THE ADVOCATE Newsletter of The Baltimore County Bar Association VOLUME XXV, NO. 8
February 2016
PRESIDENT’S MESSAGE by Hon. Vicki Ballou-Watts Itineris, Inc: - Helping Families Chart a Journey to Success Autism Spectrum Disorder (ASD) is the fastest growing developmental disability in the United States, according to the Centers for Disease Control and Prevention. 1 in 68 children is diagnosed with ASD, a disorder more prevalent in boys. Today, 3.5 million Americans live with an Autism Spectrum Disorder diagnosis. Yet, once young adults reach age 21, resources are extremely limited, leaving families to struggle in order to meet the needs of loved ones affected by this lifelong disorder. As the name implies, those diagnosed with ASD may have a range of symptoms, skills and levels of disability. Not all who are diagnosed with ASD face the same challenges. In fact, some with ASD are capable of functioning independently while others require substantial support. However, common features of the disorder are: difficulty with social communication and interaction, narrow interests or repetitive behaviors and resistance to change. Several disorders are now within the ASD umbrella, including but not limited to: Autistic Disorder,
Asperger’s Syndrome. Childhood Disintegrative Disorder and Pervasive Developmental Disorder, Not Otherwise Specified. ASD affects individuals across all racial, ethnic and socio-economic groups. In fact, Sylvester Stallone, Dan Marino, Toni Braxton, Joe Mantegna, Ed Asner, Gary Cole Jenny McCarthy, Doug Flutie and D.L. Hughley all have children who’ve received an ASD diagnosis. Of course, celebrity parents often have access to resources for their loved ones that are not available to the “average” parent. Where can those who aren’t celebrities go to access critical supports and services once their child becomes a young adult? Enter Itineris, Inc., a unique service provider founded in 2010 by a group of local parents and professionals to fill a void that begins at age 21 for those with ASD. According to its mission statement, Itineris “is committed to helping provide opportunities for individuals with
Inside This Edition Program Registrations Pg Annual Banquet Photos Pg ABA Delegate Report Pg Bench/Bar Committee Pg Calendar of Events Pg Civil Law Update Pg Classified Ads Pg Committee Programs Pg County Council Update Pg Court Notices Pg Credit Card Processing Pg Criminal Law Update Pg E&T Recent Case Law Pg Historical Perspectives Pg Lawyers Assistance Pg Memorial Service Pg Save the Date Flyer Pg Supreme Court Group Adm
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DTI Global THE ADVOCATE
Signature Sponsor
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PRESIDENT’S MESSAGE Continued from page 1 Autism Spectrum Disorder to participate meaningfully in all aspects of life.” Itineris fulfills its mission by utilizing specially trained staff to help clients develop work and independent living skills along with communication and decision-making skills. They also help clients to identify interests and develop small businesses. If you attended the BCBA Holiday Party or the Young Lawyers’ Holiday Luncheon in December 2015, you may have seen some of the items created and sold by Itineris clients. Itineris - which is latin for “the journey” - has made a positive impact on individuals and families in the Baltimore Metropolitan community. The BCBA has made Itineris its designated charity for the 2015-16 bar year and we are proud to support the work of this nonprofit organization through two upcoming events. First, on Thursday, March 10, 2015, the BCBA will sponsor its
third annual “Wines Around the World” at Notre Dame Preparatory School. This special event will feature catered food, wine pairings, live jazz, a silent auction and a great experience for a worthy cause. Then, on Sunday, April 3, 2016, our Young Lawyers Committee will sponsor the Annual Bull and Oyster Roast at the American Legion in Towson. This event offers an afternoon of good food, live music, silent auction items and fun activities for the entire family. The net proceeds from both events will be donated to Itineris. I am thankful to Wines Around the World Chair Julie Landau and Young Lawyers Committee Chair Alexander “Sandy” Steeves for their tireless efforts in organizing and promoting these special events. For ticket information, please contact the Baltimore County Bar Association or go to our website at www.bcba.org. Hon. Vicki Ballou-Watts, President, Baltimore County Bar Association February 2016
SAVE THE DATE Young Lawyers’ Bull & Oyster Roast Sunday, April 3, 2016 2:00 p.m.— 6:00 p.m. Towson American Legion 125 York Road Towson, MD 21204 Tickets on Sale Soon!
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February 2016
C ALENDAR
2015-16 Officers President Pres-Elect Secretary Treasurer
Hon. Vicki Ballou-Watts Robert J. Thompson Adam T. Sampson Rebecca A. Fleming
T. Wray McCurdy, Immediate Past President Alexander C. Steeves, YL
Chair
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Law Day Committee Meeting, 5 p.m., Mezzanine 08 Executive Council Meeting, 8 a.m., Judicial Conference Room 363 Lawyer in the Lobby, Free Walk-in Clinic, 4:30-6:30 p.m. Criminal Law Program, 5 p.m., Mezzanine 08 Bench/Bar Committee Meeting, 8 a.m., 4th Floor Judicial Conference Room Bar Foundation Meeting, 3:30 p.m., Mezzanine 08 Stated Meeting 4:30 p.m.., County Courts Building, Towson NIWC: A Forum on Vocational Rehabilitation, 5 p.m., Mezzanine 08
March 2016
The Advocate Laurie Wasserman, Committee Chair Doris D. Barnes Thomas S. Basham Associate Editors
Contributing Writers 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 Keith R. Truffer 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
Program/Event Registration Form can be found on page 23 Individual flyers can be found with the online registration for each program on the website calendar.
Executive Council Keith R. Truffer Michael W. Siri Jay D. Miller Stanford G. Gann Jr. John G. Turnbull III Lisa Y. Settles
OF
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Law Day Committee Meeting, 5 p.m., Mezzanine 08 SLLZ: A View From The Hill with Congressman Ruppersberger, 5:30 p.m. Executive Council Meeting, 8 a.m., Judicial Conference Room 363 Real Property: Closings, Settlements, e-Filing Deeds, Current Trends, 12 p.m., Mezz 08 Solo & Small Firm: Court Reporter Services: More than a Deposition, 12 pm, GJR Lawyer in the Lobby, Free Walk-in Clinic, 4:30-6:30 p.m. Bench/Bar Committee Meeting, 8 a.m., 4th Floor Judicial Conference Room
10 Wines Around The World, 6 p.m., Notre Dame Preparatory School 16 16 21 22 23 24 29 30 31
Family Law: Social Media: Evidentiary Issues, 5 p.m., Mezzanine 08 YL: What Business Leaders Look for When Retaining Legal Counsel, 5 p.m., Grand Jury Room, followed by Happy Hour at Charles Village Pub, Towson Tech: Is This Thing On? Ethical Problems and Technology, 5 p.m. E&T: Guardianships: An Overview of the Role of Court-Appointed Counsel, 5 p.m., Mezzanine 08 Membership: Scotch Tasting at UB Law, 4:30 p.m. Family Law: Deviation from the Child Support Guidelines: How To Be Creative, 6 p.m., Mezzanine 08 Long-Range Planning Committee Meeting, 8 a.m., Mezzanine 08 Criminal Law: Mental Health Issues, 5 p.m., Mezzanine 08 ADR: Changes, Changes, Changes, 5 p.m., Mezzanine 08
April 2016 3 5 6 7 11 12 12 13 13 13 14 15 26 30
Young Lawyers’ Annual Bull & Oyster Roast, 2-6 p.m., American Legion Law Day Committee Meeting, 5 p.m., Mezzanine 08 E&T: Annual Dinner w/Orphans’ Court Bench & ROW, 5:30 p.m., CCMd Family Law: Annual Joint Dinner w/BABC, 6 p.m., Forest Park GC Tech: Communication: That’s the Magic Word, 5 p.m., Mezzanine 08 Executive Council Meeting, 8 a.m., Judicial Conference Room 363 Professionalism: Understanding the AGC, 5:30 p.m., Jury Assembly Area Lawyer in the Lobby, Free Walk-in Clinic, 4:30-6:30 p.m. Criminal Law: Cars, Cops & Stops, 5 p.m., Mezzanine 08 SLLZ: Environmental Issues in Baltimore County, 5:30 p.m., CCMd Bench/Bar Committee Meeting, 8 a.m., 4th Floor Judicial Conference Room Civics & Law Academy, CCBC Catonsville, 8 a.m. - 2 p.m. Supreme Court Group Admission, see information on page 17 Hillwood House Tea and Gardens Tour, 8:30 a.m.
