L E A D E R S I N L AW • C O M M U N I T Y • J U S T I C E • A DVO C ACY • T E C H N O LO G Y • P R AC T I C E M A N AG E M E N T
BAR JOURNAL MSBA. HOME OF THE LEGAL PROFESSION.
Insight PAGE 48
HEALTH & WELLNESS PAGE 52 Physical Health & Wellness for the Busy, Thriving Lawyer PAGE 57 Bootstrapping the Opioid Epidemic PAGE 70 Brian Cuban: The Recovering Lawyer
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Contents SPRING 2019 | VOLUME LII | NUMBER 2
57 Bootstrapping the Opioid Epidemic
52 Physical Health & Wellness for the Busy, Thriving Lawyer
MSBA UPDATES 3 President's Message 4 MSBA in the Community 16 Inside Annapolis 28 Fresh Faces 107 MSBA Staff Profile MEMBER FOCUS & CAREER HIGHLIGHTS 12 18 30 48 74 76 80 84 86 91 95 98
60 Caring for Our Colleagues
Member Spotlights Firm Update Firm Profile In-House Counsel Breaking into the Law Career Transitions Past President Off the Beaten Path What Iâ&#x20AC;&#x2122;ve Learned In Memoriam What are You Reading? Committee Profile
FOR YOUR PRACTICE 44 Emerging Areas of the Law Solar Energy Development 46 Technology Developments Multi-Factor Authentication 93 Law Office Management Micromanage the Client Experience 96 Building Your Brand Client Testimonials 100 Practice Management Portal 102 Updates from the Judiciary 103 Attorney Grievance Update 104 Recent Ethics Opinion ADVANCING JUSTICE
62 Decriminalizing Disability DISCOVER MORE
70 Brian Cuban:
20 ICE Arrests in Maryland Courts
The Recovering Lawyer
READ MORE ONLINE: Stay equipped and knowledgeable, every day. Visit MSBA.org for more exciting content.
MARYLAND BAR JOURNAL | SPRING 2019
EDITORIAL ADVISORY BOARD IN-HOUSE EDITORIAL COMMITTEE
Published quarterly by the Maryland State Bar Association, Inc. 520 W. Fayette St. Baltimore, Maryland 21201 Telephone: (410) 685-7878 (800) 492-1964 Website: www.msba.org Executive Director: Victor L. Velazquez Editor: W. Patrick Tandy Advertising Sales: MCI | USA Subscriptions: MSBA members receive THE MARYLAND BAR JOURNAL as $20 of their dues payment goes to publication. Others, $42 per year.
Hon. Vicki Ballou-Watts, Chair
Richard L. Adams, III
Robert D. Anbinder
Mary Beth Beattie
Alexa E. Bertinelli
Susan K. Francis
Peter A. Heinlein
Hon. Marcella A. Holland
Louise A. Lock
Victoria H. Pepper
Corinne M. Pouliquen
Sahmra A. Stevenson
Gwendolyn S. Tate
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 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.
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MSBA.ORG | SPRING 2019
| INSIGHTS & UPDATES
A Look Back at the Road Ahead A
s my term as your President draws to a close, I am proud of all of MSBA’s evolutionary accomplishments over the course of this bar year, starting with the MSBA Lawyer Assistance Program (LAP), which has seen increased usage thanks to the program’s statewide expansion. Thanks to our members, we are able to provide free, confidential drug, alcohol, and mental health counseling services, no matter where in the state an attorney may be. MSBA’s expanded presence across the state has not been limited to lawyer assistance. In March, I traveled to Salisbury where, in partnership with the Wicomico, Worcester, and Somerset County Bars, we hosted a “Meet-Up on the Lower Shore”. There, our delegation, including Executive Director Victor Velazquez, mingled with members, answering their questions and sharing with them news of all the developments happening at the State Bar. And in April, the Board of Governors held its monthly meeting at the Donaldson Brown Conference Center in Perryville, in Cecil County, which is rightly renowned for its sunsets overlooking the Susquehanna River.
"It’s been my privilege to serve as your President this past year." VIDEO EXCLUSIVE
WATCH PRESIDENT TRUFFER: Watch President Truffer’s monthly MSBA updates. VISIT YOUTUBE.COM/MDSTATEBAR
Much has been going on behind the scenes as well. Our Policy Review Committee, Chaired by Past President Judge Harry C. Storm, is now wrapping up its yearlong study of governance and how MSBA conducts business, now and in the future. Meanwhile, in April, Ben Rosenberg’s Strategic Vision Committee delivered its own recommendations on what course the MSBA should follow over the next five to 10 years to the Board of Governors. And the Section Value Task Force, Chaired by Michael Hudak, is hard at work looking for ways in which we can make our Sections, long a valuable asset to our members and their law practices, even better. We have continued to expand and improve upon the more than 300 events which MSBA hosts or takes part in each year, particularly the Legal Summit & Annual Meeting, the biggest event of the year for the state’s legal profession. This year’s program delivered substantive programming that speaks to virtually every facet of the profession, as well as top-tier featured speakers like CNN’s Jeffrey Toobin, former US Deputy Attorney General Rod Rosenstein, Maryland Attorney General Brian Frosh, and DC Attorney General Karl Racine, to name but a few. There was also a host of family-friendly events designed to engage the whole family. It’s been my privilege to serve as your President this past year. Working with volunteers and staff, the MSBA has delivered many advances during my time in this role. I’m humbled by all the positive comments I’ve received and hope to see many of you in the coming years as a proud member of the MSBA. Thank you,
Hon Keith R. Truffer, President
MARYLAND BAR JOURNAL | SPRING 2019
| MSBA IN THE COMMUNITY
MSBA in the Community Impacting every sector of the legal profession
Advocacy ABA DAY. ABA Day is a three-day conference that brings together leaders of the ABA, state, and local bars from across the country together in Washington, D.C. to advocate before members of Congress on behalf of the profession on issues of great importance, such as the funding of legal services. This year, the MSBA delegation met with Maryland’s elected representatives, including U.S. Congressman Anthony Brown.
Professional Development LEADERSHIP ACADEMY. As an MSBA member, you help support investment in the future of the state’s legal profession through initiatives like the Leadership Academy, which hosted keynote speaker Robert K. Hur, U.S. Attorney for the District of Maryland, as well as a host of other lawyer-leaders at its “Leaders in the Law” program on March 13 in Baltimore. BRIDGING THE GAP. The MSBA Leadership Academy Class of Fellows 2019 held their public service project "Bridging the Gap" May 10-11 in Frederick. The program was designed to raise awareness and understanding of mental health issues in both the court system and greater community.
Law Students & Recent Graduates YLS SWEARING-IN CELEBRATION. Today's new admittees to the Maryland Bar are tomorrow's legal profession. The MSBA Young Lawyers Section celebrated the state's newest attorneys and MSBA members with a special celebration held January 9 at Aida Bistro in Columbia. More than 50 new lawyers enjoyed food, drink, and camaraderie as YLS Chair Indira Sharma offered her congratulations as well as a few brief remarks on the role that YLS – and MSBA, on the greater whole – plays in helping to launch legal careers. TACO TUESDAY. Today’s law students are tomorrow’s lawyers, which is why MSBA is proud to work with rising stars like University of Baltimore School of Law student ambassadors Tia Holmes and Tina Azarvand, who helped MSBA to organize a “Taco Tuesday” event on March 12 at UB Law’s John and Frances Angelos Law Center.
MSBA.ORG | SPRING 2019
Civic Education MSBA HIGH SCHOOL MOCK TRIAL STATE CHAMPIONSHIP. Rockville’s Richard Montgomery High School claimed the top spot in this year’s MSBA High School Mock Trial State Championship on April 26 at the Court of Appeals of Maryland in Annapolis. Both schools emerged from a field that began with 152 teams statewide. Administered by MYLAW, MSBA’s education arm in Maryland schools, this year’s MSBA Mock Trial Competition entered on a case of cyberbullying and social media. MSBA President-Elect Dana O. Williams joined the finalists for a celebratory luncheon afterward. LAW DAY 2019. Retired Chief Judge Robert M. Bell of the Court of Appeals of Maryland shared his personal experiences in the civil rights movement with high school students from across the state during his keynote address at MSBA’s Law Day 2019 presentation on May 1 at the Maryland Historical Society in Baltimore. Hosted by MYLAW, MSBA’s educational arm in Maryland schools, volunteer Administrative Law Judges joined members of the MSBA Public Awareness Committee in educating students on this year’s Law Day theme, “Free Speech, Free Press, Free Society”.
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MARYLAND BAR JOURNAL | SPRING 2019
For The Profession DIVERSITY & INCLUSION CONFERENCE. MSBA Past President Harry S. Johnson delivered the keynote address in this inaugural Conference, hosted by the MSBA Diversity & Inclusion Committee on Thursday, March 21, at the University of Baltimore Merrick School of Business. WEB EXTRA
For A Good Cause 23RD ANNUAL MSP POLAR BEAR PLUNGE. State Delegate Erek L. Barron joined Young Lawyers Section Chair Indira Sharma and fellow members of the YLS and the MSBA Public Awareness Committee for the 23rd Annual Maryland State Police Polar Bear Plunge on Saturday, January 26, at Sandy Point State Park in Annapolis. Proceeds from the event benefit Special Olympics Maryland. YLS CHARITY EVENT. With the plight of immigrants front and center on the national stage, the MSBA Young Lawyers Section named the Capital Area Immigrants’ Rights Coalition, which recently opened a Baltimore office, the beneficiary of its 28th Annual Charity Event, held April 12 at Gertrude’s Chesapeake Kitchen at the Baltimore Museum of Art. More than 150 people including MSBA President Judge Keith R. Truffer attended the event, which featured a silent auction, live music, and more. WEB EXTRA
THE TRIAL OF AL CAPONE. MSBA President Judge Keith R. Truffer presided over “The Trial of Al Capone” - a fictionalized trial of the notorious gangster for his alleged role in the 1929 St. Valentine’s Day Massacre - on Saturday, May 18, at the Inscape Theatre on the Greenspring Campus of Stevenson University. Truffer joined an all-star cast that included such notables as Maryland Attorney General Brian E. Frosh, Federal Public Defender for Maryland James Wyda, attorney Ronald Shapiro, and more. All proceeds from the production, penned by attorney Paul Mark Sandler, went to benefit the Maryland Access to Justice Commission in support of its shared goal of driving systemic reforms and innovations to make the civil justice system more accessible, user-friendly, and fair for all Marylanders.
MSBA/Networking MID-YEAR MEETING. From mobile-first technology to expanded member-driven content and resources, MSBA President Judge Keith R. Truffer led an MSBA delegation that included Executive Director Victor Velazquez on the many evolutionary changes taking place at MSBA during the Mid-Year Meeting, held Tuesday, February 19, at the Sheraton Baltimore North Hotel in Towson. WEB EXTRA
PROFESSIONAL EXCURSION. MSBA Professional Excursions offer one-of-a-kind travel experiences that provide members with valuable learning and networking opportunities while also exploring beautiful, world-class destinations such as this year’s trip to Playa Mujeres, Mexico, from March 31 to April 6.
MSBA.ORG | SPRING 2019
Upcoming Events Big Law/In-House Counsel LEGENDS OF THE BOARDROOM 2019. MSBA teams up with Judicial Events™ for the 3rd Annual Legends of the Boardroom program on Friday, September 13, from 7:30 a.m. to 12:30 p.m. at the Pier 5 Hotel in downtown Baltimore. This one-of-a-kind event brings the in-house legal community together with the outside legal community and business executives to foster business opportunities through networking and education on hot current legal topics. Participants will be able to learn from visionaries who have established national reputations for their winning legal strategies. Register online today!
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Wolters Kluwer Legal & Regulatory U.S. Proudly Announces the 2018 Supplement to
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Celebrating 29 years of Publication!
Health & Wellness BENCH | BAR WELLNESS WEEK 2019. Bench | Bar Wellness Week is a partnership between Maryland Bars to feature four days (September 16-19) of seminars, exercise, and wellness activities and discussions around the state culminating with a Health Expo for members of the bench and bar. Hear from professionals with experience in both the legal and health arenas, and participate in workshops for fitness, nutrition, mindfulness, stress management, and more. Visit MSBA. org/WellnessWeek for more information.
Solo & Small Firm SOLO SUMMIT 2019. This year’s Solo Summit, set for Friday, November 8, promises a full day of programming for solo and small firm practitioners in all phases of their careers. Stay tuned for further details!
Maryland Corporation Law, including 2018 Supplement, #9780735545595, $575.
Cited by Judges and Lawyers in Maryland and Elsewhere
Maryland Corporation Law is the first fulllength book on Maryland corporation law in over 60 years. Since then, there has been a complete recodification of the Maryland corporation statutes, dozens of other statutory amendments, and many important cases decided by Maryland and other courts applying Maryland law. Maryland Corporation Law is the first and only work to survey all of these developments. Written by one of Maryland’s most respected and experienced corporation lawyers, Maryland Corporation Law is based on the most thorough research ever undertaken for a book on this subject. Every volume of the Maryland Reports and Maryland Appellate Reports — as well as many other sources — was reviewed page by page to discover all cases dealing with Maryland corporation law issues since 1658. The book contains many easy-to-use forms, including articles of incorporation, bylaws, organizational and other minutes, board and stockholder resolutions, articles of merger, articles of amendment, articles of transfer, and articles of dissolution. All are specific to Maryland. The 2018 Supplement also includes the author’s analysis of recent statutory and case law developments.
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MARYLAND BAR JOURNAL | SPRING 2019
| MSBA IN THE COMMUNITY
DAY OF SERVICE
MARYLAND LAWYERS GIVING BACK TO THEIR COMMUNITIES
Local and specialty bar associations around the state, as well as the MSBA, joined in the first annual Maryland Lawyers’ Day of Service April 27-28, 2019. The theme for this day of service was helping the state’s homeless populations. From pro bono trainings to home repair, Maryland’s legal professionals turned out in force to help the communities in which they live and work. ALLIANCE OF BLACK WOMEN ATTORNEYS Six ABWA members collected and delivered over 40 bags of hygiene items to Baltimore’s Karis Home, a homeless shelter for women and children. The next day, eleven ABWA volunteers turned out to serve breakfast to 82 members of the city’s homeless population at My Sister’s Place Women’s Center. Valda Ricks, who with Janine Scott co-chairs ABWA’s Community Service Committee, said the volunteers were motivated by a desire to “give back to our community where we work, live, and advocate.”
“We were motivated by a desire to give back to our community where we work, live, and advocate.”
BAR ASSOCIATION OF BALTIMORE CITY Approximately 10 BABC members gathered at Our Daily Bread to volunteer in the First Annual Lawyers’ Day of Service. These volunteers served meals to individuals experiencing hunger, including seniors, homeless families, and people with disabilities. Several of the volunteers described this act of service as a humbling and rewarding experience. BAR ASSOCIATION OF MONTGOMERY COUNTY The Bar Association of Montgomery County held an interdisciplinary listening forum on “Alternatives to the Criminalization of Homelessness in Our Community” in partnership with the Montgomery County Interagency Commission on Homelessness. Attorney volunteers also participated in a pro bono legal clinic focused on expungement in partnership with the Homeless Persons Representation Project and the Montgomery County Coalition for the Homeless. BAMC members also volunteered their time stocking and organizing donations for the Wider Circle Center, and also assisted the Center’s clients in selecting items. BAR ASSOCIATION OF FREDERICK COUNTY On April 27th, 21 volunteers from the Bar Association of Frederick County, MD , The Religious Coalition, and friends gathered to revamp the outside appearance of the Alan P. Linton Emergency Shelter. Old bushes were ripped out and existing trees and plants were pruned and new edging and flower planters were installed. A shed was also erected in the Community Garden. 8
MSBA.ORG | SPRING 2019
BALTIMORE COUNTY BAR ASSOCIATION BCBA members participated in three separate events. Two of the events were at the Eastside Family Emergency Shelter in partnership with Empower4Life. In one event, volunteers assembled personal care products, and for the other they served dinner to families in need. The BCBA also held a Pro Bono Legal Clinic at Baltimore County Public Library In partnership with Women’s Law Center of Maryland, Maryland Legal Aid, and Maryland Volunteer Lawyers Service.
CALVERT COUNTY BAR ASSOCIATION The Calvert County Bar Association worked with Christmas in April to renovate a home for a family in need in Calvert County. Christmas in April, in partnership with the community, repairs and improves houses and other physical structures to ensure that low income persons live in warmth, safety and independence. Lawyers provided both financial support for the supplies as well as worked on site to complete the repairs & renovations. HOWARD COUNTY BAR ASSOCIATION Members of the Howard County Bar Association hosted a Q&A session for the residents of Grassroots Day Resource Center. LGBTQ BAR ASSOCIATION OF MARYLAND The LGBTQ Bar Association collected supplies and put together hygiene kits for Youth Empowered Society in Baltimore City, a drop-in center for homeless youth. PRINCE GEORGE’S COUNTY BAR ASSOCIATION Members of the PGCBA participated in the state-wide Day of Service by assisting with a landscaping project at Prince George’s House and by hosting an event to educate youth on their rights. Both events were a huge success. After our hard work the shelter was much improved for the residents and the community at large. The young adults left the educational event with a better understanding of the law and their rights. The Executive Director of the PGCBA, Robin Hadden, noted how the Lawyers’ Day of Service helped improve the image of lawyers. “The Maryland Lawyers’ Day of Service is a great way for communities to see attorneys in a different light- especially focusing on the homeless,” said Hadden.
SOUTHERN MARYLAND WOMEN’S BAR ASSOCIATION The Southern Maryland Women’s Bar Association hosted a brunch, with a portion of event proceeds going to benefit UNICEF USA. ST. MARY’S COUNTY BAR ASSOCIATION Members of the St. Mary’s County Bar Association provided hygiene kits to the residents of the Three Oaks Center which provides the homeless in St. Mary’s County with housing, stabilization, assessment, and referral to resources. EVERETT J. WARING / JUANITA JACKSON MITCHELL LAW SOCIETY Volunteers from the Everett J. Waring and Juanita Jackson Mitchell Law Society provided lunch at the Grassroots Crisis Intervention Center. ANNE ARUNDEL COUNTY BAR ASSOCIATION Anne Arundel County Bar Association provided Landscaping support for the house of hope in Glen Burnie. Attorney volunteers worked on landscaping projects at the Arundel House of Hope’s Fouse Center, one of their transitional housing centers. Volunteers worked on landscape clean up, laying mulch, and light gardening. Thank you to all of the Bar Associations and individual members of the legal community who made the first annual Lawyers’ Day of Service a success.
“The Maryland Lawyers’ Day of Service is a great way for communities to see attorneys in a different light – especially focusing on the homeless.”
SOMERSET, WICOMICO, AND WORCESTER COUNTY BAR ASSOCIATIONS Three local bar associations teamed up to raise almost $5,000 to purchase a playground set and rubber mulch for a local homeless shelter. Additionally, materials for a gazebo will be purchased and constructed on a future date. All three local bar associations made a monetary donation as well as over 20 individual donations from among the membership. Almost 50 adults and children attended the ribbon cutting ceremony and picnic, which included kid-friendly activities.
LAWYERS GIVING BACK See all the activity around the first Maryland Lawyers Day of Service. VISIT MSBA.ORG/SERVICE MARYLAND BAR JOURNAL | SPRING 2019
| MSBA IN THE COMMUNITY
Members Across the State CUMBERLAND
FIGHTING ADDICTION IN ALLEGANY COUNTY
As a native of Cumberland MD the Hon. Jeffrey Getty returned to his hometown after serving as a U.S. Attorney in Baltimore. Before being appointed to the bench his practice focused mainly on commercial litigation and medical malpractice defense. He now serves as a judge on the Fourth Circuit Court for Allegany County. As a reaction to what he saw on the bench judge Getty helped start a drug court to address addiction in his community. We talked to him about his work fighting addiction. You recently started a drug court program in Allegheny County. Can you tell me what motivated you tackle drug addiction? There was an effort before I was appointed to the bench to try and organize a drug court. What was missing from that was a circuit court judge who had a willingness to get involved in and thought that there was a need and wanted to explore it. When I went on the bench I had not really done very much criminal law and certainly in the last 10 or 15 years I had done almost none. I was really surprised when I got on the bench that virtually every criminal case had a drug component to it. That is also true in the domestic cases there was almost always drug issues. Certainly, that’s true in juvenile cases. So, I decided I was going to have to get myself familiar with what recovery is and what that process entails. As I understand it drug court is a pretty intensive program that combines therapy, monitoring and verification while helping people work toward managing their addiction. What kind of results can you except from that type of commitment? If you can get them through the program, and it's sometimes 18 to 24 months as a program, their chances of reoffending statewide or is down under 20 percent. There is no secret at all that almost everybody who comes into drug court comes into drug court because their alternative is to sit in the Division of Corrections and they would like to explore another alternative. When they get into the program if they can get clean and sober for a lot of these people it would be 10 years ago was the last time they can remember not using opioids. They actually prove to themselves that there is a possibility to do this. How do you measure success? In some ways, we try to measure success the same way they measure success with cancer treatments. You want to have increasingly long periods of time and if you can get somebody to a year sobriety then WEB EXTRA their chances of getting BACK WHERE HE STARTED to three years sobriety is Listen to Judge Getty share how his just statistically improved. legal career started and came back Convincing these people that to Cumberland. they can learn to live a life that is free of opioid dependency VISIT MSBA.ORG/JGETTY is is half the battle. 10
MSBA.ORG | SPRING 2019
BRINGING ATTORNEYS TOGETHER AT THE LOWER SHORE MEET AND GREET March 28, 2019: As the sun slowly set over the Wicomico river attorneys from across the lower shore converged on Brew River in Salisbury Maryland for a chance to meet some of the MSBA leadership and hear an update on the MSBA’s activity. The MSBA partnered with the Wicomico, Worcester and Somerset County bars to host this event. MSBA board member Steve Rakow explained why these types of events are important “Any time you can share information among practitioners is great. The networking is good. We’re seeing people outside of our normal zone. Which is the courthouse or litigation. It’s a time to relax and build that camaraderie.” Attendees enjoyed drinks and refreshments before hearing a business update from MSBA president the Hon. Keith Truffer and Executive Director Victor Velazquez. These leaders highlighted the MSBA’s new technology, staff and expanded services. They also answered questions from the crowd. Gill Allen, President of the Wicomico County Bar was glad to see the state bar make its presence known on the lower shore. “I think it’s great to see the state bar is focused on some of the smaller more rural areas of the state… I think it’s great to get attorneys that might be outside the more metropolitan areas involved in state bar membership and all the benefits state bar membership brings” WEB EXTRA
MSBA IS EVERYWHERE See what happened during our meet up in Salisbury. VISIT MSBA.ORG/LOWER-SHORE-VIDEO
YOU DON’T HAVE TO FAKE IT TILL YOU MAKE IT Terri Lowery practices Bankruptcy in Cumberland Maryland with Trozzo, Lowery and West. She serves on the policy review committee and is an active member of the MSBA Consumer Bankruptcy section. We talked to her about how she got into the law and the value she finds in MSBA membership. What made you want to be a lawyer growing up? I grew up here in Allegheny County in a little town called Mount Savage which is sort of the suburbs of Cumberland. I can remember being a little kid and people saying that I should be a lawyer. I was actually very shy at one time and people kept commenting on that. My teachers would complain about it, parents would complain about it and so I started sort of speaking up. What is something you’ve learned you’d like to share with newer lawyers? Young lawyers often try to hide the fact that they don't know the answer right away. They're not sure what they're doing. But when you go to court and you're not sure what you're doing, you're not sure what the most current decision is, then you can really mess things up for people. I mean you're dealing with people's lives here. It's not a good idea to sort of just wing it and learn from your mistakes because someone else is going to pay the price for that. So, the Bar Association has not just publications it has people. People who will talk to you. Very specialized groups of people that can delve into a particular kind of case or a particular subject matter that can make a difference in your clients’ life. How do you stay up to date on issues important to your practice? WEB EXTRA
IT’S IMPORTANT TO ASK QUESTIONS Hear Terri share how she put together a network of attorneys to help her with legal questions as a young lawyer. VISIT MSBA.ORG/TLOWERY
The Consumer Bankruptcy section email discussion list is very very active. We're very fortunate to have the attorneys that we have on that and it's what brought me into the MSBA for sure. It's a huge advantage and so we spend a lot of time on that email discussion list discussing what's changed. There could be a decision in the Ninth Circuit yesterday or Friday that is relevant to our practice today. That could change everything in a case so the email discussion lists are a really good way to keep up on those things. What benefit do more rural attorneys get from being a member of the MSBA? I do think it's important for attorneys in the rural areas to be involved with the Bar Association because it does open up a whole group of people that you wouldn't have the opportunity to meet or discuss things with otherwise.
APRIL BOARD OF GOVERNORS IN PORT DEPOSIT On Tuesday, April 16, the MSBA Board of Governors convened at the Donaldson Brown Conference Center in Port Deposit, Cecil County, a venue rightly renowned for its scenic sunsets overlooking the Susquehanna River. Exciting things are happening in Cecil County, Maryland, especially in and around Perryville. Ten years after Hollywood Casino opened, and about one year after Amazon opened one of its latest facilities, Great Wolf Lodge announced that it plans to construct a hotel and resort in Perryville. They anticipate an investment of approximately two hundred million dollars to create a state of the art hotel/lodge with indoor and outdoor water park amenities, various eateries, and other amenities to provide fun for the entire family. Just as Hollywood Casino did 10 years earlier, Great Wolf Lodge retained Dwight E. Thomey of the Elkton law firm, Baker, Thomey & Emrey, P.A., to assist them as they began the local and state government approval process for such a large project, the first of its kind in Maryland, just as Hollywood Casino was the first casino in the State. The project has provided unique challenges, similar to Hollywood Casino, in that local ordinances needed to be amended to provide for a use not previously anticipated, and many agencies need to be satisfied. The success of both projects has been based upon meeting with all of the stakeholders early in the process, carefully listening to their concerns, and addressing them as the planning process unfolds. “From helping to negotiate contracts, assisting in seeking incentives, gaining zoning and site plan approvals to obtaining a liquor license,” says Thomey, “I like to think we have been an important part of this project that will benefit the community by adding hundreds of jobs, millions of dollars of new revenue, and one more place to enjoy the good life at the top of the Chesapeake Bay. MARYLAND BAR JOURNAL | SPRING 2019
| MEMBER SPOTLIGHT
HELPING THOSE HARMED BY C O M M E R C I A L SEX WORK IN PRINCE GEORGE'S COUNTY
LLAMILET GUTIERREZ Executive Director, Amara Legal Center Llamilet Gutierrez is the executive director of the Amara Legal Center. They provide legal services to individuals in the D.C. Metro area who have been harmed through their involvement in commercial sex. She is a graduate of the MSBA Leadership Academy and is now on that committee. We talked to her about the work she is doing and how she got into the law.
Photo courtesy of Beverly Funkhouser Photography 12
MSBA.ORG | SPRING 2019
What kind of work do you do at Amara? At the Amara Legal Center, we provide legal services in Maryland, DC and Virginia. We do intakes throughout the city (D.C) at high schools as well as at some of our partners where we know our potential clients are being served. We try to be strategic about making sure that we meet our clients where they are instead of having them come to our office which might not be convenient. We're a legal services provider but in addition to that we also provide legal advocacy especially in Annapolis, in DC at the DC Council and then we've started doing work in Virginia at their legislature as well. We want to make sure that when legislators are creating laws that affect our clients, for example human trafficking laws as well as vacatur laws, that we're making these laws in a very client-centered way that actually assists clients instead of hurting them.
What made you want to get into the law? At ten years old, I decided to be a lawyer but at that point I wanted to be a prosecutor. The attorney that visited our classroom in fifth grade was a prosecutor. So, between that and Law and Order that was pretty much what I wanted to do. I wanted to be Jack McCoy. Then in my third year of college I had an opportunity to do the DC semester. Part of that was completing an internship. I applied to the US Attorney's Office and that was really my goal to work for a prosecutor on that level. Instead I got an interview for the public defender's office of D.C. and my professor basically pushed me. He's like take the interview let's see how it goes and sure enough I got an offer from them and I was not happy.
That was probably one of the biggest changes or transformative experiences in my life because after that internship I could not see myself at a prosecutor's office. I loved helping people I loved the investigation part of it.
We're making these laws in a very client-centered way that actually assists clients instead of hurting them. Tell me about the Prince Georgeâ&#x20AC;&#x2122;s County Social Innovation Fundâ&#x20AC;&#x2122;s 40 under 40 Award. The Social Innovation Fund highlights individuals who live in our community and who are working to make our community a better place. That's why I'm really excited. I love Prince George's County. Like I said earlier it reminds me a lot of my own community in South Central LA. I volunteer as a mock trial coach here, I volunteer in different ministries through our church that benefit Prince George's County and then obviously I'm actively involved in the Prince George's County Bar Association. I love it here.
