Maryland Bar Journal – Volume 2 Issue 3 by Maryland State Bar Association

LEADERSHIP • COMMUNITY • JUSTICE • ADVOCACY • ACCESS • TECHNOLOGY •

Maryland

YO U

BAR JOURNAL MSBA. HOME OF THE LEGAL PROFESSION.

VOLUME 2 ISSUE 3, DIGITAL ONLY EDITION

The Untold Story:

COVID-19 Impact on Attorney Mental Health KEY FEATURES

“The greatest challenge for me has been isolation and how that feeds into my depression.”

Outlook for the 2021 General Assembly Session Confronting the COVID-19 Access to Justice Crisis Social Media & the Law

- ANONYMOUS WWW.MSBA.ORG

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Contents VOLUME 2 | ISSUE 3

90 Social Media & the Law

88 Why Attorneys Need to Learn to Talk to the Media MSBA UPDATES 4

President's Message

Executive Director's Message

10 In Memoriam 12 MSBA in the Community 72 MBF Grant Supports Revision to Maryland Judiciary Journalist’s Guide to Maryland Legal System 115 Staff Profile: Andrea Solan, Esq. INSIDE ANNAPOLIS 16 Legislator Profile: William C. (Will) Smith 19 A Look at the 2021 General Assembly Session

102 The Modern Public Forum

HEALTH & WELLNESS 52 The Untold Story: COVID-19 Impact on Attorney Mental Health 60 Making Yourself a Priority is Not Selfish; it’s a Necessity Strategies To Deal With COVID-19 66 Normal is Over(rated) – For Now MEMBER FOCUS 45 Meet the Council: Negligence, Insurance & Workers' Compensation Section

92 Anti-Social Courts: Silencing Online Critics

Member Spotlights 25 Hillary Evans 32 Sahmra A. Stevenson, Esq. 42 Sharnae Smith

98 Talking to Two Million People at a Time: How Lawyers Can Build Business with Social Media

DISCOVER MORE

63 Rachel Coll 69 Manuel (“Manny”) R. Geraldo 83 Cheryl Jones

READ MORE ONLINE: Stay equipped and knowledgeable, every day. Visit MSBA.org for more exciting content.

MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

Published quarterly by the Maryland State Bar Association, Inc. 520 W. Fayette St. Baltimore, Maryland 21201 Telephone: (410) 685-7878 (800) 492-1964 Website: www.msba.org

EDITORIAL ADVISORY BOARD (2020-21 BAR YEAR)

IN-HOUSE EDITORIAL COMMITTEE

Executive Director: Victor L. Velazquez Editor: Anna S. Sholl Advertising Sales: MCI | USA Subscriptions: MSBA members receive THE MARYLAND BAR JOURNAL as $20 of their dues payment goes to publication. Others, $42 per year. POSTMASTER: Send address change to THE MARYLAND BAR JOURNAL 520 W. Fayette St. Baltimore, MD 21201

Natasha Nazareth, Chair

The Maryland Bar Journal welcomes articles on topics of interest to Maryland attorneys. Proposed articles can be submitted through the MSBA website at msba.org/content-portal.

Anna Sholl

Advertising: Advertising rates will be furnished upon request. All advertising is subject to approval by the Editorial Advisory Board. MCI | USA (formerly Network Media Partners) 307 International Circle, Suite 190 Hunt Valley, Maryland 21030 (410) 584-1959

Hon. Vicki Ballou-Watts Richard L. Adams, III

Robert D. Anbinder

Reena Shah

Eric Gershowitz Account Executive eric.gershowitz@mci-group.com Editorial Advisory Board Natasha Nazareth, Esq., Chair MSBA Officers (2020-2021) President: Hon. Mark F. Scurti President Elect: M. Natalie McSherry, Esq. Secretary: Del. Erek Barron Treasurer: Jason DeLoach, Esq.

Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial Board or staff. Publishing an advertisement does not imply endorsement of any product or service offered.

Alexa E. Bertinelli

Susan K. Francis

Peter A. Heinlein Andrea Terry

Corinne M. Pouliquen

WEB EXTRA

David Sidhu

Tracy Steedman

WANT MORE? This issue of the Bar Journal is accompanied by 3+ hours of related video content. VISIT YOUTUBE.COM/MDSTATEBAR

MSBA.ORG | VOLUME 2 ISSUE 3

Bill Hall

Contents (continued)

LEGAL CAPITAL, 4th Edition Bayless Manning, Late Former Dean, Stanford Law School

ACCESS TO JUSTICE COMMISSION 73 Confronting the COVID-19 Access to Justice Crisis: A Report of the Maryland Attorney General’s COVID-19 Access to Justice Task Force 77 Distinguished Leader: Brian Frosh 80 Presenting the #covidA2JCorps!

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23 The Rise of Smart Cities 29 HIPAA & the Workplace 35 A View From the Bench: Remote Proceedings 39 Practical Considerations for the Admissibility of Artificial Intelligence Evidence 49 Clearing the Air on the Odor of Marijuana: New Modern Probable Cause Standards 109 Attorney Grievance Update: The Trust Account Scam Redux 112 Ethics Opinion

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@MD_STATE_BAR Tell us your favorite part of the new Maryland Bar Journal on social media and using the hashtag: #MDBARJOURNAL

To purchase, go to westacademic.com or contact your West Academic Account Manager at inquiries@westacademic.com or call 800-782-1272. © 2021 LEG, Inc. d/b/a West Academic. West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license. 101755-b1

MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

PRESIDENT'S MESSAGE

| INSIGHTS & UPDATES

Focused on Members in the New Year

It’s finally 2021… 2020 was a difficult and, dare I say, unprecedented year, and the impact of the COVID pandemic continues to be felt by our members and our communities. Your MSBA continues to focus on providing a wide menu of resources for our membership. In response, we have extended member access to free OnDemand and live virtual learning opportunities through the end of June. We continue to work with the judiciary and the Governor’s office to bring you the latest information and clarification on COVID related restrictions, and we remain focused on providing ways to build community through my monthly Coffee Chats, Cooking Connections, and other events and programs. We’re fighting for you… In Annapolis, and with this new legislative session, our advocacy team is ready to fight for issues that impact your practice and your clients. Last year, the MSBA focused on defeating the proposal to tax legal services, a successful effort for which the MSBA received national recognition. This year, the MSBA advocacy team is hard at work communicating with the Governor’s office, health department, judiciary and others to support our profession’s access to the COVID vaccine. The MSBA believes that all attorneys should be prioritized for vaccinations in order to perform their vital role in the delivery of justice to Marylanders. The MSBA advocacy is also focused on a number of other priorities, which can be found on our new Advocacy Page at MSBA.ORG/ADVOCACY . We’ll be together soon… We understand that many of our members can’t wait to get back together in person, and we can’t wait to see you. We are following the CDC guidelines and the vaccine rollout closely. We will provide further guidance once a return to in-person meetings is safe for all our members. Despite the gravity of the pandemic, some very positive trends emerged. More attorneys have participated in our on demand CLE, webinars and events from all corners of the state and beyond. Whether virtually or in-person, the MSBA is focused on providing resources and community for all of our attorneys.

"Your MSBA continues to focus on providing a wide menu of resources for our membership."

Hon. Mark F. Scurti, President Maryland Bar Foundation Fellow

The MSBA received The Power of A Award for its efforts representing our members, firms, and the entire Maryland legal profession in defeating proposed legislation seeking to tax legal services. The MSBA was one of 60 organizations out of over 10,000 recognized. Read more at MSBA.ORG/POWEROFA

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EXECUTIVE DIRECTOR'S MESSAGE

| INSIGHTS & UPDATES

Reflecting on the Past Four Years T

his is not a political article or reflection of a Presidency that just concluded. The MSBA is fiercely apolitical and, as the only statewide home of every practice segment and career path within the legal profession, we eschew pieces that drive political wedges amongst our stakeholders. December marked my 48th month of serving as the Executive Director of the MSBA and it feels appropriate to take stock of where we’ve been and what’s been accomplished in that time. Not to reminisce, but rather to ensure the horizon remains clearly in sight, especially as we look forward to celebrating our 125th year in June.

Foundational Recommendations

"With each successive set of updates and efforts to drive value, the consensus was that we were clearly moving in the right direction."

I won’t bore readers with the details of my first six months but in short, I reviewed our financials and the performance of the organization over the prior decade, results of a comprehensive 2015-member survey that held many insights, and crisscrossed the state speaking to hundreds of lawyers and visiting numerous firms to better understand the challenges and opportunities that existed. This ‘listening journey’ culminated in a set of recommendations delivered to the Board of Governors in May, 2017. Under the leadership of then MSBA President Harry Storm, we achieved a unanimous vote in support of modernizing our association in every respect and resetting our trajectory. That moment would prove essential in our ability to achieve what’s been achieved during this pandemic.

Past-President Hon. Pamela White and Vic in his first year with MSBA in 2017.

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Change is Hard In the latter part of 2017, and accelerating into full speed ahead in 2018, we began making changes that were focused on one thing: Being the best state Bar in the country and delivering tremendous value. The opportunities were tied to building on a rich history of valued traditions while not being constrained by them. We embarked on resetting much of what we do and how we do it. There were many voices in support of the changes beginning to take place. Dissenters also voiced their perspectives. All agreed change was necessary to remain relevant to the ever growing, sometimes niche and diverse populace that makes up the Maryland legal profession. However, when change landed on someone’s doorstep, it became real and perhaps, less desirable. But we pressed on. With each successive set of updates and efforts to drive value, the consensus was that we were clearly moving in the right direction.

MSBA is About Making Connections

Above: President, Hon. Mark F. Scurti on an MSBA excursion to support a local school in Jamaica.

Vic with MSBA Presidents, both past and present. Left to right: Tom Cardaro, John Kudel, Mike Baxter, Hon. Pamila Brown, Hon. Harry Storm, Dana Williams, Hon. Mark Scruti, and Hon. Keith Truffer.

Modernization yes, but it’s always been about great people Demographic shifts and consumer behavior at large dictate that we cannot continue to deliver what we used to and how we used to if we are to thrive as the professional body that fiercely advocates for practitioners and firms. This means that we’ve stopped doing some things, generally based on data, and have tried many new things. We’ve had to get comfortable knowing that we must try many things, in order for some new things to take hold. Through this all, one constant at our MSBA has been the people that make it up. I could use dozens of pages detailing the many great relationships

Above: Vic, Past-President, Hon. Keith Truffer, & PastPresident of Wicomico County Bar, Albert Allen

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I have made, the friendships struck, the camaraderie enjoyed. It’s a fact that an increasing segment of professionals, in all professions, are seeking digital and virtual communities. No longer interested in the in-person huddles that dominated Bar life for so long, in the pre-internet era. A recent member survey of over 300 attorneys found that over 60% of respondents preferred online activities and learning versus in-person. COVID has been a great trend accelerator and this trend is no different.

Vic & Randy Sergent, Deputy General Counsel at CareFirst.

"My life was made better by being able to know Judge Williams."

Through whatever prism you view the value of being part of this professional association, I must share that my personal satisfaction has been in the great people. Recently, one such person passed much too early in her life. I had the pleasure of crossing paths with Hon. Alexandra (Sandy) Williams when I arrived here and she was universally admired and happened to be married to a great guy, MSBA Past-President, Dana Williams. I spoke to Sandy often, she and I exchanged texts. As a cancer survivor, I appreciated the health journey she was going through. I shed tears when I learned of her passing from Dana. Her energy, wit, and sense of humanity will be missed. But as I reflect on the pain of her passing, I realize that the MSBA is a community. Sometimes close, sometimes not. There are cliques and clusters and there are those who engage on a purely professional level. These are all dimensions of being the home of the entire profession. One filled with great people.

The Power of a Bar Association When we marshal the diverse voices that make up this profession, we can accomplish so much. We appreciate the existence of numerous local and specialty Bars, it’s part of what makes our community interesting. It’s important that we remain connected, however. Not just in times of crisis as we’re experiencing now, but in times of relative calm that can yield significant challenges to the profession. We’re proud to have been a leading voice in the fight against taxation of legal services, an effort for which we won a national award. We’re proud of having delivered tens of thousands of hours of learning, aggregating the thoughts and concerns of practitioners on all sides of the table, and advocating at the Federal & State level of government and the judiciary. Only together in one body, such as the MSBA, can we catalyze effectively to further the interests of the entire profession.

The MSBA has been recognized by the national American Society of Association Executives (ASAE) by being selected for The Power of A Award for MSBA’s efforts representing our members, firms, and the entire Maryland legal profession in defeating the proposed legislation earlier this year seeking to tax legal services. The Awards ceremony was held virtually on September 30, 2020.

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Don't let this be you... What lies ahead… After 48 months of rethinking, modernizing, and addressing challenges anticipated and unexpected, we are poised for the next level of effort as we work on your behalf. We cost less than 48 other state Bars and yet we deliver more value than most. That needs to continue. We will have numerous efforts around technology, communications, advocacy, and events. On the heels of our first ever weeklong conference, with over 850 attorneys participating at one or more of the segments, we're excited to hold our first ever 100% virtual Legal Summit & Annual Meeting. A first ever for us. We had over 1,100 participants last time we held the event and had registrations on pace to break that number in February prior to COVID’s impact.

"I’m humbled when I hear the stories of us saving lives, literally, through our fully confidential Lawyer Assistance Program, which connects attorneys with resources and counseling anywhere in this state." We are now guided by a strategic plan, thanks to the vision of MSBA Past-President Keith Truffer, which envisions us evolving further to remain a force for good, for the profession and the citizens of Maryland. I was thrilled when our Access to Justice Commission secured $11+ million, in partnership with Attorney General Frosh, helping to address an impending eviction catastrophe. I’m humbled when I hear the stories of us saving lives, literally, through our fully confidential Lawyer Assistance Program, which connects attorneys with resources and counseling anywhere in this state. Our campaign around 100% All In, a brainchild of our current President Mark Scurti, has yielded success and we’re looking forward to a major announcement around further strengthening our relationship with firms throughout Maryland. So what lies ahead? Change will continue to be a constant. Balancing the desires of those that want to return to ‘what we used to do’ with continuing to serve the now majority that wants us to not regress from the changes COVID compelled us to make. Technology, learning, advocacy. Continuing to be the home of the entire legal profession statewide, a community of great people is what lies ahead. I’m proud of this past 48 months and humbled to start the next chapter which has just begun.

Victor L. Velazquez, Executive Director

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IN MEMORIAM

| MSBA IN THE COMMUNITY

A Fond Farewell to Judge Williams BY ANNA SHOLL

LEADER, JUDGE, WIFE, Mother,

Friend. Just a few words that describe the late Hon. Alexandra "Sandy" Williams. Those that had the opportunity to know her, whether from her courtroom, her prior career as a prosecutor, or her work with the Baltimore County Bar Association and MSBA, would also say she was kind, fair, respectful, smart, and witty. Sadly, Judge Williams passed away on November 9, 2020 after losing her battle with ovarian cancer. She was just 64. Judge Williams began her legal career in 1981 after graduating from the University of Baltimore School of Law. As a trial attorney with the Baltimore County State’s Attorney’s Office, she tried numerous high-profile felony cases including death penalty cases that had been removed to the Eastern Shore. As chief of the District Court Division, Sandy was sensitive to the needs of victims of domestic violence and was co-organizer for what would ultimately become the Family Violence Unit in that office. In 1994, Judge Williams was appointed to the Baltimore County District Court by Gov. William Donald Schaefer. Judge Williams quickly established herself as a respected member of the bench while demonstrating leadership qualities that resulted in her being named administrative judge in 2002 of the Baltimore County District Court by Maryland District Court Chief Judge James 10

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N. Vaughn. She was the first woman to hold that post in Baltimore County District Court history, and she remained in that position until retiring in 2016. After retirement she continued to sit regularly as a visiting judge throughout the state.

Judge Williams with daughter, Sarah Williams, husband, Dana Williams, Daughter-in-law, Bridgette Williams and son, Douglas Williams.

Judge Williams was also committed to improving the legal profession and was actively involved in both the Baltimore County Bar Association and the MSBA. She served on the MSBA Board of Governors from 2012-14 and again from 2016-18. In addition to her professional career, Judge Williams was a devoted mother of Sarah Williams and Douglas Williams, and wife of MSBA Past-President, Dana Williams. Judge Williams was ever present during President Williams’ tenure, supporting him as he traveled the State to connect with members, and as the MSBA and the legal profession were faced with the unprecedented COVID-19 pandemic. During President Williams' year, the MSBA staff had the opportunity to get to know Judge Williams on a more personal level. I worked with her on many occasions, including the planning of the annual professional excursion to St. Lucia. As many will agree, she was fun to work with, smart, witty and always kind. Although my opportunity to work with her was short, I am a better person for it and I, like so many others across the legal profession, will miss her.

Each year, the outgoing President of the MSBA receives a caricature memorializing the highlights of their year. For the first time in this long-standing tradition, Dana Williams’ caricature also featured his wife, Judge Williams, as a tribute to her unwavering support during his unprecedented year.

MSBA President, Hon. Mark F. Scurti Remembers Hon. Alexandra “Sandy” Williams Good morning members, It is with great sadness to report the loss of the Honorable Alexandra N. Williams, wife of MSBA Past President Dana Williams. Judge Williams was born in Colorado Springs, CO and attended St. Paul’s School for Girls in Brooklandville, MD, then received her B.S. from Denison University in 1978 and her J.D. from the University of Baltimore School of Law in 1981. Judge Williams was one of my inspirations to be a judge on the District Court and her memory will stay with me forever. She served numerous terms on the Board of Governors and many sections and committees of the MSBA, always giving of herself to our profession. She was a rock behind Dana throughout his leadership with the MSBA and was the voice in his head letting him know what a great job he was doing as President. She would then send her voice to me serving as a sounding board on difficult questions and situations that I faced.

I learned so much from Sandy and join in the sadness that today brings to us all. We send our thoughts and prayers to Dana and their children. Dana requests in lieu of sending anything, please make a donation in her memory to the GBMC Sandra & Malcom Berman Cancer Institute at 6701 North Charles Street, Towson, MD 21204 or through philanthropy@gbmc.org. Dana stated that everyone’s thoughts and prayers brought “indescribable comfort to her and the family during her difficult last few months.” Sincerely,

Hon. Mark F. Scurti, President This message was sent to all members of the MSBA on November 10, 2021.

Farewell to the “Lion of the Senate” ON FRIDAY, JANUARY 15, 2021, Senate President Emer-

itus, Thomas V. Mike Miller, Jr. passed away after an extended battle with prostate cancer. He was 78 years of age. He was born in Clinton, MD, and was the eldest of 10 children. He received both his undergraduate and law degrees from the University of Maryland, and was an unabashedly, dyed-in-the-wool Terp. After graduating from law school in 1967, Miller became a member of both the Maryland State Bar Association, and the Prince George’s County Bar Association. He went on to open law offices in both Prince George’s and Calvert counties, and continued to practice in both jurisdictions for over 40 years. President Miller, often referred to as “The Lion of the Senate,” was the longest-serving Senate President in Maryland history, and during his tenure was the longest serving state Senate leader in the nation. Miller was first elected to the House of Delegates in 1975, representing District 27 in Prince George’s County (later Prince George’s and Calvert counties). After serving only 1 term in the House, Miller ran for, and was elected to the Senate of Maryland in 1974. Not long into his tenure as a member of the Senate, he was appointed Chairman of the Senate Judicial Proceedings Committee.

The Maryland Bar Foundation recently recognized President Miller for his extensive contributions to the Maryland Legislature and his commitment as a public servant by presenting him with the 2020 J. Joseph Curran Jr. Public Service Award. Award presenter, Timothy Maloney, noted that President Miller has been

“the most consequential public servant in the state of Maryland of the past 50 years, and [Maryland is] a better state for it."

Watch the full presentation and President Miller’s acceptance of the MBF J. Joseph Curran Jr. Public Service Award here: MSBA.ORG/CURRAN-MILLER

By 1987, having been recognized by his Senate colleagues as a genuine leader he was first elected President of the Senate. He would, despite one challenge, be re-elected as President at the start of each regular session of the General Assembly though 2019. Only due to declining health after his cancer diagnosis and treatment did he relinquish the post of Senate President. For the remainder of 2019, until his resignation from the Senate in late 2020, he was granted the title of Senate President Emeritus. He is the only Maryland Senator who has ever held that title. President Miller is survived by his wife, Patti, their 5 children, and 14 grandchildren. MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

MSBA UPDATES

| MSBA IN THE COMMUNITY

MSBA in the Community Impacting every sector of the legal profession. Visit msba.org to find upcoming events and section information.

Nearly 900 Attorneys Throughout Maryland and Beyond Join the MSBA for its First-Ever Virtual Legal Excellence Week

rom Advanced Business Law Institute to Criminal Law Update and from Solo & Small Firm practitioners to attorneys from Maryland’s largest firms, the MSBA’s first-ever, fully virtual Legal Excellence Week had something for everyone. Nearly 900 legal professionals joined the MSBA for one or more of the various components of the week long-event beginning with Advanced Estate & Trust Planning Institute on Monday, November 9, 2020 and wrapping up the week with our Conference of Bar Presidents on Friday, November 13, 2020. Attendees Enjoy Substantive Sessions and Specialty Content Each day, Legal Excellence Week featured accredited CLE programming on various topics, including Advanced Real Property Institute, Hot Tips in Family Law, and the ever popular Solo & Small Firm Summit, focused on helping practitioners start, run and grow their businesses. Beyond these substan-

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tive sessions, attendees enjoyed Live Q&A sessions with faculty, a daily dose of networking, a special presentation on the “State of the Legal Profession”, the Access to Justice VIP Event & Fundraiser, Maryland Bar Foundation Award Ceremony, and the YLS Opening Meeting event: “Getting a Seat at the Table: Civic Engagement for Young Lawyers.”

Between sessions, attendees learned more about the recipients of several prestigious awards, including the MSBA Sodaro Award, Presidential Best Section Awards, and several Pro Bono awards, recognizing attorneys that have given back to their communities. At lunch, attendees enjoyed a surprise session from our partners at Virtual Broadway, including a quick stretch break with a dancer from the Lion King and Best Zoom Tips from Marja Harmon, featured in Hamilton, Aida, Lion King and more. Weekly Pass Holders Obtained Incredible Value Legal Excellence Week Weekly Pass Holders enjoyed over 20+ hours of accredited CLE programming, and over 30 hours of learning and connecting. Plus, Pass Holders were able to attend educational sessions their way, either live during the week or at their convenience anytime up to 90 days beyond the event. This popular, flexible approach will be available for the MSBA’s upcoming, virtual Legal Summit & Annual Meeting.

WEB EXTRAS

RELIVE THE EXCELLENCE To learn more about Legal Excellence Week, be sure to check out our recap video available at MSBA.ORG/LEW-VIDEO

Behind the Scenes of LEW

Watch the 19th Amendment Discussion Panel at MSBA.ORG/19TH-AMENDMENT Experience the 2020 MSBA State of the Legal Profession at MSBA.ORG/2020-STATE

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Del. Erek Barron, Secretary of the MSBA

MSBA Remains Focused on Member and Firm Advocacy

he Maryland State Bar Association (MSBA) and the Maryland Access to Justice Commission (A2JC) remain committed to advocating on behalf of attorneys, firms, and Marylanders. We have worked hard to advocate for the entire profession to protect your interests, from defeating proposed taxation of legal services to providing ongoing Covid-19 support. We’ve been recognized nationally by the American Society of Association Executives from over 10,000 associations for our efforts to defeat taxation of legal services. A2JC has led the efforts of a Covid-19 Task Force with the Attorney General and successfully secured over $11.7 million in Civil Legal Services to ensure housing security. And we continue to fight for you. As part of its increased focus on advocacy, the MSBA and A2JC hosted its second annual Lobby Day on Tuesday, January 26, 2021. Attendees joined leaders of the profession and in Annapolis to discuss

key issues impacting the legal profession and Marylanders’ access to justice. Members also met virtually and engaged directly with legislators to help advance the MSBA’s and A2JC’s legislative priorities.

MSBA President Focused on Keeping You Connected

SBA President, Hon. Mark Scurti is committed to creating connections in this virtual environment. As part of that effort, President Scurti hosts monthly Coffee Chats (1st Wednesday of the Month) with various guest speakers. Most recently, President Scurti was joined by President of the Senate, Senator William C. Ferguson IV, Maryland State Delegate Erek L. Barron, and MSBA Director of Legislative Relations, Richard Montgomery.

In addition to these information coffee chats, President Scurti is also hosting Cooking Connections. Joined by a local chef, President Scurti guides us through the creation of an entree, dessert, and cocktail. You can find out more about these events, as well as listen to President Scurti's latest video message on the MSBA website on the new President’s Corner.

