THE ADVOCATE Newsletter of The Baltimore County Bar Association VOLUME XXX, NO. 3
November 2020
PRESIDENT’S MESSAGE By Jay D. Miller As I write this message, we are approaching an election that has the country divided. The COVID nightmare continues and many of us continue to work remotely from home. By the time of publication, a new Supreme Court justice will have been confirmed that has firmly entrenched a 6-3 conservative majority that some of you may not agree with. There are plenty of reasons and excuses to feel angry or sad, or even depressed. How can you change that? Be thankful. Better yet — be grateful. Thanksgiving is failed, and if it was light, you had passed. Oh, I coming and an attitude of gratitude can literally should mention to all of you who graduated law school after 2006, our results were sent by mail, yes, change your life. regular mail. Physical mailbox mail. And all I Remember graduation from college (you know, when remember is that I passed. We finally got a date for we sat in an auditorium or sports arena among our admissions ceremony and became fully engaged thousands of our peers without face coverings, in the practice of law. breathing on the people next to us without a worry in the world)? Remember desperately waiting to hear if Be grateful that you are an attorney. Did you know you were accepted into law school? And after being that only .3 % of the people in the United States are accepted, remember the struggle? The late nights practicing attorneys? Why not more? Because it is studying and the cramming for exams? The fear of hard. It’s damn hard. But I am smiling right now being called on at 8am to explain the holding in thinking about it because I don’t know what the International Shoe v. Washington to your professor alternative would have been for me. I am so and the other 200 persons in the lecture hall? Then, grateful. I am in a profession today that is centered after three or four years of that, you still had to pass around helping people who cannot help themselves. the bar exam? So, I am grateful that I was able to get Our clients come to us when they do not have the through all that studying, cramming, and fierce power to achieve justice on their own, we are the ones competition and can practice law. I can still enlisted do it on their behalves. And with that very remember waiting on my bar exam results, chasing big responsibility comes a magnitude of stressors, the mailman down the street in six inches of snow (or anxiety, and insecurity. Add to that the tension of was it sunny?), praying that the envelope was light. current politics and world health crisis. The rumor was that if the letter was heavy you had Continued on page 2
Multi-Specialty HealthCare THE ADVOCATE
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November 2020
PRESIDENT’S MESSAGE But we need to be grateful that we have the power and ability to help those less fortunate. We need to shake off this misguided belief that we are the ones suffering today. We should feel gratified that we can help a family about to be evicted from their home—a family that will not have a Thanksgiving unless one of us helps them. If you don’t believe me, call the MARYLAND VOLUNTEERS LAWYERS SERVICE AT 410-547-6537. Before you hang up, you will have been given a family whose life you can change, sometimes by simply making a phone call. You know, there are some cases where the simple act of writing a letter for one of these pro bono cases literally changes the life of the client. The satisfaction that comes from that simple act of generosity and kindness of giving your time to write that letter is so overwhelming that you can’t wait to handle your next case. I am so grateful that we have that ability.
If that doesn’t make you feel grateful, then understand that the simple act of being grateful can change your own life. There are studies that literally show that writing down what we are grateful for each day can alter our perception enough to make us happier and healthier daily.
That is worth repeating. Being grateful can make you happier and healthier. (See The Greater Good: The Science of a Meaningful Life). “People who keep weekly gratitude journals exercise more often, report fewer physical symptoms, feel better about their lives and are more optimistic.” (Emmons & McCullough, 2003). This may take practice, but we can start by simply listing it in our heads. Right now, reading this, we all can be grateful that we are attorneys. Even if we are not presently able to help a homeless family, we have the ability to help, and that is an ability for which we can and should be grateful. If you run into a lawyer that is griping and complaining about the election, and about COVID, and about having to wear a mask, and about not being able to go to his or her favorite restaurant, be grateful that you don’t have that attitude. Find some acceptance and peace in that. Happy Thanksgiving. Jay D. Miller BCBA President, 2020-2021
BCBA FACE MASKS STILL AVAILABLE Start your holiday shopping early and purchase BCBA face masks for your colleagues and friends! A limited number of masks are still available for purchase by contacting Jacob Bengel at 410-3379101, jbengel@bcba.org or by stopping by the Bar Office mezzanine or first floor offices. $10 each for these high quality, comfortable, adjustable masks. One size fits all. All proceeds from the sale of the face masks will benefit the BCBA’s 100th Anniversary Celebration being planned by the Mask model, Jay Miller Historical Committee Mask model, Alaina Storie for 2021. THE ADVOCATE
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November 2020
2020-21 Officers President Pres-Elect Secretary Treasurer
Jay D. Miller Stanford G. Gann, Jr. John G. Turnbull III Lisa Y. Settles
Executive Council Sondra M. Douglas Richard Grason VI Robert K. Erdman, Jr. Tyler J. Nowicki Michelle D. Siri Alaina L. Storie Hon. Michael W. Siri, Immediate Past President Nicole E. Rush, Young Lawyers’ Chair
Calendar of Events
Please go to www.bcba.org and click on ‘calendar’ for an up-to-date listing of programs & events and to register for all programs & events. Inside This Edition
The Advocate
Michael S. Barranco Committee Chair
Tracee O. Fruman Committee Vice -Chair
Contributing Writers Hon. Kathleen G. Cox Mariela C. D’Alessio William R. Levasseur, Jr. Christopher D. Mudd Matt M. Paavola Ceecee Paizs Ralph L. Sapia Alaina L. Storie John G. Turnbull III Martha K. White Hon. Dorothy K. Wilson
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. Publication deadline: 10th of the month preceding publication.
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ADR Joint Program ADR/Family Law Annual Charity Bench/Bar Update Chamber Chat Circuit Ct. Townhall Civil Law Update Judge Chester Court Notices Law Library Lawyers Assistance Member Ads Judge Norman Real Prop/SLLZ Save the Date Writing Opportunities
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E XECUTIVE C OUNCIL V ACANCY DEADLINE for submitting Letter of Interest is January 4, 2021 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 January 4, 2021, 4:30 p.m. Letters can also be submitted via email to rruocco@bcba.org. Page 3
November 2020
COURT NOTICES
UPDATE: JURY TRIALS IN THE TIME OF COVID By Judge Kathleen G. Cox
The Court entered Phase V of the COVID re-start plan on October 5, 2020, so jury trials are now being held again in the Circuit Court. In order to meet the current social distancing requirements, five courtrooms (spread throughout the building) have been renovated extensively. Essentially, the Court extended the length of the jury box in each courtroom and added either one or two additional rows within the box, with chairs spread out and plexiglass hung to separate the rows. We increased the size of the jury box by removing some open seating and reconfiguring tables in the well of the courtroom. Three courtrooms can now accommodate 15-16 jurors for use in criminal cases, and two can accommodate civil juries. Large spaces within the Courthouse have been identified for use for jury deliberations, as most of the assigned jury rooms are not large enough to permit social distancing for an entire jury.
The Court anticipates that jury selection will be conducted off-site for several months into 2021, so we are working with County Executive Johnny Olszewski to explore other available leased space. We expect to finalize those arrangements by late November.
During the month of October, jury selection took place in the Jury Assembly Room, which can seat up to 45 prospective jurors at a time. If a case required a larger panel for selection, jurors were called in at staggered times. The grand jury room, along with Courtrooms 2 and 12, were utilized as holding rooms for potential jurors.
Offsite jury selection and the limited courtroom availability complicate the case assignment process. Our Assignment Office, together with Judge Cahill as Lead Criminal Judge, and Judge Ensor as Lead Civil Judge, are working with Central Assignment to identify well in advance of the trial date which cases will be reached. They also are identifying “on call” cases that may be reached if the lead case is resolved in some fashion. The Court’s ability to predict which cases can be reached depends upon the accuracy and timeliness of the information provided by counsel. In civil cases, the Assignment Office will continue to reach out to counsel three weeks in advance of the trial date to get a case status. In criminal cases, counsel will receive an email, requesting a status update, approximately three weeks in advance of the trial date. Please respond promptly and accurately to those requests and provide updates if any changes occur.
On November 2, 2020, jury selection moved off-site to the Maryland State Fairgrounds. There are three separate buildings at the Fairgrounds that can accommodate our space needs, so we will move between those buildings in November and December based upon site availability. The Fairgrounds space will enable the Court to call in larger panels and select juries more efficiently. The judge who is involved in picking the jury may not be the judge who presides during the trial.
If your case is prioritized for jury selection, you will be notified in advance of the trial date. On the day of trial, you will be required to report to the off-site jury selection location at 9:00 a.m. If your case is “on call” for jury selection, you will be advised to be available to report to the jury selection site. Voir dire should be filed no later than 24 hours prior to trial for assigned or “on call” cases. If your case cannot be reached on the day it is scheduled, or on the following day, it will be administratively postponed.