THE IMPORTANCE OF NETWORKING Listen to Llamilet share how she got to the position she holds today. VISIT MSBA.ORG/LGUTIERREZ
MARYLAND BAR JOURNAL | SPRING 2019
| MEMBER SPOTLIGHT
HONORING O U R PA S T A N D HOPEFUL FOR
Photo courtesy of Beverly Funkhouser Photography 14
MSBA.ORG | SPRING 2019
HARRY S. JOHNSON Litigation Partner, Whiteford Taylor Preston, LLP The members of the MSBA elected Harry Johnson as their president in 2003. This was the first time in the history of the MSBA that an African American attorney would head the organization. 2003 also marked the 50th anniversary of Brown v. Board of Education. WE TALKED TO President Johnson about his year as MSBA President and what he learned from the experience.
Your term coincided with the 50th Anniversary of Brown v. Board of Education. Did you do anything to acknowledge the occasion?
FIRST ANNUAL DIVERSITY & INCLUSION CONFERENCE MSBA Past President Harry S. Johnson delivered his keynote address to the more than 60 attendees of the First Annual Diversity & Inclusion Conference on Thursday, March 21, 2019, at the University of Baltimore.
At the same time that I was State Bar president I was also on the board for Center Stage the regional theatre here in Maryland. A wonderful theater. So, I persuaded center stage to do a reader's theater piece based on Brown v. Board of Education which we did in the spring. Their dramaturg Gavin Witt wrote the play. We had 14 or 15 prominent members of the bar reading different roles of people in Brown v. Board of Education.
Why was highlighting the 50th anniversary of the end of legal school segregation important to you? I grew up during the civil rights movement but for a lot of people it's not part of their consciousness. I'll tell you a little story. My son was about ten years old at the time and he went to the production. We rode to work and school together every morning and the next morning he said “Dad. Do you mean there was a time when black and white kids couldn't go to school together?” and that was a sobering comment because in his world he's not aware of that. So that production brought that to his consciousness so that's why that was really important.
Do you have any advice for younger lawyers? My advice would be that you can't look at practicing law as a job. You have to find where your passion is. There are a lot of different places to have passion in the law but it is too hard to try to do this as a rote exercise. You have to have some passion to be working on weekends when the weather’s nice and you could be playing golf or playing tennis. But one of the things that I would recommend to younger lawyers is find your passion but also find your work-life balance.
ADVICE FOR NEW LAWYERS Harry shares how he learned to deal with difficult conversations with clients. VISIT MSBA.ORG/HJOHNSON
What do you think about the current state of the profession? I am encouraged that it's not so much about the money now as it was in the late 80s and early 90s. That we're getting back to young lawyers who really have more passion about social issues. We're seeing younger people that are more active in social issues and the Bar Association has to be able to respond to that and help people meet their passion.
MARYLAND BAR JOURNAL | SPRING 2019
| INSIDE ANNAPOLIS
Christopher West Maryland Senator
Photo courtesy of Beverly Funkhouser Photography 16
MSBA.ORG | SPRING 2019
C O L L A B O R AT I V E
RESOLUTIONS Chris West is a member of the Maryland Senate, where the Republican represents the 42nd District (central and northern Baltimore County). He also previously served in the Maryland House of Delegates as well as on the MSBA Board of Governors. After graduating from Williams College, the Maryland native attended the University of Pennsylvania Law School, where he procured his JD in 1975. Senator West recently sat down with the Maryland Bar Journal to discuss his late entry into politics, gerrymandering, and collaborative problem-solving. How have bar associations benefited your legal career? Coming back from Penn Law, I didn’t know anybody in Maryland since I hadn’t gone to the University of Maryland School of Law or the University of Baltimore School of Law. I’d rather have a wide network of friends, and the best way to get to know people outside of my own law firm was by first joining the Bar Association of Baltimore City, then ultimately the MSBA.
You played an integral role in the creation of MSBA’s Continuing Legal Education Department following the demise of MICPEL (Maryland Institute for the Continuing Professional Education of Lawyers) in 2010. I volunteered to serve on a committee chaired by Marshall Paul. There were four of five of us trying to figure out what we were going to do to create a successor organization to MICPEL. I think that what we did bringing it in under the aegis of the Maryland State Bar Association has worked out well.
What motivated you to enter politics? Most people get involved running for political office when they’re relatively young, so they’ve got a whole lifetime ahead of them to develop their political career. I did the inverse - in my case, I had reasons why I just couldn’t get actively involved in politics when I was younger. I had a wife and a young child, and I had to earn a living and build a practice. Plus, gerrymandering put me in a district that I could never win. That changed in 2010 with redistricting - I was 64-years-old, and all of a sudden my house was in a district I could win. I was financially independent. I thought to myself, I could either practice law for 10 more years and then turn out the light and retire at the age of 74, or I could do something new and disruptive. I decided to opt for the new and disruptive, so I ran for office and, lo and behold, I won. I’m recommending to a lot of friends who have reached their early to mid 60s that they consider doing something similar now - maybe not running for office, but doing something that’s different from the same-old same-old in your later years to try to give back to the community before you literally retire. I was a business lawyer and almost
never went to court. Most businessmen don’t want to go to court they want to carve out their own decision and therefore resolving things amicably in a conference room is far more preferable to them than risking a rolle of the dice in court.
How has that philosophy informed your political career? For much of my legal career I tried to pull people together and try to solve problems in ways in which everybody goes away thinking, I didn’t get exactly what I wanted, but what I got was better than I could have gotten if I’d gone the other direction. And that’s exactly my approach down here in Annapolis, whether you’re a Democrat or a Republican, whether you’re a liberal or a conservative. There’s no reason why we can’t work in a collaborative way to try to resolve issues.
You were the only Republican on the Senate Judicial Proceedings Committee to vote in favor of moving the socalled “Death with Dignity” bill on to the full Senate this Session, where it subsequently failed. My mother-in-law died an extremely tragic and difficult death. She had COPD, and literally drowned in plain air, desperately gasping for breath. I won’t go into the details, but it was extremely harrowing and she was in terrible pain and suffered grievously at the end of her life. The vast majority of Marylanders polled - 66 percent - are in favor of allowing someone in that kind of condition to voluntarily end their own life.
With so many related issues ranging from estate and trust to real property involved, how has your legal acumen come into play? I’ve never practiced health law - that was a far heavier lift than criminal law has been. It’s been exciting down here, because it’s sort of like my early days as a general practitioner. I did a little bit of everything. Here, it’s sort of the same - you’re doing a little bit of everything, and you have to quickly get up to speed at least enough to be dangerous in areas of the law that you’re not familiar with.
LAWYER LEGISLATOR: Chris West explains how his experience as a lawyer helps him in the Maryland State Senate.
VISIT MSBA.ORG/CWEST MARYLAND BAR JOURNAL | SPRING 2019
| FIRM UPDATE
Global Markets, Local Talent
GLOBAL MARKETS CREATE a need for talent that crosses borders. Recently, MSBA Ex-
Look for our profile of DLA Piper in a future issue of the Maryland Bar Journal. WEB EXTRAS
HIGH QUALITY LEGAL WORK IN THAILAND Hear about the kind of work DLA Piper is doing in Thailand. VISIT MSBA.ORG/DLAPIPER
ecutive Director Victor Velazquez took time out from his vacation to sit down with DLA Piper Thailand Managing Partner Peter Shelford in the firmâ&#x20AC;&#x2122;s Bangkok office to talk about how law firms are expanding in Thailand. What follows are excerpts from their conversation.
What kind of work are you doing in Thailand? Weâ&#x20AC;&#x2122;re a full-service office here, divided into four practice groups - litigation, corporate real estate and project finance. We're a fully licensed Thai practice. I'm not qualified to practice in Thailand, so my role here is to facilitate communication with clients rather than to actually act as a lawyer on the ground. But I also practice in Singapore, where I have a foreign practicing certificate, so I do commute between here and Singapore.
How is the Thailand economy? In terms of our business, certainly in the last year we've been incredibly busy with a lot of new investments coming in, particularly in the infrastructure area - a lot of new infrastructure projects. We also have a very big dispute practice here. Almost 50 percent of our practice is dispute, and we particularly specialize in insurance, which is my main area.
How is DLA positioning itself? We have expanded as a law firm globally incredibly quickly, as you're aware over the past 15 years since we joined up with our US colleagues. I think we're now going through a period of consolidation and really understanding what each office is doing within the overall strategic aims of the firm. I think the levels of expansion have reduced, the rate of expansion was reduced, and we're now looking at a more focused development in certain key areas. In Bangkok, we're looking to expand into more high-level corporate M&A transactions and also developing the project finance and infrastructure type work.
What would you say to an attorney thinking about practicing in Thailand? As I mentioned earlier, I'm not qualified to practice in Thailand, so I cannot come here as a lawyer. I'm here as managing director of the company. I facilitate rather than actually practice law. It is easier for American lawyers because we have a treaty of amity between America and Thailand, which makes it a bit easier for American lawyers to work in Thailand. But if you look at the number of foreign lawyers here as opposed to the number of Thai lawyers, the rate is much lower than most other countries because it is quite challenging to get visas to work here as a lawyer. 18
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MARYLAND BAR JOURNAL | SPRING 2019
| ACCESS TO JUSTICE
The Maryland Access to Justice Commission is an independent entity that unites leaders to drive reforms and innovations to make the civil justice system accessible, user-friendly and fair to all Marylanders. One of our key projects over the past year has been understanding and shedding light on the issue of ICE Arrests in Maryland Courts. We will share our work on this important access to justice issue over a series of articles in the Maryland Bar Journal.
ICE Arrests in Maryland Courts BY WARD COE AND REENA SHAH
â&#x20AC;&#x153;The unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy.â&#x20AC;? 1 IN RESPONSE TO increased1 reports of Immigration and Customs Enforcement
(ICE) arresting individuals in state and federal courthouses across Maryland in late 2017, the Access to Justice Commission (A2JC), which had been already convening immigration legal services and defender providers since the start of 2017, formed a sub-committee to study the issue and understand its scale and scope. The shared concern was that ICE arrests in courts may be: 1. impeding the ability of all Marylanders to access equal justice under law; 2. undermining the ability of the courts to administer justice fairly and efficiently; and 3. impacting public trust in the justice system and the rule of law. After researching what other states were doing in response to the issue, A2JC developed and disseminated a survey to legal and social services providers, private attorneys, community, faith-based and health organizations and other entities that may serve immigrant communities. The survey ran for three weeks and closed on October
MSBA.ORG | SPRING 2019
During the afternoon traffic docket, bailiffs and an ICE officer surrounded public defender and his client, inside the well of Judge courtroom once the State entered a Nolle Prosequi. Client was out of custody and standing beside public defender. Public defender reported that three Bailiffs came up in front of them and a plainclothes ICE agent came into the well. The agent was a black male wearing a blue shirt and a pistol on his waist. He did not display a badge. The bailiffs handcuffed client and only said that he had a detainer. The bailiffs and ICE agent took him out of the courtroom through the back. As this happened, Judge continued on with the Docket and did not address the bailiffs or ICE agent. Public defender asked the State's Attorney if he knew that ICE was in the court. The State said that he knew ICE was around but didn't know who they were targeting.
12, 2018. A2JC also consulted stakeholders and conducted legal research to determine a Maryland-specific approach to addressing this important issue. This article will primarily focus on explaining the issue, sharing the survey data and some of the stories that were reported, and providing a brief glimpse into what is happening nationally in response to the issue. Survey Results The results of the survey confirmed that A2JC’s concerns regarding ICE court arrests were well-founded. ICE Arrests One-hundred-six individuals from 60 organizations that represent every jurisdiction of the state weighed in. Incidents of ICE court arrests were reported across the state, with 10 jurisdictions reporting the most activity (see map below). Survey respondents reported a total of 72 witnessed arrests between January 2017 and October 2018. This may be an undercount as organizations that routinely work with detainees and track how individuals end up in detention provided a count in the range of 110-154 arrests for the time period. ICE court arrests were reported to have happened in courtrooms, courthouse halls, and courthouse parking lots - always in public view and usually by ICE agents in plain clothes. Court security personnel and judges were informed and aware of ICE’s presence in courts. Sheriff ’s offices were also informed. Sometimes, they were aware of the individuals who would be targeted for arrest. Collateral Consequences of ICE Arrests The survey also demonstrated the ICE court arrests caused substantial collateral impact to Marylanders and the justice system as a whole. Fear of going to court
and interacting with the justice system was pervasive, highlighted by the finding that people were more fearful of going to court than interacting with law enforcement. The survey found that the ICE court arrests caused many Marylanders to forego their shot at justice, choosing not to pursue or defend potentially meritorious cases. About 50 percent of the respondents reported that they encountered at least one individual who refused to file an action or defend a case because of ICE court arrests. Marylanders chose not to apply for public benefits, pursue housing actions, and file wage theft claims. However, in the largest area where individuals were reticent to pursue claims was domestic violence, respondents reported 472 instances where individuals did not file or were afraid to file a domestic violence or sexual assault case. Additionally, respondents reported 411 instances where individuals did not file or were afraid to file a family law case, and 338 instances in which they did not file or were afraid to file an immigration case. The survey further showed how ICE court arrests impacted the administration of justice. People were afraid to serve as witnesses in cases, opposing attorneys were using the threat of an ICE arrest to sway case outcomes, and bench warrants were issued for individuals in ICE custody. A quarter of the respondents reported encountering at least one person who refused to serve or was afraid to serve as a witness in a case. This cohort reported approximately 110 cases where witnesses refused to testify because of the fear of an ICE court arrest. Thirty-eight percent of respondents encountered at least one individual who had been threatened by or was afraid of an
opposing party or attorney calling ICE on them. Twenty-six percent of respondents reported encountering at least one client being arrested by ICE immediately upon release from State custody, causing the client to miss his upcoming criminal hearing and have an outstanding bench warrant. ICE Policy A January 2018 ICE Directive entitled “Civil Immigration Enforcement Actions Inside State Court“ states the following with respect to ICE policy: 1. Federal, state, and local law enforcement officials routinely engage in enforcement activity in courthouses throughout the country because many individuals appearing in courthouses for one matter are wanted for unrelated criminal or civil violations. 2. ICE officers and agents should generally avoid enforcement actions in courthouses, or areas within courthouses that are dedicated to non-criminal (e.g., family court, small claims court) proceedings. 3. Civil enforcement actions inside courthouses should, to the extent practicable, continue to take place in non-public areas of the courthouse, be conducted in collaboration with court security staff, and utilize the court building’s non-public entrances and exits. ICE’s rationale for taking enforcement actions inside courthouses is to reduce safety risks to the public and ICE agents because the individuals entering courthouses are screened for weapons and other contraband2. National Responses ICE arrests in courts are a nationwide problem not unique to Maryland. In response, many prominent voices have spoken up against the practice. The chief justices of California3 and New Jerse4y have written letters expressing concerns about how ICE presence in courts impedes access to justice and erodes trust in the justice system. The American Bar Associatio5n has advocated for ICE to add courthouses to its list of “sensitive locations,” which currently includes schools, medical treatment facilities, places of worship, religious or civil ceremonies, or observances or public demonstrations.6 A prominent group of former state and federal judges - including 25 former state supreme court justices and 10 chief justices from across the political and ideological spectrum - sent a letter7 urging ICE to halt arrests at courthouses. MARYLAND BAR JOURNAL | SPRING 2019
This is a transcript from a court proceeding that illustrates how ICE court arrests in Maryland are transpiring. cch 3 1PROCEEDINGS 2 (Whereupon, at 9:41 a.m., the proceeding began.) 3 THE CLERK: Now calling number six on the docket, 4 5 Good morning, Your Honor, 6 on behalf of . This is 7 case, the State. She was here. 8 THE COURT: We will pass it. 9 MS. : Do you have -10 It is a nol-prossed, so, I don’t know 11 if anyone wants to (inaudible). 12 MS. : Oh, we can pass it. 13 I mean she told the Clerk. 14 (Whereupon, at 9:42 a.m., the case was passed and at 15 10:30 a.m., the case was recalled.) 16 THE CLERK: Recalling number six on the docket, 17 18 Good morning, Your Honor, 19 Meiring on behalf of Mr. Garnica Mertinez. 20 MS. FLUCAS-CUSH: Good morning, Your Honor, Latrice 21 Flucas-Cush on behalf of the State. Your Honor, in this 22 matter the State is unable to proceed because the victim was 23 recently deported. So, in this matter, the State will enter 24 it nolle-prosequi. 25 Based on our speedy trial demand.
cch 5 1 The only County Warrant I saw was 2 someone on a different birthday and a different spelling of 3 the name. Perhaps that is the same person but -4 Does the Sheriff have this warrant 5 as well? 6 THE SHERIFF: I am not taking him on that warrant. 7 On which warrant? 8 THE SHERIFF: I am not taking him on a warrant. 9 You are serving an immigration 10 warrant? 11 THE SHERIFF: Yes, they are downstairs waiting on 12 him. 13 In District Court -- or in Circuit 14 Court here, in our State Court? 15 THE COURT: I am sorry? 16 The Sheriff indicates that he is 17 serving -18 THE SHERIFF: I’m not serving anyone. 19 Then why is he in handcuffs if you are 20 not? 21 THE SHERIFF: Because I am picking him up an agent 22 that’s downstairs waiting for him downstairs. I’m not serving 23 anything. 24 THE COURT: When you say agent, you mean -25 THE SHERIFF: Yes, an immigration agent. He is
cch 4 1 Your Honor, however, the Defendant 2 does have -3 THE COURT: Wait a minute, slow down. We never 4 sworn the interpreter. 5 Oh, I am sorry. 6 (Interpreter was sworn.) 7 You need us to start over or are 8 we okay? 9 THE COURT: No, you represent that you have been 10 interpreting throughout? 11 THE INTERPRETER: Yes, I do. 12 Your Honor, the Court should be 13 aware that the Defendant has an immigration detainer as well 14 as a warrant outstanding in our County for 15 THE COURT: Okay. Well, first and foremost, I will 16 enter the matter that is currently in front of me nolle17 prosequi.
cch 6 1 waiting, so, we will take him into custody and I am handing 2 him over to (inaudible). 3 So, the Sheriff is indicating that he 4 is not serving the warrant but he is putting handcuffs on him 5 and taking him into the back? 6 THE COURT: Yes, he is. 7 Well, please note that we oppose this 8 strongly. I think that this is an inappropriate use of both 9 our Court resources and our Sheriffs, especially, in a case 10 that is entered nolle-prosequi. 11 THE COURT: Okay. But let’s think about this. If 12 there are agents here in the building, so, we can do it one or 13 two ways, you can let him go right now, and the agents wait 14 for him at the front door or you can take him downstairs and 15 give him to the agents. I understand that way, if there were 16 no agents in the building, I agree with you wholeheartedly, I 17 would not admit the Sheriffs to do the work of the Federal 18 Agents. 19 But they are here in the building. You rather for 20 this to place on the lobby? 21 I don’t think it is appropriate for it 22 to be taking place in this courthouse in general, especially 23 when someone is brought in for a case that was dismissed by 24 the State. 25 THE COURT: Well, I understand what you are saying.
18 Note the speedy trial demand. 19 THE COURT: Speedy trial demand noted. Thank you 20 ladies. 21 Thank you, Your Honor. 22 Are we serving the immigration warrant 23 on him at this time? 24 THE COURT: I thought she said he has an outstanding 25 County warrant also?
cch 7 1 You need to take that to 1600 Pennsylvania Avenue, all right, 2 thank you. 3 We made our attempts. 4 (Whereupon, at 10:34 a.m., the proceeding was 5 concluded.)
MSBA.ORG | SPRING 2019
I was called into the courtroom in Montgomery County District Court (Rockville) by one of our public defenders who said that three ICE agents were in the courtroom. When I arrived, the District Court (bench) trial of the client was on-going. In the courtroom, I saw the three ICE agents. They were in plainclothes. I motioned for them and they went outside into the hall with me. I spoke to them, told them who I was and asked why they were there. One of them said that our client had a final order of removal and they were there to take him into custody. I asked to see the order. He said they would show it to me only if I had a “G-28” (notice of representation by an attorney) on file. I responded that we represent the client in the case proceeding in the court at that moment. He still refused. I went back into the courtroom and the attorney handed me some papers (while she was conducting the client’s trial) and I was able to find his “A” (“alien”) number. I went to my office (one floor downstairs) and called the immigration court automated phone line, which said that the client had been ordered removed by an immigration judge in Baltimore a year before, when he was still a juvenile. I went back to the courtroom and passed the attorney a note. Shortly thereafter, the trial judge found the client not guilty of the charge. I quickly spoke to the client and told him what was happening. He told me he had been an accompanied minor, had been encountered by DHS in Texas and then placed with his mother in Maryland. He gave me his mother’s name and phone number. The ICE agents, the client, and I walked out of the courtroom. They handcuffed him in the hall. I helped translate for him and for the ICE agents. They walked him down the hall (a public and open place) and took him away. I called his mother to tell her the bad news. She said they had not moved or changed addresses and had not known about the immigration court hearing. Thus, this was an in absentia order, which immigration judges are permitted to issue if the person does not appear. Essentially it is a default judgement of deportation. I contacted Capital Area Immigrants’ Rights (CAIR) Coalition the same day to alert them that he would be in ICE custody and to see if it would be possible to have a motion filed to reopen his in absentia removal order. Unfortunately neither they nor his mother was able to identify an attorney to file such a motion. As far as I know, he was deported to El Salvador.
States have also crafted individualized strategies and campaigns. Here are two recent examples: In April 2019, Massachusetts district attorneys and public defenders filed a lawsuit to block ICE enforcement in courthouses stating in the complaint that: "Entire communities now view the Massachusetts courts as places where they cannot go, for any reason, greatly impeding access to justice and undermining the administration of justice in these communities."8 This happened a week after a Massachusetts state judge and former court officer were indicted on charges of obstruction of justice after being accused of helping an undocumented defendant elude immigration authorities9. In April 2019, the New York State Office of Court Administration (OCA) announced it was implementing rules10 prohibiting ICE from arresting individuals in state courthouses without a judicial warrant or judicial order. This followed a repor11t measuring the harmful impact of ICE’s increased courthouse operations and after a two-year community campaign by the ICE Out of Courts Coalition advocating for court rules and legislation to keep ICE from arresting immigrant survivors of violence, witnesses, defendants, and family members in and around courthouses across New York. Maryland In March 2017, Maryland Attorney General
Brian Frosh, sent a lette12r to Secretary of Department of Homeland Security, John Kelly, and others, making an urgent request to “designate Maryland courts” as locations “where no enforcement activities related to the identification or seizure of undocumented immigrants for purposes of deportation will be conducted.” The Attorney General voiced his concern for “the safety of Marylanders who turn to the courts for protection against domestic violence and other crimes,” foreseeing that the new policies would “discourage the most vulnerable immigrants from seeking judicial protection.” The A2JC survey confirms that the concerns voiced in this letter have come to fruition. ICE arrests in courts are having a chilling effect and are freezing out many Marylanders from their opportunity to access justice. They are impeding the administration of justice and negatively affecting the public’s perception of courts as a destination for justice. Our courts are one of the core foundations of our democracy. A2JC will continue to shed light on this issue to ensure that our courts are accessible to all Marylanders. The Maryland Access to Justice Commission is proud to be in partnership with the MSBA to advance access to justice for all Marylanders. To learn more and support our work, visit www. mdaccesstojustice.org.
1 Cox v. Louisiana, 379 U.S. 559, 562 (1965). 2 U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests, last updated September 25, 2018 at https://www.ice.gov/ero/enforcement/sensitive-loc. 3 Letter from California Chief Justice Tani G. Cantil-Sakauye to Attorney General Jeff Sessions and U.S. Department of Homeland Security Secretary John Kelly (March 16, 2017) at https://newsroom.courts.ca.gov/internal_redirect/cms.ipressroom.com.s3.amazonaws.com/262/files/20172/Chief%20 Justice%20Cantil-Sakauye%20Letter_AG%20Sessions-Secretary%20Kelly_3-16-17.pdf 4 Letter from New Jersey Chief Justice Stuart Rabner to U.S. Department of Homeland Security Secretary John Kelly (April 19, 2017) at https://www.documentcloud.org/documents/3673664-Letter-from-Chief-Justice-Rabner-to-Homeland.html#document/p1 5 American Bar Association House of Delegates Resolution (August 18, 2017) at https://www.americanbar.org/content/ dam/aba/images/abanews/2017%20Annual%20Resolutions/10C.pdf 6 U.S. Immigration and Customs Enforcement, FAQ on Sensitive Locations and Courthouse Arrests, last updated September 25, 2018 at https://www.ice.gov/ero/enforcement/sensitive-loc. 7 Letter from Retired Judges to Ronald D. Vitiello, Acting Director, U.S. Immigration and Customs Enforcement (December 12, 2018) at https://www.scribd.com/document/395488473/ Letter-From-Former-Judges-Courthouse-Immigration-Arrests#fullscreen&from_embed. 8 Priscilla Alvarez, Massachusetts Prosecutors Sue to Block ICE Arrests in Courthouses, CNN, Apr. 29. 2019 at https://www. cnn.com/2019/04/29/politics/massachusetts-ice-lawsuit/index. html 9 Liam Stack, Judge is Charged with Helping Immigrant Escape ICE at Courthouse, N.Y. Times, Apr. 25, 2019 at https://www. nytimes.com/2019/04/25/us/judge-shelley-joseph-indicted. html 10 Directive from the Office of the Chief Administrative Judge of the Unified Court System of the State of New York (April 3, 2019) at https://www.immigrantdefenseproject.org/wp-content/uploads/OCA-ICE-Directive.pdf 11 Immigrant Defense Project, The Courthouse Trap: How ICE Operations Impacted New York Courts in 2018 (January 2019) at https://www.immigrantdefenseproject.org/wp-content/uploads/TheCourthouseTrap.pdf 12 Letter from Maryland Attorney General Brian Frosh to U.S. Department of Homeland Security Secretary John Kelly, et al (March 2, 2017) at http://www.marylandattorneygeneral.gov/ News%20Documents/Homeland%20Security_Ltr_030117.pdf
MARYLAND BAR JOURNAL | SPRING 2019
ICE Arrests in Maryland Courts Attorney and Community Provider Survey
THE NUMBER OF IMMIGRANTS SEEKING SERVICES:
CIVIL LEGAL AID ATTORNEYS PRIVATE ATTORNEYS PSYCHOTHERAPISTS/ MENTAL HEALTH EXPERTS SOCIAL WORKERS
TYPES OF RESPONDENTS
27.4% DON’T KNOW 50% INCREASED
14.2% NO CHANGE
ICE officers usually appear in and around courtrooms and courthouses in plainclothes. However, sometimes, they do appear in ICE gear.
“Court was in Prince George's County. His criminal charge was dropped. Judge said ‘ICE is in the lobby ready to pick him up.’ The defense attorney strongly opposed this and expressed her frustration. The man was arrested by ICE and has since been deported.”
MSBA.ORG | SPRING 2019
THE TYPES OF CASES WHERE INDIVIDUALS WITHDREW, DID NOT PURSUE, EXPRESSED FEAR ABOUT OR SEEMED TO BE AFRAID TO SEEK LEGAL REMEDIES OR DEFEND AGAINST LEGAL ACTION:
of respondents reported at least one individual who did not pursue domestic violence/ sexual assault case
of respondents reported at least one individual who did not pursue family law claims
of respondents reported at least one individual who did not pursue immigration claims, such as U-visa or T-visa
Other types of claims that were not pursued were public benefits applications (30%; 86 reported); employment claims (like wage theft) (27%; 60 reported); and Housing claims (20%, 53 reported).
â&#x20AC;&#x153;I had one client where
SINCE JANUARY 2017, IMMIGRANTS I HAVE WORKED FOR/ SERVED HAVE
the opposing attorney
the respondents personally witnessed at least one arrest inside a courtroom, the 25% ofcourthouse or on courthouse grounds
argued, in open court, that she should not have custody because my client was undocumented and that ICE could come arrest her immediately. Fortunately the presiding judge made it very clear that she didn't want to hear anything more about it and sustained all objections to that argument going forward. After the
reported by respondents in survey. 72 arrests estimate of the number of court arrests since January, 2017 was 110 - 154 Another presented by respondents who interacted with detained individuals.
More respondents reported that immigrants they served were fearful of filing or defending a case in court because of fear of encountering ICE in courts than were fearful of contacting law enforcement because of fear of ICE. encountered at least one client that had been threatened or fearful 37.7% ofthatrespondents an opposing party or an opposing attorney would call ICE on them. of respondents reported that they encountered at least one client who was released 26.4% from state custody and then arrested by ICE, making them unable to make an appearance for the criminal hearing. respondondents encountered at least one client who refused to serve as a 23.6% ofwitness in a court case due to the fear of encountering ICE in court. number of cases reported by respondents where individuals refused to be a witness or 110 The was afraid to be a witness in a court case because of fear of encountering ICE in courts.
hearing, my client was terrified that her ex was going to call ICE on her.â&#x20AC;?