Publication deadline: 5th of the month preceding publication.
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COURT NOTICES Circuit Court for Baltimore County Third Judicial Circuit
Chambers of Kathleen Gallogly Cox Circuit Administrative Judge & County Administrative Judge The following Judges will serve in the Family Division for six months effective July 1, 2016:
County Courts Building Towson, Maryland 21204 410-887-6510
The following Judges will serve in the Family Division for six months effective January 1, 2017:
Judge Kathleen Gallogly Cox Judge Susan Souder Judge Vicki Ballou-Watts Judge Judith C. Ensor Judge Paul J. Hanley Judge Colleen A. Cavanaugh
Judge Mickey J. Norman Judge H. Patrick Stringer, Jr. Judge John J. Nagle III Judge Jan Marshall Alexander Judge Justin J. King Judge Keith R. Truffer
NEW ADOPTION PROCEDURES The Circuit Court for Baltimore County has promulgated new procedures regarding adoption under Title 5, Subtitle 3B-Independent Adoption of the Family Law Article of the Annotated Code of Maryland and the Maryland Rules of Procedure, Title 9, Chapter 100. The new procedures clarify the independent adoption process, particularly regarding investigations conducted by the court pursuant to those adoptions.
adoption. The petition must be filed in order to obtain a temporary custody order before the adoptive parents take custody of the child in a nonrelative adoption. The biological parent will be contacted as part of the investigation to confirm his or her consent and to verify that the parent knowingly and willingly consented to the adoption, whether the parent wishes representation and if he or she was advised of the right to seek counsel. This will occur regardless of whether the time to object has passed. However, if the parent has been represented by an attorney and the attorney files an affidavit of representation under Maryland Rules of Procedure 9-103, then, no follow-up interview will be conducted. In cases where the investigator contacts a parent and believes that there is an irregularity in connection with the biological parent’s consent, the case will be forwarded to a judge, who, after reviewing the
Any adult may petition the court for an adoption. If the petitioner is married, the petitioner’s spouse must join in in the petition unless the spouse is separated from the petitioner or is not competent to join in the petition. If it is a step-parent adoption, the parent of the prospective adoptee must consent to the proposed adoption. If the martial status of the petitioner changes before entry of a final order, the petitioner must amend the petition accordingly. The petition should be filed prior to the expiration date of the biological parent’s consent to the
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NEW ADOPTION PROCEDURES Continued from page 4 file, may appoint an attorney to represent the biological parents at the expense of the petitioners. Under the statute, the biological parents cannot be represented by the attorney who is representing the petitioners. This means that the attorney for the petitioners should not review, prepare or provide the consents to adoption to the birth parents for their signature.
interview. Home studies will be conducted in all cases, with the exception of a step-parent adoption, provided a Motion to Waive Home Study is filed with the petition. However, in lieu of a home study, the Office of Family Mediation will nevertheless conduct an investigation in a step-parent case, which will include an interview with the petitioners and the prospective adoptee, a criminal record check, a DSS record search for any and all past or current involvement with Child Protective Services. If the home study is waived, the cost is $50.00. If there is a home study, which involves a visit to the home, the cost is $100.00.
The investigator will determine what, if any, monies were expended on behalf of the biological parent or parents. Expenses paid by the petitioners are to be listed in the mandatory accounting and filed with the court prior to the finalization of the adoption.
Please contact the Office of Family Mediation (410-887-6570) for any additional inquiries about the new procedures.
In the case of the prospective adoptee, if it is a child ten years or older, the child must execute a consent to the proposed adoption, and must be represented by independent counsel. Independent counsel must also file an affidavit under Family Law Article Form 9-102.10, indicating that the attorney met with the child, explained the consent, and the child signed it voluntarily and not as a result of duress or coercion. The child will be interviewed by the Office of Family Mediation if the home study is waived. The petitioners are responsible for the payment of the attorney representing the prospective adoptee. All independent adoptions will be forwarded to the Office of Family Mediation for an investigation. The Office of Family Mediation will collect a fee from the petitioners at the time of their initial
These items, and more, are available for sale by clients of Itineris, the BCBA-designated Charity for 2015-16. Many items will be available at the Wines Around The World event on Thursday, March 10, 2016 at Notre Dame Preparatory School.
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BENCH/BAR COMMITTEE REPORT by Carl R. Gold
It was a sunny and cold morning, but the coffee was hot as the Bench Bar Committee met in the Judicial Conference Room for its first meeting of 2016. A spirited discussion ensued.
Ms. Sheryl D. H. Atkins reported on behalf of Baltimore City that trials are being set in approximately eight weeks after arraignment.
The Honorable Judge Kathleen Cox reported that with the ascension of Keith Truffer the Circuit Court was now at full strength. She explained as a result of a security analysis the Court will be transitioning to full screening of all entrants to the Court house including employees and lawyers with Bar cards. Honorable Judge Nancy Purpura noted that this will be modeled on the Federal Court system. Judge Cox also reported that prayers for jury trials increased by 17% in 2015 monopolizing a large part of the Circuit Court’s trial time. These jury trial prayers cause postponement of many civil and family law matters. In response, the Court is considering the return of same day jury trials. It is anticipated that this switch will greatly reduce the number of jury trial prayers from the District Court.
Sondra Douglas confirmed that the Family Law Committee had a successful session on collaborative law. The Clerk’s office advised that two of its four vacancies will be filled as of January 20, 2016, and they are now only six business days behind. On behalf of the Executive Council the Honorable Judge Vicki Ballou-Watts told us that all 720 tickets for the Bar Banquet sold. Kurt Schmoke will be the key note speaker. Judge Ballou-Watts confirmed that the new Bar Association website is open. She promised it will be more user- friendly and drive more traffic to Lawyer Referral. The Wines Around the World event will be held on March 10, 2016, at Notre Dame Prep. This is the Bar Association’s major fundraiser for its designated charity - Itineris. Wines Around the World is still in need of silent auction items. If you have anything to donate, please contact Chair Julie Landau (jlandau@landaulaw.com).
Funding sources for portraits of retired members of the Court was discussed. Circuit Court Administrator, Timothy H. Sheridan, also advised that there are numerous baby changing stations throughout the Court House and plans are being made to provide a nursing station for breast feeding infants. More details will follow.
The Supreme Court admission trip still has a few seats available. Dutch Ruppersberger has agreed to move for admission of our members. If you would like to be part of this exciting experience, please contact Doris Barnes immediately.
Magistrate Wendy Schenker shared that she and her colleagues have started hearing mutual consent cases. They are requiring that the agreement be attached to the Complaint. They are also requiring corroborating witnesses to verify the identity of the parties and to confirm there are no minor children.
Finally, nominations are still needed for the Judith P. Ritchie award by February 2, 2016. Please provide those nominations to Doris Barnes.
Orphans Court Judge William Evans reported that there are problems with the court reporting system. Judge Cox offered to supply a portable unit or an empty court room to solve any concerns.
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ANNUAL BLACK-TIE BANQUET The article on the Annual Black-Tie Banquet, presentation of the J. Earle Plumhoff Award to Drake C. Zaharris by Carolyn H. Thaler, Chair of the Professionalism Committee, and more photographs, will be included in the March issue of The Advocate. In the meantime, please enjoy these and other photographs included throughout this issue.