WEB EXTRA

VISIT THE NEW PRESIDENT'S CORNER You can find out more about these events, as well as listen to President Scurti's latest video message in the "President's Corner" section of the MSBA homepage. MSBA.ORG

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BIG NEWS FOR MSBA M E M B E R S O N LY

Continued Free CLE in 2021!

lmost 3000 hours of free MSBA online learning content has been consumed by members since August, as part of a new, member-only benefit that extended 100% free access to online learning that is 90 minutes or less through the end of the year. By popular demand we’re continuing this benefit into the new year! Members can choose from 230+ livestream and on-demand programs that are ninety minutes or less, just by going to our CLE catalog at MSBA.ORG/CLE-CATALOG

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June 9 - 12, 2021 Join us for the annual event that brings together all segments of the legal profession for learning and connecting. HIGH-PROFILE SPEAKERS

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MISSING IN-PERSON EVENTS?

We are too. Legal Excellence Week will be in person in November 2021. MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3 15 Register for the event made for you at MSBA.ORG/ANNUALMEETING

INSIDE ANNAPOLIS

| LEGISLATOR PROFILE

Senator William C. (Will) Smith Recently, we had the opportunity to learn more about Senator William (Will) C. Smith, including what sparked his interest in public service, his legal career, and his goals for the upcoming 2021 Session. Photos courtesy of Beverly Funkhouser Photography 16

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Lawyer, Leader, Legislator Including your family, and others close to you, what early influences shaped your views on public service? My parents were undoubtedly the most influential people in shaping my views on public

Officer in the Navy Reserves. In March of 2019, I deployed to Afghanistan in support of Operation Freedom’s Sentinel, serving in Kabul, Afghanistan until October of 2019. In Afghanistan, I served as the Branch Chief

"My parents were undoubtedly the most influential people in shaping my views on public service." service. I have vivid memories of my father’s penchant for pulling me aside to discuss an article he’d read in the Washington Post. They were mostly articles about African American accomplishments in business, the law, or politics. Once we discussed the article, he would cut it out of the paper and post it on a bulletin board he had in his room. Over time, the articles piled up and over the course of years, the articles papered the entire bulletin board and were layered three or four articles deep. When he passed away in 2006, I remember going back into that room and seeing that bulletin board and thinking how so many of those conversations shaped my views today. The other major influence was and is my mother. My mother is a superwoman. She was the primary breadwinner, my primary caretaker, and has always been there to guide me through tough times. A single mother with my brother at 16, my mother’s example proves that hard work and persistence can pay off. Her example gives me strength and inspires me every day.

Tell us a bit about your Military experience, and how that has influenced your commitment to public service. I was a sophomore in college on September 11, 2001. In the weeks that followed I struggled with the idea of enlisting in the Navy. That idea was quickly quashed by my mother who stressed the importance of completing my degree, especially as a first-generation college student. So, I waited until I was a 3L in law school to apply for a direct commission to become a Naval Intelligence

for the Governance and the Afghan National Defense and Security Forces (ANDSF) divisions within the Combined Joint Intelligence Operations Center- Afghanistan (CJIOC-A). My experience in Afghanistan taught me the importance of holding our government to the standards and ideals expressed in our founding documents. Time overseas in defense of our American values forces one to evaluate the circumstances here in our own country. In other words, you are forced to reckon with the fact that in so many ways we have failed to live up to the values of our country’s stated credo. The legislature is a fantastic place to work on so many of the challenges facing our society and my service in the military has given me a renewed sense of pride in that work.

Tell us about your law practice history and how that has influenced you as a lawmaker, first in the House, and now in the Senate. My first job out of law school was at a civil rights law firm in Washington, DC, and today I am honored to work with an extremely talented group of civil rights attorneys at Solomon Law Firm, PLLC. My practice focuses on a range of employment discrimination and national security matters. Most of my practice is in the area of security clearance defense, administrative investigations, disciplinary action defense, and employment matters relating to the Uniformed Services Employment and Reemployment Act (USERRA). Prior to joining Solomon, I served as a White House appointee at the Department of

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Homeland Security and worked as an attorney in private practice at a different civil rights law firm in Washington, D.C. The nine months a year I spend practicing law outside of the legislature play a critical role in informing my view on a number of critical issues in the Judicial Proceedings Committee. As attorneys, we become intimately familiar with the possibilities and limitations of the law. My work as a civil rights attorney, in particular, has given me a window into how we can improve the law here in Maryland to better protect those who have been discriminated against and those who are oftentimes left without recourse or representation. The practice of law has been instrumental for my work in the legislature.

"This year, amidst a national conversation over racial reckoning and the often-strained relationship between our police and the communities they serve, police reform is at the top of that agenda. Tell us a bit about your legislative priorities for the 2021 General Assembly session. I have always been committed to a legislative agenda that expands opportunity for Marylanders and protects the vulnerable. The specifics of that legislative package changes from session to session depending on societal circumstances and what we’ve been able to accomplish in the past. This year, amidst a national conversation over racial reckoning and the often-strained relationship between our police and the communities they serve, police reform is at the top of that agenda. This summer I took the rare step and called for interim hearings to discuss several

proposals on police accountability that are likely to come before the legislature’s next session. After having spent hours meeting with academics, experts, stakeholders, and, most importantly, impacted families, I am fully committed to ensuring we enact meaningful reform. I am also keenly focused on several issues relating to housing discrimination, immigrants’ rights, and criminal justice reform. I feel optimistic about the opportunities we have next session to changes lives.

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INSIDE ANNAPOLIS

| LEGISLATIVE OUTLOOK

A Look at the 2021 General Assembly Session BY RICHARD MONTGOMERY, DIRECTOR OF LEGISLATIVE RELATIONS

2020 Early Adjournment and Path Forward As surreal as the early adjournment of the 2020 Maryland General Assembly due to COVID-19 may have seemed on March 16, 2020, no one knew at the time how the spread of COVID-19 would transform the manner in which the legislature would conduct business in the months ahead. By virtually all accounts, Senate President Bill Ferguson, House Speaker Adrienne Jones, and the rest of Legislative Leadership made the right call in adjourning the 2020 session early, and by conducting almost all legislative business during the spring and summer remotely. While there had been some discussion of a possible Special Session of the legislature to convene in May 2020, the Presiding Officers concluded that, based upon the growing pool of knowledge on the transmissibility of the virus, whatever possible value there may have been in convening a spring or summer session of the legislature was greatly outweighed by the health risks to the members and staff. The Presiding Officers established the Joint COVID-19 Workgroup, which in conjunction with Governor Larry Hogan’s efforts at combating the disease, relied upon the expertise of as many of Maryland’s top communicable disease and workplace safety experts available to guide their decision-making on how to conduct the State’s necessary business safely over the summer, as well as looking ahead to the 2021 General Assembly session. The results of the expert guidance was the almost complete closure of the Annapolis legislative complex over the summer, as well as development of a strictly limited-access policy for the conduct of legislative business when the General Assembly convened on January 13, 2021. During the summer of 2020, not only was the COVID-19 Workgroup heavily

active, most other Standing Committees of the General Assembly, as well as other ad hoc committees developed their own manner of conducting regular business remotely. For the most part, these Open Meetings involved notice to the public via the General Assembly website, with links to pertinent documents. As for Committees which held public hearing with testimony by advocates and members of the public, a two-track system of participation was established: individuals wishing to testify on draft bills and other matters signed up electronically to testify via Zoom; and individuals merely wishing to watch the proceedings were provided an access link to watch a simulcast of the meeting via YouTube. The summer trial run of remote proceedings provided basic guidance for the legislature on how to continue business effectively during a continuing pandemic.

MSBA EXPANDS ADVOCACY HOMEPAGE AND EWEEKLY NEWSLETTER TO BETTER INFORM MEMBERS Two years ago, the MSBA introduced the MSBA Legislative Action Center and new Advocacy homepage on MSBA.org. Powered by Trackbill, the Legislative Action Center provides members with information on Bills within the MSBA legislative program. This year, we expanded the Advocacy Homepage by adding Practice Area Updates, which will make it easier for members to quickly review bills impacting their specific practice areas. In addition, the MSBA will introduce an “Inside Annapolis” section to its eWeekly Newsletter, bringing updates on the 2021 General Session directly to your inbox.

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Planning for the 2021 Session By fall 2020, the Senate and House of Delegates, in consultation with a wide array of stakeholders, had developed plans for the conduct of legislative business for the 2021 session of the General Assembly, which will involve limited in-person meetings and floor proceedings of both Chambers, as well as remote-only participation by the advocacy community and the general public. The Senate, comprised of 47 members, will meet in their regular Chamber (for limited debate), with greater spacing of members and separation of members’ desks. Meanwhile, the House of Delegates, with its 141 members will be physically divided, with a large portion of the membership remaining in the (socially distanced) Chamber, and the remainder of the body convening in a “Chamber Annex,” fashioned from Delegation Rooms on the first floor of the House Office Building.

would like to do as much as possible to protect the health of their members and legislative staff. Both Senate President Bill Ferguson and House Speaker Adrienne Jones have committed to limiting in-person floor debate to 2-hour stretches at a time in order to reduce the chance of a Floor Session becoming a “Super Spreader” event, despite separation by Plexiglass. Second, to the extent that the 141-member House conducts Floor proceedings with half the Chamber participating remotely from the House Floor Annex, the numerous House members wishing to be heard on a controversial issue may overwhelm the remote participation technology. Anyone who has viewed past House Proceedings on a controversial bill has seen how difficult it can be for the Speaker to determine which Delegates to call upon to speak, and in what order. That chore would become even more onerous with half the House participating electronically from the Annex.

Both Chambers of the General Assembly adopted Rules in early January to allow broadened authority to conduct not only debate on legislation remotely, but “Floor” voting on bills remotely as well. Accordingly, the buildings of the Annapolis legislative complex will generally be accessible only to members of the General Assembly, legislative staff, and visitors by appointment with a legislator.

Finally, I’m reminded of the words of then-Senate Judicial Proceedings Chair, Brian Frosh on the floor of the Senate, urging against Committee bill hearings immediately following the “Snowmageddon” storm of February 2010: “You really can’t call these public hearings if the public can’t get here to participate.” While those of us in the advocacy community may find the electronic testimony sign-up process, and testifying on bills via Zoom to be a moderate adjustment/inconvenience, the general public is likely to find the process highly confusing.

Key components of COVID safety plans of the General Assembly will feature: • • • •

Weekly COVID Testing Robust Contact Tracing system Enhanced Air Flow Sanitation Rigorous Disinfecting of Buildings

Limited Access The continued COVID-19-related restrictions will pose significant challenges for registered lobbyists, other advocates, and the general public, who have become accustomed to face-toface interaction with legislators, either in their offices, the hallways of legislative buildings, or the lobby of the State House. With the closure of the buildings of the legislative complex, the only potential for face-to-face meetings with legislators would be via the office appointment route, or perhaps walking the public streets between buildings of the legislative complex with legislators. My belief is that most legislators will be reluctant to entertain either in-person option. Aversion to Controversy A number of factors affecting the conduct of legislative business in Annapolis in 2021 are likely to combine to reduce the number of new controversial issues undertaken by the General Assembly. First, the Presiding Officers have stated that they

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Legislative bodies tend to be reluctant to pass landmark measures when they believe that their constituents have not been adequately heard on the measures being proposed. I believe that the General Assembly’s trial run of hearings on draft bills over the summer went very smoothly, that process involved only a very small number of bills, and a relatively small number of witnesses. Legislative bodies tend to be reluctant to pass landmark measures when they believe that their constituents have not been adequately heard on the measures being proposed.

Key 2021 Legislative Issues Veto Overrides: Kirwan Education Plan and Historically Black College and Universities (HBCUs) Funding Kirwan Among the very first substantive actions the 2021 General Assembly will undertake will be a likely override of Governor Hogan’s Policy Veto of the House Bill 1300 of 2020, Blueprint for Maryland's Future – Implementation. This sweeping multi-year K-12 education funding plan was the dominant issue of the 2020 legislative session. Key feature of HB 1300 included: • Expanded prekindergarten to all 4-year-olds, as well as 3-year-olds from economically disadvantaged families. • Elevated standards for becoming a teacher and raising teacher salaries. • Reimagined high school curricula to offer students training for well-paying jobs right after graduation. • Establishment of more “community schools” with enhanced services for students and their families. • Greater support for special education students and schools with higher concentrations of disadvantaged families. • Create accountability programs to ensure that funds for education are applied as designated. The bill passed by 37-9 in the Senate and by a margin of 96-38 in the House. HBCUs Similarly, the General Assembly passed House Bill 1260, Historically Black Colleges and Universities – Funding. The bill was crafted to address historic funding inequities affecting HBCUs in Maryland. HB 1260 would have required the Maryland Higher Education Commission to establish a new unit to assist in evaluating and reviewing certain proposals for new programs and substantial modifications of existing programs. Additionally. The bill would have required the Governor, in fiscal years 2023 through 2031, to include in the annual State operating budget $57,700,000 to be allocated to certain historically black colleges and universities in the newly established the Historically Black Colleges and Universities Reserve Fund. House Bill 1260 passed the House by a margin of 129-2. In the Senate, HB 1260 passed unanimously, 45-0. The Governor’s vetoes of both the Kirwan bill (in conjunction with an expanded school construction package) and the HBCU bill are likely to be overridden in the early days of the 2021 session.

State Budget Even without the funding pressures that enactment of the Kirwan and HBCU measures will bring to the state budget formulation equation, the impact of COVID-19 will present previously unimaginable challenges to crafting a budget for state fiscal year 2022. Toward the end of the 2020 session of the General Assembly, Governor Hogan had made additional funding cuts, and after the session he imposed a hiring freeze. Although Maryland survived the drastic reduction of revenue brought about by the pandemic during the final quarter of FY 2020, a continued absence of relief assistance from the federal government may lead the Governor and General Assembly to pursue more drastic budgetary constraints during the 2021 session. However, the Fall 2020 revenues estimates for the State were less bleak than expected. The General Assembly is likely to conduct its budget deliberations more expeditiously than in past sessions, just in case the legislature encounters spread of the coronavirus within its ranks. It is important to remember that the General Assembly’s one true responsibility is to pass a balanced budget by the 83rd day of the session, which in 2021 falls on April 5, 2021. Taxation of Legal Services In 2020, the MSBA was confronted with proposed legislation - House Bill 1628 Sales & Use Tax – Rate Reduction and Services, which posed a major threat to one of our Core Principles, that legal fees paid by clients should not be subject to taxation. The bill was introduced only in the House of Delegates. Taxing legal services threatens access to justice in multiple ways. First, sales taxes are regressive, and negatively affect lower-income taxpayers. Secondly, taxation of legal services functions as a “misery tax” in that the average citizen hires an attorney most often when facing a personal or familial crisis. Often, people facing a crisis situation may seek what may appear to be the least expensive solution to a problem, not realizing that the back-end cost of not utilizing adequate expertise may lead to a disastrous outcome. Additionally, imposition of a tax on legal services is unduly burdensome to solo and small firm practitioners, due to lack of clarity of when the tax would be assessed and paid. Finally, a sales tax applied to services provided by Maryland lawyers would serve to place Maryland law firms at a competitive disadvantage with out-of-state firms. In response, the MSBA initiated and spearheaded a coalition of legal practice organizations, in an unprecedented

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As always, opposition to taxation of legal services remains the MSBA’s top legislative priority, and we will remain vigilant on that front. alliance to defeat a bill before the Maryland legislature, which would have imposed the state sales tax upon legal services provided by Maryland attorneys. The coalition consisted of the MSBA, the Maryland Association for Justice (MAJ), and Maryland Defense Counsel (MDC). Ultimately, the bill was soundly defeated in the Revenue Subcommittee of House Ways & Means, before reaching the full committee.

While early indications are there will not be a taxation of legal services bill that would gain traction in the 2021 session, fiscal conditions could change, prompting the legislature to seek new revenue from the service sector. As always, opposition to taxation of legal services remains the MSBA’s top legislative priority, and we will remain vigilant on that front.

Other Issues Not surprisingly, many of the issues that will dominate the 2021 session of the General Assembly will be COVID-related proposals. Among those areas of law, expect significant activity relate to: Funding Issues • Funding for state government operations & local governments • State Court Funding – Projected Case Backlogs for 2021 • MD Legal Services Funding – Providing a stable source of funding • Tenants – Right to Counsel Criminal Justice Matters • Pretrial Release under COVID • Police – Use of Excessive Force • Police – Duty to Intervene / Report Misconduct • Police – Law Enforcement Officers’ Bill of Rights • Police / Judges – No-knock Warrants

MSBA is pleased to announce that we now have former Senator Bobby Zirkin representing of the interests of members and firms via MSBA Advocacy efforts.

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Generally • Expanded Telemedicine • Estates & Trusts – Remote Ink Notarization - Execution of Estate Planning Documents • Liability Issues: Health Care Providers, Employers; public accommodations • Employment Law Issues – Family Leave; social distancing requirements and compliance; vaccination requirements.

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MARYLAND BAR JOURNAL | ISSUE 2 2020

FOR YOUR PRACTICE

| EMERGING AREAS OF THE LAW

The Rise of Smart Cities BY MSBA STAFF

Recent advances in technology have changed many aspects of modern living. For example, refrigerators, thermostats, and other devices use the internet to turn information into data that improves user experiences. Systems of interrelated internet-connected objects, known as the internet of things, have not only changed the way we live as individuals, but have also altered how cities grow and operate. Specifically, city administrators have developed ways to collect and employ data to create “smart cities” that provide people that work and live in urban areas with a better quality of life.

CITIES MUST MEET certain requirements to become

smart. Specifically, they must have a widespread ability to collect physical information and convert it into a digital format. Therefore, they need systems that can operate together, exchange data, and use the information that is exchanged, which requires citywide wireless networks and fixed broadband that provides internet access to various apparatuses. They must also have numerous devices that are connected to the internet and can exchange data with other systems, like traffic lights, sensors, and vehicles. In addition to the ability to collect information, smart cities need platforms and applications that can develop and deploy support solutions, physical or virtual centers where data is managed and stored, and infrastructure that allows for the transmission of information over a variety of networks. Smart buildings are another critical component of smart cities. Typically, they use sensors, microchips, and actuators to control and regulate their water, electrical, security, and HVAC systems. They also employ data to learn tenant preferences

and monitor occupant activity. Smart buildings can connect a person’s physical and electronic identity and automate operational building technologies such as security, climate control, and lighting, allowing for more efficient use of resources and utilities. The goal of smart cities is to apply data to improve operations and develop solutions for situations that ordinarily present challenges in urban areas. For example, smart cities can reduce traffic by using traffic patterns collected from mobile maps to provide motorists with directions that offer the quickest route to a destination. They can also apply information obtained from traffic lights to change the lights’ timing to cut down on congestion during rush hour. Additionally, smart cities can apply technology to deal with waste problems, like using trash cans that notify waste management companies when garbage needs to be collected. Smart garbage containers can also be used to reduce waste and incentivize recycling by providing digital rebates to people who deposit recyclable materials. Technology can help urban planners and developers as well, MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

as they can use data obtained from devices throughout smart cities to create virtual buildings so that they can identify and tackle potential problems before they become realities. The advantages of using smart technology in urban areas is widely recognized. Therefore, in December 2015 the United States Department of Transportation (DOT) launched its Smart City Challenge, asking cities across the country to submit ideas for using technology to facilitate travel. Seventy-eight cities applied to the challenge and seven cities were selected to work with the DOT to cultivate their ideas. The applicant cities were diverse but largely faced similar issues, like inefficient parking, extended travel times for workers who commute in and out of the city, increased costs associated with delays in transporting goods, and excessive carbon emissions. While only a handful of cities were chosen as finalists, the DOT shared the technological solutions they developed, so that they can be implemented throughout the nation to allow all people, not just those who are technologically savvy, to enjoy all of the positive aspects of city life.

enjoy the benefits of smart cities without placing businesses and residents at risk must make cybersecurity a priority. They should maintain up to date systems with the latest versions of software and hire security experts experienced in protecting various networks.

For example, smart buildings and cities face a substantial risk of security breaches, ransomware and siegeware attacks. They must also be aware of their legal duties with regard to preventing breaches. Privacy and data security laws have developed throughout the country in response to threats that arise with technological advances, and currently many states impose an obligation on any party that collects data from individuals to take reasonable proactive security measures to protect the information from unintended disclosure, use, modification, or access.

While there are many benefits to becoming a smart city, there are also downsides, and urban developers must take measures to mitigate the dangers associated with the technology used to develop smart buildings and smart cities. For example, smart buildings and cities face a substantial risk of security breaches, ransomware and siegeware attacks. If hackers take control of a smart building’s network, they can render the building virtually inoperable, shutting down climate control and security and lighting systems, and preventing people from entering the building. Similarly, cyberattacks that attack a city’s wireless networks or electric grid can lead to disastrous consequences, causing a widespread inability to function for businesses and facilities. Cyberattacks not only pose a threat to the material operations of a smart city, but also can lead to the unintentional disclosure of private information of the city’s residents. Hackers often employ complex and sophisticated technology, and the more technology a city uses, the higher the relative degree of risk of a cyberattack. Therefore, developers and municipal administrators that want to

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410-296-4408

www.firstmdtrust.org

MEMBER FOCUS

| MEMBER SPOTLIGHT

QUALITY, INTEGRITY, T E A M WO R K A N D S T E WA R D S H I P HILLARY EVANS Associate Counsel, Perdue Farms Inc.

Photo courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

Hillary Evans in an Associate Counsel at Perdue Farms, Inc. in Salisbury, Maryland. Prior to serving in her in-house role, Ms. Evans was in private practice at Goldman & Goldman, P.A. We were excited to learn more about Ms. Evans, her legal career, transition from private practice to in-house counsel and her hobbies outside of the office. What does being an attorney mean to you? At Perdue, we have four core company values: quality, integrity, teamwork, and stewardship. Coincidentally, I believe these four values also perfectly encapsulate the values we have a duty to uphold as attorneys. I view my role in this company and this profession as one in which I use my legal skills to preserve these values. As an attorney, whether I am drafting agreements, negotiating deals, or generally advising my internal clients, my goals are to: ensure we as a company are living up to the high standards we set for ourselves; to make sure we keep our promises, and do the right things for the right reasons; to work effectively with my coworkers and internal clients to reach our mutual goals; and to protect the well-being and welfare of not only our associates, but also the environment and the animals in our care.

How does being part of the legal profession differ from what you expected? To be honest, I didn’t have many expectations because I really didn’t know anyone who was an attorney prior to starting law school. I thought when I entered law school that when I graduated, I would be some kind of expert on the law. But the exciting, and sometimes frustrating, thing about the law is that it is constantly changing and evolving. I feel like a perpetual student.

“

My manager, Drew Getty, Assistant General Counsel, and I joke that no two days are the same at Perdue. Our days are extremely busy and varied. I could be dealing with an HR issue in the morning, reviewing a sales contract at lunch time, and communicating with our outside counsel in Canada regarding a customs issue by the end of the day. It’s exciting, intellectually stimulating, and one of the favorite parts of my job, because not having a “typical” day makes me a more versatile lawyer.

You also worked in private practice before joining Perdue Farms’ legal department, how does working as in-house counsel differ from your work in private practice? Aside from the obvious lack of billable hours, I would say the biggest difference is that I am now a part of a family-owned company and a high profile brand, and as such I am invested in the growth and innovation of our business. By the same token and because I am now a part of the business, perhaps my biggest challenge thus far in my transition to in-house counsel, is to effectively communicate with and thoroughly understand the strategy of the various business teams, and to know when to take my lawyer hat off and put my business hat on. As

Perdue is a 100-year-old, well-respected company with both a national and international presence, so to be able to work for a company of that size in the place where my ancestors have lived for generations has been an honor.

What is your fondest memory of your legal career so far? Joining Perdue has been the highlight for me. I am the granddaughter of a chicken farmer from the Eastern Shore, so in a way it felt like I came full circle and this is where I was meant to be. Perdue is a 100-year-old, well-respected company with both a national and international presence, so to be able to work for a company of that size in the place where my ancestors have lived for generations has been an honor.

Since 2018, you have served as Associate Counsel at Perdue Farms, what does your typical day look like?

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in-house counsel, I have had to become much more adept at balancing risk/reward and knowing when to sit back and let the business people do their thing.

What advice do you have for young attorneys looking to pursue careers as inhouse counsel? First, get out there and cultivate relationships with not only people in the legal field, but also people in industries that fascinate you—whether it’s the

“

As in-house counsel, I have had to become much more adept at balancing risk/reward and knowing when to sit back and let the business people do their thing.

food and beverage industry, or the construction industry. Relationships are invaluable in any industry and can open doors you didn’t even know existed. Second, don’t despair or feel discouraged if your career path isn’t progressing the way you thought it would. My career path was not linear by any means. I once had an interview in which the hiring partner literally crumpled up my resume and threw it in the trash in front of me, but I kept my options open and eventually found the perfect job for me. Be resilient, be flexible, apply to jobs that interest you, and eventually someone will see your value. Finally, don’t be an automaton. It’s ok to show some personality and warmth because people enjoy working with real people. When you are in-house counsel, the majority of your coworkers are not lawyers, and they don’t want to hear legalese. I find that I’ve had more success when I allow people to get to know me as a person and a lawyer, not just as a lawyer.

