THE ADVOCATE Newsletter of The Baltimore County Bar Association VOLUME XXV, NO. 6
December 2016
PRESIDENT’S MESSAGE by Robert J. Thompson YOUNG LAWYERS HOLIDAY PARTY & BCBA HOLIDAY PARTY The 2016 Young Lawyers Holiday Party is at noon December 8 in the Ground Floor Lobby of the County Courts Building. This year’s Holiday Party will benefit CASA (Court Appointed Special Advocates) of Baltimore County. CASA trains advocates to appear on behalf of children before magistrates and judges in the Baltimore County foster care system. The children who benefit from CASA’s activities, and who will benefit from our Holiday Party this year, are children who live with foster families in Baltimore County while they await reunification with their families or adoption by new families. There is no question that CASA is a worthy cause. Every year, the Young Lawyers’ Holiday Party is a smashing success and everyone who attends has a great time. I want to
encourage you – especially if you have never attended before – to drop in, eat some lunch and some dessert and spend time enjoying yourself secure in the knowledge that you are doing something good for your community and yourself at the same time. If you are a regular, keep up the good work. I’ll see you all there. Not to be outdone by the Young Lawyers, the “Old Lawyers,” er…, uh…, well, the rest of us, er, I mean…. the Baltimore County Bar Association is having a Holiday Party on December 1, 2016 beginning at 6 p.m. at the Towson Tavern. This event is not designed for any purpose other than getting together with friends and colleagues to have a good time and exchange some holiday toasts. If you are so inclined, in the spirit of the holidays, I encourage you to consider making a donation to this year’s BCBA charity partner, the Women’s Law Center of Maryland, or to the Bar Continued on page 2
Multi-Specialty HealthCare THE ADVOCATE
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Inside This Edition Bench/Bar Report Calendar of Events Chamber Chat Civil Law Update Committee News County Council Update Court Notices Criminal Law Update E&T: Income Tax Executive Council FL: Conover Historical Article Holiday Party Judicial Portrait Fund Lawyer in the Lobby Lawyers Assistance Member Ads Professionalism SAVE THE DATE Signature Sponsors YL Holiday Lunch
Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg Pg
22 3 12 30 8 27 4 28 16 16 14 20 6 23 37 24 40 17 11 25 7
Signature Sponsor December 2016
PRESIDENT’S MESSAGE Continued from page 1 Foundation, or both. Come one, come all, regardless of how old or young you are (or feel).
kinds of things, but nobody wants or needs this kind of trouble. So, my advice is steer clear, or, in the immortal words of Nancy Reagan, “Just say no.”
WHEN SOMETHING SMELLS PHISHY, JUST SAY NO.
HAPPY HOLIDAYS
If you have been around a while, you have probably seen these schemes in which someone you don’t know sends you an email or leaves a voice mail asking you to escrow some money for them (and there are as many purported “reasons” as there are scammers out there) in the hope that you will put their check in your escrow, and a month or so later after you have sent them their share, when the original check is dishonored, they will have made off with the money you were holding in escrow for your legitimate clients. I received another such email just the other day.
2017 will be here soon and we’ll be dusting off our tuxedos and other formal wear to get ready for the Annual Black Tie Banquet. Those of us who are still writing checks and sending letters will have to train our hands to write 2017 now that we are just about used to writing 2016 and we’ll inaugurate a new president (I am still upset that my guy, Charlie Brown, did not win.) But before we get there, I just want to tell you what a pleasure it is for me to have the opportunity to wish you all Happy Holidays on behalf of the Baltimore County Bar Association! So, without further adieu,
At a CNA loss prevention seminar a couple of years ago, one of the presenters advised us that, if you are tempted to play with this particular brand of fire, you open a separate escrow account just for that matter. That at least protects the funds you have escrowed for your real clients, but, if you take the bait (the fee, which is usually 10% to 25% of the fake funds deposited into your account), in addition to possibly writing bad checks when it turns out the check you paid yourself with was no good, you run the risk of an ethics violation for taking a fee that is not a reasonable one given the work involved. I think AGC has been generous so far in not pursuing these
HAPPY HOLIDAYS! When I use the greeting “Happy Holidays!” I am not being politically correct: I’m being inclusive. Whether you celebrate Hanukah, Christmas, Mawlid al-Nabi, Kwanzaa, Festivus or all or none of the above, I hope you will be surrounded by those you love and filled with the blessings of your holidays, my holidays and all of the holidays. Rob Thompson BCBA President 2016-2017
Membership invoices were mailed during the week of November 21st. If you have not received an invoice, please contact Maxine Morrow (410-337-9103 x106 or maxine@bcba.org). Dues must be paid in order to purchase a ticket to the Annual Black Tie Banquet which will be held on January 26, 2017. Banquet information, Ticket and Table Reservation Request were included with renewal invoices. Dues can be renewed online. Tickets cannot, however, be purchased online. THE ADVOCATE
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December 2016
C ALENDAR
2016-17 Officers President Pres-Elect Secretary Treasurer
Robert J. Thompson Adam T. Sampson Rebecca A. Fleming Michael W. Siri
Executive Council Hon. Keith R. Truffer Jay D. Miller Stanford G. Gann Jr. John G. Turnbull III Lisa Y. Settles Sondra M. Douglas Hon. Vicki Ballou-Watts, Immediate Past President Alaina L. Storie, YL Chair
The Advocate Thomas S. Basham Committee Chair
C. Theresa Beck Thomas H. Bostwick Catherine A. Dickinson Sondra M. Douglas Bruce E. Friedman Robert C. Lidston Gary Miles Margaret M. McKee Cecilia B. Paizs Jeffrey R. Scholnick Lisa Y. Settles Alexander C. Steeves Laurie Wasserman Catherine F. Woods Matthew I. Wyman The Advocate is a monthly publication of the Baltimore County Bar Association informing its members about current events relating to law. Articles do not necessarily reflect the official position of the BCBA and publication does not constitute an endorsement of views expressed. The contents of advertisements are the responsibility of the advertisers and are not recommendations or endorsements by The Advocate.
E VENTS
December 2016 1
Family Law: Tips, Tricks & Insights for the Family Law Attorney Scrutinizing Tax Returns, 12:30 p.m., Grand Jury Room 1 Annual Holiday Party, 5-8 p.m., Towson Tavern. Flyer on page 6 6 CLE: Cyber Security - Hacking & Wire Fraud, 12 p.m., Grand Jury Room 6 E&T: Estate Planning with Retirement Benefits, 5 p.m., Grand Jury Room 7 Young Lawyers’ Running Club, 5:30 p.m., Patriot Plaza; followed by Happy Hour 8 Bench/Bar Committee Meeting, 8 a.m., Judicial Conference Rm 412 8 Young Lawyers Annual Holiday Luncheon, 12-2 p.m., Ground Floor Lobby, County Courts Building, $10 donation or new, unwrapped toy. Flyer on page 7 12 Professionalism Committee Meeting, 5 p.m., via Conference Call 13 Executive Council Meeting, 8 a.m., Judicial Conference Room 412 14 Lawyer in the Lobby, Free Walk-in Clinic, 4:30-6:30 p.m. Volunteers: 15 Family Law: Ghost Writing and “Uberizing” Legal Services, 12:30 p.m. 26 COURTS & BAR OFFICE CLOSED (Christmas Holiday, observed) 27-30 BAR OFFICE CLOSED for Winter Holiday
January 2017
Annamaria M. Walsh Committee Vice -Chair
Contributing Writers
OF
2 10 11 12 12 16 18 19 19 26
COURTS & BAR OFFICE CLOSED (New Year’s Holiday, observed) Executive Council Meeting, 8 a.m., Judicial Conference Room 412 Lawyer in the Lobby, Free Walk-in Clinic, 4:30-6:30 p.m. Volunteers: Bench/Bar Committee Meeting, 8 a.m., Judicial Conference Rm 412 Family Law: Child Support Enforcements (Kiosks), Noon, Grand Jury Room COURTS & BAR OFFICE CLOSED (Dr. Martin Luther King, Jr.’s Birthday) E&T: Inheritance Tax Roundtable Do’s & Don’ts, 5 p.m., Grand Jury Room Town Hall Meeting with Judge Kathleen Gallogly Cox, 8:30 a.m., Courtroom 2 Indoor Skydiving at iFly, 6 p.m., White Marsh Annual Black-Tie Banquet, 6 p.m., Hunt Valley Wyndham Grand
Banquet Keynote Speaker Lt. Gov. Boyd Rutherford January 26, 2017 Tickets on sale only at the Bar Office.