WHERE HAVE PEOPLE WITNESSED ICE ARRESTS? Inside a courtroom
At or coming to and from Parole and Probation
In the halls of a courthouse
Upon being released from state custody after posting bond
In the parking lot of a courthouse
50% of respondents encountered at least one client that DID NOT file a case or defend against a case because of fear of encountering ICE in courts
THE COUNTIES WHERE RESPONDENTS INDICATED SEEING ICE ARRESTS IN COURT:
Frederick Prince George's Baltimore City Baltimore Howard Queen Anne's Anne Arundel St. Mary's Talbot
MARYLAND BAR JOURNAL | SPRING 2019
| ACCESS TO JUSTICE
Ward Coe III In late 2018, MSBA entered into a partnership with the Maryland Access to Justice Commission to promote their common goal of drive systemic reforms and innovations to make the civil justice system more accessible, user-friendly, and fair for all Marylanders. Here, Ward B. Coe III, a Partner in the Baltimore law firm of Gallagher Evelius & Jones and Chair of the Access to Justice Commission, shares his perspective on access to justice issues and their long- and short-term costs to society. What role does the Maryland Access to Justice Commission play in Maryland’s civil legal services community? Access to justice is one of the fundamental principles of our democracy. What we’re interested in is leveling the playing field for people who don’t have access to justice in the civil area. Many people encounter civil legal problems and don’t know how to deal with them, and they can’t afford a lawyer to help them. The legal system is very complicated; that’s why it takes three years to go to law school. The idea of asking people without a legal education, and sometimes with only a limited education, to master the legal system and defend their own rights is not realistic. The other area that we’re very interested in is legal reform - actually instituting and supporting legislation which, number one, supports legal services funding and, number two, provides for lawyers in certain circumstances where very important rights are concerned.
Many people are not aware of the distinction between criminal and civil justice issues as it pertains to the right to legal representation. A lot of people aren’t aware that even with fundamental civil legal problems, such as a landlord-tenant eviction case or an immigrant deportation or domestic violence case, a person is not entitled to a lawyer. There are studies that show your chances improve tremendously if you have legal representation. As I said, the system is very complex and hard to master without legal help. We want to make people aware of the problem so that there is public sentiment for leveling that playing field. Improving funding for legal service providers is one of the major things that we fight for.
ACCESS TO JUSTICE Hear Ward explain why the A2JC is important. VISIT MSBA.ORG/WCOE
MSBA.ORG | SPRING 2019
According to The Current Status of Pro Bono Service Among Maryland Lawyers, Year 2017, Maryland lawyers provided 1,160,906 hours of representational pro bono legal service in 2017, an increase of 10,701 hours over the previous year. Rule 6.1 of the Maryland Rules of Professional Conduct sets an aspirational goal of 50 hours of preventive work per lawyer per year. Generally, lawyers do a great job of meeting that number, but we would like to get many more lawyers involved.
You are a proponent of data-driven solutions. One area that we’re very interested in is gathering data that demonstrates that it’s better for societies to provide lawyers where they are really needed than it is to leave people to their own devices. New York City did a great study showing that the cost of homelessness as a result of evictions that would not have occurred if tenants had had lawyers dwarfed the cost of providing them lawyers, which makes economic sense. Consequently, New York City established a defense fund for tenants who are subject to eviction. We think the same kind of data can be gathered in a lot of different areas. One is domestic violence … when you think of examples of the cost of domestic violence if it isn’t stopped in terms of law enforcement, in terms of healthcare, in terms of societal cost. I think that we can use our resources to gather data that will demonstrate that it just makes sense in certain circumstances to provide people with lawyers in civil matters, and that the cost to society of doing so will be less in the long run than the problems you create by a lack of access to justice.
The Commission operated as an independent entity for five years. What does its new partnership with MSBA mean for the mission? We’re very lucky to be in this position. For one thing, it gives us some economic stability, but it’s also a statement to the public that the leaders of the Maryland State Bar Association are behind this concept. They’re leaders for good reasons, and we’re very happy to have them as our allies.
MSBA IS HERE FOR YOU. YOUR MEMBERSHIP PROVIDES o
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Fresh Faces From 1Ls to new lawyers, "Fresh Faces" shines a light on the future of Maryland's legal profession.
MSBA Student Ambassadors: Tia Holmes and Tina Azarvand Tia Holmes and Tina Azarvand are MSBA Student Ambassadors at the University of Baltimore School of Law. In this role, they work to raise awareness of the MSBA among their fellow law students, and how the Association can benefit their nascent legal careers.
How did you attain your post as MSBA student ambassador? TH: I wanted to become involved with the MSBA before becoming an attorney after attending last year’s Legal Summit & Annual Meeting in Ocean City. Being a student ambassador connects me with attorneys, who in turn connect me with other attorneys. It also enhances my understanding and awareness of what I can do to be a better lawyer in the future.
"Being a student ambassador connects me with attorneys, who in turn connect me with other attorneys." WEB EXTRA
SPRING BREAK WITH A CAUSE Watch to see what happened at UB Law School Alternative Spring Break. VISIT MSBA.ORG/UBSB
TA: I was, and still am, the MSBA representative for our school’s Student Bar Association. When the student ambassador program came to life, I got really excited about it and wanted to get involved because I had already been working with the MSBA and have had a really positive experience.
How do you engage your fellow students to raise awareness of the MSBA? TH: In March, we held a Taco Tuesday as a way to connect with students. We promoted it to our classmates as a way to interact with attorneys and the MSBA, and increase general awareness on the campus. We also worked on a weeklong Alternative Spring Break with the Student Bar Association and the law school’s Career Development Office, as well as the
MSBA.ORG | SPRING 2019
Maryland Access to Justice Commission, to offer pro bono and community service opportunities. TA: The idea behind the Alternative Spring Break was that not enough students are exposed to actual legal opportunities prior to their first-year summer internship, so we wanted to give them an opportunity to get a taste of what it’s like working on a clinic, as well as some different ideas and areas that they could look into for their futures.
What are your future plans for law school and beyond? TH: I’m interested in civil rights law; I would love to be an appellate attorney. I would love to practice in the Baltimore area, so this is a prime place for me to be right now, as a student ambassador at UB Law. I plan to stay in Baltimore for at least five years after I graduate. I will be working with the Appellate Division of the Public Defender’s Office this summer, so my hope is that that’s where my first position will be. TA: I love taxation law a lot, especially tax controversy. I think taxation law is a very overlooked area that people don’t really take seriously, but taxes do impact every single person in the United States, whether they realize it or not.
As your 2L year draws to a close, any advice for your classmates? TA: Go to the Legal Summit & Annual Meeting in June in Ocean City - it really is a lot of fun. The MSBA really is for everyone. Everyone should get involved. The MSBA is awesome.
Meredith Storm Meredith is a 3L student at the University of Maryland Francis King Carey School of Law. After graduation, she plans to practice general civil litigation.
Why did you choose to pursue a career in the law? I have always been interested in current affairs, social justice, and policy. For a while, I considered pursuing a degree in public policy, but ultimately chose to follow the path of my father [Montgomery County Circuit Court Judge Harry C. Storm] and pursue a career in the law. Growing up, my father would talk about his cases and how he got this or that result. I was fascinated by the prospect of being able to help people in ways that would make a difference. The law offers so many possibilities in that regard.
What are your hopes for your legal career? My hope is to establish myself as an ethical lawyer who does her best, who has a reputation for integrity, civility, and professionalism, and whose word is her bond. I am looking forward to my upcoming clerkship with Judge Kevin Arthur on the Court of Special Appeals of Maryland, and the chance to continue improving my writing and researching skills. I want to be ready to launch as a “real lawyer” at the end of the clerkship. Like most law students interested in litigation, I am anxious to argue cases in court.
In winter 2019 you hosted a symposium on “deep fakes”. Please tell us about that. This past February, the Maryland Law Review hosted a symposium entitled “Truth Decay: Deep Fakes and the Implications for Privacy, National Security, and Democracy.” Last spring, Maryland Law Professor Danielle Citron, a nationally renowned cybersecurity expert, brought to my attention the issues surrounding “deep fakes” in the media. Professor Citron and UT Austin Professor Robert Chesney had just finished drafting an article, forthcoming in the California Law Review1, which provides the first assessment of the causes and consequences of “deep fake” technology. As Executive Symposium/Articles Editor of the Maryland Law Review, I decided to dedicate the symposium to the deep fake phenomenon, given the incredible timeliness of the topic.
For those not familiar with the term, “deep fakes” are extremely convincing videos and images that depict a person saying or doing things that never actually occurred. As the title of the symposium suggests, deep fakes have the potential to cause individual exploitation and sabotage, as well as far-reaching societal harms such as the erosion of democratic discourse and trust in social institutions, undermining national security, journalism, and diplomacy, and the manipulation of elections.
Photo courtesy of Beverly Funkhouser Photography
With the help of my Editor-in-Chief, Alexandra Botsaris, and Managing Editor Caroline Covington, we organized panels comprised of scholars and advocates from around the nation to discuss the aforementioned concerns and engage in a collective conversation with attendees. Several panelists have contributed articles and essays informed by their symposium presentations, which will be published later this spring in Issue 4 of Volume 78 of the Maryland Law Review.
Which emerging areas of law do you find most exciting? I am both excited and intrigued by data privacy and protection law. Particularly in the wake of the Supreme Court’s ruling in Carpenter v. United States last year, I am eager to see how the Court continues to develop its understanding of what the Fourth Amendment means today.
What do you think the future of the legal profession looks like? I see the profession continuing to evolve. The presence of more and more women will certainly have an impact, as will rapidly changing technology. One can only imagine the legal issues of the future as artificial intelligence becomes increasingly commonplace in our lives. Meanwhile, there will always be the “nuts and bolts” issues—people will always have contract, tort, family law, and estate planning issues, to name a few. I see the future of the profession as exciting and am looking forward to being a part of it.
1 See Robert Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Cal. L. Rev. (forthcoming 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3213954
MARYLAND BAR JOURNAL | SPRING 2019
| FIRM PROFILE
Photo courtesy of Beverly Funkhouser Photography 30
MSBA.ORG | SPRING 2019
Steve Robins Takes the Lead at Lerch, Early & Brewer, Focusing on People and “Smart” Growth BY WILLIAM ROBERTS
Steve Robins, board chair and managing partner of Bethesda-based law firm Lerch, Early & Brewer, has a philosophy for success in real estate development that he is now using to build a future for one of Maryland’s best-known local firms. “IT IS THE ABILITY to have not only the vision and the ability to work with people, but also the ability to implement and get something done,” Robins said in a recent interview with the Maryland State Bar Association. Robins, 57, became managing partner of Lerch, Early & Brewer in 2018 after 17 years with the firm and nearly 30 years as a land-use lawyer in Montgomery County. A Bethesda-native and graduate of Georgetown Law school, Robins is bringing the skills he’s honed as an effective land-use attorney for major development firms to the business of running and growing a law firm. Lerch, Early & Brewer has 48 partners and after undertaking a strategic planning review last year, plans to expand – smartly. “When I describe Lerch Early, I like to describe us as a full-service law firm,” Robins said. Not what you would expect from a regional firm in legal services landscape increasingly dominated by global giants. Indeed, the firm does commercial lending law, real estate transactional work, corporate and tax law. It has large community associations, family law and divorce practices. It does employment law litigation and has a general litigation practice and a state appellate practice in Montgomery County and Maryland courts. It does land-use and zoning work, restaurant management, a petroleum service stations law in addition to transactional matters.
really allows you to not only think strategically and put together a strategic plan, but more importantly to actually implement the plan,” Robins said. “We spent the entire 2018 year working with a very seasoned consultant on a strategic plan which we ultimately formulated and have been spending the early parts of 2019 on the implementation phase. We are actually moving forward and implementing the plan. It focuses on technical excellence and succession planning,” he said. “We are trying to focus on areas of the law that we already do, that we know are going to continue to keep us busy and continue to satisfy our clients, or other areas of the law that we don’t do right now but that we know would be important for our law firm.” “One of the things that is very important to me is to make sure that our younger partners and lawyers are ready to have clients transition work to them so that they can move forward when others decide it is time to slow down and retire. And the transition also involves what’s going on with the client because clients are also going through transition planning right now too,” Robins said. Robins’ clients speak highly of him and Lerch Early’s culture of expertise and service. “They really are the best in the business,” said Hilary Goldfarb, senior vice president at Rockefeller Group, a real estate development firm.
What is the firm’s strategic plan?
"Their counsel is rooted in what I call deep technical expertise, so they sweat the small stuff but with extraordinary finesse."
“We are very focused, extremely focused on the future, not only on the long-term but the short-term as well. Focusing on the short-term
“I have worked with Steve Robins, Bill Kominers, a number of partners over the past decade.”
Robins completed the first of a three-year elected term as managing partner in 2018 after replacing Robbie Brewer. He’ll be eligible for another three-year term in 2021. Prior to becoming managing partner he was heavily involved in all aspects of the firm’s management, “so that on day one when I actually took over the reins it wasn’t a rude awakening,” Robins said.
MARYLAND BAR JOURNAL | SPRING 2019
HARRY C. STORM
LAURI E. CLEARY
In 2004, MSBA Past President Judge Harry C. Storm joined the Bethesda firm of Lerch, Early & Brewer, Chartered, where, as a Principal, he focused his practice on commercial litigation and transactional law until Governor Larry Hogan appointed him to the Montgomery County Circuit Court bench in 2016. Read our profile of Judge Storm on page 80 of this issue.
Earlier this year, Lerch, Early & Brewer Principal Lauri E. Cleary was elected to a twoyear term representing the Sixth District (Montgomery County) on the MSBA Board of Governors, beginning in June 2019. A trial lawyer, Cleary co-chairs the firm’s litigation practice, helping businesses, employers, and individuals to resolve disputes in and out of the courtroom throughout Maryland, Virginia, and Washington, D.C. She also negotiates and litigates employment, commercial, real estate, and white-collar criminal defense cases.
Alisa Rosenberg, vice president-development, Bozzuto Development, jokes that she has ruined every one of Robins’ vacations in last decade with phone calls and emails about projects. “They are some of the most diligent and dedicated attorneys I have ever had the pleasure of working,” Rosenberg said.
“He is as anxious about things as you are. He is driven to results. I just love that. It gives me a lot of confidence as we go through a complex process with a lot of twists and turns,” said Andy Altman, principal at Fivesquares Development, who sees more value in working with a local firm like Lerch Early that has local relationships than a big national outfit. “Where I belong and where I feel most comfortable is Montgomery County. That is really my practice,” Robins said.
MICHAEL J. NEARY Lerch, Early & Brewer Principal Michael J. Neary draws upon his years of experience as an employment attorney to advise the MSBA in related matters. The commercial litigator works with businesses to prevent and defend against employee claims. Neary also litigates commercial disputes such as real estate controversies, business fraud, corporate and partnership dissolutions, and commercial contract claims. “I am involved in MSBA for the opportunities it offers to develop meaningful professional relationships,” he says. MSBA.ORG | SPRING 2019
“Steve personally really epitomizes that. He leads with both his heart and his head. That sets a culture that I find with almost all the Lerch Early attorneys, staff, professionals that I work with.”
“They are strategic and problem solvers. They understand how to navigate from a legal perspective and a client perspective. Some lawyers advise on law or policy but don’t problem solve. The firm has an ability to go a step further and think through a project with you. There is a business-mindedness there.”
“I am involved in MSBA for the opportunities it offers to develop meaningful professional relationships.”
“Their counsel is rooted in what I call deep technical expertise, so they sweat the small stuff but with extraordinary finesse. You very rarely find that sort of winning combination of technical expertise with a genuine consensus-building approach that gets the job done,” said Goldfarb, who runs the Mid-Atlantic office of the Rockefeller Group real estate development company.
Robins grew up in real estate family. His mother was a successful real estate broker and his older brother a custom home builder. “Real estate was always part of our DNA growing up, talking about it, watching it. I became interested early on from the planning perspective and was very interested in architecture,” Robins said. He’s seen the ups and downs of the real estate market on the East Coast. The credit crunch of 1992, the post-Sept. 11 slowdown, and the great recession of 2007-2008. Nowadays, Robins is intent on delivering for his clients in the high-density commercial transit corridors of the DC Metro’s Red Line and the future Purple Line. “Montgomery County has really embraced the smart growth concept and the idea of trying to maximize development in areas where there is existing good infrastructure that can support the development,” Robins said. “The county has focused on great architecture, making sure that the buildings that are going to get built are really world class buildings and on amenities and public benefits – parks and open space -- not only for the people who will live and work in these developments, but also for the entire community.” “All of this is put together to make Bethesda what it is and what it will be in the future, which is really an amazing place to live and work and play.”
Attention Maryland Attorneys
Time’s Up! The Attorney Information System (AIS) registration deadline has passed, but you can still meet the requirements.
Are you practicing law in Maryland? Maryland Rule 19-802(b) requires all attorneys licensed to practice law in the state to register with AIS to complete annual compliance requirements. Attorneys can use AIS to: • • • • • • •
Pay the annual Client Protection Fund assessment. File the Pro Bono Legal Service Report. File the Interest on Lawyers Trust Accounts (IOLTA) Report. Confirm your Tax ID Number. Review and update contact information. Review status as a Maryland lawyer. Review administrative and disciplinary actions taken by the Court of Appeals.
IMPORTANT DATES: July 10 – Attorneys registered with AIS will receive an email notification to pay annual assessment and file reports. Those not yet registered must register to receive compliance notices by email. Sept. 10 – All attorneys licensed to practice in Maryland must pay the Client Protection Fund assessment and complete online IOLTA and pro bono reports by this date. If you missed the June 1 deadline, register now with AIS by visiting www.mdcourts.gov/lawyers/ais.
| MEMBER SPOTLIGHT
ALICIA WILSON Senior Vice President of Impact Investments and Senior Legal Counsel, Port Covington Impact Investments, LLC
Alicia Wilson lives in East Baltimore, three blocks away from the home in which she grew up. As Senior Vice President of Impact Investments and Senior Legal Counsel for Port Covington Impact Investments, LLC, she reviews the Port Covington Projectâ&#x20AC;&#x2122;s ROI and ensures that there is financial as well as social and environmental return that benefits both investors and community residents.
Photo courtesy of Beverly Funkhouser Photography 34
MSBA.ORG | SPRING 2019
MS. WILSON sat down with the Maryland
they be a judge, President, or Secretary. I am grateful to be a part of an organization that embraced me, and it has been a huge part of my development as a lawyer.
Your Baltimore roots run deep.
But you’ve never forgotten your local roots.
Bar Journal to discuss the nuances of business/ community relations, real-world application of the law, and her deep ties to her native city.
I stay in the city because of the people. It’s a place that is both city and small town – a place where my high school matters, where I get to know my neighbors. It’s a place where people get to know your name and your story.
I went to Mergenthaler Vocational Technical High School, UMBC for college, and the University of Maryland Francis King Carey School of Law. I stay in the city because of the people. It’s a place that is both city and small town - a place where my high school matters, where I get to know my neighbors. It’s a place where people get to know your name and your story.
What made you want to become a lawyer? I wanted to be a lawyer because of the Law Links Summer Internship Program, which is run by MYLAW. The program teaches high school juniors and sophomores great soft skills and acclimates them to the world of work while teaching them about the law. Law Links was the first time I saw a lawyer of color outside of television - someone whom I admire and respect and who became a mentor. I worked in a non-profit law firm when I was 15-years-old. I was invited back there five additional summers, so I’ve always had a sort of job in the legal profession. My experience with that program when I was 15 inspired me, and I knew in that moment what I wanted to be in life.
For me, it was particularly gratifying to be able to bring the Civics & Law Academy to my old high school, Mervo, and to see young people who never met a lawyer outside of television, who couldn’t dream of meeting a judge, be able to have those experiences. I’m glad that the MSBA has afforded students across the state that same opportunity.
What have been some of the more personally satisfying elements of your legal career? I enjoy seeing how the cold, black-letter law impacts individuals in our community, how the language that we use in the law and our interpretation of that play out on a day-to-day
What role has the MSBA played in your professional growth? I’m a first-generation lawyer, so I wanted to figure out my place in this profession, and I found a home in the MSBA. I started with the Young Lawyers Section and moved up the ranks, worked on different projects and initiatives, like the Civics & Law Academy and the Local & Specialty Bar Liaison Committee, and through those Committees I was able to build a network, friendships and family - those are what I think of when I think of MSBA. MSBA is such a great place because once you come through the doors, physically or figuratively, people treat you as their peer, whether
“TRIALS AND TRIBULATIONS” MYLAW BENEFIT MYLAW, MSBA’s educational arm in Maryland schools, hosted its second “Trials and Tribulations” storytelling fundraiser in November 2016 at the University of Baltimore School of Law. Alicia Wilson joined an all-star lineup of featured storytellers that included litigator Michael Brown, former Maryland General Assembly member Timothy Maloney, Baltimore City State’s Attorney Marilyn Mosby, and litigator Shale Stiller. MARYLAND BAR JOURNAL | SPRING 2019
basis in the lives of ordinary citizens, and how I can advocate for an interpretation of the law that derives the greatest benefit for people. The law is such a powerful tool in our society and helping people live their best lives. The Port Covington Project involves major development of an urban center waterfront, including businesses, housing, job creation, and more. What are some of the challenges or concerns when you’re working on a project like this? There are a couple of things that you have to realize when you’re building a project of this scope and scale. You have to realize that people come to the table with preconceptions. In many respects, neighborhood residents know what happens when development happens in their community - they’re usually left on the opportunity sidelines. They’re not participating in it, and really all of the ills that would come with development usually go to them, and all the benefits go to the developer. In that sort of circumstance, you’re also dealing with the realities of trying to finance in an area where development hasn’t occurred before - making the case, having people buy into the vision, and trying to move people from whatever situation they may be in to common ground. So, yes, I’m an advocate for a very powerful developer and influential individuals, but I also have to live in the community that will live with the decisions that are made. I go in understanding the full scope of what people have to go through, and also have to live with the decision as someone who lives in the community that is affected by the decisions that are made. In that respect, I come to the negotiating table with baggage, but that can be helpful, because I can turn around and say to the developer, “I know what you’re saying, but let me give you the perspective of someone that lives in the community,” and to the community I can say, “I understand what you’re saying, and I understand how it impacts us, but let me give you the perspective of the business community,” and I try to make people meet on common ground.
How do you envision Baltimore’s future? I am extremely hopeful about this city. Baltimore has its challenges - none of them are fatal, but we have to work through them. I am confident that lawyers will be a part of that. Doctors will be a part of that. Our teachers will be a part of the success of this city. All of the different professions, from municipal to our folks who work in business, will be part of that, and I think MSBA will be a part of that.
HONORS & AWARDS Many have recognized Alicia Wilson’s contributions to the legal profession and the greater community here are a few: The Daily Record Influential Marylander Award (2019) Greater Baltimore Urban League Whitney M. Young, Jr. Award (2019) Community Law in Action Inspiring Voices Award (2019) Girl Scouts of Central Maryland Distinguished Women Award (2019) National Business Journal Influencers: Rising Stars | Top 50 List (2018) Maryland Minority Contractors Association, Inc. Majority Dedicated to Excellence Award (2018) Baltimore City Chamber of Commerce Community Advocate of the Year (2018) Baltimore Leadership School for Young Women Power Woman of the Year (2018) Baltimore Business Journal 40 Under 40 Award (2018) UWAC Collective Unstoppable Woman Award (2018) Harbor City Chapter of the Links, Inc., Professional Achievement Award (2017) The Daily Record Maryland’s Top 100 Women Award (2017) Fox 45 Baltimore Champion of Courage (2017) Cherry Hill Homes Tenant Council Community Leadership Award (2016) The Baltimore Sun 25 Women to Watch (2016) Brooks Financial Group Foundation Champion in Life Award (2016) BmoreNews.com Joe Manns Black Wall Street Award (2016) Super Lawyers Maryland Rising Star Attorney (2012-2016) Monumental City Bar Association Young Lawyer-Future History Maker Award (2015) University of Maryland Francis King Carey School of Law Rising Star Alumni Award (2015) National Black Women Lawyers Association Rising Star Attorney of the Year (2015) MSBA Young Lawyer of the Year for Community Service (2015) Bar Association of Baltimore City Presidential Award (2012)
BALTIMORE NATIVE Hear how growing up in Baltimore helped Alicia in her current role. VISIT MSBA.ORG/AWILSON
MSBA.ORG | SPRING 2019
University of Maryland Baltimore County Alumni Association Rising Star Award (2009) W.E.B. Du Bois Circle Stellar Woman Award (2008) The Philomatians Stellar Woman Award (2008)
2019 Legends of TM the Boardroom by Judicial Events
A NETWORKING AND EDUCATIONAL PROGRAM
Friday, September 13, 2019 • 7:30 am - 12:30 pm Pier 5 Hotel Baltimore, 711 Eastern Ave, Baltimore, MD 21202 CONTINENTAL BREAKFAST • CLE CREDITS • DISCOUNTED EVENT PARKING
A n amazing event! Baltimore hasn’t seen anything like this. Participant at 2017 Legends of the BoardroomTM Event
MSBA MEMBER DISCOUNT TICKETS AVAILABLE Use code MDDISCOUNT INTERESTED IN SPONSORSHIP, MODERATOR AND/OR PANELIST OPPORTUNITIES?
EVENT A one of a kind program that provides a great opportunity to network with General Counsels and other in-house lawyers, while learning about some of the fastest growing practice areas.
PROGRAM Learn from visionaries who have established national reputations for their winning legal strategies. The panels will be held as plenary sessions to enable you to attend each program, and hear from each speaker.
NETWORKING Networking at this event is a great way to meet and mingle with the many local (Baltimore and D.C.) General Counsels, inhouse lawyers, and law firm attorneys in attendance.
Please contact Erica Weissfeld, CEO and Founder of Judicial Events at 410-294-9936 FOR MORE EVENT INFORMATION, PLEASE VISIT:
EARLY BIRD TICKET PRICES AVAILABLE UNTIL JUNE 15! MARYLAND BAR JOURNAL FOR DETAILS AND TO REGISTER, VISIT msba.org/Legends
| SPRING 2019
| MEMBER SPOTLIGHT
FROM MARINE OFFICER TO
OFFICER OF THE COURT STEVEN RAKOW As an Ocean City-based solo practitioner, Steven Rakow primarily handles criminal defense work, civil litigation, and other general practice matters. A 1987 graduate of the United States Naval Academy in Annapolis, he served for 20 years as an officer in the United States Marine Corps, including combat operations in Kuwait during Operation Desert Storm. He procured his JD from the Salmon P. Chase College of Law at Northern Kentucky University. Mr. Rakow currently serves as a member of the MSBA Board of Governors, where he represents the Second District (Dorchester/Somerset, Wicomico/Worcester Counties).
MSBA.ORG | SPRING 2019
MR. RAKOW sat down with the Maryland Bar Journal
to discuss the value of mentors and the benefits of electronic court filing...as well as the technological challenges facing the legal profession.
You spent the first five years of your military career on active duty, then 15 in the reserves. How did the law come into play? During my time on active duty I had a chance to do a little bit of legal work. I said I was interested in going into law, so I was put on a staff and made the legal officer for an artillery battalion. At that particular point in time, non-attorneys were allowed to prosecute special court martials, so I had an opportunity to do that under the supervision of a JAG Officer. It gave me an early experience of what it is like to be in a courtroom, rules of evidence. I found it fascinating, and it just furthered my desire to go to law school.
How did that experience translate to the civilian world? When I graduated law school, I got a job in the prosecutor’s office in Hamilton County, Ohio. I did that for several years, then left that office briefly to go work in private practice for a medium-sized firm. I was then offered a job as an appellate clerk for one of the local Court of Appeals judges. As my wife and I were having children, we decided to move back east to be closer to family. I got licensed in Maryland in 2002, and continued on as corporate counsel for a construction company. I left private practice for five years to work in the state’s attorney’s office before starting my own private practice here in Ocean City. I’ve been here since late 2015.
What are some of your key takeaways from your varied legal experience? It’s our ethical obligation to do whatever is in the best interest of the client. When you know that you’ve done your best, I think you can feel satisfied, even if you’re not successful. You know, in this profession you don’t always win, so you need to be gracious in how you handle losses, how you handle motions that don’t go your way. I
I stay in the city in this profession you don’t always win, so you need to be gracious in how you handle losses, how you handle motions that don’t go your way. can always look my clients in the eye and tell them I did the best I could, and I’ve never had anybody get angry at me, even when I’ve represented the defense and lost.
What were some keys to your success as a young lawyer? I always had good mentors. I think that’s important, and a lot of that comes through bar associations, being involved in bar events, and finding older attorneys who are willing to help you out. You can’t just walk up to somebody and say, “Hey, can you be my mentor?”, but you can certainly develop that relationship as it evolves over time.
FROM THE CORPS TO THE SHORE Hear Steve share how he went from a Marine to practicing law in Ocean City. VISIT MSBA.ORG/SRAKOW
Photo courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | SPRING 2019
What characteristics make for a good mentor?