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November 2020
UPDATE: JURY TRIALS IN THE TIME OF COVID By Judge Kathleen G. Cox
Once a jury is picked, jurors will be instructed to report to the courthouse the following day to begin testimony. During trial, remote systems will be used for communications between the trial judge and counsel in order to avoid bench conferences. Counsel and clients will be expected to maintain social distancing requirements. Counsel are strongly encouraged to think about strategies to minimize unnecessary contact and trial delays, to include: • • •
File and resolve pretrial motions in advance of trial, whenever possible; Pre-mark and pre-file exhibits; Discuss exhibits with counsel in advance to try to reach agreements on admissibility that can be
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placed on the record at the outset of the trial; If your case is dependent on documents, prepare separate binders for each juror, as requests to “publish” items to the jury by passing them through the jury box will likely not be granted; Streamline evidence presentations, as jurors are anxious about protracted service; Discuss in advance any anticipated request for the use of face shields in lieu of masks for witnesses, or for counsel during openings and closings.
This process is still a work in progress. Please be patient!
SOCIALLY-DISTANCED BAR YEAR KICK-OFF By Alaina L. Storie
This year’s BCBA Bar Year Kick-Off looked much different than it has in prior years. Under normal circumstances, we all would have gathered at a local Towson establishment to talk about how we spent our summer, and what’s coming up for the fall. We would have welcomed new members, introduced our Executive Council, and talked with the incoming Committee Chairs and Vice Chairs about the events planned for the bar members. However, this year our celebration went virtual. The Membership & Admissions Committee, which traditionally hosts the kick-off event, invited our members to create their own kick-off on September 10, 2020. We encouraged members to do a virtual
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Zoom hangout, grab lunch outside, have a physically distanced small gathering, or just take a walk together, and then snap a picture so we could see fellow BCBA members enjoying their own kick -off. I am happy to announce that PK Law is the winner of our photo submission contest! Although we do not know what the “next normal” will bring, and when that will be, the BCBA still has a year full of great programs planned for its members. We hope that we can all see each other soon, and then it will certainly be a well-deserved celebration!
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November 2020
IMPORTANT NOTICES FROM THE BALTIMORE COUNTY FAMILY LAW DIVISION By Martha K. White & William R. Levasseur, Jr.
Judge Jakubowski has asked us to send out the following information from the Baltimore County Circuit Court Family Division Meeting occurring on October 7, 2020: Pre-filed hearing/trial exhibits (reprise): Exhibits need to be filed through MDEC 2-3 days in advance of your hearing (NOT THE MORNING OF YOUR HEARING!). When pre-filing the exhibits, select the Filing Code “Pre-Filed Exhibit.” You must upload each exhibit as a separate document. In the description section, attorneys need to: 1) number the exhibit; 2) identify the submitting party; 3) include a description of the exhibit. For example: Pre-filed #1_Plaintiff Smith_ Judgment of Absolute Divorce. Confidentiality of Pre-Filed Exhibits: The confidentiality of trial exhibits and/or confidential information contained within Pre-Filed trial exhibits should be addressed with your judge at trial. No one has access to those documents outside of the Courthouse. At trial, please request that any applicable exhibits be marked as “Confidential” and not that they be sealed; including exhibits that were not pre-filed. New Maryland Rule § 20-201.1 and Confidential MDEC filings: As of October 1, 2020, Maryland Rule §20-201.1 became effective. Starting on November 2, 2020, the Circuit Court for Baltimore County will follow this procedure in implementing Rule § 20-201.1: Every document that counsel wants to be confidential/sealed/restricted must be marked clearly on the pleading/document and accompanied by a “Notice Regarding Restricted Information Pursuant to Rule 20-201.1” (a fillable PDF can be accessed at: https://www.courts.state.md.us/sites/default/files/ court-forms/mdj008.pdf ) This is required for ALL confidential/restricted filings including but not limited to financial statements, joint statement of marital and non-martial property, medical reports, tax returns etc. Rule 16THE ADVOCATE
914 and others cover all documents that should be submitted as confidential or restricted. If a document is not marked properly and not accompanied by this Notice Form it will be rejected by the Clerk’s Office. (This information is based on additional guidance from the Judiciary as to the implementation of the new Rule 20-201.1. The Court apologizes for any confusion caused by previous information provided that conflicted with this new information). Uncontested Divorce Hearings: The Court is aware of the backlog in scheduling Uncontested Divorce Hearings. The Assignment Office is addressing this by creating a new Magistrate’s Docket for the months of November and December. Please do not contact Magistrates directly to request an Uncontested Divorce Hearing! Family Support Services: We are sad to report that Mary Stengel (Family Services Coordinator) will be retiring at the end of the year. Due to budgetary issues and the hiring freeze at the Administrative Office of the Courts, her position cannot be filled until February 1, 2021. The Court is expecting to advertise for qualified applicants to fill this position beginning in November. We all wish Mary good fortune in pursuing all of her future endeavors and send her a warm thank you for all she has done for the Bench, Bar and citizens of Baltimore County as Family Services Coordinator. Child Access Evaluations: The Court is aware of the current backlog with respect to Child Access Evaluations and is looking into ways to address this issue. However, the Family Support Services Office has been encountering staffing and budgetary difficulties. Requests for Remote Hearings: If counsel wishes to have a remote hearing before a Judge, they should request it well in advance of the hearing date. Judges are no longer preassigned their cases two weeks in advance. Last minute requests for remote hearings may not be considered.
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November 2020
BALTIMORE COUNTY DISTRICT COURT INFORMATION On October 13, 2020, Towson District Court returned All bail review hearings will be conducted from to 120 East Chesapeake Avenue, Towson, MD 21286 Towson District Court at 120 East Chesapeake and all Towson District Court operations are being Avenue until further notice. conducted from 120 East Chesapeake Avenue. Moving one court location is extraordinary but On October 19, 2020, “old” Catonsville District Court moving a second court location a week later is moved to its new location at 1 Rolling Cross Road, unheard of. For that reason, I wish to thank everyone Catonsville, MD 21228 and all Catonsville District for their understanding and cooperation throughout. Court operations are being conducted from 1 Rolling A special thank you and debt of gratitude is owed to Cross Road. Maria Fields, Administrative Clerk, who was There are no court operations at the “old” Catonsville essential to making both moves a smooth and courthouse and the building is now closed to the successful transition for everyone. public.
Thank you,
If you wish to request a remote hearing, please file Judge Dorothy J. Wilson the Motion for Remote Proceeding form CC-DC-110. Administrative Judge
GOVERNOT HOGAN VISITS NEW CATONSVILLE DISTRICT COURTHOUSE By Judge Dorothy K. Wilson
After successfully moving the “old” Catonsville District Court on October 19, 2020 to its new location at 1 Rolling Cross Road, Baltimore County District Court was honored to welcome Governor Hogan to the new Catonsville District courthouse on October 27, 2020. Following a ribbon cutting ceremony during which a Proclamation was presented officially opening the new courthouse and retiring the old location, the Governor along with Chief Judge Barbera, Chief Judge Morrissey and Secretary Churchill of the Department of General Services toured the new facility. The tour took the Governor through one of eight courtrooms, where he learned about the latest technology and security features being used, through the Clerks’ Office, where the Governor spent time visiting with courthouse personnel who were excited to meet him, through the Judges’ Chambers, an area the Governor commented that it was his first opportunity to visit a judge’s chambers and even onto the green roof where good weather made for a beautiful panoramic view of Baltimore County from four stories up. THE ADVOCATE
Constructed to reduce environmental impact, the new Catonsville courthouse has been in the works for nearly twenty years. With all but one of the past Chief Judges of the District Court having participated in this project, the work of former Administrative Judge Sandy Williams, now retired, helped to lay the groundwork for this state-of-the-art courthouse to become a reality. The timing could not have been better since the new building served as the temporary Towson courthouse for ten months while the Towson District court building underwent HVAC repair work. With the opening of the new Catonsville courthouse, Baltimore County District Court looks forward to expanding the services it provides to those in the Baltimore County community and beyond in a safe and secure facility.