Publication deadline: 10th of the month preceding publication.
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December 2016
COURT NOTICES Circuit Court for Baltimore County
Chambers of Kathleen Gallogly Cox Circuit Administrative Judge & County Administrative Judge
County Courts Building Towson, Maryland 21204 410-887-6510
CIVIL CASE PROCESSING UPDATE Over the summer there were some significant changes in how the Circuit Court for Baltimore County processes civil cases. On July 1, 2016, the court acquired a new staff position, Family and Civil Case Manager, which has been filled by Abigail Cohen. Attorneys who practice family law may know Ms. Cohen who was a mediator in the Office of Family Mediation for nine years. In addition to managing the DCM Office, she now assists the Court with many aspects of case management. If you have concerns about a pending case, please feel free to contact her at 410-887-6575 or by email at acohen@baltimorecountymd.gov The Court has been reviewing its DCM plans as part of a statewide mandate and new DCM plans will be issued in the spring of 2017. As a result of this review, we have initiated a new procedure for scheduling complex civil cases. In the past, the Court did not typically hold scheduling conferences in non-domestic civil cases. Instead, cases were reviewed and assigned to a track and scheduling orders were issued without the opportunity for counsel to provide any input other than what is included on the Case Information Sheet. Trial dates were not scheduled until the Settlement Conference in the case. This often resulted in delays, particularly in complex cases that required trials of five days or longer. As of August 2016, cases that would once have been assigned to the “extended standard” or “complex” track are instead being set in for scheduling conferences with a judge. The judge meets with the attorneys, either in person or by telephone and the court issues a scheduling order tailored to the needs of that particular case, including discovery and motions deadlines, a settlement conference and, most importantly, a trial date that is agreed to by counsel for all parties. These cases are also being specially assigned to judges from the outset, so any problems that arise can be handled efficiently. It is our hope that this will lead to fewer postponements and more certainty for litigants and counsel. In September, we held two Town Hall Meetings to explain the new policy to the civil bar and invite feedback. The attorneys who attended offered many positive comments and stated that they believed the new procedure would help cases move more efficiently through the Court. A third Civil Town Hall Meeting will take place on Thursday, January 19, 2017 at 8:30 a.m. in Courtroom 2. All members of the civil bar are invited to attend and share feedback about the new scheduling conferences, as well as any other aspects of case management or court policies and procedures. Please mark your calendars. I look forward to seeing you there.
2017 MARYLAND JUDICIAL CONFERENCE Please be advised that all of the Judges of the State of Maryland will be attending the Maryland Judicial Conference on Monday, June 12 through Wednesday, June 14, 2017 and, therefore, there will be no judges available on those dates.
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December 2016
COURT NOTICES Circuit Court for Baltimore County
Chambers of Ruth Ann Jakubowski Family Law Coordinating Judge 410-887-2628 FINALIZING DIVORCES PRIOR TO YEAR END. The Circuit Court has set aside docket time on December 20th and December 27th to set in hearings on divorces in uncontested matters where parties or counsel seek to have the matter finalized within the 2016 tax year. In order to have the case set for hearing, all matters must be resolved, the grounds for divorce must be ripe, and the case must be at issue (i.e. an answer filed or an order of default entered with the 30 days to move to vacate having run).
If you wish to have a case set in for hearing on one of these days, please contact Civil Assignment at 410-8872660. Cases are being set for hearing at 9:30 a.m., 11:00 a.m. and 1:30 p.m. In order to ensure the case can be heard and the final Judgment can be docketed, please have the following when you appear: Proposed Final Judgment of Divorce; “White Sheet;” Payment for any open Court Costs.
CHRISTMAS VISITATION DISPUTES 2016. The Family Law Judges, Judges Cox, Souder, BallouWatts, Ensor, Hanley and Glass will be available to consider Christmas visitation disputes from Monday, November 21, 2016 through Friday, December 16, 2016. Only cases that have an ORDER in place on custody/visitation are eligible for Christmas visitation dispute resolution. To obtain intervention of the Court, contact Abigail Cohen, Family and Civil Case Manager, by email at acohen@baltimorecountymd.gov, or by Fax at 410-296-2362. The following information should be provided, in writing, to Ms. Cohen: Name of the Case Case Number What the last order, if any, states with regard to visitation Name and telephone number of attorney or party on the other side What efforts (stating facts) you have made to reach an agreement with the other side The specifics of what you are requesting as relief The specifics of what the other side has offered, if anything Ms. Cohen will review the file to determine the appropriate handling to include mediation or referral to a Family Law Judge. If mediation is unsuccessful, the case will then be referred to a Family Law Judge for further handling. Once you are assigned a Judge, you may contact the Judge’s chambers on the next business day. If a case has been filed along with a response but no custody Order is in place, then the parties may contact the Office of Mediation at 410-887-6570 to schedule a mediation session on the issue of holiday access.
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December 2016
Committee News FLYERS for all programs can be viewed and printed from the BCBA website calendar (www.bcba.org). You can also elect to make a voluntary donation during any registration process to this year’s designated Charity - The Women’s Law Center. In advance, thank you for your generosity.
CLE COMMITTEE
ESTATES & TRUSTS COMMITTEE
December 6, 2016, Noon, Cyber Security-Hacking and Wire Fraud, presented by Thomas Auth, Esquire of Minnesota Lawyers Mutual
December 6, 2016, 5 p.m., Estate Planning with Retirement Benefits
To Be Scheduled, Practice Marketing Strategies, presented by David Kelly and The Growth Coach of Greater Baltimore
January 18, Roundtable
2017,
Noon,
Inheritance
Tax
February 28, 2017, 5 p.m., Abel Accounts
To Be Scheduled, Magical Mystery Tour of the Circuit Court Clerk’s Offices, A walking tour and overview presented by Circuit Court Clerk Julie Ensor.
March 21, 2017, 5 p.m., Recent Developments in Estate Administration
To Be Scheduled, Where Have All the Assignment Offices Gone? A walking tour of the new location in Mezzanine 08, and brief overview of each office: DCM, Civil, Central and Criminal Assignment.
May 24, 2017, 5 p.m., Annual E&T Dinner
CRIMINAL LAW COMMITTEE
FAMILY LAW COMMITTEE
February 9, 2017, 5 p.m., Cars, Cops & Stops, presented by Prof. Byron L. Warnken
December 1, 2016, Tips, Tricks & Insights for the Family Law Attorney Scrutinizing Tax Returns
March 7, 2017, 5 p.m., Post-Conviction Services: Home Detention, SCRAM Monitoring, Inter-Lock, Re-Entry Programs, Residential Rehabilitation Programs, Bail Bonds, etc. Sponsored Happy Hour at CVP
December 15, 2016, Ghost Writing “Uberizing” Legal Services, 12:30 p.m.
May 7, 2017, 5 p.m., Administrative Hearings, presented by Neil Jacobs.