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HISTORICAL PERSPECTIVES by Jeffrey R. Scholnick
Not satisfied with completing this project, Plumhoff was able to solicit contributions to the Foundation for the expansion of the Bar Library. He had the foresight to recommend the acquisition of computers for research and video taping equipment.
Who was Earle Plumhoff & why do we give an Award in his name at the BCBA Banquet? Every year, at the BCBA Banquet in January, a distinguished member of the BCBA is honored by receiving the Earl Plumhoff Professionalism Award. This year the deserving member receiving the Award was Drake C. Zaharris. So, who is this lawyer to whom we dedicated this Award?
In order to enhance the Bar, Plumhoff also recommended, at the October 9, 1984 Executive Council Meeting, that the BCBA ask the American Bar Association to conduct “a survey on the BCBA.” The humble genius of Plumhoff was that all of his efforts as President of the Bar were not to impress his colleagues but to benefit the Bar and its members.
When J. Earle Plumhoff died in 1989, tragically at the age of 48 from cancer, he had accomplished more in half a century than a legion of lawyers. Perhaps his death was a terrible mistake- G-d looked at all of his achievements and thought that Plumhoff was 148 years old.
Plumhoff was also involved in the Maryland State Bar Association. In 1974, at the age of 33, he was Chair of the MSBA’s Ethics Committee. He represented the MSBA at highly publicized hearings before the Court of Appeals on new rules for lawyers advertising implemented by the Court, “Bar Chief Opposes Ban on Lawyers’ Radio Ads,” Sun, December 2, 1977. He became even more involved in the MSBA in his later years. In 1979, he was elected by Maryland lawyers to serve on Baltimore County’s Judicial Nominating Committee, “Winners Named for Judge Panels,” Sun, August 30, 1979.
Earle Plumhoff was President of the BCBA from 1984 to 1985. Reading the minutes of Baltimore County Bar Association Executive Council and the BCBA Quarterly during the year he was President, one is dazzled by his energy, and leadership. Just before taking the helm as President, Plumhoff brilliantly recommended the creation of the Bar Foundation. At the Executive Council Meeting of January 16, 1984, Plumhoff “distributed information to each Executive Council member with reference to setting up a Foundation for the BCBA.” He wisely “advised the money from the Foundation could go toward many projects including…..restoration work on old Courtroom 5, funds for the library, video equipment for the courts…” By January 26, 1984, at the BCBA Stated (General Membership) Meeting, he announced that the Foundation had been formed and provided the members with his vision for the restoration of Courtroom 5 during his administration. Plumhoff reported in the BCBA Quarterly, (Summer-Fall, 1984 edition), that “[o]n the evening of October 26, 1984, the Foundation sponsored the rededication of the restored Court Room as well as a formal dinner dance.” Through his guidance, the BCBA “raised in excess of $25,000.00” through sponsorships of chairs, tables and chandeliers restored in the Courtroom. He worked with County Executive Donald Hutchinson and some of the larger County law firms to bring the rededication to fruition.
As noted in the obituary below, Plumhoff was a gifted litigator, who won a $9 million verdict in a personal injury case later affirmed by the Fourth Circuit Court of Appeals in Snyder v. Ridenour, 889 F. 2d 1363 (1989). But, he also was a specialist on zoning law who regularly contributed to the “Zoning News” column in the Baltimore County Bar Quarterly. This shows the breadth of his legal knowledge and skill- how many personal injury attorney also have an expertise in zoning law? So, this is the reason that the BCBA now presents the Plumhoff Professionalism Award at the Banquet to the member who has made a substantial and unnoticed commitment of time and effort to the BCBA and has exhibited “high marks for dignity, integrity and Continued on page 9
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civility.� There can be no more appropriate person for whom this Award can be dedicated. Now you will know the person behind the Award when you go the Banquet next year.
BCBA President J. Earle Plumhoff with Judge Albert Menchine from the BCBA Spring 1984 Quarterly. Judge Menchine was receiving the second annual BCBA Man of the Year Award.
The following items are needed by Itineris, this year’s BCBA-designated charity. Please feel free to drop your donations off at the Bar Office and they will be delivered. In advance, thank you for your generosity.
The BCBA-designated White paper 20 sets of noise cancelling Head phones (for music and for noise control) Fitness items (Balls, medicine Balls, light weights, bands, et.) Calculators Cleaning supplies Art Supplies Batteries (All sizes) Cooking supplies (Measuring cups, Pans, pots, Baking sheets) Flour, sugar, salt, sprinkles (basic cooking supplies) Board games Extra Lap tops (2) Ipads (2) vacuum Video camera Karaoke machine Bikes/Adult tricycles Padding for resource room
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Fake register and scanner Fake food (fruit, cans , etc.) Stress balls Laminator (Industrial sized) Laminate Sheets Board Maker Velcro Index Cards Yellow Hi-liters Papermate Color Pens Large PECS Communication books Extra Sentence Strips Extra Insert Pages Small PECS Communication books Extra Insert Pages ASL computer program? Single hole puncher Index cards Magic markers Colored pencils A large paper shredder
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RECENT DEVELOPMENTS IN ESTATE ADMINISTRATION CASE LAW by Jacob M. Rappaport On November 24, 2015, the Estates and Trusts Committee of the Baltimore County Bar Association hosted its monthly educational lecture, co-chaired by Jacob M. Rappaport, Esq. and Brittany L. Stouffer, Esq. For the second year in a row, the venerable Allan J. Gibber, Esq., author of the highly acclaimed "Gibber on Estate Administration," graced the packed grand jury room with his wisdom and insight in discussing Recent Developments in Estate Administration Case Law. Mr. Gibber provided a handout with a synopsis of the cases and captivated the audience with his wit
and humor for a solid hour. One of the many interesting cases discussed was Nimro v. Holden, 222 Md. App. 16 (2015). In Nimro, the Court of Special Appeals reversed the lower court's ruling, and held that a Bill to Quiet Title is an in rem action and is, therefore, not a claim within the meaning of Section 8-103(a). As such, the Court ruled that it may be brought after the general six months limitations period that applies to claims against an estate. It was a true honor for the Estates and Trusts Committee to host one of Maryland's best. We hope this will turn into an annual lecture. Thank you, Mr. Gibber!
Hewitt, Waicker & Keelty, LLC Welcomes Courtney Buettner Brust as its new associate attorney. Courtney’s primary practice is in the area of estate administration, advising clients about estate and tax planning, guardianships., elder law, and estate administration.
COMMITTEE REPORTS All Committee Reports, Chair and ViceChair contact information, upcoming programs, and handouts from those programs already held this year, can be found the website at www.bcba.org.
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BCBA ANNUAL MEMORIAL SERVICE by Rebecca A. Fleming
On November 19, 2015, the Baltimore County Bar Association held its Annual Memorial and Recognition Ceremony to honor those members who passed away since November 2014. The service was well attended by the family and friends of the fifteen members who were honored; Gary D. Schenker, C. Daniel Held, William J. Blondell, Jr., H. Thomas Howell, John L. Calhoun, Thaddeus J. Hense, Lynn C. Golberg, John E. Raine III, Frederick Steinmann, Fannie Angelos, William Leon Kirk, J. Michael Recher, John Wilmer Conrad, III, Emily Miller Rody, Magistrate Jacqueline E. Dawson.
married, Master Wendy Schenker. After twentythree (23) years in the State’s Attorney’s Office, Gary retired from that office and became a Public Defender. Over his forty year career, he was a mentor to many young attorneys, including his son. Harry Blondell then spoke on behalf of his father, William J. Blondell, Jr. The first thing that Harry said about his father is that he would not have expected to be honored in this way, as he would much rather that everyone gather for a big party and have a cold beer. Mr. Blondell was a litigator who would take his client’s problems and make them his own. He was married for fifty-six years and had three children. Amazing everyone, he lived four and a half years after being diagnosed with esophageal cancer and actually continued working until eleven months prior to his death. Harry spoke of his father holding himself to a high standard. He hopes that he can live up the same high standards that his father set for himself.