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Photos courtesy of the Governor’s Photo Gallery
November 2020
FOREVER YOUNG: A RETIREMENT INTERVIEW OF THE HONORABLE MICKEY J. NORMAN By Matt M. Paavola
bench. He pooh-poohed the idea:
His voice was crisp, clear, and certain. I had placed a surprise phone call to Judge Norman’s cell phone, and he greeted me with familiarity, vigor and enthusiasm in spite of the fact that we hadn’t spoken in a few years. My purpose, I explained, was to write an article for the Advocate about his mandatory retirement in August, at age 70. He chuckled at the idea that anyone would want to read about him. I thought to myself: “There is no evidence of senility in this voice; this judge might be one of those forever young types.” Let’s start with the first name. It alone evokes youthfulness. “Yes,” declared Judge Norman anticipating my question, “that is indeed my legal first name.” He wanted to get that out of the way, apparently having been asked many times in the past. Born in Wisconsin, Mickey Norman has called Baltimore home for the vast majority of his 70 years. He counts as the “best person I know,” his beloved wife, Trish, describing her as kind, considerate and supportive. Indeed, he still laces up, playing competitive ice hockey on a regular basis, shirking any concern for the wear on his double knee replacement surgery. He has never sported a hockey smile, though playing for nearly 60 years. His judicious smile is still warm and genuine – – like I said, forever young. Before ascending to the bench, Mickey Norman spent over two decades in law enforcement, first as a police officer, and later as a prosecutor. He cultivated a fierce no-nonsense reputation. I challenged him on what must have been a difficult transition to the THE ADVOCATE
“My biggest advocate was Lenny Shapiro. I knew [him] for years. I knew him when I was an undercover cop and while in the State’s Attorney’s office. He told people that they need to understand that I just did whatever job was assigned to me...and I never [prosecuted] a case where I believed that person was not guilty; that I would never have done. But that’s not something anybody knows about a prosecutor.” In short, the transition was easy because Judge Norman, when he puts his mind to the task at hand, is all about justice. And that summarizes the function of a Circuit Court judge. So, he did not find it challenging to transition, though he admits to the challenge of other parts of the gig. Family law cases came to mind. But it wasn’t so much about the subject matter as it was the litigants, and sometimes, their attorneys. I prodded his Honor to admit that he would privately groan in his chambers about certain cases, but he would not yield and simply said that certain lawyers caused his guard to go up while many others, particularly medical malpractice lawyers, he found refreshing because of their intellectual stimulation. Indeed, as I write this article, Judge Norman, by special post-retirement assignment, is trying a sevenday medical malpractice jury trial. Day one consisted of complicated pretrial motions, voir dire and jury selection. The parties anticipated that the process likely would consume the entire day because of cumbersome pandemic precautions. Alas, they were done by one o’clock! Judge Norman’s tidy efficiency and tight compartmentalization is to be credited. As a result, opening statements began promptly on day two. I had the pleasure of sitting in on parts of the trial. Judge Norman presided over the case like the youthful lawyer appointed by Gov. Ehrlich so long ago. He didn’t miss a beat. He had a booming voice in court and bantered with the litigants. More than once he interrupted examination
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November 2020
FOREVER YOUNG: A RETIREMENT INTERVIEW OF THE HONORABLE MICKEY J. NORMAN By Matt M. Paavola
as he quipped with a lawyer or witness to the sheer delight of the jury. This easygoing style, I believe, facilitates the process, and lightens the burden of protracted testimony. He was alert with lightning quick evidentiary rulings. At the time of our interview, I learned of his upcoming final lengthy civil trial and couldn’t help asking, “Have your intellectual capacities diminished at age 70 to take on such a challenge?” He tsk-tsked my silly question-- like I said, forever young. I also inquired about tough cases while on the bench. He could not comment on one cause célèbre (Gaines) because it has been remanded to him but pointed to his multiple death penalty cases as the most mentally “grueling,” both as a prosecutor and as a judge. I tried to get him to admit that he groaned with worker’s compensation appeals – – my expertise – – and again he would not give an inch (my colleagues are of the feeling that most Circuit Court judges frown on our appeals). He found them intellectually stimulating and made it his business to brush up on the anticipated workers’ compensation legal issues before the case was called. Judge Norman, on the defense, coolly deflected, or gloved the puck, on my hardest slapshots. Topics included his thoughts about whether Jesus Christ was whom he proclaimed to be, the prospect of his having someday to answer to a grievance like the one recently filed against Harford County’s former top prosecutor, his reaction to a recent Court of Special Appeals opinion reversing his 70-page decision, his place on the political spectrum, his concerns about his earthly legacy, and his hypothetical tombstone epitaph. Nothing rattled the judge. In fact, he initially deflected the idea of a legacy as unimportant “because at
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some point you’re not going to be remembered anyway.” That’s just the reality of it, he reasoned. But when pushed, he hopes people remember him as a “decent human being.” Mickey Norman did wax philosophical about two topics. He willingly weighed in on the idea of mandatory retirement. Unsurprisingly he insists he has a few good years left in him (like I said, forever young) but strongly believes in the importance of new blood on the bench. And about our ailing nation during this pandemic with a fractious national election looming, I asked, “What would be your counsel to any individual hoping to help right our listing national ship?” “I would say frank, honest communication about things that are troubling without judging is absolutely essential. You gotta be able to talk to each other. Sometimes it hurts. I learned a long time ago – – this is one of those glass half-full/halfempty questions – – that a lot of times people feel they’re talking about the same thing and, after a period of time and discussion, they realize they’re not. ‘What do you mean by that?’ is a question I learned to ask [and even repeatedly taught my law clerks to ask]. Don’t be afraid of honest communication about [ race, religion, and so forth].” This was a singularly pointed, poignant response. But it wasn’t spoken like someone looking through the rearview mirror. Judge Mickey Norman intends to continue living life full speed ahead on his motorcycle, checking out parts of America. There is still much to be discovered-- like I said, forever young.
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November 2020
MIND YOUR MOTHER (CHESTER) By John Grason Turnbull III
Baltimore. She graduated Phi Beta Kappa from Colby College, which she refers to “almost Ivy League.” After a brief stint at Maryland National Bank, during which she bullied management into installing the first ATM in Baltimore County at the Rogers Forge branch, she went to work for two men who would shape her later legal career: Roland Walker and Jack Rubin. These two legal giants live on in the stories and memories relayed by Judge Chester nearly every day.
Photo courtesy of Judge Leo Ryan, Jr. Mother Chester. The Queen of Aberdeen. The Great Communicator. Queen of the Lockup. Miss Sally. Mrs. Robinson. It is arguable that no lawyer or judge has had more of an impact on a following generation of “younger” lawyers in Baltimore County than The Honorable Sally Creighton Chester. She left compassion and kindness in her wake for 25 years as a trial lawyer and 16 years as a trial judge. I had the privilege of appearing on her last docket on September 25, 2020, and I sadly felt as if a unicorn had pranced off into the sunset as my case concluded. Lawyers and judges of my generation and older, however, also remember Sally as a fierce and protective litigator, who was not afraid to skillfully eviscerate a witness who underestimated this nicelooking lady’s wolverine interior. From the day I referred to her as “seasoned and savvy” defense counsel in a post-conviction ruling I wrote when clerking for Judge Bollinger in 1995, I would like to believe I have been her favorite. However, that is the kind of person Judge Sally Chester is—we all feel like her favorite—all of the time—because we all are. With a few notable and notorious exceptions, not worthy of mention here, Sally loved everyone. Sally was the first judge in Advocate history to write her own retirement article (last month) and get it published while her seat on the bench was still warm. She was born in New Jersey to Pat and Bill Chester, and was a 1968 graduate of Friends School in THE ADVOCATE
In 1980 Sally was hired by the Office of the Public Defender, and her life-long love affair with helping those in need of help began. I had the privilege of watching her try dozens of jury trials and tender hundreds of pleas in front of Judge Bollinger. Although a superbly talented trial tactician, the sharpest arrow in her quiver was mitigation. She could always find something decent and dignified to say about her clients. To her, no one was all good or all bad. People are shaped by their circumstances, and everyone has the capacity for change and growth. To Sally, no one was a lost cause. Sally and women like her have helped blaze a trail that was awash with obstacles in the legal profession. District Public Defender Jim Dills, who started as a law clerk in the Public Defender’s office in 1993, has been extremely close with Sally for almost three decades. “She was a mentor, but so much more than that. She taught me how to try a case, how to act, walk and talk in a courtroom. And, most importantly, not to miff judicial assistants.” He credits Sally for where he is today. In his words, “[s]he has no idea how much she has done for so many people.” Numerous prosecutors, who stared dumbfounded and in disbelief for years as judges did exactly what Miss Sally asked in sentencing for her clients, were unavailable for comment. In 2004 she was appointed to the District Court by Governor Ehrlich to fill the vacancy created by the retirement of the Honorable A. Gordon Boone, Jr., another unicorn in his own right. For 16 years, she dispensed justice with the kind of mercy and respect
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November 2020
MIND YOUR MOTHER (CHESTER) By John Grason Turnbull III
to which the rest of us can only aspire. “Sally cared most about two things, kindness and the Constitution, and everything else flowed from there,” relayed her ‘Courthouse Husband,’ the Honorable Robert J. Steinberg. “Kindness from a judge costs nothing and means everything to the lawyers, courthouse staff, and the litigants. She was one of two people who called me every single day leading up to my transplant. Every single day. I cannot think of any judge who better personifies who we should all be as District Court judges and human beings.” “I could say a lot about Sally. She is smart, empathetic, prepared and has a heart of gold. But perhaps most of all she is persistent. She’s the reason I love trout,” laughingly noted the Honorable Barbara K. Howe. Judge Howe fondly recalled a family vacation to North Carolina she took with Judge Chester. For years Judge Howe believed trout to be an oily fish. Judge Chester relentlessly and vigorously defended trout’s true reputation as a delicate, mild fish. Judge Howe finally relented and tried the trout. “I’ve loved it ever since. I order trout all of the time, each time thinking of Sally and that trip.”
now that Sally’s domain has shifted from the courthouse to the Greenspring Valley. I feel like a better lawyer and more importantly, a better person, for having been around Sally Chester since 1993. I could call Sally and Nick at 3 AM and ask for help and they’d be over in 10 minutes. So, what is the takeaway from this distinguished 41-year career of perhaps the most beloved Baltimore County Judge of all time? Per his usual precision and brevity, Judge Steinberg distilled Judge Chester down to her simplest terms: be nice, follow the law, and do the right thing even when it’s hard or unpopular. We love you Mother Chester.
