-greatermobility, thedailyrecord.com/2017/11/20/court-of-appeals-ube-addoption)
National Legal Trends
E-Discovery: The growing “internet of things” has led to an increase in the need for identifying
potential sources of information, such as drones, DNA sensor, and appliances, etc. This information overload has in turn spurred the development of more user-friendly e-discovery systems, focusing on increased systemization, efficiency, cost-reduction, and the ability to perform discovery inhouse. (Source: www.jdsupra.com/legalnews/checklist-of-top-10-e-discovery-trends-98641)
Artificial Intelligence: Artificial intelligence (AI) can be effectively used for contract review/due diligence; predicting a court’s likely decision on a case with 90 percent accuracy; e-discovery; tracking billable hours; analyzing time spent on tasks/matters; and legal analytics. AI can lend itself to intellectual property lawyers, who can use it for monitoring digital platforms, valuing IP portfolios, and budgeting/ analyzing trademark search results.
Despite high interest (93 percent of surveyed attorneys believe AI could reduce costs/increase efficiency), there is great reluctance to actively implement it because attorneys favor the status quo. The legal AI industry as yet occupies only $16 billion of an overall U.S. legal services market worth $437 billion, suggesting that lawyers still prefer practicing law to possibly becoming the newest caselaw by journeying into unknown legal territory. (Source: www.law.com/nationallawjournal/2018/03/01/ai-finding-favor-in-legal-industry-but-adoption-lags)
Law Firm Mergers: Intensifying market competition is making sizeable law firms with hundreds of lawyers receptive to merger offers that they would never have considered a few years ago. (Source: biglawbusiness.com/2018-could-bethe-year-of-the-mega-law-merger)
These factors can include a desire to increase geographical reach; increase sector presence; and improve market position in a client-driven atmosphere. (Source: www.lawcareers.net/Information/ Features/13022018-Mergers-why-do-they-happen-and-what-do-they-mean-for-lawyers)
Law firm merger pros: • Can improve competitive position • Increase specialization/gain additional expertise • Expand geographic locations • Add new practice areas • Increase/decrease client base • Improve/solidify client relations
Law firm merger cons: • Realignment of goals/ priorities for each firm involved • May require additional infrastructure, depending upon size of the firms • Must ensure the personalities, philosophies, and lifestyles of the people involved mix well, and that partners like each other
Sources: www.olmsteadassoc.com/resource-center/should-you-merge-with-another-law-firm www.smocksterling.com/law/pdf/the_seven_deadly_sins.pdf
At 102 mergers, 2017 saw the highest number of recorded mergers in the 11 years in which that data has been collected. Of those, 80 percent were pickups of small firms of between two and 20 lawyers. There was also an increase in cross-border mergers, with 2017 setting a new high of 15, compared to the previous record, set in 2016, of 11. Thus far, 2018 appears to be keeping relative pace with last year, with 20 mergers completed in the first quarter of this year, compared with the 22 mergers in 1Q17. (Sources: www.law.com/americanlawyer/2018/03/30/report-finds-steady-pace-continuing-for-law-firm-mergers biglawbusiness.com/2017-record-year-for-lawfirm-mergers)
Despite their growing popularity, between one-third and one-half of all mergers fail to meet expectations, generally due to cultural misalignments and personnel problems. After completing conflict checks, While firms usually look at practice economics and financials after completing their conflict checks, they frequently neglect the people aspect. Successful mergers depend upon sound, integrated business strategy that creates synergy and greater client value than either firm would generate alone.