The main bench included Judges Cox, Stringer and Williams. The balance of the Circuit Court Bench were seated in the jury box. They were joined by District Court Judges, Masters and retired judges. The Honorable Kathleen Cox offered the opening remarks on behalf of the judges of the Circuit and District Courts for Baltimore County. Judge Cox addressed those gathered, noting that the Annual Memorial Ceremony is a moving occasion that is unique to Baltimore County and introduced The Honorable Alexandra N. Williams, who offered the invocation. Judge Cox then introduced the Chair of the Memorial Committee, The Honorable Judith C. Ensor. Judge Ensor greeted the assembled, and then introduced the first speaker.
Bill Gately was then called upon to remember H. Thomas Howell. Known to his friends as Tom, Mr. Howell was a devoted husband, and a loving father and grandfather. He was also a world class geneaologist. He wrote, compiled and published more than a dozen massive family genealogical histories which have been indexed and catalogued in the Library of Congress. A
Robert Schenker spoke on behalf of the friends and family of his father, Gary Schenker. Gary began his law career as a law clerk in the Baltimore City State’s Attorney’s Office. He handled a wide variety of cases there and eventually became a trial team captain, and earned his nickname “Captain Gary.” While a young attorney he met and THE ADVOCATE
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brilliant legal mind, his legal memoranda and his appellate briefs were models of analysis, clarity and organization. He wrote the kinds of briefs that he appellate judges would recall for decades. He was also a man who gave generously to his community through contributions to the Baltimore Symphony, the Sheppard Prat Health System, the Maryland Historical Society, Towson University and many other institutions.
Barbara, the love of his life. A friend to everyone, he was a man who squeezed every drop out of the life he was given. John played hard, he laughed hard, and laughed often, and he lived life for all it’s worth.
Judge Ensor then called upon Jamie Hense to speak on behalf of his father, Thaddues J. “Ted” Hense. According to Jamie, his father was a humble man who came from East Baltimore and who put himself through City College. He was one of eight children and his mother passed away when he was twelve years old. He attended the University of Baltimore School of Law and then Pearl Harbor was attacked. He enlisted in the Air Force and flew twenty-five missions. Upon his return, he practiced law. He practiced law for seventy-five years because he obtained his degree at a time when you did not need to obtain a four-year degree before studying law. His joys were family, friends and Ocean City. Prior to his passing, he spent much time with his wife in Ocean City where they would walk along the beach and he would swim in the ocean until October.
Judge Ensor then called on the assembled to join in a moment of silent reflection to remember Frederick Steinmann. Fannie Angelos was remembered by her son, John Angelos. Ms. Angelos was born in Greece in 1927 and emigrated to the United States as a young lady, growing up in Baltimore City where she graduated from Patterson High School. She went on to Towson State Teachers College but dreamed of attending law school. Over the objections of her father, she attended the University of Baltimore School of Law and graduated in 1951. She was one of three women in her graduating class and she was the first Greek-American woman to graduate law school in the United States. She practiced law for well over sixty years. For thirtyeight of those years she worked with her brother, Peter Angelos, working on asbestos cases. A woman of faith and family, she was remembered as someone who loved the practice of law and who would be missed tremendously by all who knew her.
The assembled then joined in a moment of silence and reflection as they remembered Lynn C. Golberg. Jeff Forman was next called upon to pay tribute to John E. Raine, III. Mr. Forman shared with the attendees that John was a good lawyer; one who took care of his clients. He was married to THE ADVOCATE
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Arnold Zerwitz was then called upon to remember his friend, Billy Kirk. According to Mr. Zerwitz, Billy practiced law with a sense of humor. He was admitted to the bar in 1965 and went to work for Montfod & Lentz in Baltimore City. He then worked for Judge Russell at the Baltimore City Solicitor’s Office. His employment there coincided with the Baltimore City riots which prompted him to leave that office and join the Public Defender’s Office. He then practiced law in Baltimore City as a general practitioner, and called himself a street lawyer. In 1982 he moved his practice to Baltimore County. He was married to Debbie, who worked in the courthouse. He was remembered for his sense of humor, his legal abilities, his knowledge of the law, and his love of his family.
Christine Britton spoke on behalf of the family and friends of John Wilmer Conrad, III. According to Ms. Britton, John was a giant teddy bear of a man, who was a friend and mentor to everyone who practiced with, or against him. His wife, Angie, and their children were everything to him. Christine had never seen any other man light up the way John did when he spoke about Angie. The lesson to be taken from knowing John is that you should put your family first. Christine called on those assembled to remember John’s love of life and family. She said that if John was there, he would tell everyone to cherish your family and to laugh. David Rody was then called upon to speak on behalf of his mother, Emily Miller Rody. As many of the speakers recalled about their loved one, Mr. Rody stated that his mother loved being a lawyer. She loved using the law, her profession, her skills, and her experience to be able to help people. Ms. Rody was born six months before the stock market crash
Judge Ensor then introduced Sam Englehart, who spoke on behalf of his friend, J. Michel Recher. Sam met Mike when both were lawclerks and Mike was clerking for Judge Ciccone. Mike practiced law in Towson for his entire career. He was a general practitioner, appearing in the Circuit and District Courts in a variety of different practice areas. Mike was remembered as one of the good guys, a person who was a lot of fun and who will be missed. THE ADVOCATE
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that defined her generation and the Great Depression. She graduated from the University of Maryland in 1951, and then married her husband, Robert Rody, in 1953. She had two children, and then in 1962, she began taking evening classes at the University of Maryland School of Law. Before graduating from law school in 1969, she had two more children. At the age of forty she began her career, and she practiced law for forty years. She worked in the US Attorney General’s Office, where she sued major corporations to achieve equal pay for women. She represented criminal defendants, she practiced family law, and she joined her husband at his law firm for a while. But she really found her home when she began working for Legal Aid in 1980. She was the head of the Baltimore County Legal Aid Office from the mid-1990s until she retired in 2009. She loved her family, and she loved that she was able to use her law degree to positively affect people’s lives. She is missed very much.
Finally, Matt Wyman was called upon to speak on behalf of his mother, Jacqueline Elizabeth Dawson, known to the assembled as Jacquie. Jacquie was a lifelong Towson resident. She graduated from law school and passed the bar at time when there were very few female lawyers, and even fewer in positions of power. She made it her lifelong mission to help change that. She was a member and past president of the Women’s Bar Association. She was very active in the Baltimore County Bar Association and was awarded the Judith P. Ritchie Award on Law Day in 2015, which is really an “unsung hero” award. She always supported the many activities of the bar association and was famous for her red carpet extravaganza at the bar banquet each year, where she would award “The Golden Hanger” to the man and woman that she deemed the best dressed. She was a public defender and then a family law magistrate. As a magistrate she was fair, and tough when she needed to be, making her someone the family law bar appreciated immensely. She loved her career and her community, and she is missed by all.
Michael Calhoun was then introduced to speak about his father, John Calhoun. Mr. Calhoun loved being a lawyer so much that he worked almost until the day he died. According to his son, Mr. Calhoun retired on December 19th and then passed away on December 31st. Even when he was diagnosed with pancreatic cancer, he still continued to go to work every day. He was an avid sports fan and a graduate of the University of Miami, Coral Cables, in Florida. He was married to his wife for thirty-nine years, and they had two children. He was close with his family, and especially his three grandsons, who continue to mention him on a regular basis. THE ADVOCATE
The Honorable Patrick Stringer then spoke on behalf of the Bench. Judge Stringer told the assembled that the honorees were our colleagues and friends, who we remember with great respect and affection. Each of those honored added value to our profession and our world. Judge Stringer pointed out that most of the lawyers that were honored shared some traits – they were courageous in facing illness, they loved their families, and they Continued on page 16
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BCBA ANNUAL MEMORIAL SERVICE Continued from page 15
were loved in return. According to Judge Stringer, they will all be missed for their legal skills and more so, for the quality of the person they were.