What’s your favorite hobby? Right now, I am fully immersed in experimenting with and playing around on our seven-acre hobby farm. I grew so many trees and plants this past spring/summer– flower, fruit, vegetable, you name it. I even tried to start a pumpkin patch, and produced one pumpkin that I was very proud of. We also recently brought two rescue horses to our farm, so learning how to take care of horses has been a fun learning experience. Next on my agenda is building our chicken coop and getting some chickens.

DID YOU KNOW? WHAT’S AN INTERESTING FACT ABOUT YOU THAT NO ONE WOULD GUESS? I am a country music aficionado and recently cowrote my own first dance song for my upcoming wedding. I became fascinated with the country music industry back when I attended Vanderbilt University, and I ended up interning for Universal Music Group Nashville and receiving a nomination for the Country Music Association [CMA] Close Up Award of Merit. A few months ago, I was in Nashville for a family event and got the opportunity to write a song with Brett Taylor, who co-wrote one of the songs on Tim McGraw’s most recent album Here on Earth. He is insanely talented so being able to participate in his creative process was an absolute joy.

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FOR YOUR PRACTICE

| EMERGING AREAS OF THE LAW

A SOCIAL MEDIA FIRESTORM ignited regarding

the ethics and legality of disclosing another’s personal health information. Armchair experts were quick to respond that while the Health Insurance Portability and Accountability Act, otherwise known as “HIPAA”, does operate to protect your personal health information from public disclosure, it only applies to specific covered entities. Assuming that none of the players’ medical professionals disclosed this information, HIPAA seemingly would not apply. This discussion is not limited to sports franchises and employers. Rather, this is a critical issue that employers and employees should remain cognizant of as employees return to on-site work. Every business, from mom and pop shops to Fortune 500 companies, should take inventory of their own practices, particularly in the ever-evolving response to COVID-19.

HIPAA & The Workplace

HIPAA may play a significant and material role for many businesses as they reopen their operations. The HIPAA Privacy Rule serves not only as a mechanism for protecting patients’ private health information, but also as a means of facilitating the appropriate disclosure of that information to promote public health and safety.

HIPAA may play a significant and material role for many businesses as they reopen their operations. BY ELIZABETH J. MCINTURFF, ESQ. AND ISABELLA C. DEMOUGEOT, ESQ., WITH MARIA STRATIENKO When news broke that professional football players for the Dallas Cowboys and the Houston Texans tested positive for coronavirus, reporters were initially careful to not identify any of the affected players by name. But, as we know, nothing travels as fast as bad news, or in this case, personal health information. “Sources” quickly ran to media outlets to name names, which were then tweeted out to the masses, linking players to diagnoses. One identified player shot back at the reports, tweeting “HIPAA??”

Responsibilities Under HIPAA – What is it and does it apply to me? In the case of the identified NFL players, commenters were quick to respond that while HIPAA does operate to protect your personal health information from public disclosure, it only applies to “covered entities” as well as their business associates. But what does that mean for you and your business or employer? For starters, you should note that HIPAA Privacy Rule applies to disclosures made by employees, volunteers, and other members of a covered entity’s workforce. “Covered entities” include (1) health plans, including individual or group plans that provide or pay the cost of medical care; (2) health care clearinghouses, including third-party intermediaries between health care providers and insurers; and (3) health care providers who electronically transmit any health information in connection with transactions for which the Department of Health and Human Services (HHS) has adopted standards. This narrow definition excludes many organizations that may use, collect, access, or disclosure individually identifiable private health information. MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

Despite this narrow definition of covered entity, individuals and/or businesses alike that perform functions on behalf of a covered entity may also fall into the Rule’s scope. These “business associates” and their workforces must comply with the HIPAA Privacy Rule, if and when the activities they perform on behalf of the entity include creating, receiving, maintaining or transmitting protected health information. These “associates” also include subcontractors that create, receive, maintain or transmit protected health information on behalf of another business associate. With these groups’ inclusion, the number of organizations subject to the HIPAA Privacy Rule increases dramatically. Companies who do not fall into either subgrouping are not subject to the HIPAA Privacy Rule; however, employers with 15 or more employees are subject to the confidentiality requirements imposed by the Americans with Disabilities Act (ADA). If an employer determines an employee has tested positive for COVID-19 and has potentially exposed others in the workplace, the employer should investigate the potential exposure without disclosing the name or any personally identifiable information of the employee who tested positive. Notably, the ADA’s confidentiality requirements do not prohibit the employer from making necessary disclosures to public health authorities and officials. Notably, entities like biometric identification company CLEAR (known mostly for its presence at airport security) have rolled out products to facilitate employee screening upon phased returns to work. CLEAR is targeting employers to buy this product to use it in their businesses. However, it remains unclear who retains liability for potential damages if an employee lies during the screening assessment and ultimately infects others. The questions that remain with such products are: a) is the employer liable, b) is CLEAR liable and c) are they both liable? There is the potential for very interesting legislative initiatives and litigation stemming from the rolling-out of such products and services.

Important things for employers to consider Under the HIPAA Privacy Rule, covered entities and their business associates may share a patient’s protected health information (even without express authorization) with public health authorities — including the Centers for Disease Control (CDC) or state and local health departments — for the purpose of preventing or controlling disease or injury. This means organizations subject to the Privacy Rule may report to a health authority that an employee has been exposed to COVID-19, even without that employee’s authorization. If state law permits, a covered entity may also disclose the potential exposure risk to the employees working alongside the employee described as “persons at risk of contracting or spreading” the disease. Finally, a health care provider may share patient information with others as necessary in order to prevent or mitigate a serious imminent threat to public health and safety, so long as that disclosure is consistent with applicable state statutes, regulations and common law.

The ADA’s confidentiality requirements do not prohibit the employer from making necessary disclosures to public health authorities and officials. While covered entities and business associates enjoy broad latitude in opting to disclose patient information in compliance with public health concerns, these organizations must narrowly tailor the disclosure to provide the “minimum necessary” information to accomplish that purpose. HHS’ guidance on the topic provides that covered entities may rely on public health

https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf

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officials’ or authorities’ representations that the information they request is the minimum necessary for the purpose, so long as that reliance is reasonable under the circumstances. For example, a covered entity or business associate may rely on the CDC representations that the protected health information requested regarding patients exposed to or suspected or confirmed to have contracted COVID-19 is the minimum necessary amount of information needed.1 (Emphasis added) In other words, strict compliance with the substance of health authorities’ requests for information is unlikely to expose an organization to liability under the Privacy Rule. Notably, covered entities and business associates may also disclose information to the extent permitted by the individual, who is the subject of the information, as long as that authorization is provided in writing. An individual’s personal representatives may also provide the necessary authorization to make such a requested disclosure. The State of Maryland will issue further guidance as we proceed toward conducting business as usual. Safeguarding Patient Information It is important to remember the following. Covered entities must implement and retain reasonable safeguards to protect patient information against intentional or unintentional impermissible access, use, or disclosure. These safeguards include (but are not limited to) the guidance and mandates elucidated in the HIPAA Security Rule governing electronic protected health information. Further, as a function of internal security, covered entities should continue to enforce role-based access policies to limit protected health information to the individuals, who need it to perform their duties. ELIZABETH J. MCINTURFF, ESQ. is a partner, ISABELLA C. DEMOUGEOT, ESQ. is senior litigation associate and MARIA STRATIENKO was a summer law clerk with JDKatz, P.C. – a tax litigation and estate planning law firm in Bethesda, Md. and downtown Washington, D.C.

Make sure your contract says what it means, and means what it says.

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A comprehensive resource for the transactional lawyer drafting and reviewing contracts • Arranged as a practice tool; annotated like a treatise • Exposes traps for the unwary, provides scores of drafting tips, and offers hundreds of sample clauses, definitions, and contract provisions

MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3 Purchase your copy today at msba.org/Contract-Drafting

MEMBER FOCUS

| MEMBER SPOTLIGHT

VIRTUAL OFFICE, REAL CLIENTS SAHMRA A. STEVENSON, ESQ. Owner & CEO, S.A. Stevenson Law Offices, LLC., Wills On Wheels Inc., and Office Without Walls™ Maryland Bar Foundation Fellow

Photo courtesy of Beverly Funkhouser Photography 32

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Sahmra Stevenson is an attorney focused on developing a more holistic approach to estate planning. She has created a unique, completely virtual law practice designed to make the estate planning process more accessible to her clients. Recently, Ms. Stevenson authored the Office Without Walls Pocket Guide, produced in conjunction with the MSBA. In it, she provides other attorneys guidance and resources to take their practices virtual.

BELOW, MS. STEVENSON shares some more insight about her legal career and the unique nature of her legal practice.

Tell us a little about your biggest project or passion project related to your professional career right now. My passion project for the past 5 years has been Wills On Wheels, Inc. Wills On Wheels (“WOW”) was the first mobile and virtual estate planning business model in Maryland. We use legal technology, remote resources and practice management innovation to make the estate planning process more accessible, more enjoyable and more relatable for everyone. The WOW planning and drafting process changed slightly during the pandemic. Prior to COVID, I would go to the client’s home for both the initial consultation and subsequent signing ceremony. We now conduct all meetings on Zoom and our signings take place, either in the client’s drive-way or online, in keeping with Governor Hogan’s emergency order from April 2020. Accessibility concerns relate to the physicalities of the process, as well as the attitudes and beliefs associated with it. It makes sense that misinformation about estates & probate might serve as a roadblock to taking necessary steps towards planning. We promote looking at the estates planning process as a part of “life planning” and self-care necessary for every individual and family to do. We seek to support families, business owners and busy professionals with understanding how trusts and estates services can be a direct benefit to them and the people they love. I’m an attorney, but I’m also a black female. I have experienced racial bias in the healthcare system during a medical emergency, and I have had to rely on documents in my own estate plan to protect my rights and wellbeing. Thankfully I knew my rights and I was prepared. My work with WOW is so important to me because I want to be a part of changing the dialogue surrounding estate, family and generational planning in communities of color. The tools we use to create a plan for an individual or a family are empowering, they are educational and they should be accessible to everyone. Period.

“

My work with WOW is so important to me because I want to be a part of changing the dialogue surrounding estate, family and generational planning in communities of color.

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What is your fondest memory of your legal career so far? Helping with the estate plan of a heartwarming couple who were house-bound. The gentleman’s name was Charlie and he was a 94 yr old WWII vet and POW survivor. He was captured by Hitler and freed by General Patton. Lucy, his wife, was a retired nurse who was wheelchair bound after rescuing a man before he jumped to his death from a hospital window some years ago. Truly a ride or die pair, the couple was referred to me after visiting with a colleague whose office was not wheelchair accessible. Their needs were not uncommon, but could have gone unaddressed due to something as simple as mobility and access. Being able to be with them in their home that night was an experience I am still grateful for. I was new in private practice at that time and WOW was still growing its wings, but my experiences that night, the stories they shared and the importance of my being there, reaffirmed the work I was doing and how I was doing it.

What’s a cause or charity that you are passionate about? Father’s rights and changing the narrative of black boys and men in this country. I’ve been practicing family law long enough to have seen how black men and fathers are mistreated in domestic and family law proceedings. No, it doesn’t happen every day, but when it does it’s not okay. I have been fighting for years on behalf of some of the father’s I represent. There is still a long way to go.

In addition to building a successful law practice, you are the founder of “Office Without Walls”, can you tell us a little bit more about it? I created my Office Without Walls so that I could practice law, while being true to myself, meeting my personal needs, and embracing my style. I was miserable working for others mainly because I was confined to what I considered to be arbitrary rules about how, when and where I could do my work. It was either find a new way to practice law that made me happy, or find another career. I didn’t give up on being a lawyer. The Office Without Walls™ collective consists of four separate businesses: S.A. Stevenson Law Offices, LLC., Wills On Wheels, Inc., Office Without Walls™ Virtual Office Solutions and SASFitPractice. The mission of the Office Without Walls™ collective is to inspire others to think outside the box, take control of their futures and create their own happiness. The businesses that fall under the trademark share a common value of prioritizing wellness and quality of life.

Sahmra Stevenson worked alongside MSBA staff to compile and create a digital Office Without Walls™ Pocket Guide. This timely resource is available on MSBA's website for free. When asked about her motivation to create this guide, Stevenson responded:

“I want other lawyers to know it's okay to embrace technology and break-free a bit. I hope that the pocket guide is informative and that it encourages others to take a chance on living outside the box…. living without walls.” WEB EXTRAS

LEARN MORE Read our full interview with Ms. Stevenson and explore the Office Without Walls™ Pocket Guide at MSBA.ORG/SSTEVENSON

MSBA.ORG | VOLUME 2 ISSUE 3

FOR YOUR PRACTICE

| REMOTE PROCEEDINGS NUTS & BOLTS

A View From the Bench: Remote Proceedings BY LAWRENCE P. FLETCHER-HILL 1

Maryland Bar Foundation Fellow The expanded authority for remote electronic proceedings in civil cases in the circuits courts was not an emergency response to the current pandemic. The Court of Appeals added Title 2, Chapter 800 of the Maryland Rules in April 2018, almost two years before most of us knew what a novel coronavirus is. The Rules Committee sought “to take advantage of the technology that allows for reliable interactive communication to provide for more efficient access to the courts, without sacrificing the required fairness in judicial proceedings.”3 It saw civil proceedings in the circuit courts as a good place to start, but the Committee envisioned later expansion “to the District Court and, to the extent Constitutionally permissible, to criminal and juvenile proceedings.”4

NOT SINCE PAUL LYNDE last presided from the center cubicle of the original Hollywood

Squares have so many people stared so intently at screens with people arranged in little boxes.2 A little bit like litigation, the game show turned on credibility. The two rival contestants had to assess the credibility of the boxed celebrities’ answers to questions posed to them. Trial lawyers may sometimes see the opposing party’s experts as two-bit celebrities engaged in calculated bluffing, but the parallels break down pretty quickly. Let’s put the games aside and look at some recent experience with civil proceedings conducted by remote electronic means. I refer mostly to how we have been doing things in civil cases in the Circuit Court for Baltimore City, but all Maryland courts have been adapting and innovating with the available technology.

The Court of Appeals added Title 2, Chapter 800 of the Maryland Rules in April 2018, almost two years before most of us knew what a novel coronavirus is. 1

Two broad aspects of these rules are notable. First, they endorse the concept of conducting an entire proceeding virtually, not just the idea of plugging one remote participant into a conventional courtroom hearing by an electronic connection.5 Second, although consent is nice, conducting a proceeding remotely is not only an option when all parties agree it is feasible and desirable. These rules allow a circuit court to require on its own initiative that a particular proceeding or category of proceedings be conducted remotely. There are two important safeguards. A party must always be given notice that the proceeding will be conducted remotely and an opportunity to object.6 And judges must constantly assess the fairness of remote proceedings: “If, at any time during a [remote] proceeding or conference . . ., the court determines that the

The author is a judge on the Circuit Court for Baltimore City. These are his own views. They do not reflect policies of the Maryland Judiciary as a whole or the Circuit Court for Baltimore City.

That was 1981. See https://en.wikipedia.org/wiki/Hollywood_Squares (last viewed Nov. 23, 2020). The original Peter Marshall-hosted version aired for fifteen years, most of them with Paul Lynde in the powerful center square position. Id. Revivals extended as late as 2004, including several years with Whoopi Goldberg as executive producer and center-square inhabitant and later center-square appearances by Ellen DeGeneres, Alec Baldwin, and Simon Cowell. Id.

195th Report of the Standing Committee on Rules of Practice and Procedure (Feb. 6, 2018) at 7 (available at https://mdcourts.gov/sites/default/files/rules/reports/195threport.pdf) (last view Nov. 23, 2020).

Id.

Thus, Rule 2-802 now allows “one or more participants or all participants to participate in a non-evidentiary proceeding by means of remote electronic participation” and authorizes a county administrative judge to “direct that specific categories of non-evidentiary proceedings routinely be conducted, in whole or in part, by remote electronic participation.” Md. Rule 2-802(a) and (b) (emphasis added). Parallel provisions of Rule 2-803 apply to evidentiary proceedings. The Court of Appeals at the same time repealed Rule 2-513, “Testimony Taken by Telephone,” which exemplified the more limited concept of one remote participant electronically joining a conventional courtroom proceeding.

The rules provide standards for when remote proceedings are and are not appropriate. Remote non-evidentiary hearings are presumed to be appropriate “unless, upon objection by a party, the court finds, with respect to that proceeding, that remote electronic participation would be likely to cause substantial prejudice to a party or adversely affect the fairness of the proceeding.” Md. Rule 2-802(a).

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personal appearance of the participant is necessary in order to avoid substantial prejudice to a party or unfairness of the proceeding, the court shall continue the matter and require a personal appearance.”7 As with so many other things, the pandemic changed everything. Before the emergency closure of the courts on March 13, 2020, the expanded authority for remote proceedings was being used sparingly. With that closure, we went from almost 100% in-person proceedings to zero and almost immediately began building back with technological and procedural adaptations.8 Remote hearing technology instantly became the primary tool for recovery. In Baltimore City, our crash course in meeting technology started mostly with Skype for Business. We have now transitioned almost entirely to Zoom for Government.9 Eight months later, our court was almost fully back to pace with all types of civil proceedings, even accomplishing four civil jury trials. In November, Chief Judge Barbera took a prudent step back because of the increasing severity of the pandemic, but we now have a good sense of the power of this technology once it is possible to resume the path toward full operations. Before looking at the experience with these proceedings, an important word about access to technology. The courts must ensure access for litigants and witnesses who do not have attorneys and who may not have access to more advanced technology. The circuit court sees those issues in every category of cases, but especially in Family Division cases. The District Court faces this problem even more broadly. Among our court’s adaptations to ensure access, we have made sure that any Skype or Zoom proceeding can also be joined by a dial-in connection using an ordinary telephone. Email communication with counsel has created its own challenges, but we have supplemented that mode of communication with paper notices to self-represented parties to ensure they know when a proceeding will be conducted remotely and have the 7

necessary links and dial-in information to be able to participate.10 So what are we judges seeing with this explosion of remote proceedings? Dogs and cats. (Dogs generally are more persuasive

Just because technology now makes it possible for a person to get an uncontested divorce while picking up the dry cleaning doesn’t make it a good idea. to this jurist.) The occasional child. Some interesting clothing and backgrounds. And the “roving participant.” This is the person who signs on from a phone, then proceeds to stand up, sit down, go outside, come inside, go outside again, get in the car, drive a little bit. Thankfully, this usually happens with

non-lawyer participants, though I have heard of a lawyer joining a hearing while walking down the street. I blame our multitasking culture. Just because technology now makes it possible for a person to get an uncontested divorce while picking up the dry cleaning doesn’t make it a good idea.11 These are still court proceedings that are serious and warrant a measure of decorum. Just ask yourself, would I do this if I were sitting or standing in a courtroom? Even if you are appearing at a hearing from home, that informal setting is now an extension of the courtroom. Your dining room table is the counsel table. You still need to dress and present yourself in the same professional way. Suppose you are at your office desk with the case file in a cabinet nearby. “Hang on, judge, let me grab that pleading from the file.” You wouldn’t think of answering a question that way in the courtroom, and the convenience of a remote proceeding should not be a license for that kind of lack of preparation. The same extends to non-lawyer participants, though they may have a better excuse for not knowing better. Just as you would prepare a client or witness for what to expect at the courthouse and how to dress and behave, you should now add to the preparation some basic Zoom etiquette. There are some things that are peculiar to virtual proceedings like muting and unmuting audio and starting and stopping video. No one has these controls in the physical courtroom; indeed in the physical realm we hardly ever think of audio and video separately. Before we even get to the start of the hearing, there is the fundamental Rule 0 of preparation: Test and be proficient with your equipment. Fumbling to get sound or video connected or to figure out how to mute or unmute is very aggravating. Rules 1 and 2 of Zoom etiquette: Keep yourself on mute except when speaking, and avoid connecting from places that have unnecessary background noise.12 I don’t know if there is a Rule 3 for when to turn your video on or off.

Md. Rule 2-804(a).

Being in a non-MDEC jurisdiction compounded the challenges many times over. There is a whole separate story to be told about accomplishing the most basic work tasks using a paper-dependent system that is oriented almost entirely to communication by ordinary mail. Both platforms have advantages. In very broad terms, I found that Skype offered some advantages on the administrative or back end, probably because it is a Microsoft product and integrates better with Outlook for scheduling purposes. But the public, including lawyers, seemed less familiar with Skype. Zoom quickly became more attractive to more people, and the Judiciary became licensed with Zoom for Government. The waiting room and breakout room features in Zoom are particularly useful for certain types of proceedings.

This by no means exhausts the steps needed to ensure full access to the courts. Some participants may not even have a telephone or may have other limitations that prevent participation.

10 11

In our court, the issues were frequent enough to prompt Administrative Judge Audrey Carrión to issue Administrative Order No. 2020-12 to remind all participants in remote proceedings of some basic rules of decorum including that they “ensure that distractions are not present, such as driving.” See http://www.baltimorecitycourt.org/wp-content/uploads/2020/10/Admin-Order-2020-12-10.29.2020-3. pdf (last viewed Nov. 23__, 2020). A nifty feature of Zoom is that your spacebar operates like an old-style microphone button to toggle between mute and unmute. In a particularly interactive hearing, that can make it easier to obey Rule 1 without fumbling with a mouse to find and click the on-screen button.

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Switching video on and off with any frequency is distracting, and counsel appearing for the hearing should remain on video throughout unless there is a good reason to go off camera. A party or witness, on the other hand, could well turn off video either for comfort or to avoid creating a distraction. My nomination for Rule 4: Beware of chat. Using chat to communicate logistics from a breakout room is legitimate, but trying to communicate by chat as a supplement to the verbal portion of the proceeding is not. Trying to engage in private chat during a proceeding is just plain dangerous.13 The separate emphasis on video is a new feature of virtual proceedings. The preference for video is explicit in Rule 2-803 for evidentiary proceedings that involve assessment of demeanor, but I find video to be extremely desirable in all types of virtual proceedings. It is certainly possible to have an effective hearing with one or even all participants connected only by audio, but the visual element dramatically enhances the ability to communicate. Seeing the person who is speaking provides a dimension that is lacking with an audio-only connection. Even when the audio connection is perfectly clear, the absence of visual contact requires extra mental effort. It’s a little like sloppy writing. The idea may still get through, but disorganization or typos can detract from the message. My advice is to work hard to make sure that you and any important participant has the ability to join the proceeding with video.14 Ironically, just as video adds an element of wholeness that enhances communication, it also can add distraction. Eye contact is important. I am guilty on this one. When I am at my desk, I have a larger monitor and a laptop with a smaller monitor to one side. The camera is on the laptop, but the large monitor attracts my attention, which shifts my focus away from the camera. In a piece on virtual voir dire, one trial lawyer advised to arrange your equipment to ensure an ability to look directly into the camera even while observing the prospective juror on the screen. The same trial lawyer emphasizes the need for careful attention to camera angle and lighting and other “production values.” 13

One area where there is now an even higher premium on advance preparation is exhibits in any type of evidentiary proceeding. In olden times, a piece of paper might be handed in the courtroom from counsel to the clerk to be marked to opposing counsel to be reviewed to the witness for testimony to the judge for ruling and back to the clerk.15 Although the technology allows for sharing documents on the screen, not many of us are fully proficient with that technique (yet). (Maybe my MDEC sisters and brothers have that proficiency.) Even that method requires having all potential exhibits scanned and ready to go electronically. But the more practical technique is to exchange all pro-

courtroom, but we did jury selection remotely. We had some entirely “virtual jurors” who never reported in person. They participated entirely by Zoom from home or another location. To avoid excluding jurors who either did not have technology or chose not to use it, other jurors reported in person but participated in jury selection from an electronically equipped room in the Mitchell Courthouse. The trial lawyers got to see and hear every prospective juror on screen for individual voir dire. That was obviously not an in-person interaction, but it may actually have featured a clearer face-to-face opportunity for observation. Virtual jurors had the luxury of being in their private settings and not having

Seeing the person who is speaking provides a dimension that is lacking with an audio-only connection. posed exhibits electronically well in advance of the hearing. Every necessary participant – counsel, opposing counsel, witness, and judge – should have the proposed exhibits with uniform numbering and the ability to view the documents on her/his own device. As long as all are literally on the same page, the hearing can proceed with clear testimony about the exhibits and the court ruling on admissibility.16 It gets trickier with exhibits or other documents used solely for impeachment, such as deposition transcripts and interrogatory answers. Those might not be shared in advance, but the lawyer planning to use them still has to be prepared with them in electronic form.

to wear masks at all. In-person jurors were given clear masks to make more of their faces visible. In some cases, the lawyers may even have derived some information or impression from the setting in which a virtual juror appeared that would not have been provided in a courtroom setting. I will leave it to the trial lawyers in those cases to rate the effectiveness of the process from the standpoint of whatever intangibles they seek from voir dire, but from the court’s perspective the process was fully effective to explore any basis to excuse a juror for cause.