LAW DAY COMMITTEE
April 26, 2017, 5 p.m., Diminished Capacity
June 21, 2017, 5 p.m., Legislative Update with Register of Wills Grace Connolly
and
January 12, 2017, Child Support Enforcement (Kiosks), Noon
ENTERTAINMENT COMMITTEE
The 14th Amendment: Transforming American Democracy
December 1, 2016, 5 p.m., Annual Holiday Party
May 1, 2017, 7:30 a.m., Breakfast at DLA Piper. Speaker: Judge Paul W. Grimm
Continued on page 9
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December 2016
Committee News PROFESSIONALISM COMMITTEE
LAW DAY COMMITTEE May 1, 2017, Noon Ceremony & Ceremonial Courtroom No. 5, Towson
Awards,
This committee will meet on the following dates: December 12, 2016, Noon, conference call January 17, 2017, 5 p.m., location TBD February 21, 2017, Noon, conference call March 21, 2017, 5 p.m., location TBD April 18, 2017, Noon, conference call May 16, 2017, 5 p.m., location TBD
Nominations for the Law Day Award and Judith P. Ritchey Award must be submitted by March 1, 2017. Criteria and more information can be found in the Committee Report area of the BCBA website.
LAWYER SERVICE
REFERRAL
&
INFORMATION
Please note that the 2016-2017 Lawyer Referral & Information Service (LRIS) renewal information is now available. Click here to open and print out the application. If you are a current member, you must renew each year. If you are not a member of LRIS and wish to join, now is a great time! Contact Rachel Ruocco at 410-337-9100 or rachel@bcba.org if you have any questions about LRIS.
April 25, 2017, 5 p.m., Civility & Advocacy: Not Mutually Exclusive, Circuit Court for Baltimore County. Reception immediately following.
PUBLIC AWARENESS COMMITTEE
SPEAKERS
Civics & Law Academies, 8:30 a.m. - 2 p.m., March 31, 2017, CCBC Catonsville If interested in teaching opportunities next year (2017-18), please email Doris Barnes (doris@bcba.org) and ask to be advised when dates are selected. Prepared presentations are provided for each class.
MEMORIAL & RECOGNITION COMMITTEE Please notify Doris Barnes at the Bar Office of the passing of any BCBA member. If this information is received in a timely manner, it will be emailed to the members. Thank you.
&
SOLO & SMALL FIRM COMMITTEE
Those members who will be honored at next year’s service on November 16, 2017, at 3:30 p.m., include:
November 22, 2016, Noon, Case Management & Billing Software Options, Grand Jury Room
Judge Christian M. Kahl Constance K. Putzel
YOUNG LAWYERS COMMITTEE
Negligence, Insurance & WC Committee March 9, 2017, 5 p.m., Workers’ Comp 101 & Vocational Rehabilitation May 16, 2017, 5 p.m., Medical Malpractice Cases/ Opening Arguments
December 7, 2016, 5:30 p.m., Running Club - Meet & Run, followed by Happy Hour at Towson Greene Turtle. Meet in Patriot Plaza at steps to County Courts Building. December 8, 2016, Noon-2 p.m., Annual Holiday Lunch & Toy Drive. The toy drive and proceeds from this event will be donated this year to CASA of Baltimore County. Continued on page 10
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Committee News February 8, 2017, 4 p.m., New Admittees SwearingIn Ceremony, Circuit Court for Baltimore County February 15, 2017, 5:30-7:30 p.m., Magistrate Panel Discussion: Understanding Expectations of Family Law Practice, Circuit Court for Baltimore County, County Courts Building, Towson April 2, 2017, 2-6 p.m., Annual Bull & Oyster Roast, Towson American Legion April 25, 2017, 5 p.m., Civility & Advocacy: Not Mutually Exclusive, Circuit Court for Baltimore County. Reception immediately following.
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Lauren D. Benjamin, Esquire Major Gifts Officer Goucher College 1021 Dulaney Valley Road Towson, MD 21204 lauren.benjamin@goucher.edu THE ADVOCATE
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CHAMBER CHAT WITH JUDGE DANIEL FRIEDMAN by Alaina L. Storie
Chamber Chats with Maryland judges and members of the Young Lawyers Committee have resumed. We started this year with an informative, detailed and thorough presentation from Court of Special Appeals Judge Dan Friedman on October 19, 2016. Judge Friedman and his clerks joined a small group of young lawyers and Baltimore County Bar Association Executive Director Doris Barnes for lunch and a discussion on appellate practice. Judge Friedman provided hints, tips and suggestions for presenting best briefs and oral arguments to the Court. His advice was applicable not just to attorneys interested in appellate work but also to all attorneys wishing to put their best feet forward in court. At the very beginning, Judge Freidman reminded us that judges are “interested and attentive, but rushed.” His advice was to get to the point and not to include issues that are irrelevant to the appeal. Judges do not want to read bickering about discovery disputes with opposing counsel if it has nothing to do with the issues on appeal. Edit your facts to present exactly what the court needs to resolve the issues and make it clear why those specific facts matter. Judge Friedman requested that we not waste the judges’ brain space with trivialities. When writing your brief you will certainly include your strengths and sell the high points of your case. However, you also must think about the low points the “warts” - and be prepared to answer questions about those weaknesses. The questions you will field from the judges about the weaknesses in your case are the hardest to answer, so spend more time preparing for the holes and decide how hard you want to push certain aspects of your case. Also, limit the number of issues. Although it may not apply to every case, three issues are ideal and too many can smell of desperation. Judge Friedman emphasized that the most important question in your brief is the Standard of Review. Many times attorneys gloss over this, but it is critical to identify. Before you consider noting an appeal, spend time thinking how you are going to reach the Standard of Review. Since there are word limits that THE ADVOCATE
cover both text and footnotes, do not waste time with lengthy, small font footnotes – impress the judges with the text of your brief. The Record Extract offers an opportunity to highlight the most important documents you want the judges to read. The judge Judge Dan Friedman and YL Committee Chair Alaina Storie assigned to write the opinion will receive every document for the case. The other panel judges receive the extract only, but still have access to all documents if needed. Therefore, only include what is important for the judges to read: You do not want a crucial document to be a needle in the haystack. If your opposing counsel insists on providing volumes of documents, it is okay to give some push back, as there is usually no advantage to “putting in the kitchen sink.” Be mindful of how you structure your argument. Judges make decisions based on a variety of factors. There are three levels of argument, so include all of them – doctrinal/black letter law, rhetorical and policy. If your case is attractive mainly on one level, the judges will likely still want to know about the other levels of argument, so spend time thinking about them. Make sure you read the rules for appellate practice, as they are very restrictive. Finally, when it comes to oral argument, Judge Friedman encouraged each of us to “find your voice.” There is not one right way to argue a case and it is wrong to believe that everyone’s presentation should be uniform and there can only be a single voice that ensures success. Instead, if you know your case, are passionate and care about your case, it will translate. A nervous tick or an “um” in the middle of your sentence is not going to matter if you have thought
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December 2016
CHAMBER CHAT WITH JUDGE DANIEL FRIEDMAN Continued from page 12
about your case and how to convey it. If you make a mistake, or concede on a certain point that you realize you shouldn’t have, go back and correct yourself. Have a conversation with the judges on why you should win. It is a valuable opportunity to hear directly from the source what judges, and specifically Court of Special
Appeals judges, want from the attorneys who practice before them. Over lunch and in a more informal presentation format with questions and answers, Judge Friedman told us just that. The Young Lawyers Committee thanks Judge Friedman for his time and his advice. We look forward to continuing our Chamber Chats.
The Baltimore County Bar Association is honored to congratulate the following members named by The Daily Record as Leading Women. TDR identifies these women (40 years old and younger) for the tremendous accomplishments they have made so far in their career, and were judged on professional experience, community involvement and a commitment to inspiring change. They were selected by previous Top 100 Women and Leading Women winner.
Catherine E. Grason Maryland Insurance Administration
Talley H-S. Kovacs, Esquire Pessin Katz Law, P.A.