Every Batman has a Robin, and every Laurel, a Hardy, and Sally has always had Mr. Nick, her trusty sidekick, frequent courthouse companion, and champion of all things Sally. Nick and Sally have been married since 1979, and their son “young William” is now 37 years old (sorry William, you’re not so young anymore). I’m sure Mr. Nick and William have a long list of chores
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November 2020
OCTOBER BENCH/BAR UPDATE By Mariela C. D’Alessio
On October 8, 2020, the Bench/Bar Committee held its October meeting via Zoom. On behalf of the Circuit Court, Judge Kathleen O. Cox reported Phase V began on October 5, 2020, which now allows for jury trials. Judge Cox wished to extend her gratitude to all those involved in getting the jury trials back up and running. As a result of the size of the jury room, the number of potential jurors is limited to forty-five people for both a morning and afternoon panel. The Circuit Court will continue to use the jury room until November 1, 2020 when the jury selection process will be moved offsite to Timonium Fair Grounds, potentially through the balance of 2020. As a result of scheduled events at Timonium Fair Grounds throughout Spring of 2021, other offsite options are being considered which includes Randallstown Community Center or other another County run facility. Construction is still underway for Judge Michael J. Finifter’s courtroom to accommodate social distancing requirements. Judge Jan M. Alexander’s courtroom is now complete with a newly installed third row of seating for jurors that allows a jury panel of fifteen (15). As a result of these alterations, the spectator section of the courtroom is now limited to ten (10) people. If additional spacing is needed, courtrooms can be linked via Zoom to broadcast the proceeding. Remote technology is available to allow for conferencing between attorneys and their clients, as well as, bench conferencing utilizing ADA headphone sets. There is a backlog of criminal cases and the Court is looking for solutions to address potential multidefendant cases that pose proper spacing concerns. There are only two courtrooms that are conducting civil and criminal cases. Court personnel will advise you of trial two weeks for trial. Attorneys will be called for the status of the case. Dependent on the issues, the case may not be called. Circuit Court Administrator Timothy Sheridan reported that since only certain courtrooms have the THE ADVOCATE
ability to accommodate jury trials, Judges will be assigned to different courtrooms so be sure to check your courtroom assignments. The current layout and placement of tables in the courtroom does not provide for the social distancing required six feet. If you wish to sit separate from your client, small tables are placed throughout the courtroom to allow for single seating areas. If you enter a courtroom and need accommodations, please ask. Magistrate Wendy Scheneker reported that they are aware that there is a backlog of uncontested divorce cases. As a result, additional dockets are being added to address this issue. District Court Administrative Judge Dorothy Wilson reported that the move from the new Catonsville Courthouse back to the Towson Courthouse located at 120 East Chesapeake Avenue is scheduled to take place on October 9, 2020. It is expected that the renovated Towson District Court will be up and running on October 13, 2020. All bail reviews will be moved to the Essex District Court location and will be heard by Judge Philip N. Tirabassi. During the week of October 13-16, dockets at the Towson District Court will be limited to only domestic violence cases and bail reviews. Judge Wilson wanted to extend her gratitude to Julie Ensor and Baltimore County IT for all their hard work and specifically for the installation of the video IA equipment for the Commissioners in Towson District Court to allow for video bail hearings. The week of October 16th, the old Catonsville District Court will be moved to the new Catonsville District Court building on Rolling Road. It is expected that the new Catonsville District Court will be up and running on October 19, 2020. During the week of October 19 – 23, the dockets at the new Catonsville District Court will be limited to only domestic violence cases. The old Catonsville District Court building will be closed as of October 19, 2020 and will thereafter be utilized by University of Maryland, Baltimore County.
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OCTOBER BENCH/BAR UPDATE By Mariela C. D’Alessio
The initial plan is to assign four Judges to the new Catonsville District Court location with the possibility of adding a fifth Judge to make use of the number of courtrooms at this location. There is no plan to increase the number of criminal or serious traffic court dockets even though there may ultimately be five Judges assigned to this location. This location will continue to run three courtrooms for criminal and serious traffic matters with the remaining two courtrooms being utilized for civil matters only. Once everyone has settled into their new locations, Judge Wilson indicated that there would be a big shift to lighten the load at the Essex District Court and disseminate those cases between Towson District Court and new Catonsville District Court. Eventually the plan is to have more civil cases in the new Catonsville location with bail reviews eventually being divided between Towson District Court and the new Catonsville District Court. This will hopefully provide for a decrease in the volume of other types of cases at the Essex District Court. The District Court is still working through the backlog of landlord/tenant cases. Baltimore County Government just went online with Phase II of an Eviction Prevention Program which makes available approximately Two Million Dollars ($2,000,000) of funds to renters that have lost income and need assistance. There is an application process available online for any tenants that may be facing eviction. There will also be a program available for Landlords to take advantage of some of these same resources. The Honorable Will Somerville of the Office of Administrative Hearings reported that October marks its 30th Anniversary and due to Covid, there will be no event. State’s Attorney Scott D. Shellenberger provided the report for his office. His office is still currently operating with support staff working from home four days per week and one day per week in the office abiding by social distancing guidelines. With the
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increase in court activity, more attorneys are working in the office to ensure that each courtroom is covered. Deputy Public Defender James Dills provided the report for his office. His office is still currently operating under Executive Order and utilizing telework as much as possible. His office is still currently operating with support staff working from home four days per week and one day per week in the office abiding by social distancing guidelines. Attorneys are coming into the office on an as-needed basis. His office’s lobby is still closed and will remain closed for the foreseeable future. His office is working with Judge Cox and Timothy Sheridan to potentially set up a space in the Circuit Court building for VOP applications. Gregory E. Gaskins of the Office of law provided the report for his office. His office is still utilizing telework and coming into the office on as-needed basis. Wendy Meadows provided the report on behalf of the Family Law Committee. Despite the pandemic, the Family Law Committee is having an exciting year with various programs and no shortage of practitioners that want to be involved and help. The Family Law Meet and Greet was held on September 17, which was very well attended. A lunch program was scheduled for October 8, to discuss the new child support guidelines that went into effect October 1, 2020. On October 14, 2020, there is co-sponsored event with ADR on how to prepare your clients for mediation and settlement. There is another lunch program via Zoom on November 19, which will discuss vocational rehabilitation during the times of COVID. Finally, there is lunch program via Zoom co -sponsored with ADR scheduled for December 1, 2020 which will discuss arbitration of divorce and marital property issues as a timely alternative. Nicole Rush provided the report on behalf of the Young Lawyers Committee. The first event for the bar year was a virtual chambers chat with the newest District Court Judges on the bench which was held on September 16, 2020. Continued on page 14
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OCTOBER BENCH/BAR UPDATE By Mariela C. D’Alessio
This event was very well attended and included many new young lawyers. The next event is a virtual chambers chat with the Judge Judith C. Ensor and Judge Dennis M. Robinson, Jr. of the Circuit Court which will take place on October 21, 2020.
Judge Michael W. Siri provided the report for the Diversity and Inclusion Committee. The Committee was scheduled to meet on October 8, 2020 as all subcommittees had previously met. They are focusing on two items (1) establishing a mentoring Harry Chase, liaison to Baltimore City, reported that component of the Bar Association to increase the they are also dealing with the safety issues now that number of diverse members and (2) developing a compact with private law firms in Baltimore County jury trials have resumed. to promote diversity in their hiring practices. Harry Chase also provided the report on behalf of the Portrait Committee. He advised that the portraits are Judge Michael W. Siri also provided the report for still on hold but the committee may decide to hang the Executive Council. The Bar Association is the portraits now and when the courtrooms are open, transitioning to new technology platform midput a cover on them and eventually unveil them for October that will assist with membership information and providing information to its the presentation members. The Stated Meeting is scheduled for Debra Schubert, liaison to Harford County reported October 15, 2020, which will include the that guardianship and other civil matters are being presentation of the Law Days Awards. The Law handled remotely at this time. If you want an in- Day Award recipient is Judge Kathleen G. Cox and person trial, you have to file a request. With regard to the Judith P. Ritchie Award recipient is Mary Roby domestic violence causes in Harford County District Sanders. There will also be a vote for a change to Court, Judge Mimi R. Cooper advised that there is no the Bylaws and Constitution for purposes of preference/presumption concerning appearance in updating such documents. Finally, virtual trivia is court. Zoom Invites are sent to everyone and it is up scheduled for October 29, 2020 so be sure to get to the individual to appear in person or zoom. The your team signed up. jury assembly room has been modified due to social distancing and can now accommodate twenty-five The meeting was adjourned at 8:38 a.m. The next meeting is scheduled to be held on November 12, people safely at this time. 2020.