For the first time, the Memorial Committee held a reception immediately following the Memorial Service. This provided an opportunity for friends, family and colleagues to gather, share memories and re-connect. The Reception was held at Café Troia, 28 Allegheny Avenue in Towson, and was generously sponsored by Fred Allentoff, Julie E. Landau, Waranch & Brown, Judy and Arnold Zerwitz, as well as a few anonymous donors. Having received numerous favorable reviews, t is anticipated that this will be repeated again next year,.
Judge Ensor then retuned to the podium to move that the minutes of the proceedings be transcribed and be adopted as part of the official record of the Court and of the Bar Association for Baltimore County. After Judge Cox granted the motion, she introduced Baltimore County Bar Association President, The Honorable Vicki Ballou-Watts. Judge Ballou-Watts recognized the members of the Bench and Bar, as well as the friends and families of the deceased. She then thanked Judge Ensor and the members of the Memorial and Recognition Committee for the care, sensitivity, and attention to detail that was paid in preparing the service. She also thanked Doris Barnes, Rachel Ruocco and Maxine Morrow for their efforts in preparing the service. Ann Marie Cordial was also recognized for the music she provided. The family, friends and colleagues who participated in the service were also thanked for offering the assembled a window into the person that was memorialized. Judge Ballou-Watts then thanked everyone for attending the service, and moved that court be adjourned. Judge Cox adjourned the Court and the Baltimore County Bar Association Memorial Service for Members of the Bar Who Have Passed Away Since August 2014 was concluded.
Anniegrams are an assortment of greeting cards created by Annie Taubenfeld. Annie is a young woman with autism who enjoys brightening up other people’s days with these sweet, original Anniegrams.
Please see page 9 of this issue for a “Wish List” of items needed by Itineris. You may drop items off at the Bar Office. Thank you!
THE ADVOCATE
A pack of eight cards (and envelopes) will be available for purchase in the Bar Office.
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AMERICAN BAR ASSOCIATION STATE DELEGATE REPORT I hope everyone enjoyed the holiday season with family and friends. I send my best wishes for a healthy, happy and prosperous 2016. The ABA Midyear Meeting will be held in San Diego, California, February 3 - 9, 2016 at the Manchester Grand Hyatt Hotel. The House of Delegates will meet on Monday, February 8, 2016 at 8:30 a.m. A Summary of the Resolutions that will be presented, along with explanatory reports, can be found on the ABA's House of Delegates website. Simply click on the resolution number to view the full report. In addition, the complete Report Book is available electronically. After the meeting, I will provide you with the Summary of Action of the House of Delegates. If you have a particular interest in, or an opinion about any of these matters, please let me know, and I will share them with the members of the Maryland delegation to the House. If you would like to become more involved in any of the Associations' entities, including its various Sections, please contact me. Best Regards, Barbara Kerr Howe, bkhowe@verizon.net, ABA Maryland State Delegate
Baltimore County Bar Association Group Admission to the
Supreme Court of the United States April 26, 2016 The Baltimore County Bar Association is coordinating a Group Admission to the Supreme Court of the United States on Tuesday, April 26, 2016. We will leave Towson, via coach bus, promptly at 6:30 a.m. and return at approximately 4:30 p.m. All applicants and their guest must take the bus to Washington, D.C. in order to participate. This trip is available for Baltimore County Bar Association members only. Fee, payable to the Baltimore County Bar Association, is $400 per applicant, and $50 additional fee for one guest per applicant. The trip fee includes the $200 application fee which will be paid to SCOTUS, transportation, and a catered breakfast upon arrival at SCOTUS. Please use the links provided below for complete information on the application process. As this trip is limited to 12 individuals to be admitted (and one guest each), applications will be accepted on a first-come, first-serve basis. Inasmuch as the applications and fees must be submitted and approved by SCOTUS several weeks before April 26th, it is not possible to accommodate any “wait list” applicants. Please note, all fees are NON-REFUNDABLE. Completed applications, Certificate in Good Standing, and fees are due in the Bar Office no later than March 21, 2016, for timely delivery to SCOTUS. Small Group Admissions—Argument Days Application
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Bar Admission Instructions Visitors’ Guide to Oral Arguments
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CREDIT CARD PROCESSING OPTIONS by Kristine K. Howanski
On January 14, 2016, the Solo and Small Firm Committee hosted its second brown bag lunch in the Grand Jury Room of the County Courts Building with P. Hong Le and representatives from Bank of America discussing credit card processing options for the small firms and solo practitioners. The first lunch covered one of the biggest overhead expenses for solo and small firms, i.e. the leasing of office space. This lunch covered potential means of bringing money in the door to cover said expenses by making payment easier. P. Hong Le offered a helpful handout which covered and compared the use of services such as Square and Lawpay, with merchant accounts through Member Banks such as Bank of America. He discussed pros and cons of the various options, including costs, with an eye towards client appeal, maintaining professionalism and so forth.
start as well as over time to evolve as the needs of a given firm or practice changes. They also believe they offer better security, quicker access to funds and better customer support. In short, the Solo and Small Firm Committee was pleased to continue in its new direction with an informative and useful presentation regarding credit card and alternative payment options. The next scheduled event hosted by the Solo and Small Firm Committee is a brown bag lunch on the Mezzanine level of the County Courts Building on March 8, 2016 at 12:00 p.m. The lunch will be hosted by Irwin Reporting & Video, LLC and cover the various services besides simply recording and transcribing depositions that this court reporting service can offer the small and solo practitioner. All are welcome to attend.
This was followed by a presentation by both Janice Barnes, AVP Business Consultant (Janice.barnes@bankofamericmerchant.com, 240- 4444406) and Eli Nunez, VP Regional Sales Leader (eli.nunez@bankofamericamerchant.com), of Bank of America Merchant Services, discussing the various options and the ability to tailor a plan through a bank. Ms. Barnes and Mr. Nunez were able to discuss the pros and cons of their options both from the eye of the potential consumer as well as that of the practicing attorney. From their perspective, banks are eager to do business with small and solo law practitioners in this area and encourage all to evaluate and to speak with them directly, even if the structured offerings do not appear to fit the needs of one’s practice. They believe they offer the ability to customize a practice’s capabilities from the
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February 2016
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. Election of Chairwoman Vicki Almond – At its first Legislative Session of the New Year on January 4, 2016, the Baltimore County Council held its annual election to select a Chairperson for the calendar year. Upon the nomination of outgoing Chair Cathy Bevins and following a unanimous vote, the Council elected Councilwoman Vicki Almond to lead the Council in 2016. Mrs. Almond previously served as Chair in 2012, followed by Councilman Tom Quirk in 2013 and Councilwoman Bevins in 2014 and 2015. The entire County Council congratulates Chairwoman Almond and looks forward to working with her to serve the citizens of Baltimore County in the coming year!
drinking, disturbing the peace, etc. It also allows the officer to issue a citation to the property owner in order to hold the owner/landlord responsible as well. The pilot program areas are neighborhoods in East Towson near Towson University, as well as in Arbutus near UMBC. A first violation results in a civil penalty to the person or persons responsible for the gathering and a warning to the property owner. Thereafter, the civil penalty increases for both the responsible persons and the property owner, up to and including possible suspension or revocation of the rental license. The Bill also provides a defense for property owners that have regained possession, or taken steps to regain possession of their leased premises from persons who violate the ordinance. Bill 92-15 – Honeygo Area – Panhandle Lots – When the Honeygo Area and Overlay Districts were created in 1994, panhandle lots were expressly prohibited unless the underlying zoning of the land was D.R.1, and no more than two lots shared a driveway, and each lot exceeded 30,000 square feet in area (Bill 17694). In 2014, the Council prohibited all panhandle lots in the Honeygo Area (Bill 41-14). Bill 92-15 now authorizes panhandle lots in Honeygo, but only in the area south of Joppa Road, west of Cowenton Avenue, and north of Interstate 95.