Wendy Sare Meadows, Esquire Howanski, Meadows & Erdman, LLC
The Awards Dinner will be held on Monday, December 5, 2016 at The Westin Annapolis, 100 Westgate Circle, Annapolis, beginning at 4:30 p.m. with a VIP Reception, followed by 5:30 p.m. Networking and 6:30 p.m. Dinner and Awards Celebration. Tickets are available through TDR, https://ereg.biz/a/regm/LW16/
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FAMILY LAW: CONOVER DISCUSSION by Mary R. Sanders On October 19, 2016 the Family Law Committee hosted a dinner meeting at the Country Club of Maryland to discuss the Court of Appeals’ July, 2016 decision in Conover v. Conover. The well attended discussion featured three panel speakers, Circuit Court Judge Nancy M. Purpura and attorneys Susan C. Silber and Michel W. Lore. Mary Roby Sanders of Turnbull, Nicholson, and Sanders, P.A. moderated the discussion. Conover involved a lesbian couple who made the decision to start a family through artificial insemination using a sperm donor. The biological mother was listed on the child’s birth certificate as the “mother” and no “father” was named. The child was never formally adopted by his non-biological mother. Shortly after the child was born the parties were married. Approximately one year later, they separated. The child’s non-biological mother continued to see him on a regular basis for a period of about 10 months when the child’s biological mother unilaterally stopped visitation. The question presented to the Court was whether or not the child’s non-biological mother had standing to contest custody and visitation or was simply a third party. The Court ruled that “de facto parenthood is a viable means to establish standing to contest custody or visitation,” overruling its prior decision in Janice M. v. Margaret K. In its 36 page opinion, the Court adopted a four prong test to establish de facto parenthood status. While this decision marks a significant step towards recognizing the rights of non -biological and non-adoptive parents, it has also raised a number of questions among practicing attorneys. Judge Purpura spoke to the audience about her experience as a judge on the Circuit Court bench and about ambiguities created by the Conover decision. Susan Silber, who wrote one of the appellate briefs in Conover, offered suggestions on how to proceed in custody cases involving de facto parents, what kinds of proof to offer, and what challenges attorneys are likely to encounter in pursuing these cases. Michael Lore, the chief of staff for Senator Susan Lee, gave his perspective from the legislature. Throughout the THE ADVOCATE
discussion, many questions were raised by audience members, the moderator and members of the panel regarding the practical application of this landmark decision. Notably, the Court did not address what obligations and benefits are bestowed upon a de facto parent and child in these cases. Traditionally, awarding a party physical custody or visitation triggers certain financial obligations on behalf of the non-custodial parent such as child support. It also permits the noncustodial parent to convey certain benefits to the child such as inheritance and Social Security benefits. The question that arises here is whether or not those same obligations and benefits are extended to the parties, and children of those parties, determined to be de facto parents. The answer, seemingly, is “yes.” If a de facto parent is awarded the same physical access rights as a non-custodial biological parent then logically the same obligations should occur. However the Court did not expressly make that extension. Questions arise from the ways in which Conover can be applied outside of a controversy between only two parents. Under the first prong of the test only one biological parent has to consent and foster a parent/ child relationship. The question, discussed in detail in the concurring opinion by Judge Shirley M. Watts (joined by since- retired Judge Lynne A. Battaglia), is: What are the implications for families that have two biological parents actively involved in the child’s life? Presumably, one biological parent could create a de facto parent in a third party without the other biological parent’s consent. In the same vein, the Court did not explain the significance of being found a de facto parent in terms of any custody or visitation determination in the best interest of a child. Should a court regard a de facto parent in the same light as a biological parent? Answering “yes” to this question could potentially subject a child to a burdensome visitation schedule with multiple de facto parents. Answering “no” to
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December 2016
FAMILY LAW: CONOVER Continued from page 14 this question could mean that a person who fills all the same roles and responsibilities as a biological parent could be subject to different treatment under the law. Similarly, the Court did not acknowledge whether de facto parenthood status can change. Once someone has been determined a de facto parent, does that status remain in perpetuity? If not, when and how would it be re-evaluated? Presently, not all states recognize de facto parent status. Most states recognize at least some kind of de facto parent status, but the vast majority only recognize it in a limited form. As noted by the panel speakers, the answers to many of these questions are likely to evolve over time as custody cases involving de facto parenthood increase in frequency.
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E XECUTIVE C OUNCIL V ACANCY DEADLINE for submitting Letter of Interest is December 30, 2016 The Baltimore County Bar Association Nominations Committee is now accepting letters of interest for the Executive Council At-Large vacancy. A letter of interest should be addressed to the Nominations Committee, c/o Baltimore County Bar Association, 100 County Courts Building, 401 Bosley Avenue, Towson, Maryland 21204. Letters of interest should include a professional resume, a list of bar association activities, committee involvement and leadership positions and any additional information the applicant would like the Nominations Committee to consider. Deadline for submissions is December 30, 2016, 4:30 p.m. Letters can also be submitted via email to doris@bcba.org.
E&T: INCOME TAX CONSIDERATIONS IN ESTATE ADMINISTRATION by Anne L. Preston On November 9, 2016 the Estate & Trusts Committee hosted a program on Income Tax Considerations in Estate Administration. It featured John Barry, Jack Heisler and Lisa McGrath, three Baltimore County estate attorneys who are also Certified Public Accountants. They gave an overview of several topics including applying for an employer identification number (EIN), fiscal year selection, cost basis rules and the timing of distributions and deductions. While topics they discussed are too numerous to recap, here are few suggestions that are worth sharing:
Common estate planning devices aimed at minimizing the estate tax, such as strategic gifting and the use of bypass trusts, may have a negative impact on the cost basis of the assets. Given the current estate tax exemption levels and portability, practitioners need to evaluate both the estate tax and income tax implications of a particular estate planning strategy.
Involve both the broker and accountant in your discussions with the Personal Representative early in the estate administration process. Tax planning opportunities may be lost by waiting until the first administration account has been drafted to contact the accountant.
Other programs on the schedule for the Estates & Trusts Committee:
It is important to communicate with beneficiaries about the timing of distributions and the preparation of Schedule K-1 tax forms. Beneficiaries should know before they receive a distribution (and possibly spend it) whether they are going to owe tax. It is also important to explain to beneficiaries that they cannot file their personal income tax returns before they receive the K-1 form and that they may need to file for an extension.
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The Committee thanks John Barry, Jack Heisler and Lisa McGrath for sharing their insights and wisdom on these important topics.
December 6, 2016, 5 p.m., Estate Planning with Retirement Benefits January 18, 2017, Noon, Inheritance Tax Roundtable February 28, 2017, 5 p.m., Abel Accounts March 21, 2017, 5 p.m., Recent Developments in Estate Administration April 26, 2017, 5 p.m., Diminished Capacity May 24, 2017, 5 p.m., Annual E&T Dinner June 21, 2017, 5 p.m., Legislative Update with Register of Wills Grace Connolly
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PROFESSIONALISM, PAPI, BASEBALL AND BARRISTERS by Judge Louis N. Hurwitz
Well, the Chicago Cubs are World Series champs once again and the focus of many sports fans turns full-time to football. As a watcher of both sports, I can’t help but think of the written and unwritten rules of civility and professionalism in both baseball and football and how behavior on the field sometimes parallels the decorum (or lack thereof) in a courtroom. In football, it is not unusual to see a defensive end enjoy a celebratory sack dance (even when his team is down by 20 points) or a receiver act out a flamboyant, choreographed end zone spectacle after scoring a touchdown. Yet, as many times as we have seen Manny Machado make a spectacular stop at third base and throw out the runner by a hair, he does not take a few seconds to engage in a gyrating dance that screams, “Look at me. I am the best.” Manny may smile after making a great play, but that is the extent of his display. The behaviors I have described mark one of the main differences between baseball and football. What you do see in modern baseball is a player showing up his opponent by remaining in the batter’s box to admire a home run or emphatically flipping his bat (David Ortiz, AKA Big Papi and Jose Bautista) before circling the bases. Sometimes the home run trot is prolonged enough for a player to gloat or glare at the pitcher who dared throw the batter an inside pitch two innings before. Fortunately, it is rare that a baseball player will completely lose his composure and destroy a dugout telephone (e.g., Big Papi) because the home plate umpire’s opinion of the strike zone is not to the player’s liking. However, in baseball, glances of doubt or even a few words of dissatisfaction aimed at an umpire are generally tolerated. So what does all of this have to do our esteemed profession? The parallels and differences are found in the ways in which members of the bar and self-represented litigants behave in the courtroom and administrative hearings. Attorneys neither celebrate a crushing cross-examination by doing a victory dance nor high-five clients, witnesses and the client’s family after completing a compelling summation. I did have a selfrepresented litigant in an administrative hearing actually blow a kiss to opposing counsel after the attorney’s objection was overruled. As I would done have had the transgressor been an attorney, I described the litigant’s action for the record and directed him not to repeat it. Aside from the obvious things noted above that should not be done in court, attorneys sometimes express their displeasure with the way a judge calls “balls and strikes” from the bench. Antics such as continuing to argue a point after a ruling has been made, loud sighing, eye-rolling and slamming a pen on the trial table, to name a few, are behaviors that both self-represented litigants and attorneys should leave out of the courtroom. We, as members of the bar, should know better. Whether or not these antics are explained away as occurring in the heat of battle, they diminish the decorum and dignity of the courtroom. Likewise, general rudeness and showing disrespect for witnesses, opposing counsel or even your own client are actions that fall short of professionalism standards for attorneys. Spoiled, freakishly talented athletes are sometimes celebrated for their tirades. At his farewell game at Oriole Park at Camden Yards, the Orioles’ “retirement gift” to Big Papi was the dugout telephone he smashed two years earlier. In contrast, attorneys do not get a pass when it comes to civility, professionalism and common courtesy, both in and out of the courtroom. The author is an Administrative Law Judge in the Maryland Office of Administrative Hearings.