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CIVIL LAW UPDATE By Ceecee Paizs
Attorney Grievance Comm’n v. Link 380 Md. 405 (2004) and Attorney Grievance Comm’n v. Basinger 441 Md. 703 (2015), the term “private” meant unrelated to the practice of law, not undisclosed to or unknown by the public. The hearing judge determined that the emails were related to the practice of law. The Court affirmed that conclusion, Review of the Amicus Curiarum for July 2020 along with the conclusion that the behavior of the attorneys was so abhorrent as to warrant an revealed the following civil case of interest: indefinite suspension from the practice of law in the THE COURT OF APPEALS: State of Maryland. Attorney Grievance Commission of Maryland v. James THE COURT OF SPECIAL APPEALS: Andrew Markey and Charles Leonard Hancock, Misc. Docket AG No. 5, September Term 2019, filed June A.A. v. Ab. D., Case No. 1439, September Term 2019, Filed June 5, 2020. Opinion by Leahy, J. 26, 2020. Opinion by Watts, J. Markey and Hancock were Maryland attorneys working for the Board of Veterans’ Appeals (the “BVA”) as a Veterans law Judge and an AttorneyAdvisor, part of the US Department of Veterans’ Affairs (the “Dept”). For approximately 7 years, Markey and Hancock and three other employees of the BVA used their official Dept emails to participate in an email chain that they called the “Forum of Hate”. Through the Forum of Hate, Markey and Hancock sent numerous emails that included statements about their BVA colleagues that were highly offensive and frequently evince “bias or prejudice based upon race, sex, …sexual orientation or socioeconomic status.” MLRPC 8.4(e). For examples of the highly offensive language please refer to the Amicus Curiarum. The Court of Appeals found that the evidence supported the sanction of indefinitely suspended for both attorneys. The Court of Appeals concluded that Markey and Hancock violated MLRPC 8.4(d), 8.4(e), and 8.4(a) by using the Dept email to make alarmingly inappropriate and offensive remarks about their colleagues that were both prejudicial to the administration of justice and evince bias and prejudice on multiple grounds. The Court also rejected the argument from the respondents that their comments were intended to be humorous and only for a small group, private and not intended to become public. The hearing judge concluded that the Court’s holding in THE ADVOCATE
A.A. (“Mother”) and Ab. D. (“Father”) are the parents of two minor children. The parents lived together until 2010, when Mother left the family home. Father moved to Florida. Mother file a complaint seeking custody of the children, and after entering a default against Father, the Circuit Court entered an order awarding Mother both legal and physical custody of the children. On October 23, 2015, Father filed a “Motion for Modification of Visitation”. Father returned to Maryland with his new wife in March 2016. The Circuit Court declined to grant overnight access to Father on weekends due to his work schedule and declined access during the week days because “it would be disruptive to the school schedule.” Less than 2 years later, Father filed a “Motion for Modification of Custody”, alleging that there were changes in circumstances that directly affect the best interest of the minor children. He cited the change in his work schedule to a “regular” work week schedule and the fact that Mother used her role as sole legal and primary physical custodian to deny Father access to the children. Father propounded interrogatories and a request for production of documents. Mother did not respond adequately to the discovery requests, and Father moved to compel.
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CIVIL LAW UPDATE By Ceecee Paizs
At the custody hearing, he also moved in limine to exclude both the testimony of witnesses for whom Mother had failed to provide contact information and, with the exception of financial documents produced, any other evidence Mother had declined to produce during discovery. The Circuit Court granted Father’s motion and at the end of the hearing, granted joint legal custody with Father having the tie breaker and shared physical custody of the Children. The Court of Special Appeals vacated and remanded, finding that precluding Mother from presenting evidence as a discovery sanction without first considering whether the evidence was relevant to the court’s determination of the best interests of the children was an error. Procedural defects should not be corrected— nor discovery disputes be sanctioned—in a manner that adversely impacts the court’s determination regarding the child’s best interests. Flynn v. May, 157 Md. App. 389, 410-11 (2004). The court at a minimum should have allowed a proffer or otherwise ascertain what the evidence is that will be excluded and assess whether that evidence could assist the court in applying the Sanders-Taylor factors in its determination of the best interest of the child[ren]. When the trial court completes this assessment, the Court of Special Appeals would review any discovery sanction it imposes thereafter for an abuse of discretion. Review of the Amicus Curiarum for August 2020 revealed the following civil case of interest: THE COURT OF APPEALS: Steamfitters Local Union No. 602 v. Erie Insurance Exchange et al.; Steamfitters Local Union no. 602 v. Cincinnati Insurance Company, et al., No. 40, September Term 2019, filed July 27, 2020. Opinion by Booth, J. Steamfitters Local Union No. 602 (“Steamfitters”) owns and maintains a union hall on its property. Under a contract with the Heating, Piping and Refrigeration Training Fund (the “Fund”), the Fund provided training classes for union apprentices out of the union hall. These trainees often smoked outside THE ADVOCATE
the hall, and on one occasion, a cigarette butt was discarded in the mulch along side the union hall parking lot, igniting a fire causing approximately $1.3 million in damages to the Steamfitters’ neighbors’ property. Steamfitters argued that they did not owe their neighbors a duty of care because mulch is not a dangerous condition, and even if they did owe the duty, the plaintiffs failed to establish it because doing so required expert testimony which was not presented at trial. Also, Steamfitters argued that the trial court erred by instructing the jury on intentional and negligent spoliation regarding security camera footage that the Steamfitters destroyed. The Court of Special Appeals affirmed the trial court. The Court of Appeals affirmed, holding that property ownership and maintenance includes a common law duty to use reasonable care to avoid causing harm to neighboring property owners. This duty is implicated when, under the totality of the circumstances, a property owner is aware of a dangerous condition on their property. There was evidence from which a jury could conclude that Steamfitters had actual or constructive knowledge that individuals were habitually discarding cigarettes in mulch abutting their neighbors’ property which created a foreseeable risk of fire leading to a jury to conclude that Steamfitters breached its duty of care to neighboring property owners. Further, the Court held that expert testimony was not required to establish this duty and reasonable steps that Steamfitters could have taken to remove the dangerous condition. In addition, the Court held that the trial court did not abuse it discretion when it instructed the jury on spoliation. It was for the jury to decide whether the destruction of evidence was a mistake or intentional. Finally, the Court held that the agreement between the Fund and Steamfitters did not provide for the Fund to indemnify Steamfitters for Steamfitters’ own negligence in failing to exercise due care in the management of its property, only to indemnify Steamfitters where damages arise from the Funds use of the premises.
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CIVIL LAW UPDATE By Ceecee Paizs
THE COURT OF SPECIAL APPEALS: Estate of Peter Castruccio, et al. v. Sadie M. Castruccio, No 1023, September Term 2018, Filed July 29, 2010. Opinion by Arthur, J. Peter Castruccio (Peter) died on February 19, 2013 and was survived by his wife of 62 years, Sadie Castruccio (Sadie). Peter’s will appointed Mr. Greiber as the personal representative of the estate. Sadie filed several actions related to the will, including a caveat. Because of the caveat, Mr. Grieber’s status changed from personal representative to special administrator. In his role he hired DLA Piper LLP to serve as lead litigation counsel. The estate successfully defended every action Sadie brought. The estate filed an interim petition for attorneys’ fees and expenses. Sadie filed exceptions, claiming that counsel fees could not be paid out of the estate because Mr. Greiber required court approval to hire counsel as special administrator. Further, Ms. Barclay, the residuary beneficiary, filed an exception seeking to shift the fees to Sadie’s share of the estate as Sadie allegedly acted in bad faith. The Orphans’ Court denied both exceptions and granted the petition for fees. Ms. Barclay and Sadie filed de novo appeals to the Circuit Court. The trial court approved an interim award of attorneys’ fees and expenses determining that the proposed fees were only “partially fair, reasonable and necessary”, approving less than fifty percent (50%) of the requested fees and about eighty percent (80%) of the requested expenses. The Circuit Court also rejected Ms. Barclay’s and Sadie’s exceptions. The Court of Special Appeals vacated the Circuit Court’s attorney’s fees award but affirmed the judgment in all other respects. The Court held that Mr. Greiber, as special administrator of the estate did not need court approval to hire DLA Piper to represent the estate as he has the power to “collect, manage and preserve property” of the estate. Further, a fiduciary of the estate is not required to make an estimate of future fees if he/she cannot make a reasonable, good faith prediction under the circumstances. Also, Mr. Greiber acted in good faith in defending against Sadie’s will THE ADVOCATE
construction action and was permitted to shift fees for that action to the estate. Further, the Court held that the circuit court erred in reducing nearly forty percent (40%) percent of the hours billed by the estate’s attorney without allowing the estate an opportunity to address the Court’s concerns with the hours billed, erroneously denied all fees related to several unsuccessful per-trial motions and denied billed hours without giving any reviewable explanation. The Court vacated the attorneys’ fees award and remanded the case, identifying further aspects for the Circuit Court to consider in determining an appropriate attorneys’ fees award on remand: (1) consider the actions of the beneficiaries in relation to the litigation such as whether the beneficiaries prolonged or complicated the litigation; (2) consider whether the beneficiaries approved of or instigated the litigation; and (3) whether the personal representative had an opportunity to reach a reasonable settlement with the opposing party. The Court affirmed the Circuit Court’s denial of Ms. Barclay’s request to apportion the attorneys’ fees to Sadie’s share of the estate, finding that the record contained ample evidence to find that Sadie did not act in bad faith in instigating the various actions against the estate. Finally, the Court held that the circuit court did not err in excluding testimony regarding a statement made by Sadie in mediation that was offered to demonstrate Sadie’s alleged bad faith in pursuing the litigation, referencing Section 3-1804 of the Courts and Judicial Proceedings Article, part of the Maryland Mediation Confidentiality Act, which bars admission of all statement made in mediations, unless the prospect of injustice or harm to the public interest outweighs the interest in upholding the integrity of the confidential mediation.