At its January 19, 2016 Legislative Session, the Council approved the following: Bill 90-15 – Social Host – Unruly Social Gatherings – Pilot Program – The Bill adds a section to the County Code pertaining to Nuisances to prohibit “unruly social gatherings,” and also implements the new law as a pilot program. In responding to a loud or unruly party or gathering, Bill 90-15 allows a police officer to issue a civil citation to the person or persons responsible for the unruly gathering as a separate “nuisance” offense to any other underlying offenses such as excessive noise, underage
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P R O G R A M & E V E N T R E G I S T R AT I O N F O R M Please return this form to the Baltimore County Bar Association, 100 County Courts Building, 401 Bosley Avenue, Towson, MD 21204 with a check or credit card info; fax to 410-823-3418, or REGISTER ONLINE at www.bcba.org. PLEASE register me for the following programs/events:
Registration Fee: Member Non-Member February 10, Criminal Law Program
$0
$20
February 11, Family Law: The State of Family Law in MD
$50
$60
February 18, NIWC: A Forum on Vocational Rehabilitation
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$20
March 3, SLLZ: A View From The Hill
$60
$65
March 8, RPC: Closings, Settlements, e-Filing Deeds
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$20
March 8, SSF: Court Reporter Services March 10, Wines Around The World
$0 $50
$20 $50
March 16, FL: Social Media: Evidentiary Issues
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March 16, YL: What Business Leaders Look For When Retaining Legal Counsel
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March 21, Tech: Is This Thing On?
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March 22, E&T: Guardianships
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March 23, Membership: UB Scotch Tasting
$0
March 24, FL: Deviation from Child Support Guidelines
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March 30, Crim: Mental Health Issues
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March 31, ADR: Changes, Changes, Changes
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Name(s) Telephone Address City State Zip Email Amount Enclosed Menu Choice (if applicable) Name on C/C Today’s Date Billing Address City State Zip Email Amount authorized MC/Visa/Discover/American Express Card No. Expiration SEC# (on back of card) THE ADVOCATE
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CIVIL LAW UPDATE by Ceecee Paizs
Review of the January 2016 Amicus Curiarum reveals the following decisions of interest in the civil law area:
Lawyers' Rules of Professional Conduct 1.4, 1.5, 1.15(a), 1.16(d), 8.1, and 8.4(a), (c), and (d) and Maryland Rule 16-606.1.
COURT OF APPEALS:
The Court of Appeals held that indefinite suspension was the appropriate sanction. The Court determined that his unilateral decision relative to the addendum violated MLRPC 1.4(a) and that his failure to provide Ms. Klein with an invoice when he requested replenishment of his retainer violated MLRPC 1.4(a) and 1.5(a). He violated MLRPC 1.4(b) when he failed to counsel the client on her retirement decision, and MLRPC 1.15(a) and Rule 16-6061 when he provided documentation of his fees with duplicative entries that were inadequately maintained. Mr. Rand's lien was deemed in valid as he failed to comply with his own fee agreement by not submitting invoices when he requested replenishment and then providing confusing and duplicative ledgers in support of the lien. Therefore his failure to provide Ms. Klein with her file constituted a violation of MLRPC 1.16(d). His false statement to the AGC related to his "winning" Ms. Klein's case and failure to comply timely with Bar Counsel's numerous requests for information violated MLRPC 8.1. The above noted violations constituted violations of MLRPC 8.4(a), (c) and (d).
Attorney Grievance Commission of Maryland v. Charles Stephen Rand, Misc. Docket AG No. 40, September Term 2014, filed December 21, 2015. Opinion by Battaglia, Lynne A., Judge Mr. Rand represented Ms. Klein in an age and race discrimination claim against her supervisor at the public school where she taught. Mr. Klein entered into a retainer agreement with the client and her husband in which he had an "evergreen" clause and a provision that he would furnish a bill for any funds he expended from her retainer. Ms. Klein paid the initial retainer as well as 2 additional payments of $1,000 for replenishment of the retainer when requested by Mr. Rand. Mr. Rand did not provide any bill related to fees expended. During the course of his representation, Mr. Rand drafted an addendum to Ms. Klein's original complaint with the Equal Employment Opportunity Commission ("EEOC"), which he did not file, unilaterally decided instead to incorporated it into a later response. He did not discuss with nor advise Ms. Klein of his decision in this regard. In addition, Ms. Klein retired from her position due to the stress of the situation, and Mr. Rand did not advise her as to her options for a medical retirement and the potential effects of retirement on her EEOC claim. Ms. Klein terminated Mr. Rand's representation and requested both an invoice and a copy of her file. Mr. Rand provided a confusing bill for over $11,000 and used it in support of his assertion of an attorney retaining lien against her file. After Ms. Klein filed a complaint with the Attorney Grievance Commission, Mr. Rand falsely asserted that he had "won" Ms. Klein's EEOC case with attorneys' fees and then failed to provide any documentation to the AGC. A hearing judge concluded that Rand had violated Maryland
THE ADVOCATE
Laura McClanahan v. Washington County Department of Social Services, No. 79, September Term 2014, Opinion by Adkins, Sally D., Judge. Battaglia and McDonald, JJ., dissent. As a result of Ms. McClanahan's ("Mother") reports of alleged sexual abuse of her daughter by the father, the Washington County Department of Social Services ("DSS") investigated the allegations and the numerous vaginal exams of the daughter obtained by Mother. As a result of investigation, DSS notified Mother that it found her responsible for child abuse mental injury and Continued on page 26
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indicated child neglect. Mother requested a hearing and after a hearing, the Administrative Law Judge affirmed the Department's findings, concluding that Mother's actions were either "an intentional attempt to manipulate and influence the outcome of an ongoing custody dispute ... or were a result of her subconscious efforts to have {daughter} remain close to her". The ALJ authorized DSS to identify Mother in the central registry as being responsible for child abuse mental injury but ruled out child neglect. Mother appealed and the circuit court affirmed, rejecting Mother's argument that a finding of indicated child abuse mental injury requires proof of intent. The Court of Special Appeals affirmed, concluding that the ALJ did not err by failing to include scienter as an element of indicated child mental injury.
The Court of Appeals reversed, holding that without statutory directive, there is no reason why scienter should be required in one instance of abuse (physical) and not the other (mental). The Court cited its decision in Taylor v. Harford County Department of Social Services, 384 Md. 213, 862 A.2d 1026 (2004) in which the Court was instructive on how to interpret FL ยง5-701, which the Department dismissed as a case limited to child abuse causing physical injury. The Court noted that there are examples of mental injury arising from parental conduct that are so reprehensible that an ALJ might infer intent to harm or reckless disregard just from the act. In this case, the parental conduct was ostensibly for a child's protection. If the statutory and regulatory scheme were read to as DSS proposes, a parent would face potential inclusion on a central registry by merely reporting suspected abuse. Such an interpretation would undermine the paramount statutory purpose of child protection. Ultimately, the Court declined to enforce the portion of COMAY 07.02.07.12C that limits its exculpatory scope for accidental injury to alleged abusers causing physical injury as FL ยง5701doe not differentiate between mental injury and physical injury. Therefore, to be included as a "child abuser" in a central registry, a person must either intend to injure a child or at least act in reckless disregard of the child's welfare. In other words, a parent's conduct must constitute a gross departure from the type of conduct a reasonable person would engage in under the cir4cumstatnces Cf. Jones v. State, 357 Md. 408, 745 A. 2d 396 at 408 (2000). THE COURT OF SPECIAL APPEALS: In re: A.N., B.N. and V.N., No. 637, September Term, 2015, December 16, 2015. Opinion by Leahy, Andrea M., Judge. Twin boys, two months old, were found to have multiple fractures in various stages of healing. As a
Continued on page 27
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result, all three children of the parties were determined to be CINA and placed in the custody of their paternal grandmother. The parents cooperated in the reunification plan established, and on April 7, 2015, the juvenile court held a permanency planning and review hearing. In that report, despite the court-appointed special advocate's recommendation to begin monitored transition to custody with the parents, DSS recommended that the permanency plan for all three children be changed to a sole plan of custody and guardianship with paternal relatives. This was based in part because a polygraph examination of the Mother concluded that she was being untruthful about her role in the original injuries, which both parents continued to deny were the result of their actions. The court determined that it could consider the polygraph results and that based on the parents denying that they caused the injuries, modified the permanency plan to remove the goal of reunification and change it to the plan recommended by DSS.