As I mentioned above, our court accomplished four civil jury trials in October and early November, before the pandemic forced another suspension of jury trials. The trials themselves were in-person events in the WEB EXTRA

Read the full article on the MSBA blog at MSBA.ORG/REMOTE-PROCEEDINGS

A corollary is to avoid careless use of the electronic meeting invitation. We occasionally see counsel trying to use those invitations to communicate privately with their clients or witnesses. Reply all is a dangerous thing, and lawyers need to be very careful about where these communications go.

I can’t offer hard data on this, but as we moved from Skype to Zoom, the regularity of both lawyers and non-lawyers using video during proceedings increased substantially. Part of that may have been people getting more accustomed to video participation generally; part of it may have been people acclimating to Zoom much more quickly than to Skype.

Even in the in-person realm, this should not happen. Counsel should have provided opposing counsel with all proposed exhibits in advance, and they should all be pre-marked.

The judge then has to be careful after the fact to make sure that all exhibits actually used – either admitted or only marked for identification – are printed to become part of the record.

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Together, we are

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MSBA exists to support and empower the entirety of the legal profession every day, even more so when it is facing unprecedented challenges. Joining MSBA or renewing your membership will allow us continue to work for you, for the profession, and in anticipation of future needs. During this challenging time, the MSBA has dedicated its efforts to providing critical resources to our members and the entire profession, including 30+ COVID-19 webinars, free virtual learning through 150+ CLEs, our Maryland Bar Journal and twice-weekly newsletters, a COVID-19 website, and important updates via our section lists.

Over the last several months, MSBA has continued to advocate for the profession and encourage community and connection through: Ongoing COVID-19 advocacy and access to justice efforts with the Governor’s Office, Federal and State Judiciary, and legislators Successfully defeating the proposed taxation of legal services in Annapolis Obtaining several Emergency Orders to aid our practitioners through remote notarization and remote witnessing of wills and trusts, and to restrict certain evictions and foreclosures Continuing our robust programming, with over 850 attorneys joining us in November for our inaugural virtual Legal Excellence Week, featuring several of our CLE Institutes and Fall Summits Providing confidential counseling and treatment services to hundreds of attorneys with alcohol or substance abuse issues, exacerbated by the pandemic Your MSBA has been fighting for you long before this pandemic, and will keep fighting long after. We are grateful for the attorneys who have helped us reach 99% of our goal during this membership renewal campaign. Thousands of attorneys in all segments and at firms, corporations and entities of all sizes are part of one profession at MSBA, the home of the profession in Maryland. If you haven’t already, we would love for you to join the growing number of attorneys who call MSBA home. Because together, we are stronger.

M S B A . O R G / S T R O N G E R TO G E T H E R

FOR YOUR PRACTICE

| EMERGING ISSUES

Practical Considerations for the Admissibility of Artificial Intelligence Evidence BY PAUL W. GRIMM, U.S. DISTRICT JUDGE, DISTRICT OF MARYLAND Imagine a world where technology, powered by machine learning algorithms, can detect tumors using MRI’s better than doctors, evaluate the performance of employees, review resumes from thousands of job applicants and select the best fit for hiring, determine the credit worthiness of a mortgage seeker, search a terabyte of electronic information produced during civil discovery to find key evidence in a case, identify a person from a blurry image in a security video, predict the most persuasive legal argument to advance in a brief, and help judges determine the type of sentence to impose in a criminal case. That world exists, and we are living in it right now. That technology is called Artificial Intelligence, or more colloquially, “AI.”

BUT DESPITE THE FACT that, in

the course of only a few years, AI-powered software applications have become widely accepted in both the private and public sectors, there are very few reported legal decisions that give helpful guidance to lawyers and judges about the standards that should be met before AI-generated evidence is admitted in civil and criminal cases. To be sure, much has been written—some of it quite alarming—by academics, expressing concerns about the trustworthiness of AI-powered software1, and some courts have discussed potential issues about AI evidence used during criminal sentencings2 (where the rules of evidence do not apply)3 or in support of a motion for summary judgment.4 Yet very little has been written that gives practical advice to lawyers and judges about where they should focus when determining whether AI evidence should be admitted or excluded in civil and criminal trials. In this article, I will take a stab at doing so. First, I need to define my terms, starting of course with “Artificial Intelligence.” AI may usefully be defined as the ability of a computer to equal or exceed the capacity of 5

humans to perform tasks that require cognitive abilities, such as perception, classification, reasoning, language comprehension, prediction, or evaluation. AI applications are not monolithic—there are many variations. AI programs can be “narrow,” if they are programmed to accomplish a specific task, or “strong” if they are programmed to match or outperform humans at a full component

But what almost all AI programs have in common is that they are powered by one or more algorithms. of human tasks. But what almost all AI programs have in common is that they are powered by one or more algorithms. An algorithm is “a step-by-step procedure for solving a problem or accomplishing some end.”6 Algorithms can be written by humans,

of course. But they also can be written by computers. The phrase “machine learning” often is used to describe AI technology. That means that the AI is “trained” to analyze data in order to perform particular tasks such as classification (is the evidence relevant or irrelevant? privileged or not privileged?), ranking (ordering data in a continuum from low value to high value), and regression (assigning a specific quantitative value to data, such as identifying the precise probability that an event will happen). This training can be “supervised,” such as when the operator “shows” the algorithm examples of the “right” response, differentiating between correct and erroneous selections, after which the AI analyzes unlabeled data and makes the selections based on its “training.” Or, it can be “unsupervised,” in the sense that the operator does not “show” the machine correct responses from which to differentiate correct from incorrect selections, but rather allows it to look for similar patterns, groupings, or characteristics, selected by the algorithm without direct user feedback. Two related, but distinct, concepts must be kept in mind when evaluating the admissibil-

See, e.g., Melissa Hamilton, The Biased Algorithm: Evidence of Disparate Impact on Hispanics, 56 Am. Crim. L. Rev. 1553 (2019); David Lehr & Paul Ohm, Playing with the Data: What Legal Scholars Should Learn About Machine Learning, 51 U.C. Davis L. Rev. 653 (2017); Michael L. Rich, Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment, 164 Univ. Pa. L. Rev. 871 (2016); Andrea Roth, Machine Testimony, 126 Yale L.J. 1972 (2017).

State v. Loomis, 371 Wis. 2d 235 (2016).

Fed. R. Evid. 1101(d)(3); Md. R. 5-101(b)(9).

Hous. Fed’n of Tchrs., Loc. 2415 v. Hous. Indep. Sch. Dist., 251 F. Supp. 3d 1168 (S.D. Tex. 2017).

In defining these terms and concepts, I borrow from a soon-to-be submitted for publication law review article that I have co-authored with two eminent computer scientists (one of whom also is a highly experienced lawyer). Paul W. Grimm, Maura R. Grossman, & Gordon V. Cormack, Artificial Intelligence as Evidence (Draft). A copy is available for inspection with this author.

Algorithm, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/algorithm (last visited Nov. 18, 2020).

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ity of AI evidence. In legal parlance, “reliability” usually connotes accuracy—the ability to trust or depend upon information.7 But scientists break down the notion of trustworthiness into two distinct parts: “validity” and “reliability.” Validity refers to accuracy, the degree to which technology accurately performs the functions it was programmed to do, or the frequency of correct responses as opposed to incorrect responses when employed. Reliability refers to the consistency with which technology produces accurate results when applied under similar circumstances. Stripped to their essentials, validity means accuracy, and reliability means consistency of accuracy. Both are required for the result to be trustworthy. But here is the catch. No technology is error-free. Technology need not be perfect in order to be useful. The amount of error that can be tolerated depends on the purpose for which the technology is used and the magnitude of the harm that can result if its use results in outcomes that are untrustworthy. Thus, an AI program that searches large data sets to identify evidence relevant to a civil suit may be “good enough” if, for example, it has a 15 percent error rate, especially if the same search performed by humans will have an error rate of 30 percent, and cost 7

a lot more money. In contrast, an AI program could be used to recommend a sentence for a judge to impose on a criminal defendant based on its prediction of the likelihood that the defendant will recidivate. A 20 percent error rate may be too great to risk imposing an unfair sentence. It depends. The validity and reliability of AI technology depends on how, and by whom, it was programmed8. This can be affected by programmer bias, whether explicit or implicit. Similarly, there currently are no legal or regulatory standards that govern how valid and reliable AI programs must be before they can be put into circulation, which means that the developers may not have tested the program sufficiently before releasing it. There

been tested. And, there may be a lack of transparency or explain-ability associated with AI technology—an inability (or unwillingness) to explain, in terms that can be understood by lay persons, how it operates, produces sufficiently trustworthy results, and is appropriately being used for the purpose for which it was designed. With these concepts in mind, how should lawyers and judges evaluate the admissibility of AI evidence? First, of course, it must be relevant,9 meaning that it has some, even if slight, ability to prove or disprove facts that impact the outcome of a case. Ordinarily, this is not a particularly high bar, and a case can be made that even AI evidence of suboptimal trustworthiness has some probative value. But

The validity and reliability of AI technology depends on how, and by whom, it was programmed. also is something known as “function creep,” meaning that AI programs that are valid and reliable for one function are used for another for which their validity and reliability has not

relevance must be tempered by the need to prevent the introduction of evidence that is unfairly prejudicial, confusing, or misleading.10 As applicable to AI evidence, judges must

Reliance, Black’s Law Dictionary (10th ed. 2014).

See supra note 5. Fed. R. Evid. 401, Md. Rule 5-401. Evidence is “relevant” if it has any tendency to make a fact that is of consequence to the litigation more or less probable than it would be without it. Thus, even slightly probative evidence is relevant.

Fed. R. Evid. 403, Md. Rule 5-403. These rules prohibit introduction of evidence that is relevant if, for example, its probative value is substantially outweighed by the danger of “unfair prejudice, confusion of the issues, or misleading the jury.” The trial judge makes the assessment of whether any of these unwanted consequences is likely to apply as part of her preliminary assessment of the admissibility of the evidence. Fed. R. Evid. 104(a), Md. R. 5-104(a). But, if the relevance (and hence admissibility) of the evidence depends on “fulfillment of a condition of fact,” then the finder of fact (think “jury”) ultimately

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be prepared to evaluate whether it was used for purposes for which its validity and reliability has been shown sufficiently to outweigh the risk of unfairly prejudicing the adverse party, or confusing or misleading the jury. So, how does the judge do this? He or she must rely on the proponent to show that the AI evidence is authentic, meaning it does what its proponent claims that it does.11 The proponent must do this by a preponderance of the evidence—more likely than not.12 But keep in mind that this rather minimal requirement must still be balanced against the danger of unfair prejudice, or confusing or misleading the jury, and that will depend on an assessment of the magnitude of the risk of harm that will flow from admitting AI evidence of insufficient validity and reliability. The greater that risk, the greater the prejudice, and the corresponding need for the trial judge to exclude the evidence. The most common ways in which the proponent of AI evidence can authenticate it is by calling a witness with personal knowledge to testify.13 However, because AI programs can be very complex and involve many different aspects of science and technology, it may not be possible for a single person to authenticate its validity and reliability. Nonetheless, because a witness that qualifies as an expert under Fed. R. Evid. 702 and Md. Rule 5-702 can testify about matters about which she or he lacks personal knowledge (Fed. R. Evid. 703, Md. Rule 5-703) if supported by reliable information provided by others, using an expert to authenticate AI evidence may be the best way to do so.14 Fed. R. Evid. 901(b)(9) and Md. Rule 5-901(b)(9) allow authentication by “evidence describing a process or system” shown to produce accurate results, which, when combined

with Fed. R. Evid. 901(b)(1) and 5-901(b) (1), is the most effective way to authenticate AI evidence. How then does the proponent of AI evidence show that it was the product of a system or process that produces accurate results? By showing that the AI technology has sufficient validity and reliability when used for the task to which it was applied, taking into consideration the danger of unfair prejudice to the party against which the evidence is admitted. While the authentication rules do not prescribe the methodology to assess the accuracy of an AI system or process, Fed. R. Evid. 102 and Md. Rule 5-102 instruct lawyers and judges to construe the rules of evidence to achieve fairness, and to promote the development of the rules of evidence with the goal of ascertaining the truth and achieving the just determination of the case. The best way to do this, in my opinion, is to borrow the methodology for assessing the admissibility of scientific and technical evidence set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., and very recently adopted by the Maryland Court of Appeals in Rochkind v. Stevenson: Has the AI program been tested?; has its underlying methodology been subject to peer review and publication?; what is the known or potential rate of error associated with the technology?; if there are accepted methods and standards controlling the application of the technology, have they been complied with?; and is the methodology used to develop the technology generally accepted as reliable by the relevant scientific or technical community?15

admissibility of AI evidence. But applying these factors requires sufficient disclosure of the underlying information needed to assess each one.16 Judges must insist that adequate pretrial disclosure of this information is made, to allow proper assessment of AI admissibility, and resolve AI challenges as far in advance of trial as possible. Artificial Intelligence technology is here now, and its use is growing. We cannot respond to artificial intelligence with genuine ignorance. Lawyers and judges must have a means of assessing admissibility of this evidence that is principled and achieves fair results. It is hoped that this article offers helpful suggestions as to how this can be done. JUDGE PAUL W. GRIMM serves as a District Judge for the United States District Court for the District of Maryland. He was appointed to the Court on December 10, 2012. Additionally, Judge Grimm is an adjunct professor of law at the University of Maryland School of Law, where he teaches evidence, and also has taught trial evidence, pretrial civil procedure, and scientific evidence. He also is an adjunct professor of law at the University of Baltimore School of Law, where he teaches a course regarding the discovery of and pretrial practices associated with electronically stored evidence. He is a frequent contributor of MSBA publications.

The Daubert/Rochkind factors provide a familiar and helpful analytic framework for lawyers and judges to assess the

WEB EXTRA

Judge Grimm and Prof. Maura Grossman will be teaching "Artificial Intelligence as Evidence' as part of the MSBA Legal Summit Series on April 20. Register at MSBA.ORG/AI-EVIDENCE

must decide whether the essential foundational fact has been proven when that fact is in dispute. When the necessary foundational fact is disputed, the trial judge first determines whether a reasonable jury could find that the disputed fact exists based on the competing versions of the facts the parties are proffering. If so, the judge “preliminarily” lets the jury hear the evidence, subject to their determination that the proponent of the fact has shown by a preponderance that it is what the proponent claims it to be. 11

Fed. R. Evid. 901(a); Md. R. 5-901(a). Lorraine v. Markel Am. Insurance Co., 241 F.R.D. 534, 542 (D. Md. 2007); United States v. Holmquist, 36 F.3d 154, 168 (1st Cir. 1994) (“the standard for authentication, and hence admissibility is one of reasonable likelihood”).

Fed. R. Evid. 901(b)(1); Md. R. 5-901(b)(1). The “testimony of a witness with knowledge that the offered evidence is what it is claimed to be.” That witness must either have personal knowledge of these facts, Fed. R. Evid. 602, Md. R. 5-602, or, if not, qualify as an expert under Fed. R. Evid. 702, Md. R. 5-702. Unlike lay witnesses, experts need not base their testimony on facts for which they have personal knowledge. Fed. R. Evid. 703, Md. R. 5-703, permitting experts to base their testimony on facts or data that is made known to them at or before the time that they testify, and allowing them to rely on evidence that, while reliable, is not itself admissible.

Fed. R. Evid. 902(13) allows the authentication of “a record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person . . . ,” which allows written authentication instead of in-court testimony. Either way, the witness must be qualified, either with personal knowledge or as an expert. Maryland has no rule of evidence equivalent to Fed. R. Evid. 902(13).

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Rochkind v. Stevenson, 145 A.3d 570 (Md. Ct. Spec. App. 2020).

Judges must be alert not to let claims of trade secret or proprietary information shield the developer of AI technology from producing the information needed to assess its validity and reliability. Developers of AI technology that is licensed to others frequently resist producing it during pretrial discovery, because they regard it as a trade secret. But courts frequently require disclosure of trade secrets or proprietary information, subject to reasonable protective orders. And if a court is unwilling to do so, it must either insist that the proponent of the AI evidence meet its burden of showing that it produces valid and reliable results, or not allow the evidence to be admitted at trial. See, e.g., Hous. Fed’n of Tchrs., Loc. 2415 v. Hous. Indep. Sch. Dist., 251 F. Supp. 3d 1168 (S.D. Tex. 2017).

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MEMBER FOCUS

| MEMBER SPOTLIGHT

AT TO R N E Y, AU T H O R , A N D

ENTREPRENEUR SHARNAE SMITH Smith Ventures, LLC Sharnae Smith is an attorney who focuses her practice on Business Law and Estate Planning. In addition to her law practice, Ms. Smith has developed several complementary businesses and self-published her first book in 2018 “Mogul Moves: Practical Tips for Mastering Entrepreneurship.”

Photo courtesy of Beverly Funkhouser Photography 42

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RECENTLY, WE CAUGHT UP with Ms. Smith to learn more about her legal career and other ventures that are in the works.

What does being an attorney mean to you? In many ways, it means the freedom to be able to control my own destiny. Being a lawyer opens up so many doors for different types of careers, and you can do just about anything with a law degree, including entrepreneurship. A legal education is invaluable.

What does social media add to your practice? Social media has added the ability for me to reach an audience that I would not otherwise have been able to reach. It allows me to connect with potential clients, potential business partners, and honestly I’ve made a few new friends through it as well.

How does being part of the legal profession differ from what you expected? Growing up, I thought that the legal profession encompassed only lawyers and judges that hung around in the courtroom all day, I thought lawyers only litigated. The legal profession is much more than that. I see it in politics, advocacy of varying kinds, business ownership, education, and so many other areas. It’s so broad!

What is your fondest memory of your legal career so far? My fondest memory of my legal career so far was when I participated in the MSBA Leadership Academy. I made so many connections, and have some new lifetime friends from it.

Tell us a little about your biggest project related to your professional career right now.

“

My biggest project related to my professional career right now is a project that my younger sister, who is a pediatric nurse practitioner, and I are joining business forces to create. With my experience in the legal field and hers in the medical field, we decided that we would team up and create several pre-recorded online courses

that will assist the public in their time of need. There are a lot of instances where the legal field and medical fields intersect and our goal is to educate the public in practical ways. We would love to see more people with greater access to the information they need to make informed decisions about estate planning, social security, and nursing care, and etc. This is important to me because so many people just need help. Many people cannot afford to reach out to an attorney for advice, many cannot afford to have visits with their physicians because they’re un/under-insured, and things as simple as how to fill out paperwork in certain situations are not readily available to the public. People tend to resort to ignoring these important topics because they do not have the resources they need to get the help they want. Our goal is to bridge the gap between the “haves” and “have-nots” and give people an option to help themselves instead of not starting.

You wrote a book recently, tell us a little bit about that project? What motivated you to write? I self-published a book called Mogul Moves: Practical Tips for Mastering Entrepreneurship, in October of 2018. I would always get questions from people about business, from the formalities of them down to social media presences. I decided to write the book because I knew that I could speak to the reality of entrepre-

There are a lot of instances where the legal field and medical fields intersect and our goal is to educate the public in practical ways. MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

neurship. It’s sensationalized in many ways, especially in the social media age. There was a time where I totally stopped doing it because I felt that was the best decision for me at that time. Entrepreneurship is a journey filled with ups and downs. Those ups can sometimes be really up, but the downs can also be really down. The book gives practical tips on what’s needed to weather the storms and how to best set yourself up for success, starting with your mindset.

What are your goals that you are hoping to accomplish in the upcoming year? In the upcoming year, I’m hoping to do less. Though the pandemic has given many people the opportunity to slow down, I’m still very busy. My hope is to institute systems that work for my business(es) so that I can slow down a bit.

What’s a cause or charity that you are passionate about? There’s so many, but the cause I am most involved with is autism awareness. I have younger loved ones and friends that have children on the autism spectrum. I participate in walks/runs at least twice a year for this cause.

What’s your favorite vacation spot?

WEB EXTRA

Read the full article on the MSBA blog at MSBA.ORG/SSMITH

This is a very hard question to answer. I really just like to travel! Any place with water and mountains are right up my alley. I’ll name a few places that I loved. For ease, the hospitality, and the all inclusive vibes, the Dominican Republic. For places that required more planning Waikiki,Hawaii; Panajachel, Guatemala; and Split, Croatia.

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The ABA Retirement Funds Program is available through the Maryland State Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2020) carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@abaretirement.com. Securities offered through Voya Financial Partners, LLC (member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya, the ABA Retirement Funds, and the Maryland State Bar Association are separate, unaffiliated entities, and not responsible for one another’s products and services. CN1180686_0522

MEMBER FOCUS

| SECTION PROFILE

MEET THE COUNCIL

Negligence, Insurance & Workers' Compensation Section SCOTT M. HARTINGER Maryland Bar Foundation Fellow Chair of the Negligence, Insurance & Workers’ Compensation Section Ethridge, Quinn, Kemp, Rowan & Hartinger

"Having a client say 'thank you' at the end of a case never loses its power."

What do you love about your role as Chair of the Negligence, Insurance & Workers’ Compensation Section? The camaraderie of the Section members is amazing. The members represent all aspects, from Claimant/Plaintiff & Defense lawyers to Commissioners and Judges, all working together to make the practice of law better for clients, the system and practitioners. Seeing how much energy this group of people devotes to the profession is remarkable.

What is your fondest memory of your legal career so far? Having a client say “thank you” at the end of a case never loses its power. In the category of “truth is stranger than fiction”, one example involves a former personal injury client, who happened to be a very kind, friendly, elderly woman. She was the type of person you wanted to help across the street. A few years after the representation, she was in the jury pool for a case I was about to try. When the Judge asked the jury pool if they knew the lawyers, she did not respond. I asked to approach the bench and explained that I thought this particular juror was a former client. The Judge asked her to approach the bench and after explaining the possible relationship, the former client gasped and, very loudly, said “oh my, I never got to properly thank you for handling my case. You did a great job. Thank you!” The entire jury pool laughed and I gained instant credibility with the prospective jurors.

What’s a cause or charity that you are passionate about? The Boys & Girls Club of Frederick County. I served on the Board for several years. It is a great organization that gives opportunity to those with less means.

What’s an interesting fact about you that no one would guess? I was an “extra” in the movie “Gettysburg”.

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FATIMA H. GARLAND Maryland Bar Foundation Fellow Assistant County Attorney, Office of the Montgomery County Attorney Why did you enter the legal profession? I learned early in life that I love debating and arguing my case. This love for debating was solidified in high school during a class debate assignment. I enjoyed outlining my argument and arguing my case so much that I knew at that moment that I wanted to go to law school and become a litigator.

Tell us a little about your biggest project or passion project related to your professional career right now. My current position in the Montgomery County Attorney’s Office furthers my passion for litigation and public interest law. I have always had an interest in being a litigator and in public service. I started my legal career as an Assistant Public Defender in Montgomery County, where I worked for 5 years, providing legal representation to individuals who were unable to afford private counsel. Now, in my current role, I serve the public in a different capacity, by representing the County, as Employer, in a variety of workers’ compensation cases. Each of these roles has allowed me to use my skills as a litigator to effectively represent both individual members of the public and Montgomery County as a whole.

How has the MSBA helped you in your legal career? It has helped me tremendously. Since becoming a Section Councilmember of the Negligence, Insurance and Workers’ Compensation Section several years ago, I have had the opportunity to network with a variety of attorneys in my practice area as well as receive valuable education and training through CLE programs and seminars.

What’s a cause or charity that you are passionate about? I lost my step-dad to lung cancer 9 years ago. Since then, fighting/finding a cure for cancer and the American Cancer Society has been a cause and charity that I’m passionate about.

"I have always had an interest in being a litigator and in public service."

GRETCHEN A. ROGERS Partner, Berman Sobin Gross Feldman & Darby LLP

Why did you enter the legal profession? When I was in kindergarten, I came home from school and told my parents about the kid in class that was being picked on. They told me that if it happened again that I should stand up for him. Standing up for others became the normal practice throughout my childhood and led me to wanting to be a lawyer. It also helped that I wanted a career that would keep me interested and would continue to challenge me. I never wanted to be someone that just sat behind a desk looking at the clock. The legal profession (and especially litigation) is never boring, and it certainly challenges me each and every day.

What is your fondest memory of your legal career so far? After months of trying to negotiate with the workers’ compensation carrier to accept a traumatic brain injury case so that my client would receive the proper medical treatment and indemnity payments while he was unable to work, we were forced to attend a hearing. After submitting our evidence, the Commissioner was so appalled at the workers’ compensation carrier’s disregard for my client that he ordered the adjuster to come to a follow-up hearing. When the carrier’s attorney advised the Commissioner that she 46

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was based out of State and she would be unable to attend, the Commissioner’s response was, “I don’t really care where she is located. I want her here to explain to me why this case was disputed. You will get her here whether it is by plane, train or automobile.” Needless to say, from that point on, my client received all the benefits he was entitled to.