Steve Rakow attends a Memorial Day event in his USMC “dress blues.”
The first big mentor I had in the legal profession was a guy named Bill Breyer. He was head of the Appellate Division in Hamilton County, where I worked as a law clerk and as an attorney. He just had a great way of making sure that my work product was up to par. He would challenge me on the opinions or the briefs that I would write, making sure that I was really drilling down on what the law would be, but he always did it in such a way that didn’t make you feel small. He was
I know I can always pick up the phone and call them and they’ll be there for me. always somebody that would build you up and make you a better attorney. Coming here, to Maryland, there have been several attorneys who have been big mentors for me - their patience, guidance and assistance - I know I can always pick up the phone and call them and they’ll be there for me.
MDEC went live in Worcester County in April 2018. How have you fared in the switch to electronic filing?
Steve Rakow (left) and a fellow Marine Corps lieutenant stand before one of their unit’s 155mm howitzers during a rehearsal landing in Oman prior to the start of Operation Desert Storm.
Steve Rakow pauses for a photo with an Iraqi anti-aircraft gun that his platoon captured in Kuwait during Operation Desert Storm.
MSBA.ORG | SPRING 2019
I thought going to electronic filing was great, and got on board with it as quickly as possible. It’s especially good as a solo attorney; previously, everything had to be filed with the clerk, so you would print out your filing and mail it or spend time taking it down to the clerk’s office, sending copies to counsel. Now, with MDEC, I can simply upload it, check the box for all the counsel of record, and basically push a button. And the best part about it is that I can do it anytime of day, so I can be at home at 10:00 p.m. still working and need to get something filed before midnight, and I can get it filed right then and there.
Some consider emerging technologies as a double-edged sword for the legal profession, particularly with the rise of artificial intelligence. You have to make yourself readily available for clients nearly 24/7. You have to have a presence on Google and utilize social media channels. I think we’re also challenged by online legal resources, such as LegalZoom. I’m not knocking them - I think there are some good tools that you can use if you want to handle matters pro se - but they are certainly challenges to the legal profession, and I think we’re going to face more and more of those challenges as technology improves.
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MARYLAND BAR JOURNAL | SPRING 2019
| MEMBER SPOTLIGHT
RUNNING FOR THE BENCH WHILE STILL IN
LAW SCHOOL HON. ELIZABETH FITCH Associate, Silverman Thompson Slutkin & White
The Hon. Elizabeth Fitch is an associate with Silverman Thompson Slutkin & White. She is also an Orphans' Court judge for Howard County. Elizabeth campaigned for her seat on the Howard County Orphans' Court while she was still in still in law school. We talked to her about that experience and what motivated her to run. Before being elected as a judge you were a law clerk at the Orphans' Court. What were your takeaways from that experience? My takeaways were that litigation is rising not just in Howard County or in Maryland but all across the country. As far as the states are concerned there's a lot of wealth being transferred from one generation to another and there's a lot of disputes that arise over the transfer of that wealth. I noticed that the volume of the estates was increasing and the complexity of the estates was increasing. There were two out of the three judges who were not attorneys so I felt that there are a lot of issues that come before the court that are really well beyond the experience and the education of a layperson. I felt that having someone with specialized training would be a real asset to Howard County. Photo courtesy of Beverly Funkhouser Photography 42
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WHAT IS THE ORPHANS’ COURT? Established in 1777, the Orphans’ Court is Maryland’s probate court and presides over the administration of estates. In simpler terms, the main job of the Orphans’ Court is to supervise the management of estates of people who have died - with or without a Will - while owning property in their sole name. It has authority to direct the conduct of personal representatives, has jurisdiction over the guardianship of the property of minors and, in some counties, appoints guardians of minors. Three Orphans’ Court judges sit in Baltimore City and each of Maryland’s counties, except for Harford and Montgomery Counties (in those two counties, Circuit Court judges sit as Orphans’ Court Judges). Orphans’ Court judges run for general election every four years. Maryland’s Constitution requires Orphans’ Court judges to be Maryland citizens and residents of their jurisdiction for at least 12 months before their election. The Constitution was amended to require the judges in Baltimore City, Baltimore County, and Prince George’s County to be attorneys and barred in the State of Maryland. Those judges may preside over cases alone, whereas in other jurisdictions, the three judges sit together in a panel to hear matters.
How did you end up running for the seat? After my experience there during law school I told my husband “you know I'd really like to do that job someday” and my husband doesn't keep a to-do list or a goal list he just does things. So, he was right away on his phone. He said “Hey, it's an election year there's a filing deadline coming up” and he encouraged me to file and run. I actually filed during my last semester of law school and campaigned for the primary. Won the primary. Continued to campaign through bar prep and through the summer. We had never campaigned for anything. I've never worked for a politician. I didn't consider myself a politician, I still don't, I consider myself very much a full-time legal professional which is what I think the job requires.
Do you have any thoughts about the fact you were running to be a judge while still in law school? It was a little bit ambitious but we got it all done. I managed to pass the bar, win the election, be sworn in to the Maryland State Bar and start off my legal career with two of the most amazing jobs I could ever dream of. December 5th was my first day on the bench. I was sworn in December 3rd and I immediately went downstairs and pulled all the files for the 5th and reviewed the files and prepared for the hearings that were two days later. I have sat almost every Wednesday since then.
SOCIAL MEDIA VITAL TO A SUCCESSFUL CAMPAIGN Candidate Elizabeth Fitch harnessed the power of social media with content such as this photo with Buddy the Boxer to connect with Howard County voters during her successful 2018 campaign for Judge of the Orphans’ Court.
WHY I RAN Hear Elizabeth explain her motivation to run for Orphans' Court. VISIT MSBA.ORG/EFITCH
MARYLAND BAR JOURNAL | SPRING 2019
FOR YOUR PRACTICE
MSBA.ORG | SPRING 2019
| EMERGING AREAS OF THE LAW
Solar Energy Development Provides Opportunity and Drawbacks to Maryland Agricultural Landowners MARYLAND FARMLAND is often a prime location for the possible development of solar energy projects. These projects typically require, on average, seven acres to produce a megawatt of electricity, depending on equipment. Because of the amount of land needed, farmland and open space are ideal for these solar projects. Current low commodity prices may make lease offers from solar developers attractive to many farmers and landlords. Agricultural landowners often struggle with the decision of whether to pull farmland out of production to allow for solar development. In considering the proposal, agricultural landowners will often want to consider the length of the contract. In many cases, solar energy agreements could run for 25 to 30 years, or longer. The agricultural landowner will need to take into account what this length of time could mean for future generations’ ability to utilize the land. For ex-
Agricultural landowners often struggle with the decision of whether to pull farmland out of production to allow for solar development. ample, would the proposed solar development limit the next generation from building a home or developing a new agricultural business on the proposal site? Although many agricultural landowners might not think about it, the possibility of allowing a solar development on the farmland might require the next generation of landowners to be included in the discussions to make sure the development fits within their long-term plans, as well. Another concern for many agricultural landowners is cleanup of the potential solar development site at the completion of the project. Whether the solar company will accomplish this by providing a bond to cover possible cleanup costs or whether a solar lease agreement will contain language requiring the solar development company to restore the site, agricultural landowners will want to ensure the site will be restored in a way to allow for the land to go back into agricultural production.
BY PAUL GOERINGER
Neighboring landowners might not always be excited to hear about the possibility of a solar development moving into the area. A recent court ruling by the Court of Special Appeals of Maryland held that local zoning and planning boards might be limited in keeping out solar developments based on neighboring landowners’ concerns. In Board of County Commissioners of Washington County v. Perennial Solar, LLC, the Maryland Court of Special Appeals ruled that a solar energy generating system such as a solar energy farm falls under the jurisdiction of the Maryland Public Service Commission (PSC), including approval of the site location, preempting local zoning ordinances (No. 1022, 2018 WL 4090873 (Md. Ct. Spec. App. Aug. 28, 2018). On appeal, the court interpreted the comprehensiveness of the Public Utilities Article as a primary indicator of implied preemption. Construction could not begin until approved by the PSC and receipt of a Certificate of Public Convenience and Necessity, looking at Md. Code Ann. Pub. Util. § 7-207. When reviewing an application, the PSC must provide a public notice to interested parties. Included in the definition of “interested parties” are local governments (municipalities and counties) where the solar farm will be constructed. The law also provides for county zoning and planning boards to review, evaluate, and comment on the applications. The PSC must also consider recommendations of the county and municipal governments where the solar farm will be constructed, along with a list of other factors not included in the county zoning ordinances. As discussed earlier, an agricultural landowner presented with the opportunity to develop solar on productive farmland will have to take into consideration several issues in order to determine whether entering into a solar lease is right for their operation. The Agriculture and Environmental and Energy Law Sections discussed proposed solar developments during their session on Friday, June 14, 2019 at the Legal Summit and Annual Meeting in Ocean City. PAUL GOERINGER is an Extension Legal Specialist in the Department of Agricultural and Resource Economics, University of Maryland.
MARYLAND BAR JOURNAL | SPRING 2019
FOR YOUR PRACTICE
| TECH DEVELOPMENTS
What’s Old is New Again: Passwords and Multi-Factor Authentication BY SHARON D. NELSON, ESQ. AND JOHN W. SIMEK | © 2019 SENSEI ENTERPRISES, INC.
Introduction It has been years since we talked about passwords in this column. While passwords seem a bit old school, they are still what most people, including lawyers, use to gain access to protected networks and data. As Verizon’s 2018 Data Breach Investigations Report noted, “Eighty-one percent of hacking-related breaches leveraged stolen and/ or weak passwords.” Clearly, passwords are not serving law firm security well. Recently, we have seen multi-factor authentication (MFA) adopted more widely, but at a tortoise pace. Based on the questions we get from audiences at CLEs, there is now a fairly burning interest in upping security in law firms – and that’s a very good thing. Let’s start at the beginning with concepts that are sure to be new to some readers. Fair warning: This is a good time to get a cup of strong coffee. Multi-Factor Authentication Multi-Factor authentication simply means a security system that requires more than one method of authentication from independent categories of credentials to verify the user’s identity for a login or other transaction. While it’s been around for a long time, it was ignored by most small businesses as it simply added another element of complexity and possible cost. As we note constantly, users pick convenience over security every time. But as data breaches became commonplace and the compendium of known breached passwords became enormous, it was clear that we needed a stronger way to protect our data. If you visit the “Pwned Passwords” website of Microsoft Regional Director and Most Valuable Professional awardee for Developer Security, Troy Hunt, as of August 28, 2018, there are 517,238,891 real world passwords previously exposed in data breaches. And yes, the bad guys can get to similar compendiums of real world passwords and hurl them against targeted people and companies in an attempt to get to their data. Troy’s database was introduced in August 2017 after the National Institute of Standards and Technology (NIST) released guidelines recommending that user passwords be checked against those revealed by known data breaches. This means that the “good guys” can now download the “Pwned Passwords” list and integrate it into their systems. They can now literally block the use of those compromised passwords, which is a very prudent move to make. While that’s a terrific new step to be taken, most small law firms have not taken it – yet. Time to consider taking that step – and the next one would be to move to multi-factor authentication. 46
MSBA.ORG | SPRING 2019
MULTI-FACTOR AUTHENTICATION: security system that requires more than one method of authentication from independent categories of credentials to verify the user’s identity for a login or other transaction. Simplifying Multifactor Authentication Here’s how we explain MFA to audiences. First, there is two-factor authentication, which is one form of multifactor authentication. Technically, many two-factor authentication systems are actually twostep authentication systems, but we won’t quibble over the little stuff. Small law firms are indeed beginning to use two-factor authentication, especially to get access to data in the cloud – perhaps client data or perhaps the firm’s CPA, payroll or banking data. Two-factor authentication is often referred to in short as 2FA. All of us, at this point, use 2FA somewhere in our lives. One common usage is when you enter your ID/password and you are sent a code via text message or via email. You then enter the code and your login is complete. This methodology is often used when we wish to change a password – and since lawyers notoriously forget passwords and need to reset them, we’re guessing most of you have been exposed to this scenario many times! A common form of multi-factor authentication is something the user knows (a password), something the user has (a token) and something the user is (biometrics). This is known as defense in depth, adding layer upon layer of security. Let’s give you a few examples of multi-factor authentication just to make things simpler: 1. You swipe a card and enter a passcode. 2. You swipe a card and scan your finger or you use a retina scanner
that is victory indeed in the cybersecurity world. Preaching about Passwords (But the Gospel Has Changed) We’re not even going to talk about the old rules of coming up with passwords. The rules changed in 2017 when NIST issued its new Digital Identity Guidelines. The new guidelines were in large part based on an August 2016 Carnegie Mellon study which shows that, when it comes to passwords, length beats complexity. So those passwords you can’t remember because they are all random characters meaning nothing? Trash them. t What you need are passphrases that you can remember. NIST recommends that passwords be 14-64 characters long – and we are here to tell you that lawyers are not going to enter 64 character passwords. Therefore, use a passphrase of 14 characters or more that you can remember and improve its complexity with a special character or two. An example (and a blast from the past): In the old TV series Batman (RIP Adam West), Robin was fond of saying “Holy (insert a word) Batman” – he actually said “Holy Switcheroo Batman!” in one episode. Since we know that many systems don’t allow for spaces in a password, we came up with “HolyswitcherooBatman!” as a good example of a strong password that you can remember.
of hacking-related breaches leveraged stolen and/or weak passwords
for biometric verification. 3. You download a Virtual Private Network client with a digital certificate and log into the VPN before you can get into the network. 4. You attach a USB hardware token to a laptop that generates a onetime passcode which you use to log into a VPN client. There are many variations on the theme, but you get the idea. Why Do Lawyers Resist Multi-Factor Authentication? Lawyers dislike learning new technology – at least most of our lawyer clients do. And they fear it will cost them time. Actually, MFA doesn’t have to be hard. For instance, suppose we want to log into our bank account. With our bank, we can identify our laptops and smartphones as “trusted devices.” Therefore, so long as it is our device that logs into our account with the proper ID/password, nothing further is necessary. However, if we log in from an unknown device, additional verification will be required, whether it is in the form of security questions, a one-time code sent to our phone, or some other form of authentication. The truth is, we can’t even get our law firm clients to compose good passwords. What prayer do we have of getting them to accept MFA? We are actually apt to use the term 2FA because it scares them less than MFA (somehow they all seem to think this means three or more authentication factors rather than two or more). Constant prodding, and providing them with security statistics, has helped many law firms agree that 2FA is a minimum security requirement these days – and
And why is it important that you remember? Because a 2017 Pew Research Center study showed that 65% of Americans rely mainly on memorizing passwords. 49% write at least some of them down (sigh, obviously not a good practice – and yes, since we do undercover forensics examinations, we know where you all place your password sticky notes). 24% keep a list of their passwords on one of their digital devices (encrypted, one would hope, but we doubt it). Only 3% primarily rely on password management software to keep track of their passwords. Worse yet, we reuse our passwords. The average user has 40 sites requiring a passwords, but only 5 passwords. We are our own undoing. As we said before, we sacrifice security for convenience. Certainly, our best advice is to use password management software. But we are realists and know that many lawyers will choose not to do that. So at least make your passwords strong under the new NIST standards – and do not reuse or share them. Never, ever reuse a password for your law firm network anywhere else – that is an engraved invitation into the law firm network if that password is breached on another site. Final Words • Do have passphrases as passwords and make them at least 14 characters long with a special character or two • Do not reuse passwords • Do use multi-factor authentication wherever it is available • Do not share passwords with others One final benefit of the new NIST guidelines – we don’t need to change our passwords as frequently as was once thought. As long as the passwords are checked against a database of known compromised passwords and meet minimum criteria, they really don’t need changing on a regular basis. Huzzah for not having to go through this nuisance every 30-60-90 days. This could save you a fortune in sticky notes! The authors are the President and Vice President of Sensei Enterprises, Inc., a cybersecurity, information technology and digital forensics firm based in Fairfax, VA. 703-359-0700 (phone) www.senseient.com MARYLAND BAR JOURNAL | SPRING 2019
| IN-HOUSE COUNSEL
ON THE COVER (clockwise, from top left) Taren N. Butcher, Senior Associate General Counsel, Allegis Group; Christine McSherry, General Counsel, Beltway Capital Management, LLC; Alexander J. Stern, General Counsel, Mid-Atlantic Properties, Inc.; Kristin P. Herber, Managing Counsel, Litigation, Under Armour, Inc.; and Meryl Burgin, Executive Vice President, General Counsel & Corporate Secretary, CareFirst BlueCross BlueShield. Photo courtesy of Beverly Funkhouser Photography
BY PATRICK TANDY
MSBA.ORG | SPRING 2019
In-House Insight Corporate Stewardship in an Ambiguous Legal Landscape
Change, to paraphrase Heraclitus, is the only constant. Today, roughly 2,500 years after the ancient Greek philosopher’s death, this truism is particularly manifest in the world of general counsel.
IN MAY 2018, Discovery Communi-
cations divested its subsidiary Discovery Education (DE), a global leader in standards-based digital curriculum resources for K-12 classrooms worldwide. Since then, DE, headquartered in Silver Spring, has been working to create “a highly efficient global legal department from scratch,” according to DE Counsel Ward Classen. “Working for a global company requires in-house counsel to be nimble and comfortable in addressing a broad range of disparate areas of international law, such
“As many companies expand their global footprint and individual states increase their regulatory oversight, in-house counsel continue to face an ever-changing regulatory environment,” making the provision of high-quality, cost-efficient legal support one of the greatest challenges for today’s in-house counsel, he says. The challenge is even greater for more diminutive companies afforded historically disproportionate reach through ever-evolving technologies, according to Scott Palmer, Global General Counsel &
IN-HOUSE COUNSEL: ALICIA WILSON Don’t miss our member profile of Alicia Wilson, Senior Vice President of Impact Investments and Senior Legal Counsel for Port Covington Impact Investments, LLC on page 34 of this issue.
“As many companies expand their global footprint and individual states increase their regulatory oversight, in-house counsel continue to face an ever-changing regulatory environment." WARD CLASSEN, DE COUNSEL
as commercial contracting, employment law, tax, intellectual property rights, and immigration (for temporary work permits),” he says. Today’s in-house counsel, Classen contends, must be to some degree “comfortable with ambiguity.”
Corporate Secretary for ANCILE Solutions, Inc., an Elkridge-based software company with office locations in Asia, Europe, and Australia.
MARYLAND BAR JOURNAL | SPRING 2019
“We have a one-person legal team, with a global footprint,” he says. “We’re a smaller company that manages data for enterprise-level companies all over the world, so we have all of the liability and employee management issues of companies many times our size, but not their resources. Given our sophisticated customer base, we must contend with complicated data security requirements and regular audits of our infrastructure, policies, people, and systems.” As General Counsel at Towson-based Mid-Atlantic Properties, Inc., Alexander J. Stern is just as well acquainted with the fluid demands of the modern world.
I have found it valuable to understand as much of the business as I can, so I ensure that my decisions are not only legally sound, but also for the benefit of the company as a whole.” ALEXANDER J. STERN , GENERAL COUNSEL AT MID-ATLANTIC PROPERTIES, INC.
LEGENDS OF THE BOARDROOM 2019 Don’t miss the 3rd Annual Legends of the Boardroom, presented by MSBA and Judicial Events™ on Friday, September 13, from 7:30 a.m. to 12:30 p.m. at the Pier 5 Hotel in downtown Baltimore. This one-of-a-kind event brings the in-house legal community together with the outside legal community and business executives to foster business opportunities through networking and education on hot current legal topics. Participants will be able to learn from visionaries who have established national reputations for their winning legal strategies. Register online today! VISIT MSBA.ORG/LEGENDS
MSBA.ORG | SPRING 2019
“As GC, it is my job to quickly understand and solve the problem without necessarily having any senior lawyer above me to provide guidance,” says Stern, who values the “exciting and intellectually rewarding” autonomy of his station. He also enjoys “being part of the executive team and getting a chance to work on non-legal issues.” “In this role, I am able to get exposure to all aspects of the business,” he says. “I have found it valuable to understand as much of the business as I can, so I ensure that my decisions are not only legally sound, but also for the benefit of the company as a whole.” Nevertheless, knowing when to enlist the help of outside counsel can prove challenging. “It is tempting to solve every issue in-house,” Stern says, “but I believe it is important to know when to bring in outside legal experts, work with them to solve the issue, and ultimately do what’s best for the company.”
Meryl Burgin takes part in a panel discussion on cybersecurity and compliance at Legends of the Boardroom 2018.
Kristin Herber discusses international arbitration during a panel discussion at Legends of the Boardroom, a joint presentation by MSBA and Judicial Events™ held on September 28, 2018, in Baltimore.
LIFE EXPERIENCE After nearly a decade split between private and government practice, Christine McSherry spent 20 years engaged in “gratifying but not very lucrative” volunteer and non-profit work while raising her children. With her kids now in college, McSherry enjoys being able to put her litigation, real estate, land use, and legislative experience to work as General Counsel for Beltway Capital Management, LLC in Hunt Valley. According to McSherry, those with “a broad base of experience in law and in life” are best suited for the role of GC, “because so much of what we do is a judgment call, and that requires a broad perspective on the law and on business.”
DIVERSITY & INCLUSION Taren Butcher works to foster and enhance positive relationships between MSBA and the state’s local and specialty bar associations through programs like the Conference of Bar Presidents, held every fall, administered by the MSBA Local & Specialty Bar Liaison Committee, which she co-chairs with Ranju Shrestha. While she lauds the Allegis Group, where she works as Senior Associate General Counsel, for its diversity, Butcher also sees it as being “atypical” for most corporate legal departments. “When you have diversity of race, gender, and backgrounds, it leads to more innovative and strategic business solutions to the issues a company might face,” she says. “Companies are always looking for the competitive edge within the market, and I think the best way to do so is to surround yourself with individuals with diverse perspectives and experiences.”
For Palmer, integration between the legal and business sides is paramount to building an effective working relationship. “Management teams want a peer that understands and can anticipate their needs,” he says.
“Management teams want a peer that understands and can anticipate their needs.” SCOTT PALMER, GLOBAL GENERAL COUNSEL & CORPORATE SECRETARY FOR ANCILE SOLUTIONS, INC.
Certain non-legal skill-sets can also enhance the GC’s role in the greater enterprise. For example, as a former programmer and technical architect, Palmer, who finds himself “involved in many discussions that aren’t related to anything that looks like a legal issue,” is “able to have discussions at a code level” and “help steer around problems.” “This means that when I have something to offer, it is in line with our direction, and I have the context I need to deliver the message effectively,” says Palmer. Classen, Palmer, and Stern concur that bar associations play an active role in the duties of today’s general counsel. “The MSBA provides valuable educational resources as well as a means of seeking the advice of other members,” says Classen, singling out such programs as the Business Law Section’s Business Law Institute and tools like the Sections’ email discussion lists. For Palmer, bar activity helps him to overcome the sense of isolation sometimes experienced by in-house counsel. “Connections I have through the bar association and other similar organizations are vital to learn new things and generate valuable discussions with other attorneys,” he says. Stern agrees. “With the vast knowledge and wide-ranging expertise of their members, bar associations can help provide guidance and advice to other attorneys in the community,” he says.
MARYLAND BAR JOURNAL | SPRING 2019
Health & Wellness
MSBA.ORG | SPRING 2019
Physical Health & Wellness for the Busy, Thriving Lawyer BY ANGELA HAN
While the phrase “healthy lifestyle” is commonplace, motivation and action steps to attain it are not. Reasoning and action steps for a healthy lifestyle can be even more elusive for attorneys. Many of us may find that we keep health on the backburner until “things die down,” but things never seem to die down. Even if things do die down they often come back quickly; moreover, new things always arise. Often, this endless cycle of waiting for that which will never come creates a growing gap between the lawyer’s lifestyle and his or her biological needs. This gap does not bode well for either the lawyer or the client. The greater the delay, the greater the risk of deteriorating physical health each day that significantly affects our lives and our work. Sleep, nutrition, and exercise are three pillars of health that are more important than we think, and simpler to address than we imagine.
Sleep: Why It Is More Important than Food or Exercise
he discussion on health suffers from a glaring omission of its most important pillar: sleep. Why? The impact of lack of sleep on performance is more destructive than you might think. In an experiment by David Dinges at the University of Pennsylvania, a group of healthy adults that had six hours of sleep a night for ten days found as much performance impairment as did the group that went without sleep for the first 24 hours. Matthew P. Walker, Why we sleep: unlocking the power of sleep and dreams 134-36 (2018). Both groups had lapses in concentration increase by over 400 percent. Id. The more dangerous phenomenon is that we often do not know how sleep-deprived we actually are. In Dinges’s study, participants consistently underestimated their performance impairment. Id. Unfortunately, this kind of underestimation is common. Another study showed that having no sleep overnight produced as much performance impairment as reaching the legal limit of 0.08 percent blood alcohol concentration for driving. Id. at 137. Yet, nothing stops us from driving to work in the morning after a night of little sleep, which yields an alarming statistic: An average healthy adult who has had fewer than four hours of sleep faced a likelihood of a car crash increase by eleven-fold. Id. In the long-run, sleep is also shown to help prevent diseases like Alzheimer’s, diabetes, and cancer. Sleep helps get rid of toxins such as amyloid protein, the buildup of which is linked with Alzheimer’s. National Institutes of Health, Lack of sleep may be linked to risk factor for Alzheimer’s disease (Apr. 13, 2018), available at https://www. nih.gov/news-events/lack-sleep-may-be-linkedrisk-factor-alzheimers-disease. It also maintains the body’s ability to absorb glucose to lower the body’s susceptibility to diabetes. Anne Briançon-Marjollet, et al., The impact of sleep disorders on glucose metabolism: endocrine and molecular mechanisms, Diabetol Metab Syndr. (Mar. 24,
2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4381534/. Furthermore, lack of sleep weakens our immune system’s ability to produce enough antibodies. Luciana Besedovsky et al., Sleep and immune function, Pflugers Arch. (Nov. 10, 2011), https://www.ncbi.nlm.nih.gov/pmc/ articles/PMC3256323/. When the immune system is not functioning optimally, it does not identify malignant or cancerous cells at the outset and instead lets those cells multiply. Id. The good news is that there are three effortless ways to sleep smarter: 1. If you have trouble falling asleep, lower the thermostat at night. In a study at the University of Pittsburgh School of Medicine, researchers found that insomniacs had above-average body temperatures. Shawn Stevenson, Sleep Smarter: 21 Essential Strategies to Sleep Your Way to a Better Body, Better Health, and Bigger Success 35-39 (2016). The participants were given “cooling caps” that circulated cool water around the head. Id. With the caps, those participants fell asleep faster than those who were not even insomniacs. Id. Anything beyond 60 to 68 degrees Fahrenheit may cause difficulty in sleeping. Id. at 35. 2. Create a sleep sanctuary with no electronics or artificial light. Another study found that subjects who slept with a patch of light on the back of their knee in an otherwise pitch-black room elevated the body temperature and destabilized melatonin levels. Id. at 75. Even a little bit of artificial light is not natural to our circadian rhythm and may disrupt sleep levels. Id. 3. Set an alarm for bedtime to protect sleep time. It may be tempting to squeeze an extra email or two at the tail end of the night. But, that last 15 minutes of needed sleep can go a long way. How many hours of productivity today is it worth to feel (and be) well-rested and competent all day tomorrow?
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T Nutrition: Making Food Work For You
he busy lawyer faces unusual levels of stress, which may weaken the immune system. Michael Greger, MD, How Not to Die: Discover the Foods Scientifically Proven to Prevent and Reverse Disease 228-29 (2015). In a study at Carnegie Mellon University, a group of individuals, some who identified as happy and some who identified as unhappy, were paid $800 to infect themselves with the common cold virus. Id. at 228. A third of the unhappy group caught the virus, while a fifth of the happy group caught the same virus. Id. Happiness can support a healthy body, but what remedies stress levels? The right foods can have a more powerful effect on mood than even antidepressants, which may have severe side effects. Id. at 232. Fruits and vegetables, for example, may cut the likelihood of developing depression by as much as 62 percent. Id. Seeds such as sesame, sunflower, or pumpkin can raise serotonin for improved moods. Id. at 234. The busy lawyer also faces rushed schedules and irregular meal times that likely result in overeating. Rushed schedules can lead to frequent late night meals. Higher stress levels at night after a long day may heighten cortisol levels, which disrupt the circadian rhythm. Camila Hirotsu et al., Interactions between sleep, stress, and metabolism: From physiological to pathological conditions, Sleep Sci. (Nov. 2015), https://www.ncbi.nlm.nih.gov/ pmc/articles/PMC4688585/. The biological result is less control over eating, leading to higher consumption of salt, fat, and sugar, which trigger the highest levels of dopamine. David A. Kessler, MD, The end of overeating: Taking control of the insatiable American appetite 58-64 (2009). Unusual levels of dopamine stimulating the pleasure center makes salt, fat, and sugar more addictive than some psychoactive drugs. Id. at 62. At night, activity levels and metabolic rates are at their lowest, which contribute to higher levels of stored fat and decreased insulin sensitivity. Darcy L. Johansen, et al., Effect of 8 Weeks of overfeeding on Ectopic Fat Deposition and Insulin Sensitivity: Testing the “Adipose Tissue Expandability,” Diabetes Care (Oct. 2014), http://care.