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COMMITTEE REPORTS All Committee Reports, Chair and ViceChair contact information, upcoming programs and handouts from those programs already held this year can be found on the website at www.bcba.org.
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CONGRATULATIONS ON THE APPROACHING CENTENNIAL OF THE BCBA, FROM ITS FOURTH PRESIDENT As told to Jeffrey R. Scholnick Subtitle: Did you know that Cole Fieldhouse, where the Terrapins played, was named after me? My name is William P. Cole Jr. and I was the fourth president of the Baltimore County Bar Association. I was President of the BCBA at the young age of 35. BCBA had its first meeting in 1920. It is hard to believe that before you know it the Association will be celebrating its 100th anniversary. When we started, we only had 30 members and dues were one dollar a year. I must say that I was blessed to live a very full life. I am proud that I had the opportunity to serve my State and my country. In 1917, I closed my law practice to fight in World War I. I went across the ocean and fought in France. (The Baltimore Sun, July 21, 1918, ‘Lieutenant Cole in France’). Can you imagine an attorney shuttering his practice today to go off to war? My experience was very important to me and, in fact, later in my life, I would help create the Towson American Legion Hall for other veterans. But war was also very cruel to me. I lost my only son, William III, in World War II. He died in combat in France in 1944 (The Sun, October 2, 1944, ‘4 Maryland Men Listed Dead Abroad’). Some have said that I never fully recovered from that tragedy. How ironic that I came of age by fighting in France in WWI and my son met his demise in France in WWII. Being President of the BCBA helped prepare me for my political future. I was a Congressman for Baltimore County’s Second District from 1927 to 1929 and again from 1931 to 1942. I only lost one election in 1928 because of Herbert Hoover’s landslide victory in Baltimore County. (The Sun, November 27, 1928, ‘Defeat of W. P. Cole Held Complete Upset’). Can you imagine a landslide victory for Herbert Hoover in Baltimore County in 1928? Seems hard to believe, after the Depression, but it happened. With this article, I have included a photo of me serving as Acting Speaker when Winston Churchill spoke to the House of Representatives in 1941. I am the white haired gentleman in the upper left behind the Prime Minister. In 1942 I resigned from Congress to become a Judge on the U.S. Customs Court. I was so respected by my colleagues in Congress that, when my nomination was submitted by President Roosevelt, I was confirmed by the Senate in just ninety minutes. (The Sun, May 12, 1942, ‘President Nominates Cole As Customs Judge’). Can you imagine Congress agreeing on anything in 90 minutes today?
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CONGRATULATIONS ON THE APPROACHING CENTENNIAL OF THE BCBA, FROM ITS FOURTH PRESIDENT Continued from page 20 As The Sun stated “The appointment came on his fifty-third birthday, and few Americans are accustomed to birthday presents in the form of lifetime jobs at $10,000 a year.” Doesn’t that sound funny now? $10,000 a year was a lot of money back then. In 1952, President Harry S Truman elevated me to United States Court of Customs and Patent Appeals in New York. (The Sun, July 5, 1952, ‘Cole Is Nominated For Appeals Post’) I was also a member of the University of Maryland Board of Regents starting in 1931 and served as its Chair from 1944 to 1956. You have probably heard of Cole Field House where the Maryland Terrapins played basketball for years? That building was named after me. In fact, its official name is the William P. Cole Jr. Student Activities Center. What a wonderful honor. For a photo of me and more information about my work with the University of Maryland, check out this webpage- https://colefieldhouse.wordpress.com/wpcole/. There were many distinguished members of that early group of BCBA attorneys. I was just one of them. Perhaps, I can convince some more of those early leaders to tell you their story in honor of our upcoming Centenary.
ANNUAL MEMORIAL SERVICE Kristine Howanski, on behalf of President Rob Thompson, the Memorial Committee, and members of the Baltimore County Bar Association, sincerely thanks the following for their generous financial contributions to the reception held at Café Troia following the Annual Memorial Service on Thursday, November 17, 2016: Fred Allentoff Hon. Judith C. Ensor William A. Hahn, Jr.* Howanski, Meadows & Erdman J. Calvin Jenkins, Jr.* Julie E. Landau Christine A. Malanga Morgan, Carlo, Downs Winegrad, Hess, Friedman & Levitt Robert N. Winkler This reception provides family members, friends and colleagues of the deceased an opportunity to gather and share memories. It is always very heartwarming for the family members to hear stories and memories from professional colleagues of their beloved, and know that they have not been forgotten, and the lives they touched during their career. Please look for the article on the service in next month’s issue of The Advocate.
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BENCH/BAR COMMITTEE REPORT by Patrick E. Maher The Bench Bar Committee met on November 10, 2016 in the Circuit Court judicial conference room. The Committee provides an opportunity for representatives of court related agencies and bar organizations to report news and information of interest to members of the bench and bar. The committee includes at large members who provide input and commentary and convey the news to the members of the legal community. Circuit Administrative Judge Kathleen Gallogly Cox delivered the report of the Circuit Court bench. Judge Cox said that there will be a new process for handling complex civil cases, which will now be assigned to one judge. The intention of the new plan is to assist attorneys and litigants with the resolution of motions and setting of reliable trial dates. Abbie Cohen will be screening these cases. Judge Cox also informed the committee that two new court rooms currently under construction should be completed in December.