Solo Practitioners and Practice Trends
Issues • Attorneys work on average 2.6 billable hours/day, and collect only 1.6 hours/day • 54 percent of attorneys actively advertise their practice, but 91 percent cannot calculate return on investment, and 94 percent cannot calculate the cost of acquiring a new client • Late payments • Interruptions killing productivity • Acquiring new clients (Source: www.clio.com/resources/legal-trends/2017-report)
Technology/focus on the future Top five technologies respondents felt had moderate to high impact on their practice: • Document management (90 percent) • Time and billing management (88 percent) • Financial management or ERP (enterprise resource planning) (73 percent) • Mobility and mobile apps (70 percent) • Business intelligence (70 percent) (Source: www.aderant.com/research/2018business-of-law-survey)
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Technologies to drive efficiency Firm efforts focused on eliminating process inefficiencies include: • Automating routine tasks (64.2 percent) • Workflow automation (54 percent) • Analytics, data mining and business intelligence (46.7 percent) • Integration of systems (37.2 percent) • Mobile access to law firm systems (24.1 percent) • Internal collaborative tool for law firms (18.3 percent) (Source: www.aderant.com/research/2018business-of-law-survey)
Marketing trends • Investing in online presence • SEO (Search Engine Optimization) • Building your referral networks (Source: www.lexology.com/blog/2017/09/16lawyers-share-best-law-firm-marketing-tips)
Current marketing channels • Email (37 percent) • Print (34 percent) • Facebook (26 percent • Yellow Pages (18 percent) • Avvo (18 percent) • Direct mail (18 percent)
Cloud considerations The drivers for cloud adoption are: • Provides better disaster recovery (50.5 percent) • Less costly than on-premise solutions (39.1 percent) • Augments business continuity (29 percent) • Cloud offers better security (27.5 percent) • Improving features and functionality (25.4 percent) • Centralized data improves collaboration (23.9 percent)
Succession planning One-third of ALM Intelligence’s 2017 survey respondents did not have any succession plans in place, and 40 percent of those said it is not an immediate concern. Outgoing partners are incentivised to hoard clients, knowledge, and opportunities; however, this practice led to 52 percent of respondents losing an average of one-quarter of retirees’ book of business upon retirement. One-third were concerned that partners hoard work; 60 percent said senior partners stay on too long; 60 percent reported that over half of firm leadership was above age 55; and 43 percent said they do not plan to form mentoring relationships with junior partners. Moreover, there is presently an excess of Baby Boomers and not enough junior and mid-level attorneys to take their place. There is usually not enough training of mid-level associates to prepare to succeed retirees, and this poor planning in securing firm continuity can hurt client relations and reputation, and possibly raise ethical issues if a client’s matter suffers as a result of a botched transition from a retiring attorney. Auspicious succession planning includes establishing short-term successors in case of immediate leadership crisis, and long-term planning for when senior partners retire. The plan will look holistically for service continuity, not just focus on senior partners who may retire in the near future. It ensures a balance of both senior partners and junior associates, then establishes a process for transferring out senior partners and raising juniors up through the ranks. (Source: www.alm.com/intelligence/solutions-we-provide/business-of-law-solutions/ analyst-reports/law-firm-succession-planning-and-the-challenges-of-managing-a-multigenerational-workforce)
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A major challenge many law firms are facing is having up to four different generations all working in one office together - each with different cultures, expectations, and values. Lack of understanding among the different generations can cause interoffice conflicts. Baby Boomers (Born between 1946 and 1964) Three-quarters of Baby Boomers expect a work-centered life. Many put in 80+ hours per week, and believe that anyone doing less is either lazy or not carrying weight at the office. Generation X (Born between 1965 and 1980) Strongly value work/life balance and workplace flexibility, autonomy, and challenging assignments. (Sources: www.thebalance.com/the-multigenerational-workforce-2164698 www.natlawreview.com/article/multigenerational-workforce-lessons-law-firm-management)
Millennials (Born between 1980 and 1995) Sixty-three percent of millennials expect a work-centered life, with an increased focus on leisure and less focus on work ethic. They rarely work overtime, but have a better ability to multitask, network, and adapt to changing technology. They require more feedback, open communication, and structure. Generation Z (Born after 1996) Due to the Great Recession, the lifestyles of “Digital Natives” more closely echo those of Boomers. They encourage/expect diversity, challenge the status quo, and value face-to-face interaction much more than Gen Xers and Millennials. (Sources: www.cnlegalnews.com/generation-z-new-challenges-in-a-multigenerational-law-firm www.natlawreview.com/article/multigenerational-workforce-lessons-law-firm-management)
Legal process outsourcing Legal process outsourcing sends work that is usually routine and/or replicable services that require only a low level of expertise to more affordable, outside practitioners. It is practice and process-focused, streamlining repetitive tasks for greater efficiency. Sometimes these practitioners are overseas, usually in countries whose legal system is also based on English or American Common Law. India is currently the largest legal process outsourcing location overseas. Legal service outsourcing Legal service outsourcing sends out more sophisticated legal work, requiring more legal skill and training. There is less focus on process, and more on the actual work being produced, and it usually necessitates a greater emphasis on competent legal oversight, both by the outsourcing providers and by the attorney hiring their services. (Source: www.cognialaw.com/images/documents/20150922%20LPO%20vs%20LSO%20 by%20Aurea%20Westfehling.pdf)
Most Frequently Outsourced Tasks: 1. Administrative support, such as data extraction/entry, e-document management, secretarial services, billing services, and paralegal services 2. Intellectual property, such as patent drafting/review, IP portfolio management, patent proofing/docketing, and cease/ desist notices 3. Litigation support, such as discovery, compliance, and database creation/maintenance 4. Legal research and analysis, such as statutory/caselaw and legal coding/indexing 5. Contracting support, such as due diligence and management (Source: www2.deloitte.com/content/dam/ Deloitte/us/Documents/process-and-operations/us-sdt-corporate-legal-process-outsourcing.pdf)
For questions or suggestions for future MSBA Research topics, please email email@example.com.
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