The Court of Special Appeals vacated and remanded the matter. The Court held, citing Murphy v. State, 105 Md. App. 303 (1995) that the juvenile court erred in considering Mother's polygraph results. That consideration was prejudicial and the court erred in changing the CINA permanency plan based, in part, on consideration of that inadmissible evidence. The Court went on to state that while it recognizes the validity of using a polygraph examination as an investigative tool, the admission of inherently unreliable evidence such as a polygraph test would set a dangerous precedent especially in cases where a child has been abused and there is no direct evidence identifying the abuser nor the circumstances surrounding the occurrence of the abuse. The court cannot use unreliable polygraph evidence to substitute for what is missing.
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ANNUAL BLACK-TIE BANQUET
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ANNUAL BLACK-TIE BANQUET
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CRIMINAL LAW UPDATE by Robert C. Lidston The February Amicus includes only two criminal cases, both from the Court of Appeals. The January issue included a Court of Special Appeals case which may be of interest. State v. Gutierrez & Perez-Lazaro, No. 86, September Term 2014, filed January 28, 2016 (opinion by Battaglia, J.). Police executed a search warrant on a one bedroom apartment. When they entered, they found the appellants, both of whom said they slept there. Cocaine was found in a bathroom cabinet in a hallway closet. More cocaine and a loaded handgun were found in a cabinet under the kitchen sink. Baggies and a "grinder," both often used in the packaging and distribution of cocaine, was found in plain view in the living room and in the kitchen. Also found in the hallway closet near the cocaine was a passport for Gutierrez. A Perez-Lazaro pay-stub was discovered in the back bedroom.
Both men were indicted and convicted of possession, intent to distribute, possession of a firearm with a nexus to drug trafficking, and obliteration of the identification number of a firearm. The Court of Special Appeals reversed the convictions and decided that the State had failed to prove that the two men had possession of the cocaine and the handgun because they were not found in "close proximity" to those items. COSA also found that the State did not prove "ownership of the apartment." The Court of Appeals reversed. It applied a four factor test to decide that the evidence was sufficient to find that both men had constructive possession of the cocaine and handgun: (1) their proximity to the drugs, (2) the drugs were in plain view and/or were accessible to them, (3) there was indication of mutual use and enjoyment of the CDS, and (4) they had an ownership or possessory interest in the location where the police discovered the drugs. Smith v. State, 415 Md. 174, 999 A.2d 986 (2010). The Court opined that the two men had a possessory interest in the apartment because they both stated they slept there and because their personal papers were found there. The drugs and handgun were found in common areas of the apartment, which allowed an inference that they both frequented those areas. Because the apartment was small in size and the drugs were found in the bathroom, hallway, and kitchen, the two men were in close proximity to the CDS. Usual use and enjoyment of the CDS could be found from the evidence indicating participation in drug distribution. Yonga v. State, No. 30, September Term 2015, filed January 27, 2016 (opinion by Battaglia, J.). Yonga was charged with second degree rape and third degree sexual offense from an encounter with a 13 year old girl. He pled guilty to the third degree sex offense and, at the time of the plea, a judge concluded from his questioning of Yonga that his plea was given freely, voluntarily and knowingly
Continued on page 31
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CRIMINAL LAW UPDATE Continued from page 30 and that the sentence to be imposed was the result of a negotiated plea. Yonga was sentenced to a period of incarceration, a portion of which was suspended, and he was required to register as a sex offender. Six years later, Yonga reconnected with the victim. He then petitioned for a Writ of Actual Innocence under Criminal Procedure Section 8-301. He alleged that there was newly discovered evidence based on the victim’s "recanting" original statements given to police. His petition was denied on the merits after a hearing. Yonga appealed to the Court of Special Appeals, arguing that the circuit court had erred in finding that he did not sufficiently establish newly discovered evidence as required under Section 8301. The State argued that a Writ of Actual Innocence was not applicable to a person who had pleaded guilty and, in the alternative, that the court’s denial of the merits was correct. COSA affirmed, deciding that the Writ in question was not applicable to a guilty plea. Yonga petitioned for cert and this was granted by the Court of Appeals. The Court affirmed the COSA decision. It concluded that the applicable standard for evaluating newly discovered evidence under Criminal Procedure Section 8-301, whether the newly discovered evidence "creates a substantial or significant possibility that the result may have been different," was similar to the standard applied to newly discovered evidence under a Rule 4-331(c)(1) motion for a new trial. The Court cited legislative history to support this conclusion. In order to decide whether the new evidence creates a "substantial or significant possibility" of a different result, had the evidence been discovered at the time of trial, a judge must weigh the significance of the newly discovered evidence "in relation to the evidence already presented at trial." Campbell v. State, 373 Md. 637, 821 A.2d 1 (2003). Elaborating on the standard for newly discovered evidence, the Court repeated the need for a trial so that the newly discovered evidence could be evaluated against what had been presented before. Yonga cited no cases, and the Court located none,
where a defendant had brought a Rule 4-331 motion for a new trial after having been convicted as a result of a guilty plea. The Court considered the differences between a trial and a guilty plea. A trial includes witness testimony and determinations of credibility and admissibility of evidence. None of these factors are involved when a defendant pleads guilty. In a guilty plea situation, the court’s concern is that the plea is given "voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and the likely consequences." In accepting a guilty plea, a trial judge is mainly concerned with insuring its validity, not with the weight of the evidence. Therefore, a guilty plea does not include the requisite elements against which newly discovered evidence can be measured under the standard Section 8-301. Brice v. State, No. 1620, September Term 2014, filed November 25, 2015 (opinion by Woodward, J.). Brice was charged with illegal possession of a regulated firearm. He requested a jury trial and during voir dire, his counsel submitted the police witness questions. The trial judge did not ask these questions of the prospective jurors, and defense counsel did not object to their omission. Before the voir dire process was over, counsel realized that the police witness questions had not been asked. Counsel asked the judge to supplement the initial voir dire by asking the police witness questions. The judge denied the request. During the trial, the State produced evidence that Brice had been found with a handgun magazine during a traffic stop. Further investigation showed that Brice had two prior convictions that disqualified him from possessing a regulated firearm. Police obtained a warrant and searched Brice’s residence. This resulted in them finding a handgun in Brice’s closet. He admitted to the police that he had acquired the handgun in a crack cocaine trade. He was convicted of illegal possession of a regulated firearm and sentenced. Brice appealed to the Court of Special Appeals. He contended that the trial court abused its discretion by denying his Continued on page 32
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CRIMINAL LAW UPDATE Continued from page 31 request for police witness questions during voir dire. He also argued that the evidence was insufficient to sustain a conviction, because he did not know that he was disqualified from possessing a firearm. COSA reversed and remanded. It held that the trial court abused its discretion by refusing to give Brice’s requested police witness questions. Although his right to the requested questions had been waived when his counsel raised no objection to the voir dire questions, Brice later retracted that waiver when his counsel requested the police witness questions midway through the voir dire process. This retraction was valid because it did not prejudice the State in its approach to voir dire, there was a sufficient jury pool remaining at the time of the retraction; and defense counsel was not trying to manipulate the judicial process. Furthermore, precedent has established that when there are police officer witnesses for the State, police witness questions requested by the defendant are mandatory. The trial court was required to pose these questions after Brice retracted his waiver. COSA also held that the evidence was sufficient to sustain Brice’s conviction. Public Safety Article Section 5-144(a)(1) states that a defendant may not "knowingly participate in... possession of a regulated firearm." To satisfy the mens rea requirement for a violation of this section, the prosecution is required only to prove that a defendant knew that he was in possession of a handgun. Brice’s statement when he was arrested showed he knew that he was in possession of a firearm. Even if knowledge of disqualification was required, the jury could have inferred knowledge on Brice’s part based on his two prior convictions, his trade of CDS for the gun, and his admission that he had wiped down the gun.