What are your goals for this year? Creating a better work-life balance for myself and those in my firm especially for our newer associates. I think there is a huge misconception that success is determined by the number of hours you put in when you are just starting out. Although I want (and expect) our new hires to work hard, I also want them to be able to recognize that life is about balance. It is a struggle to realize that sometimes we just need to take some time off, whether that be an hour or two or a week. Creating a firm culture that encourages our attorneys to be mindful that there is more to life than just work is what I strive for at our firm.

What’s a cause or charity that you are passionate about? HEROES. It is a charity dedicated to assisting families of law enforcement officers and firefighters who died in the line of duty.

MATTHEW TROLLINGER Founder and Lead Trial Attorney, Trollinger Law, LLC

Tell us a little about your biggest project or passion project related to your professional career right now.

"Community involvement is an ever evolving, high priority for our firm."

Community involvement is an ever evolving, high priority for our firm. Youth sports, veteran assistance, and groups that focus on homelessness in Charles County are always areas of focus. However, during the 2020 pandemic, Trollinger Law connected local urgent care and hospital workers, police and firefighters throughout southern Maryland with local restaurants by providing meals to encourage their service to our community. We have a heart for our public safety, and community heroes. Trollinger Law honors three first responders that are nominated by their community and sponsors “First Responder’s Night” with our local baseball team in Waldorf, the “Southern Maryland Blue Crabs”.

What is your fondest memory of your legal career so far? Winning a verdict for two clients in a jurisdiction not known for high personal injury verdicts. It was a hotly contested case with multiple depositions of different parties with the defense calling into question the lasting impact of injuries suffered by the Plaintiffs. In this case, it was a thrill to be able to help the clients tell their story through their coworkers, family and treating surgeon. We achieved a verdict over ten times what the offer was pre-trial.

What are some of the challenges you face in your practice? Being a small business owner and lead attorney creates many conflicts of time and emotional stress. Trying to balance growing the business while not neglecting my family and own well being is the biggest challenge. However, this pandemic has certainly taught me that the most valuable things we have in this life have nothing to do with money or the next case, but the ones we care about most and their physical, emotional and spiritual wellbeing.

What’s an interesting fact about you that no one would guess? At the time of my college graduation, I was 4th all time in steals and 9th all time in assists in my team’s water polo history (which will never change because the team went from varsity to club after my graduation).

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TERRENCE G. DOYLE Assistant Attorney General, Office of The Attorney General Tell us a little about your biggest project or passion project related to your professional career right now. Over the last 30+ years, I have assembled a rather large collection of files containing sample motions on various legal issues, related to Worker’s Compensation law and other areas of the law, as well as files containing legal research and memorandum of law on a variety of subject matters. Over the years these files, once kept in meticulous alphabetical order, had become scattered about in various locations in my office and at home. I am now attempting to once again organize these files into usable form so that they can be located without forming a search party!

Why did you enter the legal profession? I was interested in the legal profession from an early age, probably owing to the fact that my father was an attorney. That, and watching too many Perry Mason episodes. Then, in the sixth grade, our class presented a mock trial of a hypothetical criminal case and I volunteered to be the defense attorney. While I cannot remember the outcome of the trial I was fascinated by the experience nonetheless and pretty much knew where I was headed at that point.

What is your fondest memory of your legal career so far? My fondest memories probably when I was hired by a small Worker’s Compensation defense firm which had an excellent reputation in the comp community. Although I already had several years’ experience working as in-house counsel doing defense work for a government insurance company, this was the opportunity for me to really learn and grow my skills in the practice of Workers’ Compensation defense.

What’s your favorite hobby? Attending any and all types of sporting events and playing golf. I am also trying to learn to play the guitar.

The Negligence, Insurance & Workers’ Compensation Section recently held “Farewell Frye-Reed: Practical application of the Daubert Standard for Expert Witness.” In that program, Hon. Paul W. Grimm, District Judge for the United States District Court for the District of Maryland discussed the Daubert standard following Rochkind v. Stevenson and the impact on handling of expert witnesses in accord with the State and Federal Rules of Evidence. You can access a recording of this program at msba.org/Frye-Reed. In addition, the Section works frequently with the MSBA Department of Learning on a variety of CLE, including the upcoming “Hot Tips in Workers’ Compensation” currently scheduled for May 13, 2021. Registration for this program will open soon. The Section also plans to present a program at the MSBA Legal Summit & Annual Meeting in June. The program, titled “Catastrophic Injuries in Tort and Workers' Compensation Cases - Life Care Plans to Home Modifications,” will feature Eric Anderson, Accessible Housing Services, Ace McBride, D’Amore Personal Injury Law, LLC, and Christina Billiet, Waranch & Brown, LLC. The program will provide a general overview of issues arising in catastrophic injury cases, will provide a road map for obtaining the necessary information and documentation to either defend or pursue such cases and will provide resources to both Tort and Workers' Compensation practitioners.

MSBA.ORG | VOLUME 2 ISSUE 3

FOR YOUR PRACTICE

| CRIMINAL LAW NUTS & BOLTS

Clearing the Air on the Odor of Marijuana: New Modern Probable Cause Standards BY JOHN MACLEAN

THE FACT PATTERNS regarding the odor of marijua-

na are classic. Someone on the street smells like marijuana and walks by a police officer and, based upon the odor, is frisked for weapons, arrested, and searched. A police officer

Parameters were further defined. A search of a vehicle emitting the order of marijuana could include searching the trunk. Wilson v. State, 174 Md. App. 434 (Md. Ct. Spec. App. 2007). A police officer’s testimony regarding the smell

In 1977, the year the first Star Wars movie was released, the court held that when a police officer smelled marijuana coming from a vehicle, he had probable cause to believe the vehicle contained marijuana. pulls over a driver for speeding and smells marijuana emanating from the window. The police then search the driver and the car and arrest the driver. Over the last several years, including 2020, significant cases have provided new bright-line tests for determining the officer’s right to search and arrest. The most significant case was recently decided and provides modern black letter law for the classic fact patterns. The History In 1977, the year the first Star Wars movie was released, the court held that when a police officer smelled marijuana coming from a vehicle, he had probable cause to believe the vehicle contained marijuana. He also had probable cause to arrest the driver and search the vehicle. Ford v. State, 37 Md. App. 373 (Md. Ct. Spec. App. 1977). Like the new Star Wars movies that modify the original canon, the issue was altered by the court in 2002. Instead, the court ruled that while a car can still be searched based upon the odor of marijuana, the odor alone is insufficient reason to search and arrest non-owners and non-drivers in a car. State v. Wallace, 372 Md. 137, 159-160 (Md. 2002).

of marijuana from a car was admissible lay testimony. In Re Ondrel M., 173 Md. App. 223 (Md. Ct. Spec. App. 2007). In the 2000’s, Maryland rulings laid the groundwork for future marijuana case analysis. In 2007, the court held in a case involving cigarettes that an individual committing a civil offense did not provide probable cause to believe that the individual possessed additional evidence of a criminal violation for a warrantless search. In Re Calvin, 175 Md. App. 516 (Md. Ct. Spec. 2007). In a case involving the odor of ether, a legal substance but also a component of PCP, the court held that the smell of ether or another lawful substance associated with contraband, on its own, did not constitute probable cause for a belief that contraband was present or a crime was committed. Bailey v. State, 412 Md. 349 (Md. 2010). In 2015, the Maryland legislature declared possession of medical marijuana under specified conditions was legal in the state. Robinson v. State, 451 Md. 94, 133-134 (Md. 2017). In 2017, the Maryland legislature declared that possession of marijuana of under ten grams a civil offense. Pacheco v. State, 465 Md. 311, 326-328 (Md. 2019).

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The Present In 2017, despite decriminalization of possession of less than ten grams of marijuana, the court ruled that a law enforcement officer’s belief that an individual was in possession of marijuana was probable cause to arrest them even if the officer was unable to determine if the amount possessed was more than 9.99 grams. Barrett v. State, 234 Md. App. 653 (Md. Ct. Spec. App. 2017). The court also ruled that there was probable cause to conduct warrantless searches on cars based on the odor of marijuana. Robinson. The court then ruled the K9 alert to the odor of marijuana in a vehicle was sufficient probable cause for searching the vehicle pursuant to the automobile exception requirement despite decriminalization and the dog did not have the ability to distinguish between less or more of ten grams of marijuana. Bowling v. State, 227 Md. App. 460 (Md. Ct. Spec. App. 2016). The law soon changed. In traffic stops, the court held that a police trooper lacked articulable suspicion to frisk a defendant following a traffic stop in which the defendant was a passenger, even though the trooper detected a strong odor of marijuana emanating from the vehicle. Norman v. State, 452 Md. 373 (Md. 2019). The court then held that a police officer who detected an odor of marijuana and observed a marijuana joint in the center console of a vehicle, believed to be less than ten grams, did not have probable cause to search the driver. Pacheco.

passengers. Norman. By extension, without additional circumstances, the officer cannot arrest and do a search of any of the passengers. Norman. In a traffic stop, the officer can search the vehicle, carry out the traffic stop for the initial reason the driver was pulled over, and do basic observations that do not infringe upon Fourth Amendment rights. In a non-vehicle situation, the officer cannot arrest and conduct an incident to arrest search. Lewis. By extension, a Terry frisk is not allowed either unless there are additional factual circumstances. Pacheco. In a non-traffic stop, an officer can ask questions of the pedestrian that are not likely to elicit incriminating answers and do not infringe upon Fourth Amendment rights and do basic observations, like observing public actions. The Odor of Marijuana: The Next Generation Many sci-fi fans would have a visceral reaction to a title mixing the Star Wars movies and the television show Star Trek: The Next Generation (those are two different sci-fi universes and like oil and water, often don’t mix to fans). That is fitting. There would have to be a visceral change in the attitude toward marijuana use for the current standards to change, but that is not to say it can’t happen considering the changes since 1977. The nuances of the current standards are sure to be drawn out, further establishing the boundaries of searches and arrest related to the odor of marijuana.

Most recently, the court held that when someone is not in a vehicle and they smell like marijuana, there is no probable cause to perform a search incident to arrest. Most recently, the court held that when someone is not in a vehicle and they smell like marijuana, there is no probable cause to perform a search incident to arrest. Lewis v. State, Maryland Court of Appeals, decided, July 27, 2020, no Westlaw citation, overruling Lewis v. State, 237 Md. App. 661 (Md. Ct. Spec. 2018). The Present Tests There are now clear tests on the classic fact patterns of arrests and searches based upon the odor or marijuana. If someone is a driver of a car, even if they are holding a marijuana joint under ten grams, the law enforcement officer cannot do a Terry frisk pat down for weapons. Pacheco. By extension, the officer cannot arrest the driver and do an incident to arrest search. Pacheco. The officer can search the vehicle, including the trunk, based upon the odor. Robinson, Wilson. The officer, without additional factual circumstances, cannot do a Terry frisk pat of any

MSBA.ORG | VOLUME 2 ISSUE 3

JOHN MACLEAN is an assistant public defender practicing in Frederick County. The views expressed in this article do not reflect the views of the Maryland Office of the Public Defender.

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Printed replacement pages are now available. Full title is also available in digital and physical formats. MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

The Untol COVID-19 Impact on Attorney Mental Health BY LISA CAPLAN, LCSW-C

MSBA.ORG | VOLUME 2 ISSUE 3

ld Story:

MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

We’re familiar with the stories regarding the changes thrust upon lawyers due to the pandemic. Endless Zoom meetings, adjusting to working virtually and using new tools, being isolated at home, balancing work and acting as teachers, and dealing with changing court procedures. The profession has been evolving, and COVID-19 has accelerated the shifts in what it means to practice law, whether you’re a transactional attorney, litigator, or even an attorney in the Maryland legislature. The story we don’t hear, and one that is becoming ever more apparent, is the impact COVID-19, and this new normal is having on the mental health of attorneys navigating these circumstances. Covid has become the latest stressor

n speaking with lawyers, judges, and law school students about their experiences, it quickly becomes apparent that the pandemic is only part of what has made 2020 so difficult. To different degrees, everyone is experiencing multi-layers of stress - including the pandemic, social unrest, and the election - that has impacted their work and personal life. Initially, everyone, from the news to social media, thought a shutdown would last only a few weeks before returning to our “normal” lives. When one week turned into many weeks, and then months, lawyers, judges, and law students realized this was not ending anytime soon and we needed to learn to adapt to our changing circumstances. The Maryland Lawyer Assistance Program has been around for over 40 years and has assisted thousands of lawyers managing stressful situations, but when the COVID-19 pandemic took hold in mid-March of 2020, and many activities and businesses began to shut down, Lawyer Assistance Programs around the country began to see a slight decrease in cases. • Pennsylvania saw a decrease from mid-March through September, but with an overall increase in mental health cases from last year. • DC reported a sharp decrease in new cases from mid-March through June but continued to see a mix of mental health and addiction cases similar to the prior year. • In Maryland, we saw a decrease in total cases from mid-March through April, but with an increase in the severity of substance abuse cases where clients needed immediate treatment. Further, since April, we have seen an overall increase in new cases over the entire year.

Why the initial decrease in lawyer assistance cases? It seems counterintuitive that the initial challenges of the COVID-19 pandemic would lead to a decrease in cases. However, this initial decrease in cases was not an accurate reflection of the ongoing and actual increased need for self-care and mental health services. Although the need was high, everyone was in survival mode trying to navigate the quick shift to working remotely, postponed cases and court closings, homeschooling and child care of young children, and trying to maintain some sense of normalcy. This left little time for attorneys to tend to their own stress, anxiety, and other mental health issues that were brewing under the surface.

MSBA.ORG | VOLUME 2 ISSUE 3

“

Stress is what I make important today anxiety is what I project to be important in the future. It’s important that I understand, identify, and acknowledge these emotions. Trying to keep family, staff, and self safe during a pandemic is a daunting task. Being sensitive to litigants and parties’ safety and procedural concerns adds another layer of stress and anxiety. Navigating through a pandemic along with social unrest on top of election drama without healthy tools can be completely overwhelming. - CIRCUIT COURT JUDGE CHARLES DORSEY III

MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

Personally, around that time, I had many clients cancel appointments. One client shared that he did not have the time to focus on himself. He needed to figure out how to manage his cases given court closures. He said he was very stressed and anxious about how this would impact his practice, but couldn’t take the time to deal with his mental health at the time. Law students canceled for concern about classes going remote, going from credit to no credit courses, and what would happen with the bar exam. These were clients with mental health, substance use disorders, and a variety of other concerns that couldn’t take the time to take care of themselves because they were focused solely on how to survive the enormous changes.

The real untold story For the first time in my career, I received a call from four attorneys on the same day. They were all in crisis and needed immediate treatment for a substance use disorder. Two called while they were under the influence and desperate to get help sharing, “I wasn’t able to get to my in-person 12-step meetings and relapsed”. “I lost my support system, stressed over work and family and started using daily.” “ Losing my job increased my drinking.” Unfortunately, the disease of addiction by nature is an isolating disease and the shut down was paralyzing and led to relapses, increased use, and destructive behavior. Out of the four, three were admitted to inpatient treatment and one started an intensive outpatient program. Due to financial difficulties from the pandemic three utilized our Bates/Vincent Fund which helps to pay for mental health and addiction treatment. In a typical year, three or four clients utilize the fund. This year, as of the date of this writing, we have had ten clients that needed support from the fund.

“The greatest challenge

“I am so grateful that the Bates/ Vincent Fund is available. I am struggling financially and would not have been able to continue counseling.” - ANONYMOUS

Percentage of Adults Who Report that Worry and Stress Related to Coronavirus Has Had a Negative Impact on their Mental Health 53%

for me has

45%

been isolation and how that

39% 32%

feeds into my depression.” - ANONYMOUS

MARCH 2020

EARLY APRIL 2020

MAY 2020

Source: Kaiser Family Foundation Health Tracking Polls 56

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JULY 2020

Due to lost jobs and lost insurance, we have seen an increase in clients needing help paying for ongoing mental health treatment. A client called, after participating in a training of mine asking how she can utilize the Bates/Vincent Fund to pay for ongoing counseling for her depression. The Bates/ Vincent Fund has saved many lives by allowing them to continue treatment. Even in good times, lawyers already have concerning statistics for substance abuse and mental health issues. According to one study1,1 substantial rates of behavioral health problems were found. The study found that 20.6% screened positive for hazardous, harmful, and potentially alcohol-dependent drinking. Levels of depression, anxiety, and stress among attorneys were significant, with 28%, 19%, and 23% experiencing symptoms of depression, anxiety, and stress, respectively. With the added stress of COVID, there is even more concern for lawyers' well-being. Nielsen reports that for the general population alcohol sales in stores were up 54% in late March compared to the same time period last year, while online sales were up nearly 500% in late April. The AMA reports that more than 40 states have reported increases in opioid-related mortality as well as ongoing concerns for those with a mental illness or substance use disorders. During a crisis like this pandemic and the added stressors our society is experiencing, a heightened state of anxiety caused by layers of stress can continue for long periods of time, preventing people from decompressing. Anxiety can cause nervousness, overwhelming feelings, fear, and uncertainty of the future. It can be paralyzing, exhausting, and inhibit someone from moving forward. Anxiety can lead to depression where you can experience a change in appetite, sleep, and an inability to function in your daily life.

Patrick R. Krill JD, LLM, Ryan Johnson, MA, and Linda Albert, MSSW. “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys.” Journal of Addiction Medicine, Volume 10, Issue 1, January/February 2016, p 46-52.

During late June, 40% of U.S. adults reported struggling with mental health or substance abuse*

31%

ANXIETY/DEPRESSION SYMPTOMS

26%

TRAUMA/STRESSOR-RELATED DISORDER SYMPTOMS

13%

STARTED OR INCREASED SUBSTANCE ABUSE

11%

SERIOUSLY CONSIDERED SUICIDE†

*Based on a survey of U.S. adults aged ≥ 18 years during June 24-30, 2020 †In the 30 days prior to survey

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A Client's Perspective

“

I work for a mid-size law firm in downtown Baltimore. In March, we celebrated our only child’s third birthday at the same time COVID closed the doors of many offices, schools, and businesses. When my daughter’s preschool closed, her nanny took her five days a week. When schools started to reopen in September our nanny gave us the ultimatum it’s – “school or me, but NOT both because of COVID concerns,” I was stumped.

I cannot do my job effectively with a toddler in the background. And, of course, there’s that Zoom deposition where she rolls into the background without a shirt to tell me that Pinkie Pie, the toy pony, got paint on the floor. I was faced with a decision. What if COVID numbers increase in the Fall, closing schools again? We chose school and had zero ideas for child care in the event of a shut-down. The truth of the matter is that we are no different than any other working family hoping to get by in these times. All in all, the lesson is that we are living in a time of complete and utter uncertainty about tomorrow. We are not alone and there are many others with much harder decisions than us.

- ANONYMOUS

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Silver Linings and Suggestions Learning to adapt during difficult times is a sign of resilience. Realizing that life doesn’t stop due to the pandemic and the many other stressors is vital in making it through these difficult times. A lawyer working for a Baltimore firm shared, “Covid has taught me that I could run a law practice out of my home. I now have a printer, scanner, and laptop and have become proficient in Zoom. I've not only conducted depositions via Zoom but all client meetings now take place on Zoom. I actually planned to go to the office today but realized I could get just as much done at home. The remote office will now be a new normal--- if it weren't for the need for human contact, I might not feel the need to go back.” Despite the continued twists and turns the COVID-19 pandemic is having, I would like to offer one suggestion: Continue getting the treatment that you need. Despite how hectic things may become, continue to go to your doctor, counselor, or your support group meetings, they will help arm you with the tools you need to navigate these challenging times successfully. To all of those that are members of the MSBA, Thank You. The fact that you belong to the MSBA allows us to continue to deliver confidential, free counseling and, when needed, refer clients to specialized providers at no cost. You also help support other health and wellness activities to support everyone in the legal profession Being a lawyer isn’t just a job. It’s belonging to a profession and being part of something much bigger. A profession that cares for its own. If you need assistance anywhere in the state, contact the MSBA’s Lawyers Assistance Program at 888-388-5459.

Burnout.

S t re s s.

Su bstance A bu s e .

D e p re s s i o n .

Addiction.

LAWYERS: Get free and confidential support

MSBA’s Lawyer Assistance Program serves all lawyers across the state for a broad range of personal issues. If you are concerned about another lawyer you can make an anonymous referral to the Lawyer Assistance Program. Financial assistance is available for mental health and substance abuse treatment.

msba.org/health-and-wellness

Toll free phone: 1-888-388-5459 MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

Making Yourself a Priority is Not Selfish; it’s a Necessity Strategies To Deal With COVID-19 BY BRANDON VOGEL

If three attorneys are on a Zoom call, one of them will have a substance abuse and/or mental health issue.

MSBA.ORG | VOLUME 2 ISSUE 3

he legal profession stands out among all the professions in the areas of substance abuse and mental illness. About 20% of lawyers have substance abuse problems, which is twice the rate of the general population. In addition, another 15% to 20% of lawyers suffer from a mental health issue. In fact, the Centers for Disease Control and Prevention (CDC) found that three times as many people with professional/graduate degrees are admitting to having adverse mental health conditions in 2020 compared to 2019. These were among several eye-opening facts revealed on the recent CLE webinar, “Ethics, Impairment And COVID-19: The Toll On The Legal Profession & Strategies For Getting Help,” as well as tips and strategies for wellness.

No reason to suffer Buffalo attorney Carla E. Cottrell (Children’s Legal Center), has seen her share of attorneys with impairment issues through the Erie County Lawyers Helping Lawyers Committee. When a colleague overdosed the day of his youngest child’s birthday, leaving behind a wife, two children and a mortgage, Cottrell found a new purpose. “On that day, I decided that I would do everything that I could to help attorneys suffering from mental health or other substance abuse issues,” she said. Cottrell said she sought help for a fear of bridges after her children moved to Pittsburgh, “the city of bridges.” She knew she had to take action due to recurring nightmares. Her therapist asked if she had any trauma. She didn’t think she had any, but when asked about her job, she replied that she was a lawyer in family court. The therapist laughed and said, “Vicarious trauma. Look it up!” Also known as secondary trauma or compassion fatigue, vicarious trauma occurs over time when an individual is exposed indirectly to the suffering of others for whom they feel responsible. It particularly affects family lawyers and criminal lawyers among practice areas. “if your job involves listening to people’s pain and trying to help them, you’ve got vicarious trauma and it can pop up in strange ways such as phobias,” said Cottrell. “You are not immune to it.” What happens if you ignore your mental health or find yourself drinking earlier and earlier each day? Cottrell said you end up in the world of attorney grievance. She recalled that speaking before a CLE as part of Lawyers Helping Lawyers she said that 90 percent of attorney grievances have a substance abuse or untreated mental illness at their root. Seated next to her was the head of the Attorney Grievance Committee who corrected her,” Make that 99 percent!” One place you don’t want to be is under oath giving testimony to lawyers on an attorney grievance, said Cottrell. “It is up to you to take care of your mental hygiene. It is up to you to help your colleagues who may be suffering from a mental health issue.” Substance abuse and mental health disorders are treatable. “There is no reason why you or any of your colleagues or your law clerks or your law students or your judges needs to suffer.” “It’s no secret that COVID has increased isolation among lawyers and lawyers love to talk. It’s our best quality,” said Cottrell. One other downside of COVID-19 is that “in many cases, there are no eyes on attorneys,” particularly solo and small-firm lawyers are working remotely. “It is a lot easier

to not miss court when you are home. It is a lot easier to hide day drinking when you are home. It is a lot easier to hide that smell of alcohol that your colleagues could smell on the elevator. It is a lot easier to hide that mental health issue working from home,” said Cottrell. “Most of us think about what could go wrong and that takes a toll on us as well,” said Cottrell. “We try to please the court. We deal with difficult clients. We deal with difficult counsel. We deal with bosses and we are doing

“

It is a lot easier to hide that mental health issue working from home.

it alone from home. You can see that the temptation to use and the easy availability of those substances is a real problem.”

Physical health = mental health Theresa B. Marangas of Latham (Meier Law Firm) said that making yourself a priority is not selfish, but a necessity. “It is our own responsibility to take care of our health. You hear that analogy of putting on our own oxygen masks first before you put it on others,” said Marangas. Seeking a counselor for mental health should be treated like visiting the doctor to treat an infection, said Marangas. “There is nothing wrong with getting help from a professional for a period of time.” She added that with increased telehealth options available due to the pandemic it is easier to seek help now from a counselor to stay “mentally healthy.” Lawyers do not have to be on the verge of crisis before seeking help from a bar association’s Lawyer Assistance Program. She noted that more bar associations have taken up the issue of wellness in recent years. MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

“We know this is a difficult profession. We know the statistics are against us. We know it is a self-regulating profession and have very high standards of perfectionism in the profession. We know that clients are demanding,” said Marangas. “How do we make it easier for us to continue to practice at our best level of capability?” Admittedly, Marangas said she is prone to sitting at her desk all day long, but she has made a concentrated effort to take longer nature walks each weekend.