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diabetesjournals.org/content/diacare/37/10/2789. full.pdf. As a result, overeating is linked to diabetes and other chronic illnesses. Natalia M Lee, The neurobiology of overeating, EMBO Rep. (Sept. 2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3432807/. Here are three ways food can work for you and not against you: 1. Beyond just salads, seek out specific whole foods on the menu or at the grocery store. Dr. Greger from his book “How to Not Die” recommends the following ten categories of foods to help prevent chronic and fatal diseases: beans, berries, other fruits, green and crunchy vegetables, other greens, other vegetables, flaxseeds, nuts, spices, and whole grains. Greger, supra at 310. 2. When eating out, set aside half the portion to go as soon as the dish comes out. Restaurants tend to serve oversized portions, and we often tend to consume what is on the plate. Deborah A. Cohen, Mitigating the Health Risks of Dining Out: The Need for Standardized Portion Sizes in Restaurants, Am J. Public Health (2014), https://www.ncbi.nlm.nih. gov/pmc/articles/PMC4025680/. If you are with a client, and it is awkward to ask for a to-go box immediately, mentally set aside the half plate knowing that you have an extra meal to take home. 3. Don’t forget water. Consistent intake of water helps flush out waste buildup and toxicity, supports cognitive performance, and facilitates digestion. Barry M. Popkin, Water, Hydration and Health, Nutr. Rev. (Aug. 2010), https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC2908954/. Recommended water intake averages around a gallon, though thirst should be the best indicator. The National Academies of Sciences Engineering Medicine Food and Nutrition Board, Dietary Reference Intakes: Water, Potassium, Sodium, Chloride, and Sulfate (Feb. 11, 2004), http://www.nationalacademies.org/hmd/Reports/2004/Dietary-Reference-Intakes-Water-Potassium-Sodium-Chloride-and-Sulfate.aspx.
Exercise: A Daily Investment
xercise is a powerful tool to change your future beyond apparent physical changes like weight loss. Harvard Heart Letter, The science of exercise shows benefits beyond weight loss, Harvard Health Publishing (July 2013), https://www.health.harvard.edu/ staying-healthy/the-science-of-exercise-shows-benefits-beyond-weight-loss. Physical activity helps regulate DNA methylation, which is linked to gene expression. Elisa Grazoli, Physical activity in the prevention of human diseases: role of epigenetic modifications, BMC Genomics (2017), https://www.ncbi.nlm. nih.gov/pmc/articles/PMC5688489/. Gene expression is the process through which our genes encode proteins that dictate cell function. Essentials of Cell Biology, Unit 2: How do Cells Decode Genetic Information into Functional Proteins? Scitable by Nature Education (2010), available at https://www.nature. com/scitable/topicpage/gene-expression-14121669. The more effective the gene expression, the more effective the cell function. Effective cell functions can lessen the likelihood of toxin buildup that affect the immune system and long-term diseases like Alzheimer’s. Jonathan D. Grinstein, How Exercise Might “Clean” the Alzheimer’s Brain, Scientific American (Oct. 16, 2018), https://www.scientificamerican.com/article/ how-exercise-might-clean-the-alzheimers-brain1/. It also strengthens the muscles that maintain healthy metabolic rates that combat sluggishness, joint pain, and diabetes. Maléne E Lindholm, An integrative analysis reveals coordinated reprogramming of the epigenome and the transcriptome in human skeletal muscle after training, Epigenetics (Dec. 7, 2014), https:// www.ncbi.nlm.nih.gov/pmc/articles/PMC4622000/. In reaping these preventive health benefits of exercise, the American Heart Association recommends at least 150 minutes of moderate intensity aerobic activity, which may include both types of exercise: movement and resistance training and cardiovascular training. U.S. Department of Health & Human Services, Physical Activity Guidelines for Americans 2nd ed. (2018), available at https://health.gov/ paguidelines/second-edition/pdf/Physical_Activity_Guidelines_2nd_edition.pdf. Movement and resistance training offers strength to carry out daily activities. American Council on Exercise Person-
al Trainer Manual 305 (Cedric X. Bryant et al. eds., 5th ed. 2014). Examples of movement and resistance training may involve weights and gym equipment, but they can consist solely of body-weight exercises such as pushups, sit ups, lunges, and squats. Cardiovascular training helps maintain optimal health of the blood vessels and regulates the hormones within them, and it does not have to involve only the treadmill and the elliptical. American Council on Exercise, supra at 69. Any exercise that involves both feet or both hands off the floor simultaneously can offer cardiovascular benefits. Id. at 68-69. Examples include plyo push-ups, sit-up jumps, lunge hops, and jump squats, which are all variations the resistance training exercises above with the addition of getting either both feet or both hands off the floor. The following are three ways to get the most out of a workout: 1. Find workouts that require only your body. For example, to create a short but intense workout, pick four exercises like those mentioned above. Create a 4-minute circuit by spending a minute on each exercise. Three circuits in a row will create a 12-minute workout. Build on this list each day and create a library of exercises, which requires no personal trainer or driving to the gym. 2. Set a timer rather than count the repetitions for each exercise. Setting a timer decreases the likelihood of rest periods between sets and increases the likelihood of ongoing movement, which optimizes muscle building and boosts metabolism. BF de Salles et al., Rest interval between sets in strength training, Sports Med (2009), https:// www.ncbi.nlm.nih.gov/pubmed/19691365. However, a time limit does not mean speedy reps. The focus should still be on the correct form, since a slow, correct push up strengthens more than two rushed, incorrectly executed pushups. 3. Schedule your workout in the morning. Exercising in the morning produces normal levels of cortisol, which keeps the cortisol cycle on track and supports deeper sleep at night. Stevenson, supra at 83.
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If you are looking for a change in your health, none of the studies, numbers, or claims cited here are as convincing or as powerful as seeing results from taking the plunge yourself. If you are looking for a change in your health, none of the studies, numbers, or claims cited here are as convincing or as powerful as seeing results from taking the plunge yourself. Taking the plunge does not mean transformation from day one but making a decision one day at a time. Habits form based on frequency, not time. James Clear, Atomic Habits: An Easy and Proven Way to Build Good Habits and Break Bad Ones 215 (2018). Following through a desired action increases dopamine levels, which encourages repetition. Id. at 159. There may be impossible days, and there will be times when you will have to start over. Even if the habit does not form within 20, 30, or 60 days, you get closer to forming a longterm habit as long as you repeat the desired action. Start with day one. If you have to start over again, remember: If you are able to do it once, you will be able to do it again. ANGELA HAN is a healthcare lawyer, a personal trainer, and a plant-based chef based in Baltimore, MD. She may be reached at firstname.lastname@example.org.
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1. Sleep is more important than food or exercise. If you have trouble falling asleep, lower the thermostat at night. In a study at the University of Pittsburgh School of Medicine, researchers found that insomniacs had aboveaverage body temperatures. 2. Make food work for you. Beyond just salads, seek out specific whole foods on the menu or at the grocery store. 3. Exercise is a daily investment. Schedule your workout in the morning. Exercising in the morning produces normal levels of cortisol, which keeps the cortisol cycle on track and supports deeper sleep at night.
Bootstrapping the Opioid Epidemic: Civil litigators are assisting communities in recovering from the opioid crisis where the Federal Government cannot BY JONATHAN P. NOVAK
OxyContin entered into the American marketplace. Within 20 years, this “wonder drug” would affect the lives of nearly every living American citizen, subsuming the entire healthcare field, and costing the lives of hundreds of thousands of Americans. Meanwhile, a very small group of manufacturers, distributors, and pharmacies would become incredibly rich from the marketing of this incredibly dangerous opioid controlled substance. The United States Drug Enforcement Administration (“DEA”) is the arm of the executive branch of the U.S. government tasked with enforcing the provisions of the Controlled Substances Act (“CSA”). DEA is uniquely and solely established in order to bring regulatory, civil, and criminal actions against those corporate registrants who have been granted permission to handle and dispense dangerous controlled substances. Under the CSA, DEA is entrusted to regulate the distribution of controlled substances in order “to maintain the health and welfare of the American people.”
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According to CDC data, more Americans died of overdoses in 2017 than died in the entire
In 2017, over 72,000 Americans died of overdoses. According to CDC data, more Americans died of overdoses in 2017 than died in the entire Vietnam War. As the prescribing of opioids became normalized for everything from toothaches to rheumatoid arthritis, America saw a sudden uptick in the abuse and misuse of more opioids, such as fentanyl and carfentanil, an elephant tranquilizer. An estimated 80 percent of current heroin users report starting on a prescription for opioids issued by a physician. In 2011, DEA had over 200 enforcement actions aimed specifically at fighting the opioid epidemic against doctors and pharmacies presenting an imminent threat to the public health and safety. Yet in 2018, DEA enforcement actions were at a record low. Of the 38 Final Orders issued by the Administrator of DEA in 2018, less than five dealt with the diversion of opioids for abuse. All of this begs the question: why isn’t the government protecting the American people? In 2016, Congress passed the Ensuring Patient Access and Effective Drug Enforcement Act. The bill was touted as a means of protecting the most vulnerable members of our society from the effects of DEA overreach. It was passed without a single dissenting vote. A subsequent joint investigation by The Washington Post and 60 Minutes revealed that the Act was drafted by lawyers from pharmaceutical companies, a reaction to DEA enforcement actions against manufacturers and distributors of opioids, which hurt profits and damaged public opinion. While promoting the powerful lobbying interests of Big Pharma, the bill was sold to Congress as a method of ensuring DEA enforcement couldn’t prevent the helpless and elderly from getting their arthritis medicine. The passage of this law fundamentally amended the original stated intention of the CSA, hamstringing DEA’s ability to enforce the law. Thus felled, DEA enforcement numbers have plummeted in recent years, while the opioid death toll grows higher and higher with each passing day.
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But enforcement actions are merely a regulator’s reaction to a problem well-entrenched in communities all over the United States. The real damage of the opioid epidemic is seen in its costs, both financial and human. Across the state, communities are diverting taxes and resources to pay for the nuisances created by this epidemic: increases in drug abuse and crime, necessitating the hiring of additional police, fire, and EMS services; immense quantities of county- and city-supplied Narcan, a drug used in emergency situations to reverse an opioid overdose; additional prosecutors and the implementation of drug courts; larger jails; larger morgues; loss of revenue from huge increases in unemployment and disability; increases in property crimes; expanding and funding drug treatment programs; and sheer overdose deaths. Victor Britto, the Chief of Police of Rockville, Maryland, speaking at the recent “Rockville Goes Purple” opioid awareness event, told the crowd, “There’s no way we’re going to arrest our way out of this problem.” And all the regulatory enforcement actions in the world will provide nothing to the communities devastated by the costs of this blight. There are a lot of people to blame for this problem. This is not the fault of the patient, prescribed a 30-day supply of oxycodone after having her wisdom teeth removed, and still on the pills a year later. This is not the fault of the teenager, knowing no better, finding a bottle of pills in the medicine cabinet, unused and therefore never to be missed, who tries to experiment with a “safe” drug. This is not the fault of the addicted, watching his life unravel, fully aware that despite every fiber of his being, every voice in his head telling him that this addiction is going to ruin his life and kill him – still, the compulsion is outside of his control. According to complaints filed in the Federal Multidistrict Litigation (“MDL”), some manufacturers of opioids allegedly saw profit in misleading the public about the efficacy of taking opioids for long-term treatment of many ailments. And worse still, the complaints allege that these manufacturers deliberately misled the public about how addictive these drugs were.
People have known for thousands of years the dangers presented by opioids, including the potential for addiction and death. Starting in the late 1990s, opioids were marketed as a wonder drug. Medical textbooks were rewritten, with entire chapters dedicated to “Pain – The 5th Vital Sign.” Vital signs are objective measurements taken by a doctor to get a sense of a patient’s general well-being. Now, doctors were told that they needed to scientifically assess a patient’s pain using an objective measurement – a series of colorful smiley faces. Pharmaceutical sales reps told doctors that opioids were proper treatment for any pain at all; assured that opioids were “rarely addictive,” causing issues in less than 1 per-
thousands of prescriptions in the face of unresolvable red flags that the customer was likely to divert the opioids for abuse or misuse. It is estimated that currently, an average of 130 people will die every day from an overdose. Across the country, civil litigators are bringing state and federal cases against these companies under a theory of public nuisance. Similar to the tobacco litigation of the late 1990s, the lawsuits seek to hold these actors accountable for their part in creating a public health crisis – and to have them provide the resources to abate the problem they’ve created. These lawsuits are being brought not on behalf of individuals, but on behalf of the states, counties, and cities bearing the actual burden of the costs of this
An entire generation of otherwise healthy and able individuals struggle with their compulsions, while the general population must learn to rethink the stigmas of addiction. cent of the population; and warned that a failure to eradicate all pain felt by a patient was potentially malpractice. Worse still, with “patient satisfaction surveys,” a doctor’s livelihood was now threatened if she chose not to provide immense amounts of opioids to pill-seeking patients. Soon, seemingly-independent key industry leaders began speaking at conferences, promoting the use of opioids for long-term treatment. However, these industry leaders were allegedly funded by the manufacturers of these pills. Fearing the consequences of not following into this paradigm shift, and believing the trusted voices of industry leaders proclaiming the wonder and efficacy of these drugs, Doctors began to overprescribe. The CSA creates a closed system of distribution for the manufacturing, distributing, and dispensing of controlled substances, all of which is reported to DEA. A manufacturer makes a pill. It sells that pill to a distributor. The distributor sells the pill to a pharmacy. The pharmacy receives a prescription from a customer, issued by a practitioner, and dispenses the controlled substance to the patient. DEA tracks all of this information from inception to final sale. According to the allegations of the MDL complaints, Manufacturers promoted hyperbolic or downright false information in order to get doctors to prescribe opioids at alarming rates, and spiking demand for these drugs at pharmacies. Distributors, seeing exponential spikes in volume of sales for opioids, never once reported these suspicious orders to DEA despite being required to do so under the CSA. Pharmacists, who are obligated under the CSA to only fill prescriptions for a legitimate medical purpose, allegedly failed to uphold this obligation, instead filling
epidemic. Simply put, 28-day recovery programs do not work for opioid abuse disorder. Communities are examining longterm care centers which involve between one and two years of communal living, behavioral cognitive therapy, anger management, and reintegration programs. An entire generation of otherwise healthy and able individuals struggle with their compulsions, while the general population must learn to rethink the stigmas of addiction. The medical community needs to be reeducated. Parents need to understand the dangers of keeping opioids in the house. Children need to understand the dangers lurking in pill bottles. And as a society, we need to come together with compassion for those victims of the opioid epidemic, in lieu of anger and blame. But the resources necessary to make this generational change will not come cheap, will not come easy, and will not come through the altruism of pharmaceutical corporations. By taking part in this litigation, communities are taking their fate into their own hands with the assistance of attorneys nationwide. The ultimate result of this litigation will hopefully be a forward-looking pool of resources aimed at letting communities determine how to regain control of their own futures and bring themselves back from the brink. JONATHAN NOVAK is a former litigator at the U.S. Department of Justice Drug Enforcement Administration. He currently works for the Fears Nachawati law firm in Dallas, Texas where he is a part of both state and federal opioid cases, bringing his expertise in controlled substance law enforcement to his representation of public clients.
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Caring for Our Colleagues A CALL FOR AGGRESSIVE INTERVENTION BY IRWIN R. KRAMER
By popular account, lawyers are a menace to society. Often the butt of jokes, there is nothing funny about shysters who never saw an ambulance they wouldn’t chase, a bill they wouldn’t pad, or a case they wouldn’t take.
aking whatever nickel-and-dime accident cases come in the door, the stereotypical lawyer is an overwhelmed sole practitioner from a second-rate law school who passed the bar on his fifth try, trips over disorganized files lining the hallway of a cramped office, and couldn’t even spell an “A/V” rating, much less earn one. This fictional lawyer impugns the integrity of our time-honored profession and must be removed from it if we are ever to restore faith in the American legal system.
Rather than correct this distorted image, too many of us embrace it and look down on these “inferior” lawyers. Viewed from the comfort of a well-appointed office adorned with diplomas and other accolades, we may take solace in a stereo-
Working in a profession with a higher incidence of addiction than society at large, many of us struggle with alcoholism, substance abuse or other conditions which, if left untreated, place our lives and the lives of our clients in peril. One recent study
It may be convenient to view all sanctioned lawyers as sloppy practitioners who lack respect for the legal system or dedication to their clients. But, in my experience, very few lawyers fit this description. Imperfect though they may be, many of the lawyers that I have had the privilege to represent are well-intentioned and hard-working professionals. There is much more to their stories than one will read in the pages of Petitions for Disciplinary Action or in judicial opinions granting them.
Judging our colleagues harshly, we cling coldly to the rule of law and ignore the human side of our profession. type that not only permeates society, but is shared within the profession itself. Though others may miss filing deadlines, fail to raise important claims, or omit critical evidence, attorneys with years of experience, superior education, or the enormous resources of a firm with hundreds of similarly esteemed colleagues may believe that their pedigree insulates them from grievances plaguing far less competent counsel. Our professional arrogance makes it easy to expel “bad” lawyers from our ranks. To err is human, but we hold lawyers to a “higher standard.” Judging our colleagues harshly, we cling coldly to the rule of law and ignore the human side of our profession. Rather than look out for one another, we are told to report on each other. While some offenses may require a report to “the appropriate professional authority,” Maryland Rule 19-308.3, our Rules of Professional Conduct say nothing of our need to refer colleagues for appropriate professional help. 60
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“reveals a concerning amount of behavioral health problems among attorneys in the United States,” with addiction and other psychological disorders nearly twice those of other professionals. Patrick Krill, et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 Journal of Addiction Medicine (2016) at 46–52. Of the lawyers surveyed, “[a]ttorneys working in private firms experience some of the highest levels of problematic alcohol use,” as well as higher rates of drug abuse, depression, anxiety and other mental illness. Id. Once reported to be 3.6 times more likely to suffer from depression than non-lawyers, lawyer suicides are now on the rise. William Eaton, et al., Occupations and the Prevalence of Major Depressive Disorder, 32 Journal of Occupational and Environmental Medicine 1079–1087 (1990); Rosa Flores & Rose Marie Arce, Why Are Lawyers Killing Themselves?, CNN.com (January 19, 2014). Beyond these health issues, many among us lack the business
experience to effectively manage our practices, as law schools defer to the “school of hard knocks” to teach the practical tasks of IOLTA account management, client retainer agreements, billing and other “non-legal” tasks. Given a tight job market, young lawyers who hang out their own shingles must confront two separate, distinct and steep learning curves—how to practice law and how to run a business. These problems are amplified for lawyers who serve the “under-represented” in society. Despite our profession’s continuing plea for greater access to justice, those who serve the under-served often lack the staff, resources or business acumen to manage a large volume of “low bono” work. Facing frequent complaints, these lawyers learn that no good deed goes unpunished.
Assistance Program can reach more lawyers, save more lives and provide key strategies for coping with the pressures of a stressful occupation; Mentorship – a volunteer network of attorneys and accountants to mentor and to monitor lawyers on practice management, retainers, billing, IOLTA account management and other practical tasks. This may be coupled with an “IOLTA amnesty” program so that lawyers may come forward to rectify deficient accounts without fear of prosecution; Community Service – a pro bono component letting lawyers “work off” potential sanctions and further enhance the public’s access to justice.
A PUNISHING PROFESSION According to the Court of Appeals, “the purpose of disciplining a lawyer for professional misconduct is to protect the public and to preserve public confidence in the legal profession, rather than to punish the lawyer.” Attorney Grievance Comm’n v. Hopp, 330 Md. 177, 185, 623 A.2d 193, 197 (1992); Attorney Grievance Comm’n v. Slate, 457 Md. 610, 646-47, 180 A.3d 134, 155-56 (2018). The Court repeats this mantra whenever it’s about to punish a lawyer. If we truly want to restore public confidence, we won’t achieve it with more headlines of reprimands, suspensions and disbarments. To protect the interests of our clients, we must attend to the needs of the professionals sworn to serve them. We must replace any perverse pride in punishing these lawyers with compassion for those working in a profession that can be punishing enough. With an Attorney Grievance Commission budget approaching $5 million per year, Maryland’s judiciary devotes far greater resources to prosecuting lawyers than to saving them. Attorney Grievance Commission Audited Financial Statements (as of June 30, 2018). Maryland provides few alternatives to discipline for lawyers who may benefit from a comprehensive program of intervention and education. At present, the Maryland Rules only provide for ad hoc “conditional diversion agreements,” or CDAs, which require the consent of a prosecutor who lacks the staff and resources to manage their rehabilitation or to develop the kinds of programs needed to save the lives and careers of our colleagues. See Maryland Rule 19-716. This is far from adequate.
COMPASSIONATE SOLUTIONS If we care about the future of our profession, we must care for the professionals within it. Considering the plight of colleagues in crisis, we must, in many cases, embrace aggressive intervention as an alternative to aggressive prosecution. A comprehensive, structured plan to address these issues should include four key components: Remedial Education – practical courses and hands-on instruction covering problems which may prompt discipline, and teaching lessons that reprimands and other sanctions cannot; Addiction and Crisis Intervention – as part of a comprehensive diversion program, the MSBA’s statewide Lawyer
To protect the interests of our clients, we must attend to the needs of the professionals sworn to serve them. Asked to choose between a program that would improve their own health and the stability of their practices, and sanctions that may jeopardize both, virtually all lawyers that I have ever encountered would embrace the former and work toward necessary changes. Lawyers who can afford to do so may even pay the expense of this intervention – a cost far below that of fighting disciplinary actions or the economic loss of their licenses to practice law. For many years, we have debated the wisdom of mandatory CLE and pro bono requirements. Opposed by many lawyers, the bar has yet to implement either proposal. But as part of an effective diversion program, we place these requirements where they are needed the most – upon a class of lawyers who would regard them as opportunities rather than as impositions. Aspects of this program may also help lawyers who have lost their privilege to practice law. Rather than “excommunicate” them from our profession, suspended lawyers may gain competence, build a record of positive community service, and “earn” a return to practice. Without any program, we currently pretend that lengthy suspensions will rehabilitate lawyers through the passage of time alone. This does little to reduce recidivism and does nothing to restore public confidence. Confronting the serious problems plaguing our profession, a comprehensive program of intervention, education and service will help lawyers better serve their clients, and provide solutions that lend the public a helping hand. Caring for our colleagues, we give our own profession a chance to learn from its mistakes and better serve all segments of society. This is the only positive way to protect the public and to earn its trust. IRWIN R. KRAMER is the managing attorney at Baltimore’s Kramer & Connolly, where he represents attorneys facing disciplinary action. He publishes a popular blog on ethical issues at AttorneyGrievances.com and may be reached at irk@KramersLaw.com.
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Decriminalizing Disability BY LAUREN YOUNG
acist policing and mass incarceration of persons of color are known to be rooted in our discriminatory and segregationist policies. Disability discrimination, while highly intersectional with discrimination based on race and other marginalized status, has its own history which should be included in discourse about civil rights and police reform. The danger of police intervention for persons in mental health crisis manifests in many ways.
CONSIDER: Angela, who lives in Baltimore, calls 911 for help to get her 45 year old son to the hospital when he is experiencing chest pains. Daniell, who also lives in Baltimore, calls 911 for help to get her 45 year old son to the hospital when he is experiencing a mental health crisis. The 911 response to these calls are dramatically different. Angela’s call leads to dispatch of a paramedic and ambulance, while Daniell’s call leads to dispatch of the Baltimore City Police. The consequences of a police response to behavioral health crises are severe and frequently harmful to those seeking help. This article suggests that our historic patterns of discrimination contribute to the criminalization of disability with immoral results, and urges a response where health care issues generate health care responses. With rare exception, police should never be our first responders to a behavioral health crisis.
In 2016, the Ruderman Family Foundation released data based on a three-year study concluding that a third to half of all individuals killed in interactions with law enforcement have a disability1. (Approximately 900-1,000 people are shot and killed by on-duty police officers each year in the United States.2) A study by ACLU-MD, supports the Rudeman Foundation report. The ACLU-MD study found that of people who died in police encounters in Maryland from 20102014, 38 percent presented with mental health, disability, or substance abuse issues. (Forty-one percent of those who died were not armed with any weapon.)3 The U.S. Department of Justice (DOJ) conducted an investigation into the Baltimore City Police Department (BCPD) subsequent to the death of Freddie Gray. The DOJ investigation found that BCPD violated the civil rights of persons with disabilities by “routinely” using unreasonable force against them including those experiencing mental health crises and in situations where no crime was committed. According to DOJ’s report, BCPD practices expose individuals with disabilities to serious harm and can exacerbate their disability. DOJ reviewed numerous cases demonstrating excessive use of force and physical harm of people with disabilities. DOJ also identified illegal stops and searches of Baltimore residents, including people with disabilities4. These police practices appear predisposed by our history of discrimination. Policing people with disabilities has an ugly past. In the 19th and 20th centuries, cities across the country banned people with disabilities from begging or even appearing in public. Laws targeted people with “physical and mental deformities” and “imperfect bodies.” Known as ‘ugly laws,’ their effect was to push people with disabilities out of public sight while further impoverishing them. Chicago’s ugly law, finally repealed in 1974, prohibited the exposure on city streets of any person who was “diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting object or improper person.5” These laws complemented the development of asylums and institutions to segregate people with disabilities who were frequently viewed as medical anomalies or objects of witchcraft. During the mid-1800s, as “ugly laws” proliferated, municipal police agencies came into existence in the northern cities and in Baltimore. Our 62
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30-40 percent of people in prisons and jails report having at least one disability. MARYLAND BAR JOURNAL | SPRING 2019
early police history is marked by brutality, ruthlessness and a lack of process. During this same period, the American eugenics movement espoused improving the human race via “selective” breeding, resulting in the sterilization of over 60,000 individuals, mostly persons with disabilities. In the infamous Buck v. Bell decision, the United States Supreme Court sanctioned the involuntary sterilization of a woman with an intellectual disability, stating, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind” (emphasis added).6 Our nation’s highest court embraced a narrative linking disability to worthlessness and crime, which narrative continues to infest our policies despite research demonstrating that persons with disabilities are much more likely to be victims than perpetrators of crime.7 As recently as 1983, 15 states had compulsory sterilization laws for people with disabilities. Sterilization laws were not the only method of controlling and sidelining persons with disabilities. In 1914, 33 states and the District of Columbia prohibited persons with disabilities from getting married. Until passage of the “Education of All Handicapped Children Act” in 1975, children with disabilities could be barred from school.8 (Prior to the law, over half of the more than eight million American children with disabilities did not receive suitable and integrated education, and one million of those children were excluded entirely from public schools.9) Exclusionary education practices include sending students home or using disciplinary policies to remove them from school without an attempt at program modification or individualized accommodation to further their participation in school.10 These practices contribute to the commonly recognized ‘school to prison pipeline’11 which disproportionately affects students with disabilities and puts students in contact with law enforcement and the criminal (in)justice system. It was not until 1990, with passage of the Americans with Disabilities Act12, that we broadly prohibited disability discrimination in employment. The vestiges of our discriminatory history, including exclusion from equal opportunities in education and employment, generate predictable outcomes. Both unemployment and poverty rates among people with disabilities is twice that as their non-disabled peers. While we provide Supplemental Security Income13 to those medically certified as unable to work, these benefits currently provide only $74 per month, which is 20 percent lower than the federal poverty limit and insufficient to cover fair market rent for a one bedroom apartment anywhere in Maryland, much less cover all necessary living and health care expenses.14 The creation of a sub-minimum wage rate for people with disabilities, a legal mechanism to pay people with disabilities below minimum wage for certain work, further guarantees the impoverishment of those affected and has resulted in the proliferation of segregated sheltered workshops.15
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The desire to keep people with disabilities out of the mainstream resonates in the proliferation of laws that criminalize poverty and homelessness. The National Law Center of Homelessness & Poverty surveyed 187 cities and assessed municipal codes and found that laws criminalizing homelessness have proliferated since 2006, with laws prohibiting camping in public, sleeping in public, begging in public, loitering, sleeping in vehicles, and even food sharing.16 Such laws disproportionately affect people with disabilities17, who often live in deep poverty making securing a home an unaffordable proposition18. While these laws are ineffective in reducing rates of homelessness and poverty, they are effectual in increasing conflict between police and people with disabilities and pushing individuals further out of sight and deeper into the criminal justice system.19 Police contact with people with disabilities has dire effects. Notwithstanding previously identified harms including fatalities, excessive use of force and aggravation of mental health; exposure to law enforcement has resulted in unconscionably high numbers of children and adults with disabilities in America’s correctional facilities. (See, Disabled Behind Bars; The Mass Incarceration of People with Disabilities in America’s Jails and Prisons, Center for American Progress20and studies finding that 30-40 percent of people in prisons and jails report having at least one disability.21) Our incarceration rates are unique to the United States. The practice of incarcerating large numbers of persons with disabilities should be viewed as a human rights violation, shaped by our legacy of disability discrimination. While eradicating discrimination and segregation requires a long-term effort, an achievable short term goal is eliminating the use of police, with rare exception, as first responders to 911 calls involving individuals experiencing a behavioral health crisis. Health care and parity for persons with mental illness should include crisis response services that are trauma informed, community based and supported by evidence-based practices for recovery. Numerous crisis service models embrace the use of mental health care advocates and professionals, peer supports, non-institutional models of intervention and local support systems. Re-traumatizing, stigmatizing and criminalizing persons in crisis through use of police encounters is contrary to sound public health practice. Despite recent discussions in Baltimore, required by DOJ interventions and the resulting federal court oversight, BCPD has not adopted policies to end sending police to answer 911 calls involving mental health. Until we institute such changes, we will perpetuate disability discrimination and the irrefutable resulting harms. We should consider that it is our law enforcement practices that are unhealthy and in crisis. We should demand a successful intervention, which does not include expansion of police efforts, which is occurring in Baltimore, but of social service and health care efforts. Since the DOJ investigation and subsequent federal consent decree, BCPD has initiated police Homeless Outreach Teams and police led “diversion” projects that target people whom the police recognize on the street
The safest way for police to engage people with disabilities is by limiting those engagements. Let our communities develop healthy supports and outreach to one another. Let communities develop hope, trust and acceptance, elements critical to good mental health. and profile as likely to engage in minor criminal activity22. If we intend to stop the discrimination and criminalization of persons with disabilities through law enforcement, these kinds of interventions must 1 David M. Perry, PhD and Lawrence Carter-Long, THE RUDERMAN WHITE PAPER ON MEDIA COVERAGE OF LAW ENFORCEMENT USE OF FORCE AND DISABILITY a Media Study and Overview (2013-2015), March 2016. https://issuu.com/rudermanfoundation/docs/ruderman_white_paper 2 Philip Stinson, “Charging a police officer in fatal shooting case is rare, and a conviction is even rarer”, to the New York Daily News, May 31, 2017. http://www.nydailynews.com/new-york/convicting-fatal-shooting-case-rare-event-article-1.3210936 3 ACLU OF MARYLAND, BRIEFING PAPER ON DEATHS IN POLICE ENCOUNTERS IN MARYLAND, 2010-2014, March 2015. https://www.aclu-md.org/sites/default/files/legacy/files/md_deaths_in_ police_encounters.pdf 4 Investigation of the Baltimore City Police Department, U.S. Department of Justice, Civil Rights Division, August 10, 2016 (https://www.justice.gov/opa/file/883366/download). 5 Marcia Pearce Burgdorf & Robert Burgdorf, Jr., A History if Unequal Treatment: The Qualifications of Handicapped Persons as a ‘Suspect Class’ under the Equal Protection Clause, 15 SANTA CLARA L. REV., 854, 863 (1975) (quoting CHICAGO ILL. MUN. CODE § 36-34 (1966). 6 Buck v. Bell, 274 U.S. 200, 207 (1927).
be stopped and funding redirected to a robust mental health crisis system. The safest way for police to engage people with disabilities is by limiting those engagements. Let our communities develop healthy supports and outreach to one another. Let communities develop hope, trust and acceptance, elements critical to good mental health. LAUREN YOUNG is Director of Litigation for Disability Rights Maryland (DRM). DRM is the non-profit Protection and Advocacy agency for Maryland. Congress mandated Protection and Advocacy agencies to work with and for people with disabilities. DRM works with clients and allies to increase access to education, health care, community integration, housing, voting and other rights; and to avoid restrictive and coercive practices, neglect or abuse. DRM represents persons who experience homelessness, institutionalization or hospitalization. DRM has engaged in efforts to decriminalize disability and reduce the use of segregation in prison. The author is grateful to numerous persons including Ms. Hill and Ms. Villanueva who have shared their personal experiences in an effort to alter future injustice.