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Judge Dorothy Wilson gave the report for the District Court bench. She advised that it is taking approximately three weeks to transfer appealed cases to the Circuit Court. Judge Wilson requested that counsel include orders with motions they are filing in District Court. Circuit Court Clerk Julie Ensor said that approximately 500 motions were not submitted to be ruled on the “set list” due to a computer glitch. Ms. Ensor advised that the motions are in the system, they just had not been set in for rulings. JIS is adding the motions back to the “set list”. Nevertheless, if you have a Circuit Court motion that has not been decided, it is suggested that you call the clerk to check on its status. Scott Shellenberger provided the State’s Attorney report. He said that the Baltimore County Police Department will accelerate deployment of body cameras for their officers. The new target for all 1,435 body cameras to be in use is September 2017. Mr. Shellenberger expects to be hiring several evidence specialists/paralegals to review the camera footage that will be generated. A recent Attorney General opinion on the constitutionality of the cash bail system prompted a discussion between members of the bench and the bar about its ramifications. Concerns were raised on both ends of the spectrum, with anecdotes of individuals being held without bail on minor charges and with others were being released on personal recognizance despite legitimate concerns for public safety and the likelihood of appearing for trial. It was suggested that a more robust pre-trial services department would be a benefit to address some of these concerns. The Rules Committee is meeting in November to discuss the issue. Magistrate Wendy Schenker informed us that the process for hearing un-corroborated divorces has started. No witnesses are needed for corroboration on “grounds.” For mutual consent cases, both parties still need to appear but no corroborating witness is Continued on page 23
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BENCH/BAR COMMITTEE REPORT Continued from page 23 necessary. For those interested in handling juvenile cases, there is an arraignment court on Wednesday afternoon which is staffed by a representative from the Office of the Public Defender and also private counsel. Magistrate Schenker advised it could be a good opportunity for lawyers to obtain new clients. Talk to BCBA executive director Doris Barnes about getting your name on the list to attend the arraignments if you are interested. Harford County liaison Debra Shubert said that State’s Attorney Joseph Cassilly will retire in January 2017 after more than 34 years as the County’s elected top prosecutor. The Circuit Court judges will appoint a successor for the balance of his term. In addition, the Register of Wills is moving to 18 Office Street and the Assignment Office will be relocating near Judge William Carr’s chambers.
Family Law Committee Chair Angela J. Silverstein and Young Lawyers Committee Chair Alaina Storie informed us of the past and future events of these two vibrant committees. Information about upcoming events is available in the Advocate and the calendar of events is available online at www.bcba.org. The next meeting is December 8, 2016. Anyone having issues they would like brought to the attention of the Bench Bar Committee can contact a member. They are listed on the Baltimore County Bar Association website. Congratulations to Dennis M. Robinson Jr., and Bench Bar Committee Member C. Carey Deeley Jr., for their appointment to the Circuit Court bench, and to Judges Cox and Keith Truffer for their election victories.
BAR FOUNDATION REPORT - JUDICIAL PORTRAITS by John B. Gontrum Your help is still needed in assisting the Foundation in funding the portraits of several deceased Circuit Court Judges. The Baltimore County Bar Foundation exists as an independent charitable organization with missions to foster and maintain the honor and integrity of the profession of the law; to improve and to facilitate the administration of justice; to enhance and improve the image of lawyers; and to promote the study of the law and research therein, and the diffusion of knowledge thereof. A few years ago a request was made to the Foundation to act to provide for those wishing to donate funds in order to honor deceased members of the Circuit Court Judiciary by having their portraits made and placed in the court house. The Foundation board believed that this was an appropriate task under its charter. To date, funds have been donated in varying amounts for portraits of Judges Jenifer, Brannan, Hinkle and Jacobson. Judge Buchanan’s
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portrait was fully funded by his family. Other portraits have been funded privately. Although each portrait costs a very reasonable $4,100, the funding has not gone as hoped, possibly because the pool of attorneys familiar with the deceased jurists has grown smaller with the passing of time. Judges Jenifer and Brannan, for example, both passed away decades ago. Consequently, the Foundation is in need of funds in order to cover the cost of completion of the portraits. A gift of any size would be appreciated, and would be tax deductible. At this point the Foundation owes $16,400 for the portraits commissioned, and less than a third of that has been received. We believe that the traditions initiated in Courtroom Five are important in establishing the continuity of the bar and the role of these individuals in the history of the county. We appreciate any consideration you might give to this appeal.
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Don’t let this happen to your career. Reach out for help before it becomes a train wreck. Don’t wait for Bar Counsel to pay you a visit. Confidential help is available for any attorney, paralegal or support staff for drug, alcohol and/or mental health issues, among others.
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Signature Sponsors
LAWYER IN THE LOBBY CLINIC The attorneys listed below have volunteered to staff the LAWYER IN THE LOBBY CLINIC, which is held the second Wednesday of each month, 4:30 to 6:30 p.m. This is an opportunity for citizens of Baltimore County to meet, free of charge, with an attorney for advice and/or referral or both (including self-referral) in the areas of collections, bankruptcy, landlord/tenant matters, contract, warranties and other consumer matters, wills, probate, advance directives, or small claims actions. If you are interested in staffing the Clinic, please call Rachel M. Ruocco at 410-337-9100 or email rachel@bcba.org. Jerry Blake Julius Blattner Jessica Corace Keith Franz Bruce Friedman Bambi Glenn Valerie Ibe Michael Jeffers Fu-Mei Jiang Richard Lebovitz Craig Little Brady Locher
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Lisa Magil Mala Malhotro-Ortiz Paul Mayhew James Nolan Lynne Peace Larry Polen E. David Silverberg Brian Tillman Rob Tully Michelle Valenti Jordan Watts
The Baltimore County Bar Association continues its Signature Sponsor program, which enhances the opportunities for our sponsors, as well as our members. This single-tier program provides more engagement between our sponsors and our members. Each Signature Sponsor can host an event during the year, thereby reducing the cost of the event for members while providing added benefits. Sponsorships help the Bar Association maintain its current dues level despite the increasing costs of providing topshelf legal education programs, social events, networking opportunities and Bar Office services available in the County Courts Building. If you know of a business that would be interested in one of these limited sponsorship opportunities, please contact Doris Barnes (doris@bcba.org or 410-337-9103).
Please join us in welcoming these sponsors and consider their services when you need them. Their ads are throughout each issue of The Advocate, distinguished by the gold ribbon that accompanies the ad. Please let them know you appreciate their support. Thank you.
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MARYLAND STATE BAR ASSOCIATION 2017 BOARD OF GOVERNORS This is the annual announcement regarding the nomination and election process for vacancies on the Maryland State Board of Governors occurring in June 2017. The complete information packet, Nomination Petition, Biographical Sketch and Instructions can be found on the BCBA website: http:// www.bcba.org/site/wp-content/ uploads/2016/11/2017-BOG-Packet.pdf, and are also available at the Bar Office.
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COUNTY COUNCIL UPDATE by Thomas H. Bostwick Greetings! The members of the Baltimore County Council are grateful for the opportunity to update the County Bar on the activities of our County’s legislative body. Your seven member County Council serves as the independent Legislative Branch of County government. The Council meets year-round, generally in bi-monthly Legislative Sessions (held at night) and bi-monthly Work Sessions (held during the day). All proceedings are open to the public, and the Legislative Session is broadcast on BCTV (Comcast & Verizon channel 25). The Council’s Website at www.baltimorecountycouncil.org provides helpful information as well. At its Legislative Session on November 7, 2016, the County Council passed legislation related to the following: Bill 72-16 – Auxiliary Police – Currently, the Baltimore County Chief of Police may appoint individuals as auxiliary police officers. The auxiliary police team is composed of sworn and trained police officers and civilian personnel. An auxiliary police officer is not a member of the Police Department and may not wear, carry, or transport a firearm during the course of assigned duties. An auxiliary police officer performs police related duties as assigned by the Chief of Police. These duties include: providing security, crowd and traffic control at public events; rendering emergency services during natural disasters and searches for missing persons; accompanying and assisting County police officers on patrol duty; performing police duties in the vicinity of parks, schools and houses of worship; and assisting in the performance of administrative duties. Bill 72-16 adds a further duty, namely, to assist the Code Official in the performance of enforcement duties upon the request of the Director of the Department of Permits, Approvals and Inspections (PAI). Article 3, Title 6 of the County Code sets out the enforcement duties of the Code Official (the Director of PAI or his designee). The Bill authorizes this working arrangement between the Police Chief and the Director of PAI to provide the Code Official with additional resources to carry out the enforcement duties. Bill 73-16 – Open Space – Bill 73-16 comprehensively revises the law dealing with the provision of open space and the authorization to pay a fee in certain cases instead of providing open space. The Bill repeals the current statute (Section 32-6-108 of the County Code) and enacts a new statute. The requirement to provide open space applies to any residential development. The minimum requirement is unchanged from the current law, namely, 1,000 square feet
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of open space is required per dwelling unit. Open space is defined as a parcel of land that is an average of 75 feet wide or has an average grade of no more that 15 percent and is (1) unimproved or (2) contains one or more amenities. A developer must meet the open space requirement on-site or off-site. Open space is preferred to be located in the Councilmanic district of the proposed development. If it is not, then the location is subject to the approval of the Councilperson in whose district the proposed development is located. If it is not feasible to meet the open space requirement onsite or off-site, the applicant shall pay a fee to Baltimore County. The fee must be used in the same Councilmanic district where the property is located. The fee is established in the same manner as it has been under current law, namely, the County Administrative Officer proposes the fees which are then adopted by the County Council by resolution. The fee structure is based upon a Tier system that takes into account the project location and type of development, with rates per residential development unit. If an applicant partially satisfies the open space requirement on-site or off-site, the fee is reduced by the percentage of the minimum open space requirement that is provided onsite or off-site, and the fee is further reduced by 100 percent of the verified costs of all outdoor public amenities provided on-site and off-site and 60 percent of the verified costs of all outdoor private amenities provided on-site and off-site. For Planned Unit Developments, fees are to be assessed based on the tier(s) into which their residential components fall. The fee schedule is to be posted on the County’s internet website and must include a description of any documentation used in calculating the fees. The fee is payable upon the recordation of the record plat. Any security necessary for the on-site or off-site amenities provided must be posted prior to the issuance of a building permit. The requirements of prior Bills 78-15 (annual report) and 84-15 (fee reduction) are retained in Bill 73-16. A final component of the Bill is that the Planning Board is required to revise the Open Space Manual and submit it to the County Council for approval on or before April 1, 2017.