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CIRCUIT COURT TOWN HALL MEETING, SEPTEMBER 29 By Ralph L. Sapia
For the members of the bar, the judges, the clerks and parties, the last six months have been an exercise in patience and expecting the un-expected. On September 29, 2020, the Bar Association held a virtual town hall to learn what changes we will see in the courthouse when it fully reopens on October 5, 2020. The panel included The Honorable Kathleen Gallogly Cox, Chief Administrative Judge, The Honorable Robert E. Cahill, Jr., head of the criminal division, The Honorable Judith C. Ensor, head of the civil division and The Honorable Ruth Ann Jakubowski, head of the family division. Close to 100 people attended including all practice areas. Judge Cox led with what immediate changes were in the works. Currently, courtrooms 8, 13, 16 and 20 are being renovated to expand the jury boxes for social distancing. Courtrooms 13 and 16 will be dedicated primarily for criminal matters and courtrooms 8 and 20 will be used only for civil cases. Jurors sitting next to each other will be six feet apart and the rows will be separated by plexiglass. During the month of October, the Grand Jury Room and courtroom 2 will be used for jury assembly and can enable to court to safely accommodate 75 to 100 people in total. Beginning in November, jury selection will be held at the Fairgrounds in Timonium which Judge Cox said is “well-suited for our needs.” Once the jury is selected, the members will be dismissed and report to the Circuit Court the next business day. “There is going to be a cultural shift in the way we do things,” said Judge Cox. Judge Cahill shared that at the beginning of the COVID shutdown, there were 1,250 people in the Baltimore County Detention Center. However, by utilizing various pre-trial release programs, that number was reduced to 750. “The criminal bar has been fabulous,” said Judge Cahill. The criminal division is working hard to prioritize cases; however, with limited ability to have jury trials, Judge Cahill said, “It’s just going to be slow.” Judge Ensor began by saying “the good news is we are THE ADVOCATE
trying cases.” A participant asked about the bad news, to which her Honor responded, “there is no bad news.” Judge Ensor explained that several judges used the time during the shutdown to hold settlement conferences and were successful in resolving dozens of cases. When asked if people could request settlement conferences, both Judge Ensor and Judge Jakubowski encouraged people to do so, but reminded lawyers “if you ask for it, be prepared to do it.” Obviously, with two courtrooms available for civil jury trial, “non-jury trials will move much more quickly.” Judge Jakubowski began by complimenting Family Law Magistrates. “Our Magistrates have been doing an unbelievable job in moving cases.” Family matters, like civil cases, have been using remote technology to handle scheduling conferences, uncontested divorces, and pre-trial contempt conferences. Making these proceedings remote benefits lawyers, but it especially benefits the parties, who will not have to take off a half-day of work or get childcare for a 20-minute scheduling conference. “The word in family law is Zoom,” said Judge Jakubowski. Both Tim Sheridan, the Court Administrator, and Judge Cox expressed their gratitude the Baltimore County’s Property Management division. Mr. Sheridan explained that they have done not only the labor but have worked with the court in a team effort “to accommodate reopening on October 5, 2020, to ensure everyone’s safety and the efficient administration of justice.” Stuart Cherry who attended the town hall succinctly referred to the last six months as an “unprecedented time” presenting unprecedented complications. “But the circuit court has done a fantastic job in keeping cases moving,” praised Mr. Cherry. The town hall provided those who attended with an opportunity to understand how trial work will proceed as we hopefully move through this pandemic.
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REAL PROPERTY/STATE, LOCAL LAWS & ZONING COMMITTEE VIRTUAL HAPPY HOUR By Christopher D. Mudd
On October 6, the Real Property, State, Local, and Zoning Laws Committee held a virtual happy hour with the Managing Administrative Law Judge for Baltimore County, Paul Mayhew. Judge Mayhew oversees Baltimore County’s Office of Administrative Hearings (“OAH”), which hears all zoning, development plan, code enforcement, environmental enforcement, and employee grievance hearings. The event, which was attended by a dozen or so members of the bar, was organized to enable Judge Mayhew to discuss the OAH’s approach to the COVID-19 era, and to enable practitioners to seek guidance from Judge Mayhew regarding OAH’s hearing procedures. As with many administrative and judicial venues throughout the State, the ongoing pandemic has complicated proceedings before the OAH. After
postponing a number of hearings throughout the spring, the OAH, together with the Baltimore County Administration, worked to facilitate a platform to hold zoning and development hearings virtually. The first virtual hearings, which were limited to zoning and code enforcement-related matters, took place in late summer. Judge Mayhew provided insight into how those hearings have gone and how they have since improved. Not only have they been able to work out “glitches” that existed in the beginning, but practitioners, witnesses, and Judge Mayhew himself have all adjusted to enable the hearings to run very smoothly. The happy hour event was held two days before the first anticipated virtual Hearing Officer’s Hearing to consider approval of a development plan. With far more moving parts, including the need to take virtual testimony from numerous County agency representatives, the County and OAH took more time to prepare for how to conduct these development plan hearings virtually. Due to this diligent preparation, Judge Mayhew was confident that he and County agency representatives were ready to commence with the virtual Hearing Officer’s Hearing platform. All of the attendees eagerly listened-in as he offered advice on how the hearings would be conducted and how practitioners could help streamline the process. In the end, it appeared as though the hour-long event proved just as helpful to Judge Mayhew as it was to the attendees. Judge Mayhew offered sound advice, while the practitioners asked a number of important questions and provided helpful feedback on the hearings to date, which likewise provided Judge Mayhew with good insight as the OAH forges ahead with more virtual hearings. While there has been no timetable set for the return of in-person administrative hearings, this event made perfectly clear that Judge Mayhew and the OAH are more than ready to continue the virtual hearings and to enable the County to keep the development process rolling.
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JOINT PROGRAM OF THE ALTERNATIVE DISPUTE RESOLUTION COMMITTEES OF THE BAR ASSOCIATION OF BALTIMORE CITY AND THE BALTIMORE COUNTY BAR ASSOCIATION: “NEUTRAL CASE EVALUATION: WHAT IS IT AND HOW CAN IT WORK FOR MY CLIENT?” By Christine Malagna
parties which often facilitates a resolution.
The City and County ADR Committees held a joint program at 12:30 p.m. on October 13, 2020 via Zoom entitled "Neutral Case Evaluation: What is it and how can it work for my client?" The Honorable Edward J, Angeletti (Ret.), Circuit Court for Baltimore City was the program moderator. The presenters were The Honorable Diane O. Leasure (Ret.) Circuit Court for Howard County, J. Snowden Stanley, Jr., Esq. Semmes, Bowen & Semmes and Neil J. Dilloff, Esq. DLA Piper. Judge Leasure spoke of the value of early neutral case evaluation (ENE). She stressed the importance of the neutral having substantial experience in the field to make an evaluation early in the process which allows the parties to have a “reality check” regarding the strengths and weaknesses of their case. This nonbinding evaluation of the case, which is typically conducted early in the process without full discovery, assumes the truth of many facts/allegation alleged by the parties, may or may not include witness testimony, does not include cross examination of witnesses and does not utilize the rules of evidence and may include stipulations to limit issues addressed. It is possible and desirable that the ENE process may morph into settlement discussions. Judge Leasure also mentioned that the process frequently is effective in increasing the direct communication between the THE ADVOCATE
Typically, each side presents their case either by written submissions or by testimony. The evaluator offers a written report of the case with an opinion as to liability, range of damages and the strengths and weaknesses of each party’s case. The goal is to reach an early resolution through settlement negotiations, proceed to trial with limited issues and/or to narrow the scope of discovery necessary for each party to fully prepare their matter for trial. Primary differences between ENE and trial: there are no experts utilized in ENE because it is typically conducted early in the process, the testimony of witnesses and written statements presented to the neutral are not taken under oath and ENE may lead to an impasse if one party disagrees with the opinion of the neutral. Judge Leasure pointed out that a neutral walks a fine line, at times, in an evaluation when confronted with questions from clients. She cautioned neutrals against responding to questions such as “Do you think this is fair?” and “What can I do to strengthen my case?” A benefit of ENE versus arbitration or mediation is that the process is often less costly because in most matters there typically no witness examined and the overall time required is less. Neil J. Dilloff, Esquire presented next. He outlined the differences between mediation and neutral case evaluation. He expressed that ENE is a more flexible process that is designed to be short and sweet. The parties are given the opportunity to suggest how ENE should be conducted, there is no ex parte communication with the evaluator and the parties complete the process with knowledge of their exposure (i.e. strengths and weaknesses) in their case. Mr. Dilloff shared that his first experience acting as a neutral utilized the written memorandum format and that the second was primarily an oral
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JOINT PROGRAM OF THE ALTERNATIVE DISPUTE RESOLUTION COMMITTEES OF THE BAR ASSOCIATION OF BALTIMORE CITY AND THE BALTIMORE COUNTY BAR ASSOCIATION: “NEUTRAL CASE EVALUATION: WHAT IS IT AND HOW CAN IT WORK FOR MY CLIENT?� By Christine Malagna
presentation. In the second matter, the clients had never spoken directly and were able to reach a resolution through the processes after coming face to face and engaging in discussions. Another factor, that attorneys often do not take the time to do according to Mr. Dilloff, is to interview the evaluator in advance. He agreed with Judge Leasure that the background and experience of the neutral are critical factors in making this process a success to the parties involved. Mr. Dilloff related that the purpose of ENE is to get the parties to resolve the matter. If a matter is going to settle, it is better to do so sooner rather than later from a cost perspective. A primary advantages of ENE is that it allows parties to identify potential problems in their case in a non-binding setting. The problems may be legal issues or they may be evidentiary. The ENE process is valuable to allow clients to hear the evaluation from the perspective of the evaluator in addition to the perspective of his or her own counsel. The third presenter, J. Snowden Stanley, Jr., Esquire stressed the importance of having the parties to the ENE process sign a participation agreement. Two examples were provided by Mr. Stanley to participants on the Zoom meeting. He cautioned that the client decision makers must be engaged in the ENE process and all people with decision making authority in the matter should be signatories on the participation agreement. When a decision maker (such as an insurance adjustor) does not wish to be present or participate, the value of the process is diminished. Mr. Stanley regards this as a missed opportunity. Mr. Stanley opined that a skilled ENE evaluator builds trust among the participants by establishing the nonbinding, neutral nature of the evaluation. He shared that this allows the parties to make better decisions about how to move the matter forward. This flexibility of the process often serves as a basis a resolution of an entire matter or serves to narrow the THE ADVOCATE
scope of the contested issues between the parties. An option presented is to use the ENE evaluator as an arbitrator following the ENE. If the parties are unable to resolve the case or a particular issue on their own, it is permissible to use the ENE evaluator as an arbitrator or mediator. Judge Angeletti spoke last with specific information utilized in the ENE process in the Circuit Court for Baltimore City. The Circuit Court for Baltimore City is offering ENE as a pilot project through the Maryland Judiciary. Current active Judges act as the neutral evaluators with cases are selected by Court Order or via consent of counsel. Judge Angeletti advised the process is confidential. No records are kept, no recordings are made and the evaluation is not placed in the Court file or record. The process involves bringing all decision makers into one room with the evaluator. This allows all to be present when information is being shared. There are no ex parte communications and no caucuses. All parties can hear and understand the information being shared. Like Mr. Stanley, Judge Angeletti reiterated the importance of decision makers being part of the process. If a decision maker is present, she will be familiar with the pros and cons of all of the issues in the case and know whether to move forward with trial or work to get the case resolved based on the facts. Finally, Judge Angeletti shared the value of ENE for getting cases resolved with a smaller cost investment and in a more reasonable time frame in light of the scheduling of civil jury trial dates into 2022 (due to the Court closure and the fact that the Court only recently resumed jury trials as a result of the COVID-19 pandemic). Interestingly, all panelist agreed that ENE can be used in any case.