She found herself thinking about her clients during off-hours. “I was not showing up for my husband. I was not showing up for my 3-year-old son. Most importantly, I was not showing up for myself.” She quit and teamed up with another lawyer to start their own practice. Acknowledging that although she still experiences some anxiety periodically, she is happier and “in control of her destiny.” She can focus on bigger picture issues and ask herself “is this email really that important?”

“Get your body moving in whatever way makes sense for you,” said Marangas.

She is particularly proud of her letter of engagement that clearly states what she will and will not do, as well as what she expects of her clients and what they can expect of her in return.

Be the attorney you want to be

“I made the decision that I do not want to be empty. I want to be fulfilled. I want to be happy. I want to be content,” said Turner.

Raysheea Turner (Wallace Turner Law) discovered that starting her own firm was key for her mental health after experiencing vicarious trauma as a public defender with 150 cases in her caseload. She was advised to work for the county if she wanted a 9-5 life as a lawyer. “That doesn’t really work when you care and when you’re passionate,” said Turner.

Reprinted with permission from the New York State Bar Association, One Elk Street, Albany, NY 12207. First published at nysba.org on 12/03/2020. The article can be found here: https://nysba.org/makingyourself-a-priority-is-not-selfish-its-a-necessity-strategies-to-deal-withcovid-19/

Her anxiety increased to the point where she was sick. “I knew I could do the job. but it was crippling me,” said Turner. “Something had to give. I had to prioritize what was important to me.”

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HEALTH & WELLNESS

| MEMBER SPOTLIGHT

COACHING SUCCESSFUL ATTORNEYS TOWA R D S SUCCESSFUL R E L AT I O N S H I P S

RACHEL COLL Attorney and Life & Relationship Coach, Rachel Coll Coaching Rachel Coll is an attorney turned Life & Relationship Coach at Rachel Coll Coaching. She began legal career as a judicial law clerk in Montgomery County, Maryland, and then joined the State’s Attorney’s Office for Montgomery County. Following a brief stint in private practice, she transitioned to the State's Attorney office for Baltimore City working in the Special Victims’ Unit. She then returned to private practice before joining the DC Board of Elections, and eventually leaving the practice of law to build her Coaching practice.

MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

WE CONNECTED WITH Rachel to learn a little more about her coaching practice and what coaching has meant to her and her clients.

Tell us a little bit about your professional journey, and your transition from the legal profession to your current role as a Life & Relationship Coach. During my time with the DC Board of Elections, I realized that although my professional life was exciting, and deeply satisfying, my romantic life was a mess. I always had great friendships and relationships with my family, but relationships with significant others felt so dramatic and overwhelming. I started to realize that I was the common denominator in my non-working lovelife, and I hired my first life coach. Coaching is different than therapy or counseling – I’d tried both before, and found that there was a lot of focus on incidents from my past, and things crystalized in history that I just couldn’t change. I felt stuck with who and what I was, and like there was no hope for more stability. Coaching gave me hope. I saw that I was responsible for the way I was thinking NOW, and I could make any changes that I committed my mind to as long as I was willing to work, and feel a little uncomfortable doing so. My life changed forever. I got certified as a coach myself, not really knowing WHAT I would do with the certification, but knowing that I wanted to learn as much as I could. I started informally working with clients about 1.5 years ago, and as my client list grew, I decided to leave my full time legal career last December to focus on my coaching practice.

“

Attorneys are AMAZING. They want to help, they want to always be prepared, they’re perfectionists, they want to earn your trust, they ARE trustworthy. Amazing people become lawyers, and lawyers are a hard-working bunch. They change the world with WORDS. But, we lawyers can also be a bit analytical, argumentative, indecisive, and skeptical. We prepare for the worst, but hope for the best, which is a really difficult state of mind to take home with you. I find lawyers argue with their partners, and themselves, to try and change each other, or change their OWN wants/needs when it’s often best to walk away. I find lawyers also sometimes walk away too soon, convinced that what they’re looking for doesn’t exist. Finding the balance of being excellent at work, but well-adjusted, confident, trusting, and calm in a relationship – takes work. This is the work I do with my clients – so that they can keep crushing it at work, but feel totally happy and satisfied at home. It IS possible – I guarantee it.

How do you view the health and emotional state of those you spend time with? It’s everything. I think lawyers tend to put their own self-care, physical and emotional, on the back burner so that they can take care of their clients and their cases, but it ALWAYS catches up to them. For sure, when I

I think lawyers tend to put their own self-care, physical and emotional, on the back burner so that they can take care of their clients and their cases, but it ALWAYS catches up to them.

I never would have seen myself ending up here. Though lawyers, called counselors, thrive on problem solving with their clients, I did not see the path to life coach from law school graduation, in 2007. I’ve loved every minute of being a lawyer, but coaching is WHO I am. Now, I coach other lawyers on navigating the challenges in their romantic lives – it’s so rewarding to watch their analytical brains shift to something new.

Why is coaching to help attorneys with romantic relationships so important?

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was in law school, and throughout my career, despite having relationships, I thought that spending time “working” on them was a waste of time I didn’t have. I was unwilling to put the time into figuring out my emotional health, and I think a lot of the dissatisfaction I felt in my personal life affected me at work. Sometimes, I’d dive deeper into my work to distract myself, but I was always looking for an external fix to internal pain.

Working harder at your job can’t heal your emotional life, but it can for sure hinder it. I try to give attorneys space (at flexible times!) to focus on themselves for an hour a week.

Can you share a success story? I genuinely feel like each client I’ve worked with has a success story, and they really run the gamut. I have a client who came to me after her fiancé cheated and left months before their wedding date, and a client who came to me ready to divorce his wife of 16 years, and just wanted coaching on making peace with the decision. They’ve transformed into clients who left relationships that weren’t working for them, and found new love that aligns with the results they want in their lives. My clients are all successes in that they see the power of their own minds in the outcomes of their lives. They’ve figured out that the people around them who have what they want are no better or more deserving, and they want to learn how to create results in their lives, too. My clients’ self-awareness and desire to take responsibility for their lives (rather than blame themselves) is what sets them up for success.

What message do you want our audience of 40k attorneys to know? That prioritizing YOU and your romantic life is totally acceptable. That ignoring it, when you WANT that part of your life to be full, will only make relationships harder and more distracting. You think you’re putting your practice and your clients first, but you have NO idea how much your difficult romantic patterns are impacting your career. I certainly didn’t realize it until I got the help I needed. Coaching isn’t therapy – we’re not looking at WHY you are the way you are - we’re just figuring out HOW to make changes in your life starting now. You will be the best lawyer possible when you’re well rounded and satisfied, in every area of your life. Lawyers tend to be so service driven they forget themselves and postpone their happiness – which only functions as a disservice to themselves and their clients. If you’re struggling in love, you’re NOT alone and you can have a better experience.

WEB EXTRAS

To read Rachel’s full interview, please visit MSBA.ORG/RCOLL

Follow Rachel on Social Media! RACHELCOLLCOACHING.COM RACHEL COLL RACHEL COLL

MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

HEALTH & WELLNESS

| MEMBER SPOTLIGHT

Normal is Over(rated) – For Now BY JOY S. DAVIS, CAE. Not too long ago, I gently asked my Executive Director to stop opening her weekly columns to members with a depressing reminder of COVID-19 and how weird things are right now. She’s a very upbeat, can-do kind of person, and her columns are always forward-looking and sunny, except for her first paragraphs these past few months. Week after week, I’d been editing out those first sentences.

I’M ON THE VERGE OF saying something similar to

a few of the volunteer leaders in my organization. In every video call at some point they give everyone a sad look and offer some variation of, “I wish we could be together.”

Good Business Strategy Looks Forward Going backward has never, ever been a good business strategy. Why are we all sitting around talking about how much we want to go backward, as if that’s an option?

I have also banned the phrase “return to normal,” because right now is normal. Change is normal. Perhaps our current rate of acceleration is not -- but change itself is normal. Today it’s normal that I don’t eat in restaurants or fly, and at some point it will be normal that I do those things again.

I am increasingly disturbed by association leaders who, nine months into this pandemic, are talking about “a return to normal” as if it was just around the corner – as if this were just a bizarre interruption in our regularly scheduled programming. This is despite all the evidence in the world that:

We association people are talking like “normal” is a perfect, balanced state to which we will inevitably return. It’s what we know and it’s comfortingly familiar, so we have begun to fetishize it. We fantasize about crowded exhibit halls, packed hotels, and chummy, in-person board meetings.

1. We won’t have a widely distributed vaccine as a preventive solution until mid-2021 at the earliest 2. This solution may not be widely accepted or long-lasting 3. We’re not going back to normal, because normal is how we got here You cannot find your way forward if you are constantly looking backward. Or waiting for things to go back to normal. Or trying to recreate your favorite memory, which some of us appear to have labeled “normal,” bedazzled for extra zing, and placed in a jar so that we can stare at it longingly.

I get a million emails a day with some variation of “Here’s when I think we can hold big meetings again.” I delete them all. Reading them would be a waste of my time. I need to operate now and look forward, not try to claw my way back to “normal.” The “normal” we know is history. And I have to ask, do we really want to repeat it? We should not, even if we think we can.

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The stress of clinging to a past normal will break you. It’s breaking people right now. At the very least it will limit

or paralyze you. Inflexibility in the face of things so far beyond your control – of changes so far afield from the security of your trends, and your past performance, and your conventional wisdom, and your beliefs about what kind of people your neighbors are -- will lead to your total mental shut-down.

anywhere. They were just dreams, you know. You have no idea what really would have happened in 2020 if there hadn’t been a pandemic. My organization was supposed to hold a 5,000-person meeting in Louisiana in late October. Seen any weather reports from the Gulf lately?

The stress of clinging to a past normal will break you. It’s breaking people right now.

We need to stop talking about a return to normal and start thinking our way forward. And we can’t do that if we keep starting every conversation with some reference to “normal” and how much we miss it.

An obsession with what the world once looked like and getting back to that will also keep you from seeing what it could look like, and what you can do about that right now. It will damage your ability to assess risk because it limits your scenario planning. It will also limit your ability to imagine things differently -- the root cause of organizational failure cited by a thousand motivational speakers during “normal” times. “We’ll get a vaccine and then everyone will get back on planes and it will be business as usual” is a dangerous line of thinking for people who are responsible for large organizations that depend on meetings. What if that’s not what happens? I’m not sure my association will hold a big, in-person meeting in 2021. A few of the largest partners in my space are beginning to whisper to us they won’t have people on the road again until 2022, and I believe them. My association may be doing all-virtual meetings for another year. Or more. Or something else altogether. So, we’re placing our bets, just like we always do. We are making educated guesses, based on the cards we can see, about what will come up next in the 2020 deck. Placing Bets About the Future I think what we have missed most is the relative, data-driven certainty of past guesses in a world that we understood so much better, and that we knew how to measure. I think that in these exhausting days, drenched in uncertainty and drowning in self-doubt, we’re longing for how much simpler it was when we had the comfort of easy foresight and the ease of having done everything before. All our tools – our spreadsheets of past registration numbers; our well-tested, reliable membership renewal mailings; our annual crowding of the exhibit hall without a care in the world – were easier than now is.

In this, the year of the Murder Hornets, my team put on a great meeting. We brought the pharmaceutical scientists together to discuss how to vaccinate billions of people and develop antiviral treatments, among other Very Important Stuff. We are taking advantage of opportunities and gambling on the cards we can see to keep supporting our scientists, and the advancement of their science. We never lost sight of the fact that our mission is not to have an in-person meeting – it is to bring scientists together. That’s our actual job, and we’re doing it. I’m proud of my team, which did not lose sight of that while baking bread, protesting social injustice, and teaching the new math at their dining room tables. We are doing something important for the scientific community. That’s what we can control, and we’re taking full advantage of it. MS. DAVIS is Managing Director, Member Products, for the American Association of Pharmaceutical Scientists. The foregoing excerpt was reprinted with permission from the author and Dave Lutz, Managing Director of Velvet Chainsaw Consulting.

WEB EXTRA

The original article appeared in a November 16, 2020 blog post on the Velvet Chainsaw Consulting website, and can be found, in its entirety at MSBA.ORG/NORMAL-DAVIS

But now is what we can affect. And we have always placed bets. We just called it forecasting. Mourning our dead dreams of what might have been and wrapping them in the shroud of “normal” is not going to get us MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

EVERY element of EVERY CAUSE OF ACTION Maryland Civil Pattern Jury Instructions

2020 Replacement Pages INCLUDES NEW AND REVISED INSTRUCTIONS AND COMMENTARY Used for nearly 40 years by judges across the State, Maryland Civil Pattern Jury Instructions is the authoritative source of clear and concise definitions of key terms, elements of a relationship, duty or breach, and damages and burdens of proof. New instructions, revised commentary, and updated citations to cases and statutes, provide every practitioner with instant access to current black letter law, nuanced discussion of applicable legal principles, and governing legal authority.

Buy now at MSBA.ORG/CIVIL-PATTERN 68

MSBA.ORG | VOLUME ISSUE 1 2020 2 ISSUE 3

Printed replacement pages are now available. Full title is also available in digital and physical formats.

MEMBER FOCUS

| MEMBER SPOTLIGHT

S E RV I N G T H E C O M M U N I T Y & TRAINING THE

NEXT GENERATION MANUEL (“MANNY”) R. GERALDO Principal, Robinson & Geraldo

Photo courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

Manuel R. Geraldo, Esq., known by his colleagues in the profession as Manny, is a small firm practitioner in Prince George’s County, Maryland. As an active member of the community, Manny is a past-president of the Prince George’s County Bar Association, current MSBA District Governor, and current Board member of Portuguese-American Leadership Council of the United States (“PALCUS”).

WE CAUGHT UP WITH Manny to learn more about his practice and other projects. How has your practice evolved over the years? I have a general practice with 3 lawyers. My son Alexander is one of the lawyers. The other lawyer is my partner Gerald Robinson who practices in Harrisburg, PA. Gerry and I started the practice 40 years ago in Washington, DC. Gerry was from Reading, PA and he wanted an office in Pennsylvania. Within two years, we opened an office in Harrisburg, PA. We chose Harrisburg because we were doing utility work in Washington, DC representing the People’s Counsel at the time, and the Public Utility Commission in Pennsylvania was in Harrisburg. I also handled cases in Pennsylvania. I recall leaving DC at 5:00 in the morning to appear at a 9:00 am hearing in Reading, Pennsylvania. Eventually, Gerry moved to Harrisburg and the firm opened a separate law firm under the same name in Pennsylvania. My practice today is primarily representing injured workers in compensation cases in MD, DC and Virginia, personal injury, family law, and civil law. I also handle criminal cases in federal court. I did not start out with the intention of representing injured workers in workers’ compensation cases. My practice developed in this area of the law because of the need that existed in the community. I speak Portuguese and Spanish. Because of my language skills I represented persons who were underserved in several areas of the law. Over the years more and more Latinos predominated the construction industry as laborers and carpenters. Early on in this region, there were only 2 or 3 lawyers who spoke Portuguese or Spanish and these workers needed legal representation in workers’ compensation cases who spoke their language and understood their culture.

What are you focused on in your professional career right now? I have three projects of importance to me in my professional career. Two of the projects involve my participation in 2 organizations and the third concerns my practice. With my practice, I am mentoring my son on becoming a great lawyer, on learning the business of running a law practice and on the importance of being involved in the Bar Association and the community he serves. He is a quick study and welcomes the mentor-

MSBA.ORG | VOLUME 2 ISSUE 3

ing. I passed on to him the importance of doing pro bono work. My goal is for him to take over the practice and for me to exit. My other projects involve my role as a director on the Board of PALCUS and the pro bono work I do for the organization. I am the longest serving member of the Board. At one time, the Board was composed mostly of successful middle-aged men. PALCUS was viewed by many in the community as elitist. As a result, membership was dropping. The organization was stagnant. If the organization was to flourish, it needed more diversity of views. I along with a few of the other directors had a goal of diversifying the Board by adding more women and youth. Now the Executive Committee of

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The organization was stagnant. If the organization was to flourish, it needed more diversity of views. the Board is all women and we have added youth which has attracted second and third generations of Portuguese Americans. My third project involves my role as a Commissioner on the Maryland National Capital Park and Planning Commission, specifically as a member of the Planning Board for Prince George’s County. As a Commissioner, I am an advocate for transit-oriented development, eliminating food deserts and opposing the construction of managed lanes for Routes 270 and 495 because of the negative environmental impact and the lack of social equity in transportation. The persons who live the furthest from employment centers are wage earners and they need affordable transportation which is not managed lanes.

What’s a cause or charity that you are passionate about? I am on the Prince George’s County Advisory Board to the Greater Washington Community Foundation. The Foundation is a philanthropic organization that invests directly in non-profit organizations, communities in systems change to solve problems and change lives. I also sit on the Board of Directors of the Portuguese American Leadership Council. The mission of PALCUS is to be the national voice that advocates for and promotes the advancement of the Portuguese American community economically, professionally, culturally and politically. During my term as President of the Prince George’s County Bar Association I encouraged greater participation of the association with the community and County Government. In 2020 the Bar association’s community project to promote participation in the 2020 census in conjunction with County Government and Maryland National Capital Park and Planning Commission. The Bar Association also worked with several faith-based organizations in sponsoring expungement fairs for residents. I believe that as attorneys that we have an obligation to integrate with the community in which we practice. WEB EXTRA

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I believe that as attorneys that we have an obligation to integrate with the community in which we practice.

To read Manny's full interview, please visit MSBA.ORG/MGERALDO

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MARYLAND BAR FOUNDATION

| GRANT RECIPIENT

MBF Grant Supports Revision to Maryland Judiciary Journalist’s Guide to Maryland Legal System

THROUGH THE GENEROSITY of the Maryland Bar Foundation and in partnership with Society of Professional Journalists, MDDC Press Foundation and the MDCD Broadcasters Association, the third edition of the Maryland Judiciary’s Journalist’s Guide to Maryland’s Legal System will be printed and distributed to journalists working in print, online, TV and radio throughout the state. The Guide was thoroughly updated, rewritten and reorganized under the director of the Maryland Judicial Council’s Court Access and Community Relations Committee and its Community Relations Subcommittee, drawing on the help and expertise of many attorneys and journalists in the community.

An online panel discussion focused on reporters’ access to the courts and the changes forced by the COVID-19 pandemic will be hosted by MDDC Press Foundation in early March 2021. The event will bring together journalists, attorneys and advocates in a lively discussion and will include an overview and key takeaways from the Journalist’s Guide. This session will be open to the public and recorded to raise awareness of the Journalist’s Guide and reporters’ access to the court system. This event is timed to coincide with the dissemination of the guide to journalists across the state. The Journalist’s Guide, currently only published online at https://online.flippingbook. com/view/691761/ includes information on obtaining court records through Case Search, at the courthouse, or through the Maryland Electronic Courts (MDEC) case management system; a review of journalists’ rights; guidelines for coverage to avoid legal problems; an overview of the Maryland Shield Law; a guide to the various components of Maryland’s state judicial system and justice partners; and explanations of the criminal and court processes.

ABOUT MDDC PRESS FOUNDATION The Maryland | Delaware | DC Press Foundation was established by the member newspapers of the Maryland, Delaware and District of Columbia Press Association in 1998 to enhance news journalism in Maryland, Delaware and the District of Columbia. It is incorporated in Maryland as an exempt organization under Section 501(c)(3) of the Internal Revenue Code. The MDDC Press Foundation secures the future of a free press and a thriving democracy by supporting professional journalism, enhancing news media organizations, and providing opportunities for promising young journalists. The Foundation focuses on selected projects that will strengthen news reporting in the region. Its goals including the following: 1. Paving the way for rich, high-quality, multimedia news coverage in the region in the years to come by providing young journalists an entry path into the profession through meaningful, intensive internships. 2. Enhancing the diversity of the news media profession by consciously reaching out to journalists of diverse racial and economic backgrounds so that journalists truly reflect the communities they serve. 3. Providing training and programs on topics that will improve journalism in the region and underscore the role of journalism in a thriving democracy. 4. Collaborating with partners and newsrooms on reporting projects and topics that are significant to the communities in our region.

WEB EXTRA

Learn more about MDDC's work at MDDCPRESS.COM/ABOUT/ MDDC-PRESS-FOUNDATION 72

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ACCESS TO JUSTICE

| COMMISSION UPDATE

CONFRONTING THE COVID-19 ACCESS TO JUSTICE CRISIS

A Report of the Maryland Attorney General’s COVID-19 Access to Justice Task Force

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WEB EXTRA

Read the full report today at MARYLANDATTORNEYGENERAL.GOV/PAGES/A2JC

The COVID-19 pandemic has generated the nation’s worst public health and economic crises in decades. The disease is deadly, and its spread has disrupted the well-being of hundreds of thousands of Marylanders. It is also poised to be an equally disastrous civil justice crisis, with legal aftershocks likely to induce more hardship and further entrench long standing inequities,

unless we act now.

MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

RECOGNIZING HOW THE MOST momentous challenges

facing Marylanders in the wake of COVID-19 had a common thread with the civil justice system, including issues related to health, food, housing, employment, finances, abuse, and end of life, Maryland Attorney General Frosh saw the need for collective action. Being a Commissioner himself and understanding that the MSBA-backed Maryland Access to Justice Commission (A2JC) was an overarching umbrella entity that already united a broad cross-section of the legal community to drive civil justice reform, he chose to partner with A2JC in creating the Maryland Attorney General’s COVID-19 Access to Justice Task Force. The Task Force - which is Vice Chaired by Reena K. Shah, the Executive Director of A2JC, advised by A2JC leadership and composed of many existing A2JC Commissioners - has been hard at work advocating for short-term actions to reduce immediate harms as well as identifying long-term reforms and initiatives necessary to ensure equal access to civil justice for all Marylanders. The Task Force officially launched in June, 2020 and presented its final report and recommendations in January, 2021.

The A2J Task Force carefully considered the damage done to Marylanders by the pandemic and looked at underlying conditions in the State’s social safety net and civil justice system that were exacerbated over the past year. It developed a thorough list of recommendations that will help Maryland address the pandemic’s ongoing challenges and will fix some long-standing problems in the systems on which the state relies in emergencies. The recommendations are designed to achieve five critical goals: • • • • •

Ensure Marylanders are housed. Ensure Marylanders are economically secure. Ensure Marylanders are healthy and have enough to eat. Ensure Marylanders are safe. Ensure Marylanders have meaningful access to the civil justice system.

Even as it was developing long term recommendations, the Task Force: • Delivered $11.7M in emergency funding to the Maryland Legal Ser-

The Civil Justice System and COVID-19 Many Marylanders dealing with life-altering civil legal problems generated by the pandemic rely on civil legal aid to understand their situation, know their rights, get advice, and have counsel at their side when necessary. Even before the pandemic, civil legal problems plagued low-income households. A pre-pandemic national study conducted by the Legal Services Corporation revealed that at least 71 percent of low-income households experience a civil legal problem every year. The number is even more staggering for survivors of domestic violence (97 percent) and persons with disabilities (80 percent). Moreover, seven out of 10 who experienced a civil legal problem said that it “significantly affected their lives.”