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CRIMINAL LAW UPDATE by Robert C. Lidston The November Amicus Curiarum contains three Court of Special Appeals decisions which may be of interest to practitioners. Scott v. State, No. 2412, September Term 2014, filed October 26, 2016 (opinion by Eyler, Deborah S., J.) Scott was convicted of attempted armed robbery, use of a handgun, and conspiracy. The trial court imposed an enhanced sentence of 25 years under Criminal Law section 14-101, deciding that this was Scott’s third conviction for a crime of violence. The Court of Special Appeals vacated the attempted armed robbery sentence because it found that the evidence was legally insufficient to prove that one of the predicate convictions was for a crime of violence. The other incident produced at Scott’s sentencing was not sufficient to show the manner in which one of the predicate crimes was committed. Without vacating the sentences for the use of a handgun and conspiracy, COSA remanded the case for resentencing on the attempted armed robbery. At the re-sentencing, the trial court allowed the prosecutor to introduce evidence which had not been previously submitted indicating that the predicate assault in question was a crime of violence. The trial judge was satisfied that the predicate conviction met the requirements of the statute and reimposed the 25 year mandatory sentence. Scott appealed, contending that double jeopardy principles barred the prosecution from proving at the re-sentencing that the predicate conviction was a crime of violence when it had not proved that in the original sentencing. COSA affirmed the new sentencing. Neither the Double Jeopardy Clause of the Fifth Amendment, nor Maryland common law, nor the collateral estoppel form of double jeopardy prohibited the State from proving at the re-sentencing that the predicate conviction in question was for a crime of violence. When a conviction is reversed for trial court error, Double Jeopardy does not apply. When a conviction is reversed for legally insufficient evidence, the defendant cannot be retried for that offense. In Monge v. California, 524 U.S. 721 (1998), the United States Supreme Court held that sentencing factors are THE ADVOCATE
not part of an offense, and that the Double Jeopardy Clause protects a defendant from being twice put in jeopardy for an offense. The fact that the sentencing evidence in Scott’s case was legally insufficient to support an enhanced sentence is not the functional equivalent of an acquittal and, thus the prosecution is not precluded by Double Jeopardy from trying to prove an enhanced sentencing factor a second time. Maryland common law and the collateral estoppel form of double jeopardy also did not bar the State from proving on re-sentencing that the predicate conviction in question was a crime of violence. Jackson v. State, No. 1606, September Term 2015, filed October 26, 2016 (opinion by Woodward, J.) Jackson and his girlfriend lived in the basement of a Baltimore City house. The couple who lived on the first floor held a party and, while cleaning up, they heard Jackson and his girlfriend arguing downstairs. After mutual pushing, Jackson grabbed his girlfriend around the throat. She then ran upstairs and the two individuals came down to confront Jackson. He pulled a gun and fired into the ceiling. Trial testimony showed that the victim nearly passed out and that she was seen with a swollen and red eye. No gun was recovered. Jackson denied any knowledge of a gun but admitted assaulting the victim. He was acquitted of gun charges, but he was convicted of second degree assault. Jackson appealed to the Court of Special Appeals which affirmed his conviction. He argued before COSA that evidence of his prior domestic abuse of the victim was erroneously admitted in violation of Maryland Rule 5-404(b). The Rule prohibits the admission of other crimes, wrongs, or acts to show a person’s bad character. COSA held that evidence of prior abuse is admissible to show motive, which is a recognized exception to Rule 5-404(b). It reviewed a series of cases beginning with Snyder v. State, 361 Md. 580 (2000). These cases held that hostility, violent acts and other abuse by a defendant against the victim was probative of motive where the
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CRIMINAL LAW UPDATE Continued from page 28 defendant was charged with murder. COSA found that the evidence in question was similar to that properly admitted in the cases it reviewed. The fact that the Jackson case did not involve murder was not important because the motive was also the exertion of control over a victim through a matter of violence. COSA also noted that even if the subject evidence was erroneously admitted, the error was harmless beyond a reasonable double. Jackson admitted in a taped statement that he struck the victim and the court admitted photographs of the victim’s battered face. The admission of evidence of the prior assaults could not have had any effect on the verdict.
Perry also argued that the officer’s testimony about observing a muzzle flash was improper expert testimony. COSA noted that this argument was not preserved and declined to exercise plain error review. It did state that the officer’s testimony that he saw a muzzle flash would have allowed the jury to infer that a weapon was fired in the officer’s direction. Perry’s argument that the circuit court impermissibly coerced the jury by saying that the case would conclude in two days or less was also not preserved. Still, COSA noted that it would be unreasonable to restrict a court from informing the jury about the anticipated length of the evidentiary phase of a trial.
Perry v. State, No. 2489, September Term 2014, filed September 28, 2016 (opinion by Leahy, J.) A state police officer stopped Perry for speeding. During the traffic stop, Perry sped off at about 100 miles an hour. He then jumped out of the car and ran onto a golf course where he was pursued by two officers. He jumped onto a fence and one of the officers heard a gunshot and observed a muzzle flash when Perry was on the far side of the fence. The officer fired three shots in response, but Perry escaped. He was later found and arrested. Perry was tried and convicted of two counts of reckless endangerment for putting the officers at substantial risk of death or serious injury. He was also found guilty of some driving offenses but found not guilty of attempted second degree murder. Evidence was offered at trial of the three recovered bullet casings from the officer’s weapon and of a single recovered casing from Perry’s weapon. Perry appealed and the Court of Special Appeals affirmed his conviction. It reviewed the history of reckless endangerment cases and clarified that the actus reus of reckless endangerment is measured objectively. The Court said that the proper inquiry, in such a case involving a firearm, is whether the weapon is handled in a manner that created a substantial risk of death or serious injury. In Perry’s case, COSA decided that the jury could have reasonably found that Perry’s conduct put the officers in substantial risk of death or serious physical injury. THE ADVOCATE
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CIVIL LAW UPDATE by Cecilia B. Paizs A review of the Amicus Curiarum for September 2016 revealed the following cases of interest:
Jackson v. Sollie, No. 62, September Term 2015, filed July 19, 2016. (opinion by Greene Jr., J.)