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JOINT PROGRM OF THE ADR COMMITTEES...CONTINUED By Christine Malanga
Judge Leasure responded with an enthusiastic “Oh yes!” when asked if ENE could be used in family law matters. She related that the scheduling delays are real and significant. ENE is another tool available to litigants rather than waiting a lengthy period of time for a trial date. Mr. Dilloff shared that the State of Michigan utilizes ENE in family law matters. Following the program, Baltimore County Bar Association member and ADR committee vice chair, Annamaria Walsh, Esquire began reviewing the Michigan ENE statute to see if any components of Michigan’s ENE program can be integrated into the Circuit Court for Baltimore County’s Office Family Mediation offerings. All panelists shared that the ENE process is available to all parties in all cases on a private basis. Following some questions for the panelists, the program concluded, and Judge Angeletti thanked the presenters for their presentations.
Updates related to court operations can be found by visiting www.bcba.org and clicking on ‘COVID-19 Updates’. THE ADVOCATE
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November 2020
BALTIMORE COUNTY LAW LIBRARY NEWS By Stephanie Levasseur
Virtual Connections? Remote hearings are here to stay in some capacity or another. If you questions about your hardware, software and connecting, we may be able to assist. Give the library a call at 410-887-3086 to make arrangements with Scott Stevens, our reference & technology librarian. New Titles The following books were added to the law library collection: The Art of Advocacy in Administrative Law and Practice by Lisa Miller (KF 5402 .M55) Asset Forfeiture and Insolvency: A Parallel Case Management Guide by Karen Gebbie (KF 9747 .G4) Beginner’s Guide to The Housing Credit Program, 2nd ed. By Mark Shelburne (LLP KF 6397 .S52) Business Courts Benchbook: Procedures and Best Practices In Business and Commercial Cases by Vamessa Tiradentes (KF 8925 .C55 .B87) HeinOnline HeinOnline has added the following database to its collections The Civil Rights and Social Justice database has more than 650 titles from the United States Commission on Civil Rights, nearly 1,000 congressional hearings, nearly 50 legislative histories and nearly 1,400 books, reports and publications on civil rights issues. Access to the Civil Rights and Social Justice database also provides access to the Gun Regulation and Legislation in America and the Slavery in American and the World: History, Culture & Law databases.
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MVLS EXPANDS HUMAN TRAFFICKING PREVENTION PROJECT
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The Baltimore County Lawyer Referral & Information Service is fully operational. Please direct the public to call 410-337-9100 Monday—Friday from 9:00 a.m.—3:00 p.m. to be referred to a lawyer. Interested in more clients? The 2020-2021 Lawyer Referral & Information Service Panel Application is available now so please renew. If you are considering joining Lawyer Referral for the first time and have any questions, contact LRIS Coordinator, Jacob Bengel at jbengel@bcba.org. All current panel members should have received the new application via email. Remember...You can join or renew at any time!
BALTIMORE COUNTY BAR ASSOCIATION HISTORICAL COMMITTEE Do you have old photos of past Baltimore County Bar Association events and programs? We would love to have them! Please email Rachel Ruocco at rruocco@bcba.org to coordinate. Do you have a favorite memory of the Baltimore County Bar Association you would like to share? Or maybe a funny story? Email those too.
The BCBA Historical Committee is hard at work on a yearbook to commemorate the 100th Anniversary of the Baltimore County Bar Association and your photos and stories will make great additions.
Who has the most fun? We do! THE ADVOCATE
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JOINT PROGRAM OF THE FAMILY LAW AND ALTERNATIVE DISPUTE RESOLUTION COMMITTEES: "PREPARING CLIENTS FOR MEDIATION AND SETTLEMENT" By Suzanne K. Farace
The Family Law and ADR Committees held a joint program on October 14, 2020 via Zoom, entitled "Preparing Clients for Mediation and Settlement." William R. Levasseur, Jr. was the Program Chair. Wendy Sare Meadows, Chair of the Family Law Committee and Christine Malanga, Chair of the ADR Committee (and Vice Chair of the Family Law Committee) sponsored the program. The event was well-attended by over 25 attendees .
Anna Walsh next spoke and indicated that the Office of Family Mediation continues to do all mediations virtually, via either WebEx or Zoom. She recommended that in advance of the scheduled mediation, attorneys should make sure that their clients have the right setup and technology to participate. A laptop or desktop works better than a phone. Whatever the client uses must also have a functioning camera and audio, as well as reliable Internet. The client must also be in a room by themselves, without their respective partner, children or others present or within earshot, as all mediations are private and confidential. The clients should be advised that they may not record the mediation. And finally, the clients should be appropriately dressed, from head-to-toe.