71% 80% 97% low income persons

disabled persons

domestic violence victims

EXPERIENCE A CIVIL LEGAL PROBLEM EVERY YEAR The state has a large ecosystem of civil legal aid and legal support service organizations to help low-income Marylanders deal with pressing concerns that only the civil justice system can resolve, like continuing to stay in their home, dealing with soaring debt, navigating the probate process after the death of a loved one, appealing a denial of food or unemployment benefits, getting protection from an abuser. For low-income people unable to afford to hire an attorney, access to civil justice through the support and counsel of these organizations can often mean a life-saving difference between success and failure. The COVID crisis has increased the demand for civil legal aid and legal support services exponentially, and providers have had to adjust to new workplace realities. 1

http://bmorerentersunited.org/rtc/stoutreport/

https://www.lsc.gov/what-legal-aid/unmet-need-legal-aid

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DURING THE PANDEMIC, FUNDING FOR CIVIL LEGAL AID

DECLINED BY 46% But resource limitations and structural obstacles have prevented providers from meeting this burgeoning need, which has left many Marylanders without meaningful access to the civil justice system during the pandemic. For example, people facing the loss of a rental home have no legal right to counsel, which leaves many confused and ill-prepared to deal with a landlord who can afford to have an experienced advocate. In Baltimore City, about 1 percent of tenants have legal representation during eviction proceedings, while 96 percent of landlords are represented by an attorney or specialized agent.1 Maryland’s civil legal aid and legal support services system is led and staffed by talented and committed people who work together to help people deal with their civil legal problems. Yet the civil legal aid delivery system was underfunded and overtaxed before the pandemic hit, with the resources to meet only about 20 percent of the demand for services.2 In the absence of a right to counsel in civil legal cases, funding for legal assistance largely depends on revenue generated by court filing fees and Interest on Lawyers Trust Accounts (IOLTA), both of which plummeted by mid-2020 as interest rates fell to historic lows and court closures led to steep decline in court filings. Other sources of funding, like private donations and grants, also declined during the pandemic, as did in-kind pro bono and “low bono” (reduced cost) assistance from private lawyers who scaled back the hours they could commit to civil legal aid. Similarly, legal support services organizations, like those that provide housing and consumer debt counseling which help people

•

vices Corporation, the largest funder of civil legal aid in Maryland, in the face of a almost 70% decline in revenue over the course of a few months. Held 12 virtual community forums – in English and Spanish – to share information and resources and hear directly from Marylanders about how the pandemic has affected them. Set up online Civil Justice Data Dashboards to provide up-todate information about the pandemic’s effects on the civil justice system. Advocated with the Governor, Judiciary, different Executive Agencies and the philanthropic community to advocate for civil legal aid funding, housing assistance, and other immediate reforms. Conducted three surveys that were answered by thousands of impacted individuals, service providers, and attorneys - two related to abuse and neglect and one related to court operations. Created a substantive law handbook and resource manual for life and health planning and developed the information to launch a microsite on consumer law issues.

avert legal proceedings, saw a spike in demand for help, with no secure funding source to help meet the demand. The funding problem threatened to constrain the work of many civil legal aid and legal support services providers at a time when countless Marylanders were falling into legal jeopardy. An emergency infusion of $11.7 million in State funding as a result of Task Force advocacy resolved the immediate budget crisis for civil legal aid organizations, but a structural funding deficit remains. 3 Cutbacks in civil legal aid services penalize people with the fewest means at their time of greatest need. With hundreds of thousands of Marylanders struggling financially, Maryland policymakers must strengthen the civil legal aid and legal support services system, strengthen protections, and ensure it can support the most vulnerable as they desperately try to survive and rebuild. Failing to do so will add new burdens and impede the State’s ability to achieve an equitable recovery.

WITH HUNDREDS OF THOUSANDS OF MARYLANDERS STRUGGLING FINANCIALLY, MARYLAND POLICYMAKERS MUST STRENGTHEN THE CIVIL LEGAL AID SYSTEM AND ENSURE IT CAN SUPPORT THE MOST VULNERABLE. https://www.marylandattorneygeneral.gov/press/2020/100820.pdf

Summary of findings The Task Force made several key findings that require changes in policy or practice. • Hundreds of thousands of Marylanders face eviction or foreclosure, and the legal system does not adequately protect their rights; new resources are needed to help low-income Marylanders stay in their homes. • The system does not provide enough protections to people facing financial debts, leaving them with inadequate options for maintaining resources to meet basic needs. • The legal system imposes unfair costs and obstacles to lower-income Marylanders dealing with probate, real property transfers, and other issues. • The unemployment insurance system has been ill-equipped to deal with the surge of demand for benefits, and many other benefits processes have experienced problems serving the public amid the pandemic. • New flexibility and efficiency are needed to help people receive food benefits. • Abuse victims faced tremendous challenges during the pandemic, but many went unreported. • Front-line workers in essential jobs sometimes lack adequate protections – both physical protections against the virus and legal protections to preserve their rights. • Maryland, despite its wealth, faces stubborn racial disparities in healthcare services and health outcomes. These disparities are an affront to the state’s commitment to equity. The Task Force also identified ways to strengthen the civil justice system. Key findings include: • As many lower-income Marylanders face stressful challenges, they often lack meaningful access to legal counsel. Without legal help, they are at far higher risk of financial collapse. • The pandemic has done damage to the civil justice system by disrupting funding to a system that was already under-resourced. • The rapid shift to remote proceedings has made it more difficult for many low-income Marylanders, especially those facing technology or language barriers, to resolve disputes and obtain justice. • The public struggles to obtain vital information about civil legal resources and benefits critical to helping them cope during the pandemic. Some Marylanders have language or technological barriers or obstacles to accessing materials, and people with disabilities are disproportionately disadvantaged. • Maryland lacks a centralized system for connecting people to services and resources. • The civil legal needs of Marylanders are not integrated into emergency planning or government services that promote basic needs. • Maryland does not monitor or track data necessary to effectively meet Marylanders’ civil legal needs. The Task Force found that the pandemic both highlighted and deepened the crisis in access to civil justice that affects so many low-income Marylanders. An overarching finding was that Maryland’s problems, both before and during the pandemic, have not had a race-neutral impact and that care and attention should be given to not reinforcing those harms in the civil justice system. MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

Key A2J Task Force Recommendations that the A2JC will lead on or support include: Increasing civil legal aid funding by: • Mandating a new appropriation from the State’s General Fund to support Maryland Legal Services Corporation (MLSC)-funded civil legal aid services as well as civil legal aid and legal support services provided by organizations not funded by MLSC. • Increasing MLSC’s current funding streams by increasing the surcharges on court filing fees and the annual distribution from the Abandoned Property Fund. Reducing the number of evictions and foreclosures in Maryland by: • Increasing the filing fee for summary ejectment actions and prohibiting the fee from being passed on to the tenant. • Providing a right to counsel to defendants at both the trial and mediation/settlement phases of eviction proceedings. • Instituting due process reforms and data reporting requirements to allow more time and targeted intervention for diversion efforts and eviction and homelessness prevention.

Increasing civil justice data by: • Improving assessment of civil legal aid needs by establishing reporting requirements and mechanisms for collecting and publishing disaggregated demographic data on Marylanders affected by civil legal issues. When Marylanders seek legal recourse, the civil justice system should be accessible, fair and equitable. Reforms are needed at every level to ensure this outcome for all. We must also take particular care that the system does not reinforce and exacerbate harms to those who have disproportionately borne the brunt of the virus, including persons in Black and Hispanic communities, older persons and those with disabilities. Strengthening and reforming the civil justice system will help ensure that we mitigate and address the COVID-19 access to justice crisis.

Incorporating civil legal needs into government services by: • Requiring the Maryland Emergency Planning Agency to consider and incorporate civil legal needs into disaster response plans and to ensure the coordination of legal services and disaster-related legal aid. Civil legal service providers and legal support services organizations should be included in emergency planning advisory entities. • Developing an infrastructure and mechanism to incorporate civil legal needs as mission-critical to government agencies that promote basic human needs, including health, housing, food aid, safety, security, and connectivity. Improving court administrative agency adjudication access for self-represented litigants by: • Partnering with courts and the Office of Administrative Hearings to monitor remote hearings and conduct periodic surveys to assess key challenges faced by self-represented litigants in accessing court and administrative proceedings. Mobilizing additional pro-bono legal services by: • Increasing pro bono legal services by mobilizing 500 new pro bono lawyers to meet the rising demand for civil legal aid; increasing coordination and streamlining infrastructure to receive, train, and match new pro bono attorneys; and consolidating information and increasing awareness about pro bono opportunities. Improving access to information by: • Centralizing and simplifying access to information, resources, and referrals by expanding existing referral services to serve as the single point-of-entry for connecting Marylanders to civil legal aid and legal support services organizations on vital issues related to housing, employment, health, public benefits, consumer debt and more. 76

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The Maryland Civil Justice for All Story Map Publicly available data related to the civil justice system is hard to find. It leads to information gaps in policy making and does not give us the whole picture in terms of needs or where to target solutions. A2JC is proud to present the “Maryland Civil Justice for All Story Map.” A story map is a multimedia tool that combines text, pictures, graphics, statistics, personal accounts, data and interactive maps to tell compelling stories. The Maryland Civil Justice for All Story Map is a public resource that can be broadly used to understand the civil justice system and to find state and county-specific data on different civil justice cases and the people most affected by the civil justice system. This Story Map will be most useful to anyone that cares about justice, but especially legislators and elected officials, advocates, community leaders and the general public.

ACCESS TO JUSTICE |

DISTINGUISHED LEADER

LEADERSHIP IN A

TIME OF CRISIS BRIAN FROSH

Attorney General of Maryland; Chair, Maryland Attorney General’s COVID-19 Access to Justice Task Force

Photos courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

You created the Maryland Attorney General’s COVID-19 Access to Justice Task Force - tell us why you were moved to do so. The Task Force was conceived soon after the COVID-19 pandemic hit our country. The pandemic exposed and exacerbated the fault lines of inequality and need that permeate our country and our state. We knew that hundreds of thousands of people would face homelessness, illness, joblessness and hunger of a magnitude we have not seen in our lifetimes. And we also knew that people of color would be disproportionately represented among the vulnerable populations. The pandemic caused significant issues – business closings which led to individuals being laid off or unable to work. That led to more and more people being in danger of eviction, of foreclosure, and unable to access critical public benefits. Recognizing the growing health and economic crisis, my office partnered with the Maryland Access to Justice Commission to create the Attorney General’s COVID-19 Task Force. We knew that for many of our neighbors, a measure of relief could be achieved through our civil legal system. But an already complicated system was made even more complicated by a myriad of new regulations, new federal and state laws and regulations, new remote platforms, just to name a few. Our legal system should allow for everyone to be on equal footing. But even before the pandemic, people without means were at a huge disadvantage when they encountered the legal system. The Task Force was created to address the inequities in our civil justice system. We brought together some of the smartest people across our state, representing every sector including government, nonprofit, legal, housing, employment, business to develop recommendations and strategies for reform through a lense of racial equity. After many months of work, many hours of meetings, the Task Force was able to develop recommendations that will assist those most in need and help our state respond to and assist the most vulnerable if faced with another crisis.

You have shown tremendous leadership during an exceptionally tumultuous and challenging time. And you’ve held many leadership positions through your career. Tell us what leadership means to you and what you think makes for an effective leader. Jerry Garcia, songwriter and lead guitarist for the Grateful Dead, once said: “Somebody’s got to do something. It’s just so incredibly pathetic that it has to be us.” I do not believe that leaders are born or anointed. They are people who, despite their feelings of inadequacy, choose to lead or run for office. I think effective leaders are those who can listen to all sides and find common ground, those who can persuade and inspire others and those who treat everyone fairly.

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I think effective leaders are those who can listen to all sides and find common ground, those who can persuade and inspire others and those who treat everyone fairly.

You have had your hand in many important reforms over the years that affect the lives of Marylanders - from gun safety to environmental issues. What do you still want to get done?

What advice do you have for young, up and coming attorneys?

As a legislator, I am most proud of my work on gun safety legislation. As Attorney General, I’ve fought for lead paint-poisoned victims, against racial profiling and stopping cash bail.

We see it across the planet in a changing, warming climate that threatens natural resources and the lives of billions of people. We see it right here at home where our nation is in turmoil and fighting a pandemic. Racism, violence and hate seem to be on the rise. At times the Rule of Law, the foundation of our democracy, is under attack.

This year, I’m extremely proud of the work of my COVID-19 Access to Justice Task Force. From it, arose my key legislative initiative this session which is to raise the court filing fee for evictions. Eviction is not simply a condition of poverty. Rather, it is a root cause, perpetuating a cycle that can last for generations. It means loss, not just of a home, but also of possessions, school, community, employment, mental and physical health, and the ability to find another place to live. The filing fee in Maryland to evict a family from their home is $15. Landlords are incentivized to use the nuclear option because it is so cheap – 1/8 of the national average of $122. Maryland’s rate of eviction filings is 5 to 13 times greater than those of our neighbors. During this awful pandemic and beyond, reducing the number of eviction cases filed will lift a heavy burden from tenants without endangering the business of landlords.

When we look around us at the world today, it is clear that we need change agents.

Our young attorneys have joined an honorable and important profession. They are among the 1%. Perhaps not in wealth. But in terms of ability, achievement and potential to make an impact, they are now among the elite. They are in a position to improve the lives of their clients and society at large. I hope they will use the law as a force for good, and for justice.

WEB EXTRA

Read the full interview with Maryland Attorney General Brian Frosh on MSBA's blog. MSBA.ORG/BFROSH

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ACCESS TO JUSTICE |

TASK FORCE

Presenting the #covidA2JCorps! The #covidA2JCorps law clerks have been an integral part of the Maryland Attorney General’s COVID-19 Access to Justice Task Force. Those of us that became members of the #covidA2JCorps were tasked with staffing one of ten of the Task Force’s committees and took on all sorts of work, from administrative management to research projects to working on legislative recommendations - work that helped advance the work of the Task Force.

WE’D LIKE TO GIVE a huge thanks to Deans Tobin and Weich

of the University of Maryland Carey School Law and the University of Baltimore School of Law, respectively, for funding this program so we could work with such high-level professionals and such a talented group of students. Through this experience we learned so much about the inequities in the civil justice system and how so many everyday life issues that most of us take for granted - have a legal component that is challenging and complex for most average people to navigate. We were fortunate to have had the opportunity to work closely with the committee’s co-chairs, who were experts in their field. We also learned more about the Office of the Attorney General and the MSBA. We were impressed by their support of advancing access to justice reforms in Maryland. The person who connected us in all of our work was Reena Shah, the Executive Director of the Access to Justice Commission and the Vice Chair of the Task Force. We learned a tremendous amount from watching her juggle her many responsibilities, including being a spokesperson, project manager, fundraiser and advocate.

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I cannot express enough thanks to the Task Force for providing me with this opportunity.

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We’d like to introduce some of the law clerks that have made the work of the Task Force possible:

LAURA OPONT

Laura Opont is currently a 3L at the University of Baltimore School of Law. She graduated from Mount Saint Mary’s University with a double major in Criminal Justice and Sociology. She is passionate about human rights, public interest, public policy, child advocacy, and juvenile justice. She served on the Task Force’s Surviving Abuse, Neglect & Exploitation Committee.

“My experience with the #covidA2JCorps has allowed me to both learn and be of service. I cannot express enough thanks to the Task Force for providing me with this opportunity.”

RACHEL WANAT

Rachel Wanat is a 3L at the University of Baltimore School of Law. She graduated from the University of Maryland, College Park in 2018 with a degree in Criminal Justice and Criminology. Since then, she has always had a passion for promoting access to justice. She served on the Task Force’s Housing Security Committee.

“Everyone on the Task Force is incredibly passionate and knowledgeable about this work. It was truly an empowering experience and I am incredibly appreciative of this opportunity to work with such honorable individuals to help fight for the rights of those adversely affected by COVID-19.”

ETHAN NAVARRE

Ethan is a lifelong Marylander with a passion for public service and good governance. In 2015, Ethan graduated from the University of Maryland, College Park with a degree in Government & Politics and Economics. He is currently a 2L at the University of Maryland Carey School of Law. He served on the Task Force’s Public Awareness & Community Engagement Committee.

CIZHU FENG

Cizhu Feng is a 2L at the University of Minnesota, Twin City. She started her tenure on #covidA2JCorps when she was at the University of Maryland Carey School of Law. She has deepened her understanding of law through her education at the East China University of Political Science and Law, the study of LLM degree at the University of Wisconsin-Madison, and now as a JD student. She worked on the Task Force’s Civil Legal Aid Funding Committee.

“I am so proud to be part of such a talented, passionate, and motivated team that is dedicated to bringing the best to Marylanders.”

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COVID-19 has left all too many of us trapped inside, feeling isolated and impactless. I am incredibly grateful to have been given the opportunity and outlet to feel that I am contributing to something timely and important.

“COVID-19 has left all too many of us trapped inside, feeling isolated and impactless. I am incredibly grateful to have been given the opportunity and outlet to feel that I am contributing to something timely and important.”

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CATERINA QUEZADA

Caterina is a 2L at the University of Baltimore. She graduated from Stevenson University, magna cum laude, in December of 2017 with a degree in Criminal Justice. She is currently a legal intern at the Lieber Institute for Brain Development, a nonprofit research institution. She looks forward to serving in the Veterans Advocacy Clinic in the spring semester. She worked on the Task Force’s Economic & Food Security Committee.

“Serving on the Attorney General’s COVID-19 Access to Justice Task Force was my first legal experience. I am so honored to have the opportunity to work with individuals that have dedicated their lives to assisting others.”

SHELBY MCCLOSKEY

Shelby McCloskey is a 2L at the University of Maryland Carey School of Law. In 2019, she graduated from Stevenson University with a Bachelor's Degree in Legal Studies, where she developed a passion for helping families with generational wealth and legacies. She worked on the Task Force’s Life & Health Planning Committee.

“I was fortunate enough to expand my knowledge about an area of law that I am passionate about and build lasting connections with assistant attorney generals, practicing attorneys, experts in the field, and many more.”

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KEVIN SCHAUM

Kevin is currently a 2L at the University of Maryland Francis King Carey School of Law. He graduated from the University of Miami in 2017 with a degree in International Studies and plans to work in public interest once he graduates. He worked on the Task Force’s Policy & Race Equity Committee.

“It really was inspiring to see people from every sector of the legal field coming together and volunteering their time to help our community in this time of crisis.”

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It really was inspiring to see people from every sector of the legal field coming together and volunteering their time to help our community in this time of crisis.

Overall, it has been a fantastic experience working with this passionate group of leaders and students and we look forward to seeing where we all go from here. One thing is for sure, this experience has made a strong and lasting impression and one that we will not soon forget. It has shown us the power of hard work, volunteerism and the power of collective action to solve monumental challenges. We thank A2JC, MSBA, OAG and our law schools for this unparalleled opportunity.

MEMBER FOCUS

| MEMBER SPOTLIGHT

F R O M PA R A L E G A L TO

MEMBER

CHERYL JONES Member, PK Law

Prior to becoming an attorney, you were a paralegal and law firm office manager for a number of years. What prompted you to pursue law school and admission to the Bar? The best part of my job as a paralegal was working with clients to identify and help solve the issues they brought to us. I went to law school because I wanted more involvement in - and control over - solving those legal problems.

How has your prior experience helped you in your current practice? It gave me a good understanding of the business of law, not just the practice. I was able to hit the ground running the moment I started practicing as a lawyer because I already understood how to structure a client engagement letter, how to bill efficiently, and how to manage expectations. But make no mistake - being a first year associate is hard work no matter how “prepared” you think you are!

What’s your favorite part of being an attorney? Helping clients through some of the most difficult and challenging times in their lives. In this field, we frequently see clients in crisis because a loved one is sick or entering a nursing home, as well as clients contemplating their own incapacity or mortality and having to put planning in place. My job is to help them think through the financial, emotional, and legal aspects of those situations and craft a plan that achieves their objectives. It’s rewarding and challenging, and sometimes exhausting, all at the same time.

Photo courtesy of Beverly Funkhouser Photography MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

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It’s rewarding and challenging, and sometimes exhausting, all at the same time. What is your favorite moment from your legal career so far? I handle second parent and step-parent adoptions as part of my practice, and they are always a joyful occasion. Several years ago, I helped a step-father in his late 70’s adopt his adult stepchildren, whom he’d raised for decades. It was a very moving ceremony for all parties, and very gratifying.

What’s your favorite hobby? What do you do for fun? I love to travel, and one of my favorite hobbies is planning the next big vacation. I’ve got destinations lined up for years, once the world reopens. I also love jigsaw puzzles, and there’s almost always one in some stage of completion on our dining room table.

What’s an interesting fact about you that no one would guess? I have a twin sister, Michelle. So if I seem a little “different” one day - she might be filling in for me!

How do you give back to your community?

WEB EXTRA

I believe that basic estate planning is something everyone should understand and have in place. So I make it a point to give free seminars to communities that are typically underserved. I want people to know the importance of things like an advance health care directive, beneficiary designations, and financial powers of attorney, as well as the resources available to them, even if they can’t afford the services of an estate planning attorney.

What’s your favorite restaurant?

Cheryl, along with colleague Aidan Smith, are presenters for the March Estate & Trust Section Study Group on March 18, 2021. They will be discussing Guardianship Basics. Learn more at MSBA.ORG/ET-MARCH

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Quite recently, it’s become Peerce’s. I have fond memories of the “old” Peerce’s Plantation (my husband took me there for my 21st birthday, so now I’m really dating myself) and the new owners have done an amazing job revitalizing it. Plus their Indian food is amazing.

What’s your favorite vacation spot? We’ve been to Mexico more than a dozen times, and stayed at everything from big resorts to boutique hotels and private residences all up and down the Riviera Maya. It’s warm, friendly, and easy to decompress there. But my retirement goal is to spend some time in a little farmhouse in the French countryside, eating baguettes and brie, drinking wine and watching the sunset. And reading my MSBA Bar Journal.

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Rules for charitable giving, heirs, & beneficiaries Tips to avoid fraud Tax strategy considerations … and more

Buy now at MSBA.ORG/WILL-DRAFTING

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WHY ATTORNEYS NEED TO LEARN TO TALK TO THE MEDIA as part of rendering legal advice BY LANNY J. DAVIS

THE REALITY OF LAW PRACTICE before the age of the Internet was that prejudicial media coverage of your client could affect legal outcomes. It was one of those notso-well-kept secrets that no one wanted to address directly, since most attorneys are, justifiably, concerned about trusting the media to get it right. They are also concerned about walking the line of the canons that media may not be used to prejudice the rights of adverse parties or for any other improper purposes, such as trying to influence juries. However, there should be no ethical or professional reason why any attorney doesn’t have the right – or even, the professional obligation – to correct the record when a client has been defamed, or character and reputation inaccurately attacked in the media. Rebutting distortions with facts in the media, whether in the middle of litigation or possible prospective legal problems that could lead to litigation, should never be an ethical issue or offensive to any judge who questions why an attorney is quoted in the media: So long as the words are factual, and the purpose is to correct the record. The point is, in the age of Google and other search engines, where lies and distortions about a client become an eternal harmful echo chamber, acting quickly to try to correct the record after a false or misleading story is published, and or to be sure ahead of publication that a reporter gets the facts right, is essential to legal representation. At the very least, a lawyer trying to correct the public record in the media allows for mitigation of potential harm to business or to other damages from false media reporting. Therefore, there should be no dispute that there is a nexus between the rendering of legal advice by an attorney, which establishes attorney-client privilege between an attorney and a client, and the use of a media strategy to correct the record as part of an effective legal strategy – a necessary part, I would argue. One concern for lawyers in talking to the media for these purposes is whether, by doing so, attorney-client privilege is waived. We know that PR agencies may not even have work product qualified privilege unless the contract is carefully written – for maximum safety, hired and supervised by the law firm rather than the client. But the case law remained vague whether media activity, even in support of litigation, qualified for the absolute standard of attorney-client privilege, which requires the provision of actual legal advice by a practicing lawyer. It’s not enough for a PR consultant who happens to have a law degree. The consultant must be acting as an attorney giving legal advice for there to be attorney-client privilege (This is why most lawyers, especially criminal lawyers, will invite non-attorney PR consultants to leave the room or else they risk waiving privilege).

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No case was decided precisely on the issue of whether the “legal advice” included media strategy until 2003. And then Judge Lewis A. Kaplan of the US District Court in the Southern District of New York not only addressed the issue directly – with a fulsome “yes” – but wrote language that has stood the test of time for the last 17 years and should for many years beyond. Why? Because it made sense – it’s just that no judge had ever said it as clearly. The case was In Re. Grand Jury Subpoenas Dated March 24, 265 F. Supp. 2d. 321 (S.D.N,Y. 2003). In a key passage, Judge Kaplan cited Justice Kennedy in the 1991 case, Gentile v. State Bar of Nevada, where he wrote for four justices: “An attorney’s duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment…. including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.” 502 U.S. 1030, 1043 (1991). Then Judge Kaplan takes the next step explicitly to state providing attorney-client privilege to communications between attorneys and public relations consultants that are (1) confidential; (2) between lawyers and PR consultants; (3) hired by the lawyers to assist them in dealing with the media; (4) made for the purpose of giving or receiving advice; and (5) directed at handling the client’s legal problems. 265 F. Supp. At 331. If the privilege attached to a non-lawyer PR consultant meets these requirements, then certainly it attaches to a practicing attorney providing legal advice as that expression is generally understood. That privilege also applies to using media strategy with facts to correct the record from distortions and harm to the client’s reputation. So it is time for attorneys to learn how to talk to the press – better than “no comment,” the traditional method. And the quick answer for now, is by doing so with established, documented facts. Knowing the difference between “on the record” (quoted by name as the attorney), “on background” (quoted as “an attorney in the case” but not by name) or “deep background” (quoted without any described source – if the reporter is willing to allow that) is critical.

Most important, anyone needs to know the difference between these ground-rules (which should be agreed upon ahead of time) versus off the record – the latter meaning, explicitly, you cannot write anything that I am saying; this is just to be sure you don’t get it wrong.