14 “Priced Out- The Housing Crisis for People with Disabilities”, Technical Assistance Collaborative and Consortium for Citizens with Disabilities, Housing Task Force, 2016. http://www.tacinc.org/ media/59493/priced-out-in-2016.pdf. 15 Jessica Fregni, The Law That Makes Paying Workers with Disabilities As Little as ‘Pennies an Hour’ Perfectly Legal, Labor and Employment, Disability Rights,| Jan 30, 2018. https://www.forthepeople.com/blog/workers-with-disabilities-subminimum-wages/ 16 HOUSING NOT HANDCUFFS: Ending the Criminalization of Homelessness in U.S. Cities, National Law Center on Homelessness & Poverty (2016). https://www.nlchp.org/documents/Housing-Not-Handcuffs 17 2016 Annual Homeless Assessment Report: Part1-PIT Estimates of Homelessness in the U.S, U.S Department of Housing and Urban Development (Nov. 2016). https://www.hudexchange.info/ resources/documents/2016-AHAR-Part-1.pdf (Over 20% of people experiencing homelessness had a serious mental illness. and many others have other disabilities.) 18 Supplemental Security Income (SSI) payments — which are substantially below the federal poverty level —make it difficult to retain housing. The average cost of a modest one-bedroom apartment consumes more than a single SSI recipient’s entire income. “Out of Reach 2016”, National Low-Income Housing Coalition, May 2016. http://nlihc.org/sites/default/files/oor/OOR_2016.pdf
7 “Violence and Mental Illness – The Facts”, California Department of Health Care Services, Health and Human Services, available at https://www.dhcs.ca.gov/services/MH/Documents/ViolenceandMentalIllnessTheFacts.pdf”; Appleby, L., Mortensen, P. B., Dunn, G., & Hiroeh, U. (2001). Death by homicide, suicide, and other unnatural causes in people with mental illness: a population-based study. The Lancet, 358, 2110-2112; Hiday, V.A., Swartz, M.S., Swanson, J.W., et al. (1999), Criminal victimization of persons with severe mental illness. Psychiatric Services, 50, 62–68; Mental Health: A Report of the Surgeon General. Rockville, MD: U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Mental Health Services, National Institutes of Health, National Institute of Mental Health, 1999.
19 In a survey of over 1,600 homeless people, facilitated by the Western Regional Advocacy Project, 80% of individuals reported being harassed by police, 50% received citations and 30% were arrested for sleeping in public. National Civil Rights Outreach Fact Sheet, W. Reg’l Advocacy Project (April 5, 2013), http://wraphome.org/images/stories/pdffolder/NationalCivilRightsFactSheetMarch2013.pdf
8 Education of All Handicapped Children Act, Pub. L. No. 94-142, 89 Stat. 773 (1975).
21 Jennifer Bronson, Laura M. Maruschak & Marcus Berzofsky, Disabilities Among Prison and Jail Inmates, 2011-12, U.S. Dep’t of Just. 1 (December 2015), https://www.bjs.gov/content/pub/pdf/ dpji1112.pdf.
9 PETER BLANCK ET AL., LEGAL RIGHTS OF PERSONS WITH DISABILITIES: AN ANALYSIS OF FEDERAL LAW, at 1:1 (2d ed. 2013). 10 Id. 11 ’School to prison pipeline’ is a process of criminalizing youth that is carried out by disciplinary policies and practices within schools that put students into contact with law enforcement and is impacted by practices such as zero tolerance policies, over reliance on school resource officers, and failure of schools to make appropriate program modification and individualized educational programs for youth with disabilities. 12 42 U.S.C. § 12101, et seq. 13 Supplemental Security Income was created by the Social Security Amendments of 1972 and provides cash assistance to individuals who are either aged 65 or older, blind, or disabled. It is only available to certain individuals having very low or no income.
20 Disabled Behind Bars; The Mass Incarceration of People with Disabilities in America’s Jails and Prisons, Center for American Progress, July 2016. Htt://www.americanprogress.org/issues/criminal-justice/disabled-behind-bars/ps
22 BCPD operates a Law Enforcement Assisted Diversion Program, which by its own statistics uses police to engage with persons suspected of being involved with potential minor criminal activity such as drug possession, sex work, disorderly conduct or MTA citations, but acknowledges that most of its contacts are generated by “social referrals” where police intervene with a person on the street where there is no probable cause to arrest, but the person has been identified as someone who is considered a nuisance or likely to engage in illicit street activity. These programs are reminiscent of ‘ugly laws’ but embellish their acceptability by ‘offering’ social assistance and referral. The ‘offer’ for a social service referral is made by law enforcement who insist the program is non-coercive. The BCPD “Hot Team”, homeless outreach team, is comprised of police officers who intrude in homeless encampments with vehicles emblazoned with the slogan,”We are here to help”. Such outreach efforts were previously executed by social workers and community outreach workers.
MARYLAND BAR JOURNAL | SPRING 2019
For nearly 40 years, the Baltimore-based MSBA Lawyer Assistance Program (LAP) has worked tirelessly to preserve and promote the professional, physical, and emotional health and well-being of all Maryland attorneys, judges, and law students by providing free, confidential counseling on issues affecting those in the profession. Our services include help for a broad range of problems and personal concerns such as:
DEPRESSION ALCOHOL & DRUG ABUSE MARITAL & FAMILY PROBLEMS STRESS & BURNOUT ADDICTION EATING DISORDERS WORK/LIFE BALANCE
Now, LAP has brought its services home, no matter where you are in Maryland. As part of MSBA President Judge Keith R. Truffer’s yearlong focus on lawyer assistance, LAP has partnered with a nationally recognized provider of counseling service to effectively expand its presence to every corner of the state.
WE ARE HERE FOR YOU. 66
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We have resources to help. Take advantage of our network of experienced providers. The MSBA Lawyer Assistance Program is available to all lawyers in Maryland. If you or someone you know is in need of LAP’s free and confidential counseling services, please contact us for free: 24/7 TOLL-FREE LINE
1-888-388-5459 James P. Quinn, Director 443-703-3041 email@example.com Lisa Caplan, LCSW-C, Associate Director 443-703-3042 firstname.lastname@example.org
TO BE A GOOD LAWYER, you have to be healthy BY ROBIN M. WOLPERT
The legal profession is the most hazardous of all professions to our health, research shows. What’s more, our future generation of lawyers is most at risk, with younger lawyers suffering the highest rates of problem drinking and depression. If you think you are just fine and don’t have to worry about lawyer well-being, think again. Lawyer well-being isn’t just about us individually. It’s about the vitality and workability of our colleagues, our teams, and our organizations. Moreover, when one of us is struggling, it comes back to us individually. We may pick up the slack, cover for others, or become enablers. We may suffer challenges to our own mental health. All of this impacts lawyer competence and client service in every sector of the legal profession. To be a good lawyer, you have to be a healthy lawyer. That’s why the Lawyers Professional Responsibility Board and the Office of Lawyers Professional Responsibility are committed to strong, proactive leadership in changing the culture of our legal profession in a manner that promotes lawyers’ health. We are grateful for the leadership of the Minnesota Supreme Court, Chief Justice Lorie Gildea, and the court’s liaison to the Lawyers Board, Justice David Lillehaug. This article is the first of a series focusing on the multi-faceted crisis of lawyer well-being. One goal of this series is to provide some basic information about the mental health and chemical dependency challenges facing our lawyers. A second goal is to spark discussion about how we can move from being spectators to agents in creating solutions and building cultural change in our profession. Minnesota State Bar Association President Paul Godfrey reminds us that we are “one profession.” It is only by acting together that we can take on this challenge. The problem is too big for any one person to solve. And, in my experience, the group of us is smarter than any one of us anyway. WHAT IS LAWYER WELL-BEING?
Lawyer well-being is not just the absence of illness. And it’s not feeling happy all the time. The National Task Force on Lawyer Well-Being defines lawyer well-being as a continuous process whereby lawyers seek to thrive across all life’s dimensions—emotional health, occupational pursuits, creative or intellectual endeavors, sense of spirituality or greater purposes in life, physical health, and social connections with others.
a continuous process whereby lawyers seek to thrive across all life’s dimensions—emotional health, occupational pursuits, creative or intellectual endeavors, sense of spirituality or greater purposes in life, physical health, and social connections with others. The taskforce emphasizes that lawyer well-being is part of a lawyer’s ethical duty of competence. “It includes lawyers’ ability to make healthy, positive work/life choices to assure not only a quality of life within their families and communities, but also to help them make responsible decisions for their clients. It includes maintaining their own long term well-being.” A PRIMER: THE 2016 ABA HAZELDEN STUDY
Just two years ago, our profession got a loud wake-up call. A blockbuster study of nearly 13,000 currently-practicing lawyers was published by the Hazelden Betty Ford Foundation and the ABA Commission on Lawyer Assistance Programs. The 2016 ABA Hazelden Study concluded that attorneys experience problematic drinking that is hazardous, harmful, and consistent with alcohol use disorders at a higher rate than other professional populations. Significant proportions of attorneys experience some level of depressive symptoms and elevated anxiety.
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Here are just a few of the staggering statistics: • Between 21 and 36 percent of lawyers are problem drinkers. • Lawyers 30 years of age or younger are significantly more likely to engage in hazardous drinking than older lawyers. • 28 percent of lawyers struggle with depression. • 19 percent of lawyers struggle with anxiety. • 23 percent of lawyers struggle with stress. THE 2016 LAW STUDENT SURVEY
Six months later, the 2016 Survey of Law Student Well-Being was published, providing additional cause for alarm. After surveying 15 law schools and over 3,300 law students, the report found the following: • One-quarter of the law student population is at risk for alcoholism. • 43 percent reported binge drinking at least once in the past two weeks. • 22 percent reported binge-drinking two or more times in the past two weeks. • 17 percent experienced some level of depression. • 14 percent experienced severe anxiety. • 23 percent suffered mild or moderate anxiety. • 6 percent reported suicidal thoughts in the past year.
OF LAWYERS STRUGGLE WITH ANXIETY
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THE 2017 NATIONAL TASK FORCE REPORT
In response to these two studies and their implications for the health of our profession, the National Task Force on Lawyer Well-Being published its report and recommendations in August 2017. The Task Force’s key message is this: “To be a good lawyer, one has to be a healthy lawyer” and “the current state of lawyers’ health cannot support a profession dedicated to client service and dependent on the public trust.” The Task Force Report is a call for action. It sets forth a blueprint for creating a movement to improve well-being in the legal profession. It contains specific recommendations and action items for all stakeholders in the legal profession—judges, lawyer regulators, legal employers, law schools, bar associations, lawyers professional liability carriers, and lawyer assistance programs. THE TOOLKIT
This past summer, the ABA launched a well-being toolkit for lawyers and legal employers. The toolkit makes the business, professional and moral case for lawyer well-being and goes on to provide an 8-step action plan for legal employers: 1. Enlist leaders in the organization who will commit, support, and role model lawyer well-being and communicate the business case for well-being.
OF LAWYERS STRUGGLE WITH STRESS
OF LAWYERS STRUGGLE WITH DEPRESSION
“THE CURRENT STATE OF LAWYERS’ HEALTH CANNOT SUPPORT A PROFESSION DEDICATED TO CLIENT SERVICE AND DEPENDENT ON THE PUBLIC TRUST.” 2. Launch a well-being committee to lead the initiative. 3. Define well-being. 4. Conduct a needs assessment to determine the gap between the desired and current state of lawyer well-being, including an audit of policies and practices that influence well-being 5. Identify priorities that are manageable and achievable 6. Create and execute an action plan 7. Create a well-being policy 8. Continually measure, evaluate, and improve. THE PLEDGE
Recently, the ABA Working Group to Advance Well-Being in the Legal Profession published a “Well-Being Pledge” for legal employers. The ABA asks lawyers and organizations to pledge their support to creating a better future and adopt the following seven-point framework: 1. Provide enhanced and robust educational opportunities to lawyers and staff on topics related to well-being, substance use disorders, and mental health distress 2. Disrupt the status quo of drinking-based events 3. Develop visible partnerships with outside entities committed to reducing problematic substance use disorders and mental health distress in the profession 4. Provide confidential access to addiction and mental health experts and resources to all employees, including free, in-house self-assessment tools 5. Create a proactive written protocol and leave policy that covers the assessment and treatment of substance use and mental health problems, including a defined back-to-work policy following treatment 6. Actively and consistently promote and encourage help-seeking and self-care as core values of the organization 7. Highlight the adoption of this well-being framework to attract and retain the best lawyers and staff
ROBIN M. WOLPERT is a legal strategist, litigator, and appellate lawyer at Sapientia Law Group in Minneapolis and a Past President of the Minnesota State Bar Association. Portions of this article originally appeared in Minnesota Lawyer and are republished here, with revisions, by permission of Minnesota Lawyer.
WHAT’S HAPPENING AT THE MSBA? In light of the studies conducted and reported by the ABA, the Minnesota State Bar Association adopted a strategic plan to improve and promote lawyer well-being. Similarly, during his year as President of the MSBA, Hon. Keith Truffer, made attorney health and wellness a priority. In doing so, Judge Truffer oversaw the expansion of the MSBA Lawyer Assistance Program (“LAP”). Under the expanded program, attorneys throughout Maryland have 24/7 access to live, local counseling by calling 1-888-388-5459. More information about the expanded program can be found at msba.org/health-and-wellness. In addition, the MSBA is working diligently on the development of a Health & Wellness portal, that will contain resources for attorneys struggling with addiction, as well as resources about improving overall attorney well-being. This portal will be launched later in 2019. The MSBA has also teamed with the Women’s Bar Association of Maryland, Inc. and the Bar Association of Baltimore City to host the first Annual Bench/Bar Wellness week on September 16-19, 2019. The Bench/Bar Wellness Week will focus on ways to improve attorney health and wellness. The issues raised in the ABA studies cannot be addressed overnight, and requires the entire profession to work together to ensure attorney health and wellness is preserved.
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The Recovering Lawyer “When you’re deep into the consequences of addiction and depression, it’s easy to feel as if nobody else could possibly understand what you’re going through. Maybe it feels like so many things are happening in your life that you can’t even make sense of it all. It’s important to know that you always have the opportunity to look and to listen. You’ll find stories like yours sooner than you think. They may be hard stories to watch or hear for you, but there’s a good chance that making connections with experiences outside your own will help.” Brian Cuban, The Addicted Lawyer: Tales of the Bar, Booze, Blow, and Redemption
MSBA.ORG | SPRING 2019
MSBA RECENTLY INTERVIEWED Dallas-based attorney and addiction recovery advocate Brian Cuban, author of The Addicted
Lawyer: Tales of the Bar, Booze, Blow, and Redemption (2017) and Shattered Image: My Triumph Over Body Dysmorphic Disorder (2013) and the younger brother of Mavericks owner and entrepreneur Mark Cuban, to discuss the stigma of addiction, confronting trauma, and the crucial role of lawyer assistance programs.
Why did you choose to go to law school and become a lawyer? I am the first lawyer in my family. I originally wanted to be a police officer, but I suffered from anorexia and exercise bulimia (a condition in which a person has an unhealthy compulsion to exercise excessively in order to burn calories), as well as clinical depression and alcoholism. I overheard a conversation between people considering going to law school and looked into it. Going to law school gave my life a three-year plan, when I had none.
Judge Keith R. Truffer has made lawyer assistance a key focus of his year as MSBA President. How are such programs uniquely suited to lawyers? Lawyer assistance programs are necessary linchpins that connect us to resources in the legal community. Their confidentiality also helps lawyers avoid the stigma of addiction. Lawyers stand the chance of losing their license and way of earning a living if they acknowledge openly that they’re dealing with addiction or substance abuse disorders.
"My goal was to shine a light on the drinking culture that is very prevalent in the legal world. I thought that my story could help bring it out of the shadows. My name definitely helps me spread the message but there are many good people out there doing the same thing." What was your goal in writing The Addicted Lawyer? My goal was to shine a light on the drinking culture that is very prevalent in the legal world. I thought that my story could help bring it out of the shadows. My name definitely helps me spread the message but there are many good people out there doing the same thing. A 2016 joint study of lawyer substance use and mental health by the American Bar Association Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation found that roughly one-third of the 13,000 lawyers and judges surveyed qualified as problem drinkers. Why is addressing substance abuse an issue for lawyers? We are a profession that will carry our baggage to death’s door rather than address the things that trigger us. We are not trained to want to seek help or confront our trauma, we are trained to advocate for, and protect others. Acknowledging trauma, shame, and vulnerability is the key to recovery. Also, from a practical standpoint, many solo and small firm practitioners are isolated, and do not have health insurance that will cover treatment.
What has been the biggest challenge in your recovery? Overcoming exercise bulimia and anorexia. Alcohol is just background noise for me now, but I have to eat every day, so I have to ensure I’m making good decisions, and using all the tools I’ve learned during my recovery journey to do so. What have you learned about yourself during your recovery? My wife and brothers are my support structure. The first three months were hard. It was tough to restructure my personal, professional and social life. Peeling back the layers of the onion, so to speak, to get to why you went down the path of addiction was the hardest. I try to remind myself that recovery is only as good as you are on that particular day. I’m learning that a lot of lawyers out there are struggling, and I take it one day at a time.
MARYLAND BAR JOURNAL | SPRING 2019
MONDAY, SEPTEMBER 16 - THURSDAY, SEPTEMBER 19
BALTIMORE CITY MAGISTRATE
“Lawyers and judges work long, sedentary hours and often place their health and wellness at the bottom of the priority list. Bench-Bar Wellness Week will offer us opportunities to focus on our wellness and learn quick tips to make easy changes in our routine and daily lives.”
MSBA.ORG | SPRING 2019
BUILDING A HEALTHY PROFESSION, TOGETHER. Bench/Bar Wellness week is a partnership between MD Bars to feature four days of seminars, exercise and wellness activities and discussions around the state culminating with a health Expo for members of the bench and bar. Hear from professionals with experience in both the legal and health arenas, and participate in workshops for fitness, nutrition, mindfulness, stress management and more.
MONDAY, SEPTEMBER 16
Mental Health Monday
Sponsored by the Bar Association of Montgomery County
TUESDAY, SEPTEMBER 17
Take Care Tuesday
WEDNESDAY, SEPTEMBER 18
THURSDAY, SEPTEMBER 19
Bench/Bar Expo at City Garage
For more information go to
Career Highlights Career Transitions Attorneys sharing their experience of moving between legal sectors or advancing into leadership positions.
Past President Profile of a past MSBA Presdient. What Iâ&#x20AC;&#x2122;ve Learned
Breaking into Law Stories from lawyers who entered the legal field after other promising careers.
Leaders in the profession sharing their successes and advice with the next generation of attorneys.
Off the Beaten Path Professionals finding non-traditional ways to put their law degrees to work.
MARYLAND BAR JOURNAL | SPRING 2019
| BREAKING INTO THE LAW
ASSOCIATE, ZUCKERMAN SPAEDER LLP
"Law school was the path that I chose, so I had a commitment going into it that helped me really appreciate and enjoy where I was."
Photo courtesy of Beverly Funkhouser Photography 74
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ENTREPRENEURIAL SPIRIT ALICIA SHELTON is an Associate in the Baltimore office of Zuckerman Spaeder LLP, where she represents individuals and corporations in
complex civil disputes, class action litigation, and white collar criminal defense. But long before she came to the law, Ms. Shelton cut her entrepreneurial teeth by starting up a restaurant and bar in Long Beach, California.
You grew up primarily on the east coast. What took you to California? I actually went out to California to teach bilingually. It doesn’t really seem like a natural transition to go from teacher to restaurant owner, but in the course of being out there I worked in the catering department of a restaurant. A friend wanted to open up a place, so in 2004 we went into business together and started up a restaurant from scratch. It was called Gaslamp - we took the name from San Diego’s Gaslamp District, which is known as a place for dining and entertainment. Our spot in Long Beach was kind of a little microcosm of that in itself. We had live entertainment most evenings, in addition to dining.
You were not the first entrepreneur in your family. When I was little, my father owned his own business - a country grocery store in Alabama. We would go to work with him every day. He loved what he did. He knew his customers and the people who worked for him. We would be there helping to stock the shelves or price things, and I think that led me in part to open up my own business, to have that feeling that when you love what you do, you’re not counting the hours in your work day.
Did you encounter unexpected challenges in starting up the business? One of the things that I noticed in starting up the restaurant - and this is probably consistent for a lot of entrepreneurs - was that you really don’t know what you don’t know. We knew in starting a restaurant from scratch that you need a liquor license, and in most places you have to buy an existing one. What we didn’t anticipate was that you have to go to City Council and present to get approval for zoning for live entertainment. You have to get separate approval if you want to have
dancing. Another approval is required if you want to charge an admission fee for anything, if you want to cater large events. And then everything else that goes into the business - payroll and benefits for your employees, licensing with the health department... there are myriad issues that you could never anticipate when you first say, “Hey, it sounds like a lot of fun to open a restaurant.” Also, the location had previously been a nightclub which had really caused a lot of problems for the neighbors who lived in the area, so when we started up the business we reached out to the community.
You credit your attorney, Michael Cho, for inspiring you to pursue a career in the law. We were fortunate to have an attorney who worked with us very closely, from getting our liquor license through the very end, when we decided to sell the business in October 2009. We never would have gotten to where we were without the time and effort that he put into us, and following our business through its growth. The idea that I can help others be it a small business or individuals who are in some of the most difficult times of their lives - to navigate through that just seems like a really wonderful thing. How did the experience of having owned your own business color your perspective when you entered the University of Baltimore School of Law? In one way, I knew what I wanted to do. I had always felt like the restaurant kind of fell into my lap, that it was a path that chose me. Law school was the path that I chose, so I had a commitment going into it that helped me really appreciate and enjoy where I was. I was 30 going into law school, instead of my early 20s, so I wanted to maximize what I put into it and what I got out of it.
Did you enter law school with a clear vision of what you wanted to pursue? I went in not knowing what type of law I wanted to practice. I didn’t realize that there are so many different ways in which we can focus our practice, and I thought that I would really want to do something like advising small businesses. But what I found during law school is that I love litigation. I love the research and writing that we do, and the advocacy work, so it was kind of a natural path for me.
From the vantage point of a successful attorney, do you see any parallels between your current and past careers? One of the things I loved the most about opening up the restaurant is still part of what I love the most about practicing law every day now. It’s very hands-on learning, figuring out how to do something, like crafting a search on Westlaw for finding the right cases for what you want. It’s really being creative, and teaching yourself how to do something.
INSPIRED BY AN ATTORNEY Listen to Alicia’s story of how working with a lawyer inspired her to go to law school. VISIT MSBA.ORG/ASHELTON
MARYLAND BAR JOURNAL | SPRING 2019
| CAREER TRANSITIONS
MARYLAND'S ATTORNEY GENERAL'S OFFICE
YO U C A N A LWAY S G O
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Dawinder (Dave) Sidhuâ&#x20AC;&#x2122;s career is focused around civil rights, constitutional law and criminal law. He currently works at the Maryland's Attorney General's office where he is helping to pursue the emoluments case against President Trump. He opened and runs an outpatient addiction facility in his hometown of Potomac Maryland and he volunteers as a mediator in Montgomery County. He is a graduate of the MSBA Leadership Academy and is on the Strategic Vision Committee. A FEW YEARS AGO Dawinder decided
to return home to Maryland after practicing out of state for a period of time. We talked to him about his career and how he reconnected with the Maryland legal community when he returned.
One of your first jobs out of law school was with the U.S. Department of Education in their Civil Rights office. Youâ&#x20AC;&#x2122;ve also written extensively on the subject of civil rights. Can you tell me how you got interested in civil rights work? I didn't know what I wanted to do as a lawyer. I just knew that I liked the big questions and I wanted to learn as much as possible. When I was a first-year student 9/11 happened and that gave my legal career some immediate focus and direction. I wanted to be involved in civil rights. Largely because my father wore a turban and a beard. After 9/11 anyone who looked like him were immediate targets for unsavory comments and even violence.
"When I was a first-year student 9/11 happened and that gave my legal career some immediate focus and direction." president and other leaders in the Maryland legal community.
What would you say to other lawyers going through a similar career transition? The MSBA, I found given my return to Maryland, is a very collegial and very warm institution. There are senior lawyers who have years of experience who relish the opportunity to meet people more early in their careers. People are very helpful and they're looking
for opportunities to be of assistance. So, I would say don't be shy, reach out to individuals either electronically or attend events and just introduce yourself. This is what justice Sotomayor did in her own life. She recalls an experience where she was in a buffet line and there was a more senior attorney right in front of her and she started asking that attorney questions and that attorney ended up bringing her on at a law firm. So that's a wonderful example of what we and younger lawyers can do.