The event featured three presenters: Christine Malanga, a family law practitioner, mediator and Parent Coordinator, who presented from the attorney’s perspective; Annamaria Walsh, former family law practitioner and Director of the Office of Family Mediation, who presented from the mediator’s perspective, and the Honorable Timothy J. Martin, retired, who presented from his perspective as a Ms. Walsh recommended that attorneys work with settlement judge. their clients in advance of the mediation so that the Chris Malanga shared that she prepares her clients clients can articulate their goals at the mediation. beginning at their first meeting by identifying their Mediation works best if the clients can look at the big goals, e.g., what they are trying to accomplish in the picture – how they see their children's lives in the matter. She attempts to identify those issues are in long-term. She indicated that studies have shown dispute (and those that are not), as well as those issues that, in general, children do better when they have which are negotiable (and those viewed by the clients healthy relationships with both parents and both as dealbreakers). Throughout her representation of the parents are involved in their lives. Flexibility of client, Ms. Malanga discusses with her clients the thinking allows clients to be more open to generating strengths and weaknesses of both her client’s case, as options which then more easily leads to compromises well as the opposition’s case. A good practice tip is to and solutions. Attorneys are also well-advised to give use the time you have with the client while waiting to their clients "reality checks" about some of their be seen/heard by the Court at a Scheduling Conference goals, where appropriate, to encourage their clients to or other court proceeding. Ms. Malanga makes a point gather relevant information to share in support of of discussing with the clients the costs, both financial their goals in the mediation, and if they are and emotional, of pursuing the case in litigation. This nonconfrontational or are easily intimidated by their is important for both the client and the client’s child partner, to be advised that it is okay to ask to take a break to collect their thoughts, and even to call their (ren). Another helpful tip in a custody matters is to have the client spend some time looking at a calendar lawyer, if necessary. Ms. Walsh also mentioned the for the full year, which will help determine which American Academy of Matrimonial Lawyers holidays are important to each side of the family and (AAML) Guidelines as a resource for appropriate extended family, in order to find schedules that make custody schedules for children based on their developmental level. sense for your client and the other parent. THE ADVOCATE
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November 2020
JOINT PROGRAM OF THE FAMILY LAW AND ALTERNATIVE DISPUTE RESOLUTION COMMITTEES: "PREPARING CLIENTS FOR MEDIATION AND SETTLEMENT" By Suzanne K. Farace
Judge Martin appreciates when the lawyers, rather than their clients, are in charge, and when the clients remain calm and are open to compromise. If the case can be resolved, Judge Martin will entertain an oral motion to amend the pleadings so that the matter can proceed on the ground of Mutual Consent. At Settlement Court, they can provide a document for the parties to sign that will suffice for the written agreement necessary for that ground. Judge Martin understands and does not begrudge any attorneys or clients who request virtual conferences, but he feels that he is most effective, and that the chance of a successful settlement is strongest, if he has everyone in the same room. For a virtual settlement conference, Judge Martin suggests that the attorneys arrange to log in initially without their clients so that they can have the usual frank discussion with him about the issues in the Judge Martin stated that he finds that it is helpful when case. Judge Martin is also fine with attorneys attorneys give their clients a good idea of what to expect. submitting a confidential position statement to him This includes warning that the judge may want to have a in advance of the conference date. confidential discussion with the lawyers first, that the judge may want to speak with the client directly at some Following some questions from the panelists, the point, and that the judge may have some things to say to program concluded, and Mr. Levasseur thanked the the client that the client may find difficult to hear. They presenters for their excellent presentations. The also need to understand what will or will not be virtual meeting was recorded and can be accessed recorded. Clients should see the settlement conference through the BCBA’s website which links to the as an important step in their case and should be advised Association’s YouTube channel. by their attorneys that they will need to make some concessions. They also need to understand that the Settlement Judge is not the trial Judge and cannot make any decisions about their case. The client should be familiar with any 9-207 Statement, Parenting Plan or Joint Statement of the Parties Concerning DecisionMaking and Parenting Time, and Child Support Guidelines worksheet filed in the case. Prior to the settlement conference, attorneys should also have spoken with their clients about the unpredictability of court outcomes, how results on the same facts can vary greatly from judge to judge, as well as the uncertainty of the process, including having the client's case placed on standby, postponed, or otherwise delayed. The attendees then heard from Judge Martin, who emphasized that his remarks reflected his thinking and did not necessarily represent the ideas of his fellow Settlement Court Judges. He advised that there are several things that he greatly appreciates from the attorneys who appear before him. These include being punctual, prepared, practical, pro-active, and willing to "talk turkey" about the real issues in the case. He feels that the best chance for settlement comes when the attorneys have meaningful settlement discussions prior to the settlement conference. That chance of success lessens when the attorneys only talk for the first time in the hallway outside of Settlement Court, and lessens even more when the attorneys have not talked to one another at all prior to seeing the Settlement Judge, especially if there is anger between them stemming from unpleasant communications, discovery disputes, etc.
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CIRCUIT COURT CHAMBER CHAT WITH JUDGES ENSOR AND ROBINSON By Robert H. Kline
On October 21, 2020, the Honorable Judith C. Ensor and the Honorable Dennis M. Robinson hosted a virtual chamber chat for a group of young lawyers. Though those in attendance were spread throughout Baltimore County in their homes and offices, all gathered in a virtual chat room to get to know the judges on a more personal level and to discuss how COVID-19 has affected the legal profession. Judges Ensor and Robinson shared their experiences navigating the procedures implemented throughout the pandemic. From jury selection at the Fairgrounds to remote hearings, they provided their observations on how attorneys of all ages can successfully advocate during the time of COVID-19. Through the course of our discussion, the judges repeated that collaboration amongst counsel is essential to effectively navigate any proceeding, both in the courthouse and virtually. With the return of jury trials, attorneys must consider new procedures to replace tasks such as handing exhibits to the jury or a bench conference in order to maintain proper COVID-19 protocols. The judges provided examples of how attorneys are successfully addressing these constraints. Much like the pretrial procedure required in federal courts, counsel are best served by collaborating in order to streamline the proceeding. The judges encourage counsel to agree on exhibits and substantive issues prior to arriving at court. Having exhibits pre-filed with the court and in individual binders for the jurors and witnesses will assist in promoting proper social distancing and avoid passing paper around the courtroom. The judges noted that the COVID-19 protocols do make proceedings take a little longer, and that legal theatrics and anticollegial behavior to opposing counsel, which are always discouraged, have no place in the courtroom.
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Attorneys should approach remote hearings with the same view toward collaboration with opposing counsel. The same efforts promoted for trials to narrow substantive and evidentiary issue should be made in advance of any remote hearing. The judges also provided examples of how attorneys can consider their presentation to the court during remote hearings and conferences. The judges reminded the attendees to act as if you were in the courtroom and suggested that we make the proceeding as professional and formal as possible. As a start, attorneys should be dressed appropriately. If it helps, prepare a podium and stand up when presenting your argument and maintain the same engagement with the court on camera as you would in the courtroom. The judges noted that attorneys should avoid distracting backgrounds. The pandemic has presented the legal profession with a forced reckoning with technology. The judges lamented that some uses of technology should stay if the use improves efficiencies and decreases costs to clients. All in attendance agreed that in-person meeting are necessary in many respects. Thank you to Judge Ensor and Judge Robinson for their time and for sharing their experience. I look forward to resuming chamber chats in-person though the convenience of jumping into a virtual chatroom should not be discounted. Please keep checking the calendar for opportunities to participate in future
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November 2020
MEMBER NEWS WELCOME NEW MEMBERS! Law Students Amy Moore 1st Year Tiera M. Hawkes 6-plus years Michael J. Stelmack
Kramon & Graham "Highly Recommended" by Benchmark Litigation 2021 Ten firm attorneys are recognized as Litigation Stars in the 14th annual edition Baltimore, MD (October 12, 2020) -- Kramon & Graham, a leading law firm providing litigation, real estate, and transactional services, has earned top marks in the 2021 edition of Benchmark Litigation, a leading legal guide that provides an in-depth analysis of trial lawyers in the United States. Focused exclusively on the U.S. litigation market, Benchmark Litigation rankings are the result of extensive interviews with private practice lawyers and in-house counsel. Kramon & Graham's litigation practice has received the top "Highly Recommended" designation. This ranking is reserved for the firms that are regarded as "dominant in their particular jurisdiction," according to Benchmark Litigation's methodology.
In addition, 3 Baltimore County Bar Association members were singled out for recognition as Maryland Litigation Stars, a designation that Benchmark researchers assign to describe the preeminent litigation practitioners in the U.S.: John Bourgeois, Geoff Genth and Dave Shuster. THE ADVOCATE
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YOUR AD COULD BE HERE! Contact Rachel Ruocco at rruocco@bcba.org or 410-337-9103 for advertising rates THE ADVOCATE
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Baltimore County Bar Association
Presort Standard U.S. Postage PAID Permit No. 1262 Baltimore, MD
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. Set of Maryland Reporter, Volumes 1-875 (2005) available for free. Call Neil at (443) 632-9060. CATONSVILLE. Office space available; 1007 Frederick Road; one to four rooms. Prime location along Frederick Road with signage. Call 410-744-3256 TOWSON. 2536.
Nicely furnished office space with parking, half block from circuit court. Pete McDowell 410-960-
TOWSON. Furnished office available in beautifully appointed suite in the heart of Towson. Use of conference room and other amenities. Contact Susan at 410-583-7007. TOWSON. Second floor office for rent with space available for admin/secretary. On site parking with shared conference room. Email nfick@neurolaw.com or call 410-321-5000 if interested. TOWSON. Small firm in Towson looking for an experienced part-time legal assistant/secretary two to three days a week. Any experienced candidates should contact Robert Jacobson at 410-583-8883. TOWSON. 303 W. Pennsylvania Avenue, Towson across Bosley Avenue from the Circuit Court Building, three offices with bathroom on the second floor, 3rd floor four offices available, conference room, bathroom and kitchen on first floor, free parking space available, rent negotiable $50 to $100 less than comparable spaces. $400-$500 per office, great satellite office with possibility of overflow work. Contact Joe Glass at 410-823-4214 or 410-790-1980. CATONSVILLE. Office Space for Rent. Catonsville, 1002 Frederick Road, 2nd floor office. Private entrance, semi private restroom, use of conference room and kitchen on first floor. Free parking. Would be a great satellite office. Please contact Lou Weinkam, Jr. at 410-744-3256 ext. 103. TOWSON. 309 Allegheny Avenue. 2nd floor offices with private restroom, 3 regular offices, partially furnished, 1 executive office (can be made into five offices) fully furnished. Private restroom. Tenant will have available to them a conference room, print/scan/fax center and kitchenette on 1st floor. Additionally, 2nd floor has 2 private entrances, 5 free parking spaces, and approximately 800 sq. ft. of combined dry/secure storage on 3rd floor and basement. TOWSON. Sublease available one block from courthouse. Space in excellent condition. Spacious conference rooms, 34 offices, reception area, copy/supply room, and kitchen. Sublease until August, then take on new lease. Rent negotiable. Contact towsonfirm@gmail.com to schedule a tour or get more information.
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