WHEN IT COMES TIME TO SETTING THE RECORD STRAIGHT WITH THE TRUTH, THERE IS ONLY ONE WAY: “TELL IT EARLY, TELL IT ALL, TELL IT YOURSELF.” My memoir about my service as Special Counsel to President Clinton summarized, in the subtitle, my mantra and media strategy from then to the present day. When it comes time to setting the record straight with the truth, there is only one way: “Tell it early, tell it all, tell it yourself.” Getting out in front of a bad story and doing it with all the facts, good and bad, is the best way to handle bad news and ultimately is the best legal strategy to avoid unnecessary harm to a client’s reputation. But that gets into many challenges involved in “crisis management” while acting as an attorney – the subject of another article. The bottom line is this: Best to be an attorney with definite attorney-client privilege to lead the crisis management team. That way, no other attorneys on the crisis team should be worried about waiver of attorney-client privilege. MR. DAVIS is a founding partner of the Washington D.C. law firm, Davis Goldberg Galper PLLC and a co-owner of a strategic communications firm, Trident DMG, which subcontracts with the law firm to provide PR advice subject to attorney client privilege, but also, provides general PR advice. He served as Special Counsel to President Clinton from 1996-98. His White House memoir published in 1999 was titled, Truth to Tell: Tell It Early, Tell It All, Tell It Yourself: Notes From My White House Education. His book on crisis management case studies acting as an attorney, published in 2013 studies, was titled: Crisis Tales: Five Rules for Coping With Crises in Business, Politics and Life.

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The Pandemic has exponentially expanded the usage of social media. People who are unable to emerge from their homes or go to their offices are left with significant time voids and communication as well as interaction via social media fills that gap. ndeed, many professionals are now using social media as a major means of communication. Professionals are communicating through text messages, as well as through direct messages on social media, including Facebook, LinkedIn, Twitter and Instagram. Aside from the obvious concern regarding the security of the transmission, particularly between attorney and client, there are several thoughts to bear in mind before commencing or continuing communication with clients via text message or through social media.

Maryland Bar Foundation Fellow BY ALVIN I. FREDERICK AND RICHARD J. BERWANGER, JR.

Text messages tend to be casual and abbreviated. Not every abbreviation is readily decipherable. While one can ordinarily look to a writing for protection of one’s own interest in the event of a dispute between a lawyer and a client, a writing that is ambiguous is of little solace. That is, a writing that is capable of more than one meaning is one that must be interpreted by a factfinder so the chances for success on a summary judgment motion are reduced. Said another way, an ambiguous text, intended by the writer to confirm advice, may be of little use if the reader can understand the writing to have more than one meaning. Most cell phone providers do not preserve text messages beyond a matter of days after the transmission. This means that in order to preserve the message, one needs to either preserve and archive screenshots of the messages or, alternatively, photocopy the face of the device on which the message was sent and received to capture the message. Because messages are cryptic and often continue for several screens, it is not unusual for there to be a lack of continuity in either screenshots or photocopying.

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It is also suggested that one not fall into the temptation of casual and boundless communication via social media. The law provides a certain protection to those who publish web-based sites. They have little, if any, liability for simply reporting what has been told to them without any obligation to

At least in Maryland, what one says online or on social media has potentially significant consequences. make certain that those facts or alleged facts they are publishing have any bearing to truth or reality. See Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997), for example. At least in Maryland, what one says online or on social media has potentially significant consequences. By way of example, the Court of Appeals denied admission to a Bar applicant by publishing a multi-page Opinion delineating in full comments made by the applicant online, including vulgar and inflammatory language, and then, while noting the First Amendment concerns, denied the applicant admission because of a failure to disclose a Petition to Violate Probation and Show Cause Order relating to a traffic-related offense in the District Court. In re Gjini, 448 Md. 524, 534, 141 A.3d 16, 23 (2016). The Court has been far more direct in recent times expressing its dissatisfaction with lawyers who inappropriately communicate by suspending two lawyers from the privilege of practicing law for 90 days because of their usage of e-mail. See, e.g., Atty. Griev. Comm'n of Md. v. Markey, 469 Md. 485, 230 A.3d 942 (2020). Social media presents an opportunity for instant communication as well as low-cost advertising and other benefits. It does not, however, bode well as a form of communication between lawyer and client, especially when weighing the potential risks/consequences.

About the Authors: ALVIN I. FREDERICK is a principal at Eccleston & Wolf, P.C. Al focuses his practice on the defense of professionals, primarily lawyers, accountants, architects and engineers, both in civil and disciplinary matters. He is a frequent speaker, and writer on these areas and has spoken on a national level, as well. Al is a Fellow of the American College of Trial Lawyers, has been included amongst the Best Lawyers of America since 1997, and is regularly named as a Maryland SuperLawyer, as well as Martindale Hubbell, AV designation. He has twice been named “Best Lawyer for Legal Malpractice Defense” and is the recipient of the Litigator of the Year award by the MSBA. RICHARD J. BERWANGER, JR. is a principal at Eccleston & Wolf, P.C. Richard’s practice focuses primarily on professional liability defense, specifically legal malpractice, attorney grievance matters, ethics matters, insurance coverage, homeowner’s associations (HOA), community organizations and management companies, and other general liability defense matters. Richard frequently speaks to law firms and at local Bar events on topics relating to legal malpractice and grievance prevention and defense. Richard has been selected as a Maryland Super Lawyer since 2014 in the field of Professional Liability Defense.

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Anti-Social Courts: SILENCING ONLINE CRITICS

BY IRWIN R. KRAMER

Practicing law isn’t easy. Beyond the stress of deadlines and the endless demands of clients, some lawyers have grumbled about “weak,” “corrupt,” and “lawless” judges “acting under improper and political influence” to make their lives even more difficult.1

s “Officers of the Court,” beleaguered lawyers cannot confront these judges within the solemn domain of their courtrooms. But there are other domains where they may vent their frustration. Social media sites like Facebook and Twitter provide easy platforms to denigrate an “ignorant buffoon” for being “drunk on the bench,” to describe the “ugly, condescending attitude” of an “evil, unfair witch,” or to tweet bizarre tales from the courtroom of “Judge Clueless.”2 At the click of a mouse, aggrieved attorneys may instantly expose the flaws of our judicial system and the shortcomings of those within it. It’s cathartic. Empowering. And free of charge. But lawyers may face other types of charges for their impulsive posts. 3 4 1

Contesting misconduct charges before judges who may punish them for disparaging their colleagues, these online critics may pay for their derogatory remarks with the loss of their careers. The Freedom to Disparage? Affirming “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” the U.S. Supreme Court has long observed that criticism of public officials “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”3 Since “erroneous statement[s are] inevitable” in heated debates, “neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct.”4 To provide the “breathing space” needed for uninhibited

Attorney Grievance Comm’n v. Frost, 437 Md. 245, 85 A.3d 264 (2014). Standing Committee v. Yagman, 55 F.3d 1430 (9th Cir. 1995); In re Conway, Fla. Bar File No. 2007-51,308(17B); In the Matter of Peshek, M.R. 23794 (Ill. 2010). New York Times v. Sullivan, 376 U.S. 254, 270 (1964). Id. at 273.

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debate, the landmark libel case of New York Times v. Sullivan refused to compel “the critic of official conduct to guarantee the truth of all his factual assertions.”5 Protecting First Amendment freedoms, Sullivan shields critics from legal action unless they deliberately lied or recklessly disregarded the falsity of their attacks.6 Although Sullivan did not involve criticism of judges, the justices applied this “actual malice” standard in Garrison v. Louisiana to exonerate an outspoken district attorney accused of “criminal defamation” for berating local judges.7 Attributing a large backlog of criminal cases to their “laziness” and “inefficiency,” this angry prosecutor accused them of hampering his efforts to enforce the vice laws and “raise[d] interesting questions about the racketeer influences on our eight vacation-minded judges.”8 Wishing to punish him for “an attack upon the personal integrity of the judges,”9 the state questioned whether the DA had a “reasonable belief” in the truth of his seemingly outlandish claims.10 Rather than apply an “objective” test to require a reasonable investigation, the majority stuck with Sullivan’s subjective test, which “is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.”11 To ensure a robust debate over public affairs, “only those false statements made with the high degree of awareness of their probable falsity demanded by [Sullivan] may be the subject of either civil or criminal sanctions.”12 Ethical Restrictions The American Bar Association expressly incorporated this subjective standard into what has been adopted as Rule 8.2(a) of the Maryland Rules of Professional Conduct. Using Sullivan’s language, the rule forbids an attorney from making “a statement that the attorney knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

This has not stopped courts from rejecting Sullivan’s subjective test, stripping their critics of First Amendment rights, and punishing them for negligent misstatements. Distinguishing libel cases from disciplinary proceedings designed “to preserve public confidence in the fairness and impartiality of our system of justice,” most courts use an “objective test” to “determine ‘what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances.’”13 The Fourth Circuit took this approach in affirming a federal court’s disbarment of a Maryland lawyer who accused a magistrate of bias and incompetence. Finding the attorney’s comments “unquestionably undignified, discourteous, and degrading,” it complained that the lawyer “never made any attempt to investigate the magistrate’s actions in other proceedings or otherwise establish a reasoned basis for the charges of incompetence or bias.”14 Because his “failure to substantiate charges as grave as the ones leveled here certainly constitute the making of accusations which he knew or reasonably should have known to be false,” the court used this objective test to deny his claim to First Amendment protection.15 Other disciplinary cases have invoked this standard to hold “that free speech does not give a lawyer the right openly to denigrate the court in the eyes of the public.”16 Defending “the chastity of the goddess of justice,” one court even proclaimed “that any conduct of a lawyer which brings into scorn and disrepute the administration of justice demands condemnation and the application of appropriate penalties.”17 Should the fear of reprisal deter such criticism, this chilling effect is just fine with courts seeking to silence those who may “impair the respect and authority of the court.”18 Forcing lawyers to justify their comments with “substantial competent evidence,”19 these courts insist that lawyers “be certain of the merit of [each] complaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate statements

Id. at 279. Id. at 280. 7 379 U.S. 64 (1964). Jim Garrison’s subsequent investigation into the Kennedy assassination, criticism of the Warren Commission, and attacks on other public officials was depicted in the 1991 Oliver Stone film, JFK. 8 Id. at 66. 9 Id. at 76. 10 Id. at 78-79. 11 Id. at 79. 12 Id. at 74. 13 Yagman, 55 F.3d 1430. 14 In re Evans, 801 F.2d 703, 706 (4th Cir. 1986), 15 Id. (emphasis added). 16 Matter of Westfall, 808 S.W.2d 829, 833-34 (Mo. 1991). 17 In re Shimek, 284 So.2d 686, 690 (Fla. 1973). 18 In the Matter of Greenfield, 24 A.D.2d 651, 262 N.Y.S.2d 349, 351 (N.Y. App. Div.1965). 19 Kentucky Bar Ass’n v. Heleringer, 602 S.W.2d 165, 168 (Ky. 1980) 5

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tend to lessen public confidence in our legal system.”20 So much for Sullivan’s “uninhibited, robust, and wide-open” debate. The Supreme Court may tolerate “vehement, caustic, and sometimes unpleasantly sharp attacks,”21 but lesser courts would have us mind our manners when criticizing their colleagues. If, by chance, rebellious lawyers could justify more caustic comments under Rule 8.2, they may still face sanctions for engaging “in conduct that is prejudicial to the administration of justice” under Rule 8.4(d) of the Rules of Professional Conduct. Though this nebulous

Comm’n v. Frost.23 After attacking three judges, a State’s Attorney and the Attorney General of Maryland as “lawless,” “weak,” “corrupt,” “crooked,” and “acting under improper and political influence to have [him] locked up,”24 Mr. Frost refused to dignify “this unjustified, unjustifiable, and downright ridiculous attorney disciplinary case” by defending himself at trial. Ignoring Bar Counsel’s discovery, he admitted by default the falsity and recklessness of his statements.25 Without any dispute on this key element of the case,26 the Court never had to choose between subjective and objective tests for actual malice. But the majority

If, by chance, rebellious lawyers could justify more caustic comments under Rule 8.2, they may still face sanctions for engaging “in conduct that is prejudicial to the administration of justice” under Rule 8.4(d) of the Rules of Professional Conduct.

prohibition would be void for vagueness in any other context, many courts, including the Court of Appeals of Maryland, use this rule to punish lawyers whenever their “conduct impacts negatively the public’s perception or efficacy of the courts or legal profession.”22 As virtually any speech impugning the qualifications or integrity of a judge would have that effect, offended courts have ample authority to punish their critics. Maryland’s Unsettled Law The law is unsettled in Maryland, and that, itself, should be unsettling to lawyers who dare to blog about their least favorite judge. Disbarring an attorney who “impugned” with impunity, the Court of Appeals had no need to set a standard for First Amendment protection in Attorney Grievance

seemed to favor the latter approach. Recalling a “substantially similar” case in which it disbarred a lawyer for using “conjecture and speculation” in “impugning the integrity of the Chief Judge of the Court of Special Appeals,”27 the Court arguably applied the Fourth Circuit’s objective test and found that his “failure to investigate ... convincingly demonstrates his lack of integrity and fitness to practice law.”28 Placing their public image above the First Amendment rights of those who may tarnish it, the majority thought that “the limits on professional speech by attorneys are not coextensive with the limits of the First Amendment.”29 Though the Supreme Court extolled the virtues of vigorous debate on the shortcomings of the system, the Court of Appeals “has long held lawyers to a higher standard of conduct than the average citi-

In re Simon, 913 So.2d 816, 824 (La. 2005).

Sullivan, 376 U.S. at 270.

Attorney Grievance Comm’n v. Geesing, 436 Md. 56, 65, 80 A.3d 718, 723 (2013), quoting Attorney Grievance Comm’n v. Dore, 433 Md. 685, 696, 73 A.3d 161, 167 (2013).

437 Md. 245, 85 A.3d 264 (2014).

Id. at 267.

Id. at 271.

Id. at 273.

Id. at 278, quoting Attorney Grievance Comm’n v. DeMaio, 379 Md. 571, 585, 842 A.2d 802, 810 (2004).

Id., quoting DeMaio, 379 Md. at 584, 842 A.2d at 809-10, quoting In re Evans, 801 F.2d at 706. Id. at 276, quoting In re Dixon, 994 N.E.2d 1129, 1136 (Ind. 2013).

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zen.”30 Unlike other members of the public, the Court “expect[s] those who have been granted the special privilege of admission to the bar to bring reasonable objectivity to their statements about judicial officers; to rise above the raw emotions and accusations that impede rather than enhance the judicial process.”31 To the extent that lawyers display any passion at all, the Court would prefer that they serve as the Judiciary’s cheerleaders rather than as its critics. In its opinion, “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”32 Reminding us of our “responsibility to refrain from engaging in conduct prejudicial to the administration of justice,” the majority believed that “Rule 8.2(a) furthers this principle by requiring lawyers to refrain from impugning the qualifications or fitness of judicial and public legal officers.”33 The lone dissenter thought otherwise. In Judge Robert N. McDonald’s opinion, the “primary purpose in attorney discipline is to protect the public from inept or errant lawyers, not to protect public officials from criticism, even if unjustified.”34 Since “[l]awyers are specially situated to assess the official performance of judges and other judicial and legal officers,” Judge McDonald would use the constitutional principles developed in libel cases to “require that lawyers have broad latitude in criticizing such officers” in disciplinary cases as well.35 The majority provided this latitude soon thereafter, but limited it to judicial elections. In Attorney Grievance Comm’n v. Stanalonis,36 a rival candidate took the incumbent’s views out of context in a flyer which accused the judge of opposing the registration of sex offenders.37 Though the incumbent opposed the registration of his criminal defense clients before taking the bench, the judge had not “made a blanket statement opposing registration of sex offenders generally.”38 Writing for a five-member majority, Judge McDonald observed that “[t]he speech at issue in this case—which purported to describe the views of a candidate for judicial office—is core political speech and has the highest

32 33 34 35 36 37 38 39 40 41 42 43 44 30 31

level of First Amendment protection.”39 With “limited time to vet language” in “the heat of a political campaign,” Judge McDonald wrote that “imprecise wording is not necessarily a violation of [Rule] 8.2(a).”40 “[E]ven if a court would normally favor an objective test in assessing ... ‘reckless disregard,” Judge McDonald believed that “there is a significant argument that a subjective test should be applied in an election context, in light of the ‘core’ First Amendment values at stake.”41 But since there was a “demonstrable basis” to justify the flyer’s content, the Court believed that the lawyer’s statement would be protected under either test and, yet again, declined to choose between the two.42 Censoring Critical Criticism In a democratic society, criticism of government officials is critical. While the Court of Appeals has saved its “highest level of First Amendment protection” for judicial elections, the “operations of the courts and the judicial conduct of judges are matters of utmost public concern” on election day and every day.43 “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions.”44 But unlike other state officials, Maryland judges have long been shielded from public scrutiny. Ruling from courtrooms where cameras are banned, the work of judges, and of the Judiciary as a whole, is far from transparent. Ironically, those who are best equipped to critique the judicial system are the least likely to do so. Seeking the approval of judges to protect their clients’ interests, lawyers are understandably reluctant to question their intellect, temperament or integrity. If anything, lawyers hoping to curry their favor are more likely to lavish them with undue praise than to alienate them with unfair criticism. When lawyers overcome these inhibitions and share candid concerns, judges should listen. Lest they “forget their common human frailties” and abuse “the paraphernalia of power” to uphold their self-proclaimed “dignity,” one legendary jurist counseled his brethren to stay “mindful of their limitations and of their

Id. at 277 n.13, quoting Attorney Grievance Comm’n v. Sheinbein, 372 Md. 224, 253, 812 A.2d 981, 998 (2002). Id. at 276, quoting Dixon, 994 N.E.2d at 1136. Id. at 274, quoting Preamble to the Maryland Rules of Professional Conduct at [6]. Id. Id. at 280. Id. at 280-81. 445 Md. 129, 126 A.3d 6 (2015) Id. at 136. Id. at 137. Id. at 140-41, citing Republican Party of Minnesota v. White, 536 U.S. 765, 774 (2002). Id. at 141-42. Id. at 144. Id. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 839 (1978). Bridges v. State, 314 U.S. 252, 289 (1941) (Frankfurter, J., dissenting).

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ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”45 Though the Frost Court encouraged us to “further the public’s ... confidence in ... the justice system,”46 lawyers should not serve as judicial cheerleaders who may only speak out when they have nice things to say. A healthy respect for the rule of law does not require that “Officers of the Court” gratify the “chain of command.” As active participants in the system of justice, attorneys ought to have the latitude to expose its flaws.

Before posting, maintain a professional, respectful tone, remove hyperbole and ad hominem attacks, and avoid details that may compromise client confidentiality or be perceived as an effort to influence rulings in a pending case.

When courts punish their most effective critics, or fail to set clear standards for protecting their speech, they impede the critical information needed to improve justice for all. This is particularly true in Maryland and other states where citizens must assess judicial qualifications at the ballot box. Democracy cannot thrive in the dark. “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion.”47 As Judge McDonald warned when dissenting in Frost, “discipline imposed by the judiciary that may appear designed to shield judges from general statements of adverse opinions can itself undermine confidence in the judiciary.”48 Chilling Advice If asked to identify the most important place for the exchange of views in modern society, the Supreme Court believes that “today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular. ... Social media offers ‘relatively unlimited, low-cost capacity’” for “a wide array of protected First Amendment activity on topics ‘as diverse as human thought.’”49 But when thoughts turn to judges, the price of First Amendment rights may be too high for the lawyers who exercise them. Yielding to the chilling effect resulting from numerous sanctions on outspoken lawyers, Maryland’s first bar counsel advised attorneys “to undergo a cooling off period ... before ‘lashing out’ at the judiciary.”50 Unless and until the Court of Appeals gives lawyers the latitude to engage in more heated debates, those who wish to remain in this profession should chill out before speaking out. Before posting, maintain a professional, respectful tone, remove hyperbole and ad hominem attacks, and avoid details that may compromise client confidentiality or be perceived as an effort to influence rulings in a pending case.

The Supreme Court may tolerate sharper attacks. The court that issued you your license might not. IRWIN R. KRAMER, the managing attorney at Baltimore’s Kramer & Connolly, defends lawyers facing disciplinary action and publishes a popular blog on ethical issues at AttorneyGrievances.com. A loyal admirer of the dedicated men and women serving on Maryland’s Judiciary (who may feel free to skip this article), he may be reached at irk@KramersLaw.com.

Id.

Frost, 85 A.3d at 274, quoting Preamble to the Maryland Rules of Professional Conduct [6].

Bridges, 314 U.S. at 270.

Frost, 85 A.3d at 283.

Packingham v. North Carolina, 582 U.S. ___, 137 S.Ct. 1730, 1735 (2017), quoting Reno v. ACLU, 521 U.S. 844, 868, 870 (1997).

Melvin Hirshman, Did I Mean to Say That?, 42 Md. Bar Journ. 69, 70 (Vol. XLII No. 5 Sept./Oct. 2009) (emphasis added).

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Talking to Two Million People at a Time // How Lawyers Can Build Business with Social Media BY JENNIFER JESSIE

’ve been a social media practitioner for as long as I’ve been a lawyer; I created my own system, ignoring the “rules” we have all seen. My tweets show up on one to two million people’s twitter timeline each month, close one or two clients from the platform each week, and often have reporters reach out to me as a source for stories, which increases my visibility. In the midst of this pandemic, social media platforms are more important than ever for client-building and networking. When I think of in-person legal events, it feels like a distant memory. And what I remember about networking events was feeling the weight of anxiety as I went to the event, feeling alone in the first couple of minutes, forcing myself to talk to people, eventually enjoying myself, then leaving wondering, “Why don’t I do this more often?”

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I had big plans to network more in 2020. I am sure many of you reading this had similar aspirations. 2020 had different plans for us all. Most lawyers rely on word-of-mouth referrals and networking to help grow their business. Word-ofmouth is still a reliable source of new business. But in the chaos of COVID-19, in-person networking events are limited and feel like a relic of the past. In addition, getting potential clients to sit in front of a screen for a webinar or networking event after a day of sitting in front of their computer all day for work is challenging. Yet, there are still opportunities for lawyers to network to grow their business in this new, ever-changing climate. Some of those opportunities can be found on social media.

Many lawyers use social media to connect with friends and family. Some forget that social media can also be used to build a network and find profitable opportunities. Others realize the opportunity is there, but don’t know how to utilize social media in a way to generate new business. In this article, I will present simple strategies you can execute right now to create additional opportunities on social media. I will provide tips on how to build your own social media strategies with ideas you can implement immediately.

Find a Social Media Home

The biggest mistake most lawyers make when they start building their brand on social media, is that they attempt to do it all. They join Instagram, Pinterest, Facebook, Twitter and start posting sporadically or worse, posting the same thing multiple times, appearing repetitive (annoying!) to people following them on multiple sites. Remember depth, not width, is the goal. Pick a primary platform as your home base, post there when you have value to share, and if you get overwhelmed on other social media platforms, scale back and focus on your primary platform. How do you pick a primary platform? Decide what you want to say and how you want to say it. Here are some good guidelines: • Twitter is great for back-and-forth dialogues that can include short videos, photos, gifs. • Facebook is great for longer dialogues that will produce comments as well as longer videos and live videos. • LinkedIn is for those who want to keep a professional tone. LinkedIn just introduced stories -- videos or photos that disappear after 24 hours -- and are planning to roll out live video to all users soon. • Tik Tok is not just for younger people or dancing. Short, educational videos perform well on the platform. Example, “5 things to know if you are pulled over.” • Instagram is also great for short educational videos as well as infographics or graphics to educate potential clients on legal topics. Example, “Things to consider when determining if a worker is an employee or a contractor.” It is also great for informal “day in the life” photos or videos that give potential clients a sense of your personality. Pick one primary platform. Get into a rhythm. Then, add another once you have mastered the first.

Let Clients Know Your Value in Your Profile

Imagine you are in front of an ideal client hoping to close them. They say, “What do you do?” Would you respond with “attorney at law [insert name of practice]?” You might start there, but hopefully you would expand on this idea during the conversation. Think of every bio and headline for social media in the same way. You aren’t just an attorney, who do you help and how do you help them? Discuss the value you bring to the table. Use your biography to give a short elevator pitch. Add details to each experience in LinkedIn. If you can share a link in your bio, don’t just send people to your homepage. Send them to the most valuable piece of content, a blog post or a video. Here is a formula I use as a platform when creating a headline, bio, or even to incorporate into my experience for my LinkedIn profile to showcase my value. I help [insert information about ideal client] by [information about the problem you solve], which leads to [outcome your ideal client desires]. E X A M P L E : Attorney helping small business owners by creating loan opportunities to protect businesses post COVID-19. Make sure you put an alert on your calendar to update your profile, bios, and any other social media material every six months to ensure it stays fresh, up to date, and is providing value to the ideal client you hope to attract.

Don’t Just Show Up, Have a Meaningful Conversation

If you start reading social media best practices blogs or books, they will tell you there are a lot of rules: For example, “Use 5 hashtags, no 10 hashtags minimum. Post only at 11:59 am and 5:32 pm. Post at least 10