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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.
ARE ALCOHOL AND DRUGS CAUSING PROBLEMS IN YOUR LIFE? There is a way up and a way out — for ABSOLUTELY CONFIDENTIAL help, call us today ... BALTIMORE COUNTY LAWYER ASSISTANCE PROGRAM A CONFIDENTIAL resource for Baltimore County attorneys, assistants and judges. Our services include help for a broad range of problems and personal concerns, such as: Depression Marital and Family Relationships Alcohol and Drug Abuse Stress and Burnout Prescription Drug Concerns Career Concerns
Gambling Internet Addiction Sexual Addiction Compulsive Spending Eating Disorders Balancing Work and Family
WE DO NOT KEEP RECORDS. Our sole purpose is to provide help. We can assist with providing access to treatment facilities and provide emergency practice management, as well as referrals to professional counselors. GARY MILES, Chair RICHARD LYNAS, Vice-Chair STUART AXILBUND JIM BEACH MARY CHALAWSKY MARISSA JOELSON JAY MILLER JOSE MOLINA SAM MOXLEY JOE MURTHA JIM QUINN BILL SALTYSIAK MARK VAN BAVEL
THE ADVOCATE
443-632-1760 410-288-1099 410-832-7579 410-241-8538 410-649-2000 917-226-6472 410-951-7165 443-851-7353 410-733-3306 410-583-6969 443-703-3041 410-583-8883 410-337-5291
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Committee Programs ADR Committee
March 31, 2016, 5 p.m. Changes, Changes, Changes
CLE Committee Mezzanine 08 April 6, 2016, Noon Peace/Protective Orders May 4, 2016, Common Mistakes: Avoiding Attorney Grievance September 7, 2016 District Court Personal Injury Cases: Proving Damages
Criminal Law Committee Mezzanine 08, 5 - 6 p.m. February 10, 2016, Don’t Be PostConvicted March 30, 2016, Mental Health Issues April 13, 2016, Cars, Cops & Stops June 8, 2016
Informational Sessions Evening Series Mezzanine 08, 5-6:30 p.m. March 16, 2016, Social Media March 24, 2016, Deviation from the Child Support Guidelines April 20, 2016 May 4, 2016, 4:30 p.m., Annual Forum May 18, 2016
Law Day 2016 Miranda, More Than Words To be celebrated on Monday, May 2, 2016 Student Essays are due by April 16, 2016. The flyer with criteria is available at http://www.bcba.org/ site/wp-content/uploads/2015/10/2016-Essay-student -flyer.pdf Committee Meetings Scheduled: February 2, 2016, 5 pm March 3, 2016, 5 pm April 5, 2016, 5 pm All meetings will be held in Mezzanine 08
Entertainment Committee
March 10, 2016, Wines Around The World, 6-9 p.m., NDP, see pg. 7. April 26, 2016, Supreme Court Group Admission. See pg. 17. April 30, 2016, Hillwood Estate Tea and Garden Tour, Washington, D.C. June 2, 2016, Golf Tournament
Estates & Trusts Committee Mezzanine 08, 5 p.m. February 17, 2016, Gun Trusts March 22, 2016, Guardianships April 6, 2016, Committee Dinner
Membership & Admissions Committee
March 23, 2016, 4:30 p.m., Scotch Tasting at UB Law
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. Those members who will be honored at next year’s service on November 17, 2016, at 3:30 p.m., include: Robert William Cannon Robert Edward “Boz” Joy Hon. I. Marshall Seidler Charles E. “Chuck” Brooks Charles E. Norton, Jr.
Family Law Committee Dinner Programs, 6 p.m. April 7, 2016, Joint Program with BABC
Negligence, Insurance & Workers’ Comp THE ADVOCATE
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Committee Programs Mezzanine 08, 5-6:30 p.m. February 18, 2016 Workers’ Comp - Vocational Rehabilitation May 3, 2016, followed by a Happy Hour Medical Malpractice Matters
Professionalism Committee
March 16, 2016, 5 p.m., Mezzanine 08, What Business Leaders Look for When Retaining Legal Counsel. Happy Hour at CVP, Towson, immediately following program
Jury Assembly Area, 5:30 p.m. April 13, 2016 Understanding the Attorney Grievance Commission Reception Immediately Following Program in Mezzanine 08
April 3, 2016, 2-6 p.m. Bull & Oyster Roast, Silent Auction
Not sure what benefits are available to you as a BCBA Member? Click the picture to the left to learn more, or call or email Doris Barnes or Maxine Morrow for more information.
Public Awareness & Speakers Committee Civics & Law Academies, 8 a.m. - 2 p.m. April 15, 2016 @ CCBC Catonsville
Real Property Committee Mezzanine 08, 12 - 1:30 p.m. Brown Bag Lunch March 8, 2016 May 10, 2016
Solo & Small Firm Committee Grand Jury Room, 12 p.m. March 8, 2016
State, Local Laws & Zoning Committee Dinner Programs, 5:30 p.m., Country Club of Maryland March 3, 2016, A View From The Hill April 13, 2016, Environmental Issues in Baltimore County
Technology Committee Mezzanine 08 March 21, 2016, 5 p.m., Is This Thing On? April 11, 2016, 5 p.m., Communication: That’s the Magic Word
Young Lawyers Committee THE ADVOCATE
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Signature Sponsors
Custom order your string-art plaque from Itineris, and know that you are helping an adult with autism remain relevant and confident that they, too, have something to contribute! Contact the Bar Office for more information.
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 Jessica Corace Keith Franz Bruce Friedman Valerie Ibe Michael Jeffers Fu-Mei Jiang Brady Locher
THE ADVOCATE
Lisa Magil Mala Malhotro-Ortiz Paul Mayhew James Nolan Larry Polen 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 singletier program provides more engagement between our sponsors and our members. Each Signature Sponsor will host one of teb signature events held throughout the year, thereby reducing the cost of the event for members, and many other added benefits. Sponsorships help the Bar Association maintain its current dues level, despite the increasing costs of providing top-shelf 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, and can be located quickly using the index at the end of the issue, and by the gold ribbon that accompanies their ad. Please let them know you appreciate their support. Thank you!
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February 2016
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
MEMBER ADVERTISEMENTS 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. Towson. Small criminal defense law firm (Spencer Gordon) seeking subtenant for our office at Courthouse Commons, 222 Bosley Avenue, Suite B7. One block from Circuit Courthouse; 15’ x 13.5’ room. Administrative/legal assistant support available. Free parking. Seeking easy-going individual. Financial arrangements negotiable. Call 410-296-2555 or email sajlaw@gmail.com. Historic Lutherville. Office space available in a small law firm, perfect for a solo practitioner. Office comes with a Partner’s desk, chairs and bookcase. Use of conference room, waiting room, receptionist, phone system, utilities and internet. Free parking. Close to Towson court houses, I695 and I83. Email randy@waselaw.com or call 410-828-8500. Dundalk. Available office space in Dundalk. Call 410-288-2900. Towson. For rent, Lawyer’s office in the business condominium of J. Michael Lawlor. Approx. 20x10 w/filing cabinet, small bookcase, desk, chairs and credenza w/three lamps. Young attorney who practices domestic law (not exclusively, necessarily) is desired. Spin-off work will be available. Rent $650/mo. Contact J. Michael Lawlor at 410-494-1800 or lawloresq@verizon.net.
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