You spent some time working outside of Maryland before returning. Can you tell us how you immersed yourself in the Maryland Legal Community when you came back? I lived in New Mexico for about five or six years and moved back to Maryland. I did what any sensible lawyer should do when thinking about how they should be immersed in the Maryland legal community, I went to Jamaica. I went to the mid-year meeting that was held in Jamaica. The rationale for going there was that I thought that the leaders in the law would be there including the leadership of the MSBA. That was an extraordinarily fruitful experience. I got to meet the bar
DEVOTED TO JUSTICE Listen to Dave share his experience operating a drug clinic and working at the Supreme Court. VISIT MSBA.ORG/DSIDHU
www.firstmdtrust.org MARYLAND BAR JOURNAL | SPRING 2019
| CAREER TRANSITIONS
Nicole M. Folks LAW OFFICE OF NICOLE M FOLKS
DOWNSIZING YO U R
PRACTICE Nicole Marie Folks has worked as a sole practitioner since she left a big-law career at Ballard Spahr LLP in 2009. Based in Baltimore City, Folksâ&#x20AC;&#x2122;s practice focuses on commercial real estate transactions and economic development incentives offered by State and local governments.
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Please describe how your legal career has transitioned. The first nine years of my legal career were spent at two different law firms located in downtown Baltimore. The first was mid-sized, and the second one was a larger firm with a national presence. My practice began as an associate handling zoning and land-use matters throughout the State of Maryland. When I left the first firm as a third-year associate to join the larger firm, my practice expanded beyond Maryland zoning matters into much more complex real estate transactions that included leasing, acquisitions, easements, and financing. Both of these firm experiences equipped me to be a solo practitioner with the skills necessary to handle all sorts of complex real estate matters and economic development incentives.
Do you miss any aspects of your earlier career? Being a solo practitioner, I canâ&#x20AC;&#x2122;t just walk down the hall to bounce ideas off of or discuss a matter with another lawyer. I now need to either call or email a contact, or arrange to meet them for a coffee or lunch. I also miss the extensive support staff that took care of numerous details that now I must do for myself.
What was the greatest challenge in your transition from large firm to solo? The greatest challenge for me when I started my solo practice was accepting the uncertainty of no longer receiving a bi-weekly paycheck from a law firm that took care of tax withholdings, retirement account contributions, and insurance. I am thankful that this is no longer a challenge for me!
What do you like best about being a sole practitioner? Being my own boss. If I donâ&#x20AC;&#x2122;t want to take a particular matter, I have the flexibility not to. Plus, I really love that I never have to attend another mandatory firm meeting that I did not feel contributed to my practice.
What have your career transitions taught you? Clients do not care if their lawyer works for a law firm or is solo, so long as that lawyer does the best work possible and provides the level of attention and customer service that they expect to receive from their lawyer.
What are the skills necessary for an effective career transition? Anyone transitioning from any size law firm to a solo practice must be highly organized and not bashful to let everyone know about their new practice. I spent a considerable amount of time the first six months after transitioning to my solo practice talking to lawyers both in and outside my field about my new practice, and the possibility of sending matters my way when possible, especially if a conflict should arise. This approach served me well then, and continues even now years later.
What words of advice would you offer other attorneys who are considering a career transition? At the time I transitioned from a large firm to a solo practice, I was nine years into my legal career. I had gained an immense amount of knowledge and contacts during that time. If you are considering making a similar move, understand that you will be the same lawyer on your own as you are with any firm. Your reputation, knowledge, and contacts will stay with you regardless of any changes in your letterhead.
â&#x20AC;&#x153; You will be the same lawyer on your own as you are with any firm. Your reputation, knowledge, and contacts will stay with you regardless of any changes in your letterhead."
How has you prior firm experience informed your career as a solo? I have learned countless practice tips and substantive legal knowledge from my nine years at those two law firms, and now I continue to grow those on my own.
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CAREER HIGHLIGHTS |
& THE P R E PA R E D M I N D
Hon. Harry C. Storm
MONTGOMERY COUNTY CIRCUIT COURT JUDGE
A native of Frostburg, Maryland, the Honorable Harry C. Storm spent 35 years in private practice in Bethesda before Governor Larry Hogan appointed him to the Montgomery County Circuit Court bench in January 2016. He is a Past President of both the Maryland State Bar Association and the Bar Association of Montgomery County.
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JUDGE STORM sat down with the Maryland Bar Journal to discuss law school rejection, the importance of being given a chance to succeed, and the need for civility in the legal profession.
Despite your successful legal career, it did not have a smooth start. I really got the passion for pursuing a career in the law when I was in college at the University of Maryland, College Park. I applied to six law schools, and I was rejected by six law schools. That was in the summer of 1976. Long story short, I was able to persuade the University of Baltimore to reconsider, and they let me into night school. I started that fall, switched to day school, and graduated in 1979.
should be given the chance, and at the end of that conversation, he said, “Well, if we have a spot for you, I’ll call you by noon Friday.” At quarter-to-12 on Friday the phone rings, and Andy Goletz said, “I’ve got a spot for you at the night school, if you want.” So, I immediately resigned from the police department and drove to Baltimore that night to register and buy books. The next day I drove back to Ocean City to collect my stuff, drove back, and started class on Monday.
Mr. Goletz attended your installation as MSBA President in June 2016? He had retired years earlier, but I tracked him down and found him living in Wheeling, West Virginia.
If it’s something that you really want to pursue, don’t just give up on it. If you have the opportunity to make your case in person, it’s worth a shot. How were you able to persuade UB Law? I had received all the rejection letters while I was working as a seasonal police officer in Ocean City in the summer of 1976. At that point, I thought I was going to be pursuing a sales career with IBM or Xerox. But I really did want to go to law school, so on a lark I drove to Baltimore early one morning and I got in to see UB Law’s admissions director, a fellow named Andy Goletz. He had boxes of application files behind his desk, and he rooted through one of the boxes and found my application. He said, “Well, your grades weren’t that good, and your board scores were terrible. Why should we let you into law school?” I told him all the reasons why I thought I
I invited him to Ocean City, so he was there on Saturday morning when I took office as MSBA President. I got to thank him for what he had done, and it just meant so much to him. Unfortunately, he died the next year, but after reading my story in the Maryland Bar Journal, any number of other lawyers contacted me to say, “I had a similar experience - he gave me a chance, too.”
What were your takeaways from that experience? If it’s something that you really want to pursue, don’t just give up on it. If you have the opportunity to make your case in person, it’s worth a shot. Sometimes the record doesn’t reflect the potential.
“In my 20+ years of working with associations, I’ve known 20 presidents and presidents-elect, and there is no one better than Judge Harry Storm.” - VICTOR VELAZQUEZ, MSBA EXECUTIVE DIRECTOR
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INVESTITURE OF HON. HARRY C. STORM Fellow judges welcome then-MSBA President-Elect Harry C. Storm to the Montgomery County Circuit Court bench during his January 2016 investiture.
Tell us about your life in private practice. A lot of my private practice related to the gasoline industry. I cut my teeth on this obscure federal statute known as the Petroleum Marketing Practices Act, which Congress passed and the President signed into law in 1978. It was designed to essentially provide some protection to small gasoline retailers against having their franchises arbitrarily terminated by the major oil companies.
What key advice would you offer younger and up-and-coming attorneys?
LEADERSHIP ACADEMY TURNS 20 MSBA President Judge Harry C. Storm, Maryland Lieutenant Governor Boyd K. Rutherford, and MSBA Past President Debra G. Schubert attend the MSBA Leadership Academy’s 20th Anniversary Celebration in March 2017 at Westminster Hall in Baltimore.
I think just how important your reputation is in the legal profession - treating people with civility and respect. Your reputation really is everything, and you don’t get a second chance at it. In my courtroom, I let lawyers know that I don’t tolerated bickering back and forth, that I expect them to treat each other in a civil fashion. Society looks to the legal profession and the courts - we are setting an example for how people should act toward each other. I keep the Montgomery County Code of Civility on the wall right outside my chambers.
What do you consider the highlights of your year as MSBA President (2016-2017)? The biggest thing was finding and bringing on our new Executive Director, Victor Velazquez. I was fortunate to have [longtime MSBA Executive Director] Paul Carlin for half of my bar year, then Vic came on in December and we had to integrate him into the organization. Vic’s been in place now for a couple of years, and there have been many great changes at the MSBA.
"I think people who are actively involved in bar associations are better lawyers." What role do or should bar associations play in a lawyer’s career? I think people who are actively involved in bar associations are better lawyers. They’re more attuned to what’s going on in the profession. I think they’re more aware of their ethical responsibilities. I just believe that bar involvement makes you a better lawyer. ABA DAY 2017 MSBA President Judge Harry C. Storm (third from right) leads the Maryland delegation that traveled to Washington, D.C. in April 2017 to visit with Congressional representatives like Dutch Ruppersberger (center) and advocate for such issues as funding the Legal Services Corporation and access to justice.
MSBA.ORG | SPRING 2019
WEB EXTRA BE CIVIL: Judge Storm shares his advice to younger lawyers about civility in the law. VISIT MSBA.ORG/HSTORM
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| OFF THE BEATEN PATH
Angela Han CORPORATE COUNSEL, HEALTHPRO HERITAGE
By day Angela Han is a corporate counsel at Healthpro Heritage by evening sheâ&#x20AC;&#x2122;s a personal trainer focused on helping attorneys meet their wellness goals. Angela runs her own personal training business and we talked with her about why she started this business and why she works primarily with lawyers.
A L AW Y E R K N O W S W H AT L AW Y E R S N E E D
TO STAY HEALTHY How long have you had your own business?
My business is called an Angela Han Health LLC and I just started just a month ago. It's been official just for a month now but I started as a personal trainer a year ago. I just walked into the gym right next to my apartment and I said do you have a job for me. I was persistent for a couple months and then after they finally offered me the job I worked there for three months. I had to move here and that's when I started my new business but I officially filed it in Maryland state just a month ago because I wanted to make it official and wanted to be able to transact as a business.
Why did you get into personal training? I was a teacher and I had such a great experience but the personal connection with education was not quite there. So, that's when I sought for a personal connection. What industry do I have a personal connection with? And that was health care. The reason was that when I was going through an eating disorder for years I felt like I did not have the resources that I was looking for because my whole family was in Korea. I couldn't really ask for help. I felt very alone while dealing with the health issues of my own. So, I knew that I wanted to make some sort of difference for other people who might have been going through something similar.
Why do you focus on training lawyers? Lawyers have this pressure to be perfect. They have the pressure to be accurate and quick and just be able to produce things exactly the way the client wants it to be produced. So, then going through that pressure and having to use up all of their time being able to meet the clients needs it can create a kind of a unique stress, unusual stress, in their mental state. That might affect their willingness to pick up something new, such as going to the gym and working out on a regular basis. I understand what that feels like and so being able to persuade them to come to the gym and work on themselves despite all of that, it's something that I was able to do and differentiate myself from other trainers. Photo courtesy of Beverly Funkhouser Photography 84
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CULTURE SHOCK Hear how Angela got interested in wellness to deal with the stress created by being in an unfamiliar country. VISIT MSBA.ORG/AHAN
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2019 Replacement Pages to Maryland Civil Pattern Jury Instructions fifth Edition
| WHAT I'VE LEARNED
PARTNER, SAUL EWING ARNSTEIN & LEHR
MSBA.ORG | SPRING 2019
T R A N S AC T I O N A L L AW H E L P S
BUILD A BETTER FUTURE James Goodrich is a commercial real estate and transactional Lawyer for Saul Ewing in Baltimore. We talked with him about his practice and his thoughts on the profession.
Why do you enjoy practicing transactional law?
What advice do you have for new attorneys?
Transactions are by and large voluntary occurrences. You have a willing buyer and a willing seller or a willing landlord and a willing tenant. They come to the table of their own free will and want to get a consensual deal done. Also, transactions are about the future. If you are leasing new space it's because you think that space is going to work for you in the future. It's about planning and optimism and looking to a better day.
if you're not happy then you need to do something about it. You get one life and you should try to be happy. Not every single day is going to be absolutely filled with joy but just try to figure out what works for you and what will give you the best chance of being happy.
What is a deal you are particularly proud of? One of my favorite real estate deals Iâ&#x20AC;&#x2122;ve been involved with is Union Collective down on 41st Street [in Baltimore]. That was an abandoned building that now is a wonderful social hub. It's anchored by Union Craft Brewery which is a growing brewery in the area. The owners made a bet that they would thrive in a new and bigger space. It's about optimism, it's about the future. I also helped on a pro bono matter for St. Ignatius Loyola Academy, which is a Jesuit school in Baltimore that serves boys whose families are below the median income level. It's tuition free for the boys. It's supported all by donations. I helped it lease a former Catholic school that wasn't being used. So again, taking a property that's out of commission and helping a user put it to good use back in circulation. It's a thriving school that does a wonderful job of educating boys
Then the other thing. Work hard, serve the clients, respect the attorney-client privilege. Not the [client confidentiality] privilege per se but the privilege that you have of being an attorney and working with and for clients. It is just sacrosanct. It's has the potential to be unbelievably noble and we should treat it with that sort of respect.
"Not every single day is going to be absolutely filled with joy but just try to figure out what works for you and what will give you the best chance of being happy."
FOCUSED ON THE FUTURE Hear from James about how transactional law allows him to work on projects that make an impact on the community. VISIT MSBA.ORG/JGOODRICH
Photo courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | SPRING 2019
| CAREER DEVELOPMENT
Winning Interview Strategies Prepare Like an Athlete BY RANDI LEWIS, ESQ.
“FAILING TO PREPARE is preparing to fail,” ac-
cording to legendary UCLA basketball coach John Wooden. College athletes who master the scout, go the extra mile in practice, and evaluate their performance after each game tend to be successful on the court/field. Likewise, lawyers who perform the best in an interview are the ones who take the time to prepare for and to assess what they could have done better afterward. Thorough preparation and self-assessment are necessary exercises for lawyers at all levels, from inexperienced entry-level lawyers to partners seeking to make a strategic move who have not interviewed in many years.
You can maximize your chances of landing the offer by preparing for your interview like an athlete prepares for competition. What makes a lawyer stand out from others in the interview process? Most of us have wondered why we didn’t get the job. You can maximize your chances of landing the offer by preparing for your interview like an athlete prepares for competition. Master the scout. Conduct your own scouting first by studying the law firm’s website. Familiarize yourself with the firm’s culture and how the firm talks about itself, its accomplishments. Read the about us section and its recent news articles. Study the careers page. Some firms even will suggest questions to ask the interviewers. Study the practice area for which you are interviewing, the lawyers in that practice, and the bios of the interviewers. Practice, practice, practice. After mastering the scout, a lawyer, like an athlete, should practice, refine, and practice again to maximize his or her chances of winning. Practice talking about yourself, your practice and your goals. When I work with a lawyer to prepare him or her for an interview, we anticipate a broad range of questions and walk through 88
MSBA.ORG | SPRING 2019
possible answers. You must be able to answer questions that will enable the interviewers to decide why they should hire you, why you are interested in their practice, and whether you will be a fit. At a minimum, you must know how to navigate these basics:
“Tell me about yourself.” Lawyers often ask this question or a similar one (e.g., “Why do you want to be a lawyer?” or “Where do you see yourself in five years?”). If you prepare the answer to these questions, you will be able to shape how you want your interviewer to perceive you. “Why this firm and why this practice area?” If you master the scout, you should be able to answer these questions.
Know your resume. Practice describing listed experiences and writings.
Prepare and practice asking questions addressed to each interviewer.
Prepare answers to behavioral interview questions. Behavioral interviews are based on the premise that past behavior is indicative of future performance. Lawyers ask behavioral interview questions to determine how you will perform in their environment. An example of a behavioral interview question is: “Tell me about a time when you had to persuade your boss to view a situation your way.” Respond like a high performer by using the PARLA method: stating the problem; discussing the actions you took; describing result of those actions; explaining what you
learned from the experience; and, where appropriate, how you have applied lessons learned. Show you are a team player. Law firms seek lawyers with leadership qualities who will collaborate well with others. Prepare for questions related to leadership and teamwork. Other questions will attempt to assess your emotional intelligence and your intellectual humility. Can you help others succeed? Do you own mistakes and losses? Are you comfortable admitting what you do not know? Your answers to questions designed to elicit this information will suggest whether you will be a solid team member. Assess your performance. After each interview, write down some of the questions you were asked. Think about how you answered them and refine your answers and questions for the next interview.
You should be able to tell the interviewers about yourself in a succinct way that will shape how your interviewers perceive you.
From the office to the gym, family law attorney and MSBA member Sahmra A. Stevenson trains for success.
Interviewing is a learned skill and you will become more comfortable in that setting each time you interview. You should be able to tell the interviewers about yourself in a succinct way that will shape how your interviewers perceive you. Start every interview armed with knowledge of the firm and your practice area and be prepared to recite key information from your resume that is relevant to this role. If you are prepared with information and practice your answers ahead of time, you will be going into an interview with your game face on and ready to play ball. RANDI LEWIS is Managing Director of Law Firm Practice in the Baltimore office of the legal executive search firm of Major, Lindsey & Africa.
MARYLAND BAR JOURNAL | SPRING 2019
going somewhere? Share your vacation photos, travel stories, and more for possible inclusion in a future issue of The Maryland Bar Journal! Contact Patrick Tandy at email@example.com to share content or for more information.
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The ABA Retirement Funds Program is available through the Maryland State Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2018) carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: firstname.lastname@example.org. Securities offered through Voya Financial Partners, LLC (member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya, the ABA Retirement Funds, and the Maryland State Bar Association are separate, unaffiliated entities, and not responsible for one another’s products and services. CN700696_0121-2019
| IN MEMORIAM
In Memoriam MSBA Past President (1998-1999) Charles Michael “Mike” Preston passed away on December 6, 2018, at his home. He was 73.
A BALTIMORE NATIVE, Preston graduated from Western Maryland College (now
McDaniel College) in 1967. Three years later, he was admitted to the Maryland Bar after procuring his JD from the University of Baltimore School of Law. He served as a law clerk to Carroll County Circuit Court Judge Edward O. Weant, Jr. before joining the law firm of Hoffman & Hoffman as an associate in 1972. The firm changed its name to Hoffman, Hoffman & Preston when he became a partner in 1976. Two years later, it merged with the Westminster firm of Hoff & Stoner, becoming Hoffman, Stoner & Preston. Preston left the firm in January 1980 to form a new firm, Stoner, Preston & Boswell, with partners Charles E. Stoner and Richard V. Boswell. In sum, Preston practiced law in Carroll County for 48 years, and served as President of the Carroll County Bar Association in 19851986. Preston’s MSBA service included the Budget & Finance Committee as well as six years as MSBA Treasurer (1991-1997) before becoming President in 1998. MSBA Past President (2001-2002) Richard H. Sothoron, Jr. says that Preston “was known throughout Maryland as a gifted lawyer who possessed a wonderful temperament, regardless of the venue or complexity of the case.” Sothoron, who served as Treasurer under Preston, fondly recalls his friend’s “easygoing manner, affable personality, and warm smile.” “If anyone truly cherished the opportunity to become a lawyer in Maryland and ascend to the position of President of the MSBA, it was Mike Preston,” adds Sothoron. MSBA Past President (2002-2003) James P. Nolan, who served as Secretary under Preston, points to the words recently shared by other Past Presidents upon learning of Preston’s passing as testament to his character, including “our dear friend”, “fine lawyer”, “effective leader”, “true professional”, “adored his wonderful wife, Barbara”, and “he treasured the MSBA and his MSBA friends.” “Kind of says it all about Mike,” says Nolan. “He will definitely be missed.” Former MSBA Executive Director Paul V. Carlin recalls a man who “was motivated by diligence and the utmost civility and consideration to all.” “I always felt and enjoyed a close kinship and camaraderie with Mike, especially since our birthdays were only days apart,” says Carlin. “I will miss him dearly.” In addition to the Maryland Bar, Preston was admitted to practice in the United States District Court for the District of Maryland (1972), the United States Supreme Court (1974), and the Trial Bar for the United States District Court for the District of Maryland (1984). He was also a member of the American Bar Association, the Maryland Bar Foundation, the Maryland Trial Lawyers Association, and the Maryland Attorney Grievance Commission’s Review Inquiry and Review Board Committee.
Charles “Mike” Preston “If anyone truly cherished the opportunity to become a lawyer in Maryland and ascend to the position of President of the MSBA, it was Mike Preston.” RICHARD H. SOTHORON, JR., MSBA PAST PRESIDENT, 2000-2001
Preston held a celebration of Preston’s life on December 12, 2018, at Pritts Funeral Home & Chapel in Westminster. A private interment followed at Kriders United Church of Christ Cemetery.
IN MEMORY Listen to some of Mike’s MSBA colleagues share what made him special. VISIT MSBA.ORG/MPRESTON
MARYLAND BAR JOURNAL | SPRING 2019
| IN MEMORIAM
In Memoriam TITUS SERVED as MSBA President
during the 1988-1989 bar year. He was commissioned as a United States District Judge on November 17, 2003, and served in the Court’s Southern Division at the Greenbelt courthouse and was on active status until January 17, 2014. He continued service on senior status until his passing.
Hon. Roger Titus MSBA expresses our deepest condolences to the family, friends, and colleagues of Past President Judge Roger W. Titus, who passed away on Sunday, March 3, 2019, following a courageous battle with cancer. He was 77 years old.
Funeral services were held Friday, March 8, at Saint Bartholomew Catholic Church in Bethesda, followed by a reception at Congressional Country Club and private burial.
“He was a brilliant lawyer, good guy, and will be missed by all of us in Bar leadership during those years.”
Dennis Belman, who served as MSBA President in 1994-1995, recalls that, despite being the same age as Titus, “I always considered him older and much wiser.”
P. DENNIS BELMAN, MSBA PAST PRESIDENT, 1994-1995
“When I was Bar President, I often sought Roger’s advice on various matters coming before the Board of Governors,” he says. “While I didn’t agree with some of the advice given, it was almost always correct.” “He was a brilliant lawyer, good guy, and will be missed by all of us in Bar leadership during those years,” notes Belman. In May 1989, as Titus neared the end of his presidency, the Maryland Judiciary issued its Report on Gender Bias in the Courts. “Roger saw the importance of the Report – and the controversial impact of its declaration that gender bias did exist in Maryland courts and required correction,” recalls Baltimore City Circuit Court Judge Pamela J. White, then-President of the Women’s Bar Association of Maryland (White later served as MSBA President in 2001-2002). “He was a change-agent as he participated in the identification and appointment of members to the newly constituted and implemented Committee on Gender Equality.” That Committee, chaired by Maryland Court of Appeals Judge Larry Rodowsky (and on which White herself would serve for 12 years), was charged with addressing many of the 121 recommendations set forth by the Report, including many recommended action items for the organized bar.” “Roger’s appreciation of ‘professionalism’ at the bar necessarily expanded with his focus on concerns and issues of diversity in the legal profession and on the bench,” notes White. In 2013, then-incoming President Michael J. Baxter interviewed Titus, as well as fellow Past Presidents Hon. Barbara Kerr Howe, Harry S. Johnson, and Paul D. Bekman, for a video feature paying homage to retired Chief Judge Robert M. Bell, Court of Appeals of Maryland.
IN MEMORY Listen to some of Roger’s MSBA colleagues share why he is missed. VISIT MSBA.ORG/RTITUS
MSBA.ORG | SPRING 2019
FOR YOUR PRACTICE
| LAW OFFICE MANAGEMENT
Micromanage the Client Experience BY JENNIFER M. RAMOVS
MICROMANAGE?! What a horrible word. The connotation is
negative. When we think about being micromanaged, we are likely frustrated and annoyed. We feel treated like a child who is incapable of doing their job. But this is different. The first time we heard the word used that way was at a Rainmaker Retreat, by our friend Stephen Fairley. As legal professionals providing services to clients in a competitive market, micromanaging your client’s experience will not only result in happy clients, those happy clients become repeat clients, or, great referral sources. Micromanaging the client experience is mostly about managing expectations, looking at how your firm delivers service, and being willing to make changes in your approach or process for the benefit of
Start micromanaging while they are still prospects. your clients. Put simply, leave nothing to chance when it comes to the experience a client will have with your firm. Start micromanaging while they are still prospects. Respond to inquiries timely – and completely. Don’t just answer one of the three questions they asked you. Take the time to make sure you address MARYLAND BAR JOURNAL | SPRING 2019
everything they asked you – even if the question can’t be answered without a formal meeting or more information. Just skipping the question will make you look like you either don’t know the answer or are avoiding the question altogether. Think about how your phones are being answered. Do prospects feel welcome when they call? Is there a friendly voice on the other end of the phone? Next time you walk into the front door of your office, look around. Try to see what a prospective client would see. First impressions are a very important part of micromanaging the client experience. Follow up for prospects should happen quickly. It’s not about hounding them to become your client – rather, it is demonstrating that you are committed to their issue and want to make sure that they partner with the right law firm to protect their rights and interests.
Never make the client ask you for a status. Send them a retainer letter and explain the way your firm operates how you communicate (email?), how you bill, how often you update on status, who will work on their case, what your collections policy is. And then….do what you say. Ask your clients questions at every opportunity. “I see you spoke with one of our associates, Jenn, the other day. I hope you got what you needed – is there anything Jenn could have done better for you?” Clients might not tell you that Jenn seemed rushed, or unaware of recent developments in the case. But if given the opportunity – at the right time, to be heard – you will get valuable feedback about the way your team is performing for your clients. Never hesitate to ask because you are afraid of the answer.
Micromanaging the client experience will position you as a trusted advisor for your clients, and their instinct will be to call you no matter what they need. People want to do business with people they like, and they want to feel heard. Don’t be afraid to over-communicate - ask for feedback, and make adjustments to your team and your processes if the client feedback suggests you should. JENNIFER M. RAMOVS is Director of Practice Management for Affinity Consulting Group.
KEEP RAISING YOUR PRACTICE TO GREAT HEIGHTS
Train your team to ask the same thing when they deal with clients. “How are we doing? Are you happy with the level of communication?” Be aware of the status of your cases, even when they are delegated to other trusted professionals in your office. If you are a partner or were the originating attorney for a long-term client that another lawyer in your office now manages, that doesn’t mean you can’t pick up the phone and ask how the client is doing, whether they are happy with the service they are getting, and how else the firm can help. Update your clients at least weekly, even when not much has happened on their case. Never make the client ask you for a status. At the end of the case, get feedback on how you did as a team. How was the intake process? Level of communication throughout your case? Would you recommend our firm? What would have made working with us easier? Follow up even after a case closes - a month later, three months later, etc. “How are things? Need anything else? Don’t forget we are here for you no matter what the situation.”
MSBA.ORG | SPRING 2019
This year’s Solo Summit, set for Friday, November 8, promises a full day of programming for solo and small firm practitioners in all phases of their careers. Stay tuned for further details! VISIT MSBA.ORG/SOLOSUMMIT2019
| WHAT ARE YOU READING?
Path to Impact: The Rising Leader’s Guide to Growing Smart REVIEW BY KIMBERLY H. NEAL, ESQ.
A FEW YEARS AGO, I briefly left
private practice to take on a role developing a new program at The Children’s Guild. I now serve the Guild as General Counsel. In making these significant professional changes, I was – and still am – asked: What led me to those decisions? Was I happy with the major leap? How has my life been affected? One person who connected with me early on these topics was Wendy Merrill. Wendy, who I now consider a friend, is the Founder of StrategyHorse, a consulting business that empowers professionals and offers a smart, clear path to true leadership. Most recently, Wendy added “author” to her list of accomplishments. Wendy’s book, Path to Impact: The Rising Leader’s Guide to Growing Smart, is all over my social media feed these days, so I thought perhaps I should read it for myself. Knowing Wendy’s point of view, I expected it to be practical, well-written, and entertaining. It was all of those things and then some. “Path to Impact” is a quick read offering step-by-step advice on how to become an impactful leader. Importantly, the book distinguishes between “influence” and “impact.” Influence can make you popular, but impact breeds respect. In making these points and getting to the real meat of “impact,” Wendy shares “real life” case studies of professional struggles, including everything from Workplace Stockholm Syndrome (where a rising star becomes shackled to a toxic workplace
WHAT’S ON YOUR SHELF?
situation), battling the hamster wheel of serial accomplishments (failure to celebrate one achievement before moving on to the next), forgetting how to say “no” (and how to evaluate when “yes” is not in one’s best interest), and the often ambiguous path to partnership. The reader is encouraged to become selfaware and find her “Holy Trinity of Why,” to understand motivation of herself and others. The book even includes whiteboard exercises to prompt an actual pause, reflection, and plan rather than reading mindlessly to the next point. I found great value in Path to Impact. It reignited some of my passions and truths, and encouraged me to continue to grow. Younger professionals will certainly benefit from the book’s problem-solving strategies and frank descriptions of workplace realities. Baltimore is fortunate to call Wendy Merrill its own, and I encourage area professionals to read her book and learn more through her associated seminars. If we truly want positive change and growth in our workplaces and communities, we need impactful leaders. KIMBERLY H. NEAL, ESQ., is General Counsel and Grant Relations Officer for the Children’s Guild, Inc., a child-serving organization founded in 1965 and dedicated to serving children and adolescents with trauma disorders, who have been traumatized by life experiences or who have autism spectrum disorder and/or multiple disabilities in Maryland and Washington D.C.