THE COURT OF APPEALS Attorney Grievance Commission of Maryland v. Rhonda I. Framm, AG No. 73, September Term 2014, filed August 24, 2016. (opinion by Barbera, C. J.) The Court of Appeals held that disbarment was the appropriate sanction after finding that Respondent failed to act competently and communicate adequately with her client; violated numerous other specific Rules of Professional Conduct; and committed "repeated material misrepresentations that constitute a pattern of deceitful conduct, as opposed to an isolated instance." In the matter of the Application of Dierdre Paulette Brown for Admission to the Bar of Maryland, Misc. No. 33, September Term 2015, filed August 24, 2016. (opinion by Hotten, J.) The Character Committee of the Board of Bar Examiners voted three to two to admit Ms. Brown to the Bar of Maryland. The Court of Appeals denied admission after consideration of the Committee and the Board's recommendations and an independent review of the record. The Court held that Ms. Brown had not met the burden of establishing that she currently possess the requisite moral character and fitness for admission to the Bar because 1) she failed to disclose a prior criminal charge on her Bar application and provided no credible explanation for the omission and 2) intentionally falsified her grade point average on a law school resume for the purpose of enhancing her qualifications with a prospective employer. Further, the Court held that Ms. Brown's actions in failing to disclose the criminal charge and falsifying information on her resume indicated a pattern of a lack of honesty and candor, contrary to the high standard of integrity expected of an attorney.
Milton Jackson and Gayle Sollie settled the issues in their divorce action other than how to divide the retirement assets. Jackson was a participant in the Civil Service Retirement System: Sollie was a participant in a more traditional retirement program and was entitled to Social Security benefits. Since CSRS participants do not pay into the Social Security system and are not entitled to Social Security benefits based on employment under the CSRS, Jackson argued that the value of his CSRS should be reduced to reflect the fact that he was not entitled to Social Security benefits and contended that the court should consider an offset for what those benefits might have been had he not been in the CSRS program. Sollie argued that state courts are federally preempted from dividing Social Security benefits directly or indirectly by way of an offset. The trial judge agreed and ordered the retirement plans to be divided so that each party would receive 50% of the marital share of the other party's retirement plan. The Court of Appeals vacated the judgment and remanded the case, holding that while a trial judge is preempted by federal law from dividing Social Security benefits, including hypothetical or speculative values when determining the equitable distribution of marital property, a judge must consider a party's actual or anticipated Social Security benefits as a relevant factor under Md. Code Family Law Article ยง8-205(b) when determining whether to grant a monetary award to balance the equities and rights of the parties concerned in marital property. The Court held that general consideration does not conflict with federal law, because it is not a direct or indirect offset of Social Security benefits and does not compel a judge to grant a monetary award. The ultimate decision as to whether a monetary award should be granted is entrusted to the sound discretion of the trial court. Continued on page 31
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CIVIL LAW UPDATE Continued from page 30 A review of the Amicus Curiarum for October 2016 revealed the following cases of interest:
Charles Huntley v. Lydia Huntley, No. 755, September Term 2015. Filed September 1, 2016. (opinion by Woodward, J.)
THE COURT OF SPECIAL APPEALS: Grueff v. Vito, et al., No. 1878, September Term 2014, filed August 31, 2016. (opinion by Eyler, J.) The Settlor created two trusts as part of his estate planning. First, he created an irrevocable trust naming his four children as equal income and residuary beneficiaries. The trust document included a provision for a broad power to amend the trust upon an affirmative vote of 75% of the beneficiaries. Later, three of the four beneficiaries attempted to amend the trust to divest the remaining beneficiary of her interest in the trust and distribute her share among themselves. The Settlor also created a revocable trust funded by certain assets and reserved the right to alter, amend or revoke the trust in whole or in part at any time. The net income was to be paid to him during his life. Over the years various amendments to the revocable trust affected the distribution of its assets. The Court of Special Appeals held that the trial court erred in allowing the attempt to divest a beneficiary of her interest in the irrevocable trust. Such action was contrary to the Settlor's intent in creating the trust and was therefore ineffective. That issue was reversed and remanded for proceedings not inconsistent with the opinion. As to the revocable trust, the Court determined that the trustees owed a fiduciary duty to the Settlor during his lifetime but did not owe a fiduciary duty to a party who has a remainder interest in the trust, affirming the lower court's determination in that matter.
THE ADVOCATE
Wife filed a complaint for absolute divorce after 28 years of marriage, and sought, among other things, a monetary award, alimony, a portion of Husband's retirement benefits and attorney’s fees. Husband’s response denied Wife was entitled to a monetary award and asked the court not to order one. Husband’s only request for affirmative relief was for the granting of the divorce. At trial, Husband requested a portion of the marital share of Wife's retirement benefits which were in pay status. The trial court denied Husband's request on the ground that he had not included such a request in his pleadings. The trial court also awarded Wife one half of the marital portion of Husband's retirement benefits on an "if, as and when" basis; a monetary award and attorney's fees and denied her request for alimony. The Court of Special Appeals affirmed, holding that because Husband failed to plead his request for an interest in Wife's retirement and because the trial court's authority is limited to the issues framed in the parties' pleadings, the trial court did not have the authority to act on that issue. The failure to plead was not cured by Wife's listing of her retirement benefits on the 9-207 form, her admissions related to her retirement assets nor the fact that Wife had requested an interest in Husband's retirement assets. Further, the Court stated that Husband’s failure to include in his pleadings a request for an equitable division of the marital portion of Wife's retirement benefits foreclosed Wife's option to request a monetary award based on the present day value of his retirement assets versus an "if as and when" basis, which she might need if Husband were awarded an interest in her retirement in pay status.
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A FULL COURT PRESS FOR PRO BONO! THURSDAY, MARCH 23, 2017 6-9 PM M&T BANK STADIUM | SOUTHEAST CLUB LEVEL GENERAL ADMISSION $100 NONPROFIT, ASSOCIATE ADVOCATE & PARALEGAL TICKETS $75 EARLY BIRD PRICING AVAILABLE UNTIL FEBRUARY 3!
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The Baltimore County Bar Association 100 County Courts Building 401 Bosley Avenue Towson, MD 21204-4491 410-337-9103-Telephone 410-823-3418-Facsimile www.bcba.org
Annual Holiday Party, 5-8 p.m., Towson Tavern. Purchase tickets online at www.bcba.org. Flyer on page 9 of this issue.
Don’t miss items included in this issue: Pg. 3 - Calendar of Events (December & January) Pg. 4 - Court Notices Pg. 6 - December 1, Holiday Party Pg. 7 - December 8, Young Lawyers Holiday Lunch Pg. 16 - Executive Council Vacancy Pg. 34 - March 23, MVLS March Madness Event
MEMBER ADVERTISEMENTS Towson. Office space available in First-Class Suite directly across from the Towson District Court. Parking, use f conference rooms, library, receptionist, etc. included. Contact Keith at 410-821-6800. Middle River. Professional space, share office. Use of conference and waiting rooms, copy and fax machine, and internet. Free parking. Available immediately. Contact Jerry at zimlinlaw@comcast.net or call 410-686-1911. Towson. Window office space (and interior office space) available for subtenant with boutique litigation firm loctated in top floor of the PNC Bank building, 409 Washington Avenue, Towson MD. Panoramic views of Towson overlooking Courthouse Gardens. Use of newly furnished large glass conference room and other support available depending on individual needs. Contact Adam at 410-823-5003 or adam@spencefirm.com. Owings Mills. Office space available in a small law firm, perfect for a solo practitioner. Includes use of conference rooms, waiting area, photocopier/fax/scanner, utilities, plentiful free parking, and congenial atmosphere. Located just off Red Run Blvd., near I-795. Contact Andy Hermann at ahermann@LMCPLAW.com or 410-998-1198. Towson. Office space available in a small law firm, perfect for a solo practitioner. Approximate size is 20x15. Furnished office, and comes with desk, credenza and book cases. Use of conference room, waiting room and utilities. Free parking. Rent $650/month. Call 410-321-8368 or email Stephen Dunn at sdunn@sdunnlaw.com.
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