“Path to Impact: The Rising Leader’s Guide to Growing Smart is an easy to read and straightforward guidebook that helps professionals to find their “why,” define their individual value proposition, shed the damaging practice of self-doubt and create their personal path to success. Wendy’s book contains real life examples of how Rising Leaders – and those charged with developing them – can be more impactful in the workplace and beyond. Clerks, associates and partners will be able to identify with the various anecdotal examples provided throughout the book. Her tips are easy to follow and relatable, and can be applied to every reader’s personal career path.” - WENDY MERRILL
SHARE YOUR FAVORITES: What’s caught your interest lately? Send book, magazine, or article reviews to Patrick Tandy, Director of Content & Delivery, at email@example.com. MARYLAND BAR JOURNAL | SPRING 2019
FOR YOUR PRACTICE
| BUILDING YOUR BRAND
Client Testimonials A Powerful Marketing Strategy BY TATIA GORDON-TROY, ESQ.
Always get written consent to publish the review and to use it as part of your marketing.
WHEN I VISIT law firm websites, I’m typically doing research—or reconnaissance, if you
will—with the intent on suggesting to lawyers how they can improve their current setup. In doing so, I come across countless firm websites that are screaming for help. Some are outdated, some simply lack personality, still others are devoid of the basics like evergreen content or well-written lawyer bios. But what seems to be commonly absent across a majority of law firm websites is the client testimonial. For many law firms that embrace marketing as part of their business development strategy, they understand that client testimonials are a hot commodity, as they should be—because they work. Savvy lawyers understand the influence that client testimonials possess; but to gain the most traction from a client testimonial, it needs to be presented in a thoughtful, detailed, and honest way. There was a time when testimonials were delivered by word of mouth, and they usually resulted in referrals. At the same time, “No news is good news” was the mantra for law firms because it meant that silent clients were happy clients. Those days are no more with the advent of social media and numerous websites that thrive on good and bad reviews of just about anything a consumer spends his or her money on. With today’s technological advances, however, it’s still not an easy task to convince even your most satisfied clients to take a moment to publicly review your services. In contrast, it’s the dissatisfied client with whom you’ll need to concern yourself. That’s because dissatisfied clients can’t wait to spread the word about a case gone bad, and to trash you in every public place or forum at his or her disposal. Unfortunately, today, there are a lot of public places to do just that.
MSBA.ORG | SPRING 2019
Bad reviews make having an ongoing strategy of collecting good testimonials even more important to your business and to your reputation. The Sting of a Bad Review What’s interesting about client testimonials is that they show up in places where you might least expect them to. The most obvious places are on websites such as Avvo, Lawyers.com, or Justia, where there is a builtin function for capturing client comments. But lawyer reviews are now popping up on websites such as Facebook, Google, and Yelp. Yes, Yelp is for more than just finding the best restaurant. Yelp has morphed into a
story, ones that are more meaningful and helpful to those who may be seeking your services. The Power of a Great Testimonial For today’s lawyer, your mantra should be: “To combat bad press, you must bury it beneath a mound of good press.” This means that for every bad or mediocre review, there needs to be at least five or more good to excellent testimonials to turn down the din. The best or most useful testimonial tells a story. For example, a client of yours describes a situation that resonates with the reader because the reader might be facing similar circumstances. That connection then compels the reader to seek your guidance.
The reasons your client might be satisfied with your representation will likely relate to your personality, charm, hospitality, attentiveness, honesty, composure under pressure, and confidence. hot spot for all sorts of reviews, and lawyers would be remiss if they choose to ignore such a common go-to site. Because these consumer websites are so popular, ignoring them could mean that a bad review goes unnoticed by you—but not by millions of consumers. There is no way to stop people from writing negative comments about you online; however, the best way to prevent the almighty bad review is to try to prevent it from happening with good service, good communication, and the setting of realistic expectations. Once you’re satisfied that you’ve done all you can to avoid a negative reaction, there is still the potential of one slipping by you and being made public. Bad reviews tend to declare your guilt without the presumption of innocence. So before one slips by you, be proactive by stockpiling reviews that tell a more positive
HAVE YOUR OWN TIPS?
Stories are powerful and meaningful and can be persuasive marketing tools. Take that same written story and apply it to video where it becomes even more influential. Among the many ways in which lawyers can perform marketing outreach, video dominates the field. And practically all social media websites encourage the use of video on their platforms. Seeing someone speak about their situation and their experience with your firm is better than any marketing material you could ever pay for. Soliciting Testimonials From Clients Never ask a client to evaluate you based on your lawyering skills. It’s not their strong suit and it won’t result in a good testimonial. The reasons your client might be satisfied with your representation will likely relate to your personality, charm, hospitality, attentiveness,
honesty, composure under pressure, and confidence. They will want to assess your ability to return phone calls within a reasonable time or whether your office is neat and tidy or in total disarray. And, of course, they will want to evaluate you based on their satisfaction with the outcome of their case. To obtain the most beneficial testimonials from your clients, first, you must ask. Second, provide them with some guiding questions: 1. Describe “the before”: What led you to retain me as your attorney? 2. Describe “the during”: What was it like working with me? Did I understand your dilemma? 3. Describe “the after”: What has changed? How was the problem solved? Did I reach the outcome you wanted? Some lawyers use surveys to collect information from clients after the representation has ended. Surveys are a perfect way to not only gauge your client’s satisfaction with your services but to routinely gauge your own performance—to identify areas of improvement or additional services to offer. However you choose to approach your clients, reach out soon after the end of your relationship while the situation is still fresh in their minds. But always get written consent to publish the testimonial and to use it as part of your marketing. What you ultimately want from a testimonial is for it to convince the reader that you are the right lawyer for his or her problem. No amount of marketing spiel will accomplish that. Seeing what others have experienced while working with you is the best way to help potential clients reach the conclusion you want. TATIA L. GORDON-TROY, ESQ. is a member of the Maryland Bar and a regular contributor to MSBA publications. She edits, writes, and develops content for law firms and associations. Tatia runs her own publishing and marketing firm, Ramses House Publishing LLC, www.publishingforlawyers.com.
SHARE YOUR WISDOM: Send your marketing tips to Patrick Tandy, Director of Content & Delivery, at firstname.lastname@example.org for possible inclusion in future publications.
MARYLAND BAR JOURNAL | SPRING 2019
| COMMITTEE PROFILE
Investments Committee: Ensuring MSBAâ&#x20AC;&#x2122;s Present and Future Stability "We decided early on that lawyers are not used to taking a lot of risk with their own money. So we've been very conservative on that." CLEAVELAND MILLER, INVESTMENTS COMMITTEE CHAIR
MSBA.ORG | SPRING 2019
“WE DECIDED EARLY ON that lawyers
are not used to taking a lot of risk with their own money.” That sentiment from Cleaveland Miller, Chair of the MSBA Investments Committee, captures the Committee’s spirit as it focuses on keeping risk as low as possible while growing our assets. As the name implies, the Investments Committee oversees the investment of the MSBA’s assets. Its objective is to earn a fair return while ensuring that funds are always available for the operation of the MSBA. As Mr. Miller puts it, “What we have tried to do is to take the surplus that had been developed in the past and to invest it conservatively so that it will be available for the future needs of the association.” To help achieve this goal, Committee members work closely with investment managers from Baird Financial Advisors.
"Somebody has to oversee our assets and make sure that they are maintained. And that we follow the investment policy that's put in place." DEBRA SCHUBERT, INVESTMENTS COMMITTEE MEMBER
“Baird gives us the expertise we need,” says Miller. “None of us are really pros in investment banking.” The Committee works with two consultants from Baird, Richard DuVal and Jeff Graham. Together, DuVal and Graham have been helping the Committee invest the MSBA’s assets for over a decade. “The core task we help the Committee with is helping them identify implement and execute
on their investment policy statement,” says DuVal. “That investment policy statement is the doctrine that we live by. It helps the Committee and us stay focused on the long term and stay the course.” This focus on the long term has paid off when markets are unstable, Graham notes. “The Association is quite conservative when compared to other organizations of a similar size,” he says. “But quite honestly, it has proven time and time again to be the best methodology and the best approach.” Another secret to the success of the Committee is the long tenure of its members. According to Committee member and MSBA Past President John P. Kudel, “Because of the contitunity of the people who are part of this committee we have been very fortunate to have weathered the financial storms that have buffeted this country.” This combination of risk minimization and stable governance ensures the MSBA has the funds it needs to grow and modernize the organization. “I know this Committee has been able to contribute seven figures to the Association’s renovation and modernization efforts,“ says Committee member and Past President Michael J. Baxter. “The Board of Governors decided on a future plan - it was expensive, but it needed to be done.”
"We’re not trying to ring the bell but to make certain that we return maybe even a greater amount of money to the association than they gave to us." EDWARD GILLISS, INVESTMENTS COMMITTEE VICE CHAIR
INVESTING WISELY: Members of the Investments Committee discuss how they help ensure the funds of the Maryland State Bar Association are properly invested. VISIT MSBA.ORG/INVESTMENTSCOMM
MARYLAND BAR JOURNAL | SPRING 2019
FOR YOUR PRACTICE
| PRACTICE MANAGEMENT PORTAL
Take Your Practice to the Next Level MSBAâ&#x20AC;&#x2122;s Practice Management Portal provides tools & resources to help you run your law practice. 100
MSBA.ORG | SPRING 2019
IN OCTOBER 2018, the MSBA rolled out the all new Practice Management Resource Portal, which
can be found under the Learning tab of MSBA.org. The Practice Management Resource Portal features articles, videos, checklists, and more related to starting, running and growing your practice. Whether you are a solo or small firm practitioner or an attorney looking for training on today’s tools and technology, you can find assistance on the Practice Management Resource Portal.
New content is added to the Practice Management Resource Portal on a monthly basis. In the last few months, added content includes video tutorials on proper use of Microsoft Word Styles, Dropbox, and other technology to increase your productivity and enhance your practice.
In addition to the videos, the Practice Management Resource Portal also provides articles, checklists, and more on a variety of topics, including client development, marketing, and measuring your firm’s or practice’s success. Articles also focus on implementing time-saving technology. For example, the May featured article discusses the use of Microsoft Bookings, a software that can be used to quickly and easily schedule client meetings. The Practice Management Resource Portal is an exclusive benefit of your MSBA membership.
Visit MSBA.ORG/PRACTICE-MANAGEMENT-PORTAL and find out how it can help you in your practice.
MARYLAND BAR JOURNAL | SPRING 2019
FOR YOUR PRACTICE
| UPDATES FROM THE JUDICIARY
Court News (January 1 - March 31, 2019)
Hecker Named Administrative Judge of Circuit Court for Carroll County Chief Judge Mary Ellen Barbera, Court of Appeals of Maryland, has named Judge Fred S. Hecker county administrative judge of the Circuit Court for Carroll County, effective February 1, 2019. Hecker succeeds Judge J. Barry Hughes as administrative judge; Hughes retired April 1 after nearly 15 years on the bench. Baltimore County Launches MDEC Effective February 26, 2019, Baltimore County became the 21st jurisdiction, and the largest to date, to implement the Maryland Electronic Courts (MDEC) case management system, which modernizes court processes and makes case filing more convenient for litigants. With MDEC’s launch in Baltimore County, electronic filing is now mandatory for attorneys representing clients in civil and criminal cases in district court, circuit court, and any appellate filings that start in the county. Electronic filing remains optional for self-represented litigants. Deceptive Letter Uses Court Name and Threatens to Seize Bank Accounts of Residents, Judiciary Warns The Maryland Judiciary is alerting the public to a potential mail scam that threatens 102
MSBA.ORG | SPRING 2019
Governor Larry Hogan has appointed the following individuals to the Maryland bench (January 1 - March 31, 2019): ٚٚ Brynja McDivitt Booth, Court of Appeals of Maryland ٚٚ Steven Bennett Gould, Court of Special Appeals of Maryland
seizure of bank accounts if residents don’t call a private company to pay tax debts. The deceptive letter has surfaced in Anne Arundel and Queen Anne Counties, but also may be happening elsewhere. Chandlee Named Administrative Judge of Circuit Court for Calvert County Chief Judge Mary Ellen Barbera, Court of Appeals of Maryland, has named Judge Mark S. Chandlee county administrative judge of the Circuit Court for Calvert County, effective March 21, 2019. Chandlee succeeds Judge E. Gregory Wells, who had served as administrative judge since March 1; Wells succeeded Judge Marjorie L. Clagett, who had been administrative judge for nearly seven years before her retirement on February 28. Judiciary Updates, Digitizes Guide to Assist Journalists Covering Maryland Courts A newly updated, comprehensive guide aimed at giving members of the media a better understanding of the Maryland court system is now available online. Publication of the revised Journalist’s Guide to Maryland’s Legal System coincided with the American Bar Association’s Law Day, held annually on May 1, and this year’s Law Day theme, “Free Speech, Free Press, Free Society”.
ٚٚ Edward Gregory Wells, Court of Special Appeals of Maryland WEB EXTRA
WANT TO READ MORE? Read more Updates from the Judiciary online. VISIT MSBA.ORG/JUDICIARY
Judiciary Warns of New Caller ID “Spoofing” Scam Demanding Payments for Violations The Maryland Judiciary is warning the public about a new telephone scam that appears to originate from the Baltimore County Circuit Court Clerk’s Office. The callers use a scam known as “caller ID spoofing” in which the scammers deliberately falsify the information sent to caller ID displays to hide their identity, in this case appearing as the clerk’s office. When the recipient answers the phone, the callers demand payment for various court-related items.
FOR YOUR PRACTICE
| ATTORNEY GRIEVANCE UPDATE
Disciplinary Diversion BY LYDIA E. LAWLESS, BAR COUNSEL
A somewhat unknown fact is that the Attorney Grievance Commission, under appropriate circumstances, can defer and divert discipline. Maryland Rule 19-716 provides that, where an attorney has violated the Rules of Professional Conduct, Bar Counsel and the attorney may enter into a Conditional Diversion Agreement (“CDA”). The Rule is intended for those cases where the misconduct was not willful and does not involve dishonesty. Critically, it must be determined that the cause or basis of the misconduct is subject to remediation or resolution through alternative programs or mechanisms.
EXAMPLES OF CASES where a CDA may be appropriate include those where the attorney is unfamiliar with law office management, record-keeping or accounting; the attorney is unfamiliar with a particular area of law or engages in negligent misconduct; or where the attorney is suffering from a mental health disorder, addiction or age-related cognitive decline.
The terms and conditions of a CDA can be crafted to serve the ultimate purpose – to protect the public by remedying the immediate problem and preventing any recurrence. Where the underlying misconduct was due to a lack of experience the terms of a CDA may include the appointment of an experienced practitioner to serve as a law practice monitor and mentor as well as a series of continuing legal education courses. If the underlying misconduct involved negligent mismanagement of funds or record-keeping deficiencies, the CDA may include the appointment of a CPA to serve as an account monitor to train the attorney on bookkeeping and accounting principles and to monitor the attorney’s compliance. Where an attorney has failed to represent a client competently, the CDA could include a provision that the attorney not practice in a specific area of law unless he or she associates with an experienced practitioner or otherwise demonstrates competence in that area. Additional terms can include an agreement to attend mediation or binding arbitration for a fee dispute, restitution to the aggrieved client, a public apology, obtaining legal malpractice insurance, the performance of pro bono legal services, or the issuance of a public reprimand. Some of the most difficult cases the Commission is faced with involve attorneys suffering from mental health disorders, addiction, or age-related cognitive decline. In those instances, a CDA may also be appropriate. The terms of which could include compliance with a medical provider’s recommended course of treatment, periodic drug testing, attendance at 12-step meeting, or participation in the Maryland State Bar Association’s Lawyer Assistance Program. Once the terms of the CDA are agreed to by Bar Counsel and the attorney, the Agreement is submitted to the Commission for review. If the Commission determines that the CDA is reasonable and in the public interest it may approve the Agreement. The Commission can also disapprove the Agreement or recommend amendments to its terms. If the Agreement is approved, the underlying disciplinary case is stayed pending its successful completion. Critically, the terms of a
CDA are confidential. While the fact that the CDA was entered into is public, the terms of the Agreement, with limited exceptions, are not. In the rare instances where an attorney fails to comply with the terms, Rule 19-716(h) provides the mechanism by which the Agreement, and accompanying stay, can be revoked. In the past eight fiscal years, the Commission approved 140 Conditional Diversion Agreements – most of which were successfully completed or are in the process of successful completion. Many of the Agreements have seen success based, in part, on the work of the Lawyer Assistance Program, the MSBA’s CLE offerings and practice management resources, and volunteer members of the bar who have donated their time to serve as a monitor and mentor.
"Some of the most difficult cases the Commission is faced with involve attorneys suffering from mental health disorders, addiction, or age-related cognitive decline." I strongly believe that it is incumbent on all of us to assist our colleagues at the bar for the betterment of our profession and the protection of the public. A challenge that my office has faced over the years is finding experienced members of the bar who will commit to serve as practice monitors. If you would like to volunteer your time and expertise, please be in contact with me. LYDIA LAWLESS is Bar Counsel for the Attorney Grievance Commission of Maryland. She may be reached directly at email@example.com.
MARYLAND BAR JOURNAL | SPRING 2019
| ETHICS DOCKET NO. 2018-03
Maryland State Bar Association, Inc.
Committee on Ethics ETHICS DOCKET NO. 2018-03
DUTY OF ATTORNEY UNDER RULE 1.15 WITH RESPECT TO SETTLEMENT PROCEEDS 104
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YOU REQUEST AN OPINION regard-
ing an attorney’s duties under Rules 1.15 and 1.6 with respect to the handling of settlement proceeds. Your specific question contained a factual pattern involving a client and third party that we will generalize to avoid disadvantage to yourself or your client. In essence, you explain that the client had a debt obligation that is governed by legislation and regulation as to the debt itself and how the debt can be settled and collected. You advise that, under that law and regulatory regime, the client and the third party entered into an agreement that provides for installment payments on the debt. After a period of time, and if the installments are made timely, the debt is extinguished regardless of the full amount that has been paid in relationship to the total debt. In the course of pursuing the debt and consistent with the regulatory framework, the third party filed a Notice of Lien but did not renew the notice timely. You advise us that, by operation of law the lien has expired and, within the coming year, the statute of limitations will bar further collection activity absent affirmative action by the creditor to either toll the statute of limitations or otherwise move to collect. You advise that you represented the client in the debt resolution proceedings and also represented the client in a suit where, through confidential settlement, the client has recently recovered sufficient monies to pay the full debt to the third party. You ask us how Rule 1.15 and Rule 1.6 might interact and apply to direct your course of action in disbursing the settlement proceeds that you now have in your possession. You point to disciplinary actions against attorneys for violating Rule 1.6 after disclosing client confidences and disciplinary actions for violating Rule 1.15 by disbursing settlement proceeds without honoring liens or interests of third parties. You are concerned that the competing requirements of these two Rules may put you in jeopardy if you do not navigate their course successfully. This Committee does not address questions of law and, for that reason, cannot interpret the requirements of law that apply to repayment of the debt, but we will discuss the duty of an attorney with respect to the settlement proceeds depending on how those questions of law can be answered. Maryland’s version of Rule 1.15 offers specific guidance where a third party claims an
interest in property that a lawyer holds for a client: (d) Upon receiving funds or other property in which a client or third person has an interest, an attorney shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, an attorney shall deliver promptly to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render promptly a full accounting regarding such property. (e) When an attorney in the course of representing a client is in possession of property in which two or more persons (one of whom may be the attorney) claim interests, the property shall be kept separate by the attorney until the dispute is resolved. The attorney shall distribute promptly all portions of the property as to which the interests are not in dispute. Clearly, what constitutes “an interest” under either paragraph can be open to question. The Rules attempt to resolve that question in Comment 5 by implying that the interest must be substantial such as a lien:  Section (e) of this Rule also recognizes that third parties may have lawful claims against specific funds or other property in an attorney’s custody, such as a client’s creditor who has a lien on funds recovered in a personal injury action. An attorney may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim is not frivolous under applicable law, the attorney must refuse to surrender the funds or property to the client until the claims are resolved. An attorney should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the attorney may file an action to have a court resolve the dispute. In an earlier opinion, Ethics Docket 08-03, this Committee discussed the application of Rule 1.15 to an assignment of claim to a physician and concluded that there as here the le-
gal issue of whether the physician had a claim on the proceeds of a settlement dictated the result under the Rule. The legal conclusion of what constitutes “an interest” under the Rule informs the requirements of the Rule on the attorney’s duties under Rule 1.15. In trying to find the answer to what “an interest” means, your citation to authority from other states helps in addressing the question. Of particular help was the concurring opinion of Judge Robert Berdon in a Connecticut case that was essentially dismissed as moot but where Judge Berdon discussed the ethical requirements of Rule 1.15 as adopted in Connecticut: An interest as used in the rules means more than an unsecured claim with respect to a third party. An interest in the fund or property requires that the third party have a matured legal or equitable lien. See 1 G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct (2d Ed. 1996) § 1.15:302, p. 460 (“the Comment to rule 1.15 uses the phrases ‘just claims’ and ‘duty under applicable law’ to suggest that the third party must have a matured legal or equitable claim in order to qualify for special protection [under the rule]” [emphasis added]); see also Alaska Bar Association Ethics Committee, Opinion No. 3 (1992) (“in order to trigger an obligation on the part of the attorney to pay a creditor’s claim, in contravention of a client’s instructions, the creditor’s claims must be a valid assignment on its face or statutory lien which has been brought to the attorney’s attention”); Colorado Bar Association Ethics Committee, Formal Opinion Nos. 94 and 95 (1994) (“where the third party does not hold an interest as a result of a statutory lien or a contract or a court order, the property should be promptly distributed to the client”); Connecticut Bar Association Committee on Professional Ethics, Informal Opinion No. 20 (1995) (“the mere assertion of a third party claim to property is insufficient to create a duty to deliver property to that third party”). Indeed, the attorney’s ethical duty is made abundantly clear in an illustrative case presented by Professors Hazard and Hodes in their treatise on the Model Rules of Professional Conduct. The MARYLAND BAR JOURNAL | SPRING 2019
following hypothetical, pertaining to the handling of funds when a client and a third party have competing claims, parallels the facts in the present case. “Lawyer L has been representing Client C in two matters simultaneously: As plaintiff in a tort action and in negotiations with a creditor who claims that the client owes him $ 5,000 on a supply contract. “Settlement is reached in the tort action, and L deposits the settlement draft for $ 125,000 in his trust account. C jubilantly demands his share of the proceeds (over $ 90,000) and states that he intends to move to another jurisdiction. He admits that he owes his creditor the disputed $ 5,000, but says he will not pay unless the creditor follows him to his new domicile and sues.” 1 G. Hazard & W. Hodes, supra, § 1.15:303, p. 460. Hazard and Hodes conclude in their hypothetical case: “L must disburse C’s entire settlement share immediately without withholding the $ 5,000 which he knows the creditor ‘is entitled [***16] to receive.’ Furthermore,L may not reveal to the creditor either the fact of settlement or C’s plan to abscond. “While the creditor may be morally ‘entitled to receive’; the money, C’s position is legally sound: ‘Absconding’ under these circumstances is neither a crime or a fraud. If the creditor fears such an occurrence, it is up to him to take legal action to prevent it, such as by garnishing L’s account. A court may or may not grant such relief, but certainly L cannot sua sponte perform such a service against the interests of his own client.” (Emphasis added.) Id., p. 461. Silver v. Statewide Griev. Comm., 242 Conn. 186, 195-96, 699 A.2d 151, 155-56 (1997) Although the Virginia version of Rule 1.15 differs from the Maryland Rule, the Virginia Committee’s advice regarding the application of the Rule seems instructive: All ethics opinions and legal authorities agree that an “interest” in the funds held by the lawyer include a statutory lien, a judgment lien and a court order or
MSBA.ORG | SPRING 2019
judgment affecting the funds. Likewise, agreements, assignments, lien protection letters or other similar documents in which the client has given a third party an interest in specific funds trigger a duty under Rules 1.15 (b)(4) and (5) even though the lawyer is not a party to such agreement or has not signed any document, if the lawyer is aware that the client has signed such a document. In other words, a third party’s interest in specific funds held by the lawyer is created by some source of obligation other than Rule 1.15 itself. [Footnotes omitted.] Virginia State Bar, LEO 1865 (November 2012). From this discussion, it seems the answer to your inquiry rests on the resolution of the legal question of whether the creditor has a valid interest in the funds in your possession. In terms of the Rules of Professional Conduct, if the third party has a lawful claim such as a lien on the specific funds then you must segregate those funds and either pay them over to the party entitled to them or if the interest is disputed by the client, you must act to resolve that dispute which may include filing an interpleader action in court if no other resolution can be reached. If you have notice of a statutory lien on the proceeds you are required to comply with that statute and pay the funds as required by law. (See: Colorado Bar Ethics Opinion 94 as updated in 2006). For example, in Roberts v. Total Health Care, Inc., 349 Md. 499, 709 A.2d 142 (1998) the Court of Appeals discussed the statutory lien applicable to the proceeds of causes of action involving Medicaid beneficiaries recognizing the constitutionality of the lien and the statutory requirement for the state to give notice of the lien to the attorney. Under that statute the attorney was required to give notice to the state that the cause of action had been filed. If you conclude the creditor has a legal interest in the funds, then you must consult with your client regarding your legal conclusion and determine if your client disputes the creditor’s claim to such funds. This Committee agrees with the Colorado Bar Committee’s Opinion No. 94 regarding statutory liens and court judgments:
Where a third party has an interest in the property a result of a statutory lien or court order, and the client demands that the lawyer not disclose to the third party that the lawyer is holding the property, Rule 1.15(b) requires the lawyer to distribute the funds to the third party notwithstanding the client’s instructions. Because the third party is legally entitled to receive the property, Rule 1.15(b) requires the lawyer promptly to distribute the property to the third party, and to render an accounting, if requested. The lawyer’s duties under Rule 1.15(b) may conflict with the lawyer’s duty of confidentiality under Rule 1.6. Under the circumstances discussed in this subsection, however, the Committee believes that the objectives of Rule 1.15(b) take precedence; thus the lawyer should distribute the property notwithstanding the client’s request for confidentiality. [Footnote omitted.] If the client has filed proceedings contesting a statutory lien or court judgment, then the attorney should hold the funds pending the outcome of those proceedings if agreeable to the parties, or interplead the funds for disposition by the court. Under the factual scenario you lay out, if you conclude that the third party no longer holds a lien on (or no longer has a valid interest in) funds of the client, then after consultation with the client and upon your client’s direction to do so, you must disburse the proceeds to the client. Rule 1.6 requires that you maintain confidentiality of your actions regarding disbursement. What we said in summary to our opinion in MSBA Ethics Opinion 08-03 applies here as well: “In summary, the issue is whether you are able to make the determination that no person other than your client is entitled to the funds. Until that determination is made, you must keep the funds in compliance with Rule 1.15” and by extrapolation, if you determine no other person is entitled to the funds, you must disburse them as directed by the client. The Committee hopes it has addressed your inquiry and thanks you for your interest.
| BILL HALL
Bill Hall, MSBA Videographer BILL HALL is the Videographer for the MSBA communications department. He works with MSBA members and staff to find engaging stories to tell from across the Association. Bill is responsible for all stages of video production, from concept creation to the final product. You can find Bill’s work and learn more about the MSBA by visiting our YouTube channel. Please tell us about your career path. I’ve been in video production all of my professional career. I’ve worked for the Department of Military and Veterans Affairs of Pennsylvania, The Hershey Company, UR-Channel, which supplied video production for General Motors, and LPL Financial. I was also in the Pennsylvania Army National Guard, where I spent a year deployed to the Sinai Peninsula as part of the Multinational Force & Observers. I feel like I’ve been pretty lucky in my career. I’ve had the chance to work for some really great companies and I’ve been given the chance to try new things. I helped The Hershey Company get their internal video production capabilities off of the ground, I helped General Motors launch their enterprise video streaming service, and I got to help LPL Financial's communication department build their video production strategy.
"The MSBA has a lot of great stories to tell."
Why is video a good way to share stories? From a storytelling standpoint, I think video allows you to share the emotion of an event or story in ways that can be hard to convey in other media. Video allows you to hear a tremble in someone's voice or see joy on their face. To borrow a cliche, the difference between print and video is the difference between telling and showing.
What do you enjoy about working in video production? I enjoy getting to talk to people and hearing their stories. I’ve interviewed everyone from CEOs to factory workers, and I’ve learned they all have a story. The hard part is getting people comfortable telling their stories on camera. When I conduct interviews my goal is to help people forget about the lights and the equipment. I also enjoy getting to learn a little bit about a wide range of topics. Each video project is like a little crash course on a subject. Some of the more unusual topics that I remember talking about include flammable flavors storage, wastewater management, and empathy mapping.
What do you like about working for the MSBA? The MSBA has a lot of great stories to tell. The Sections always have interesting events going on, and many of our members are doing important work. It’s nice to be spoiled for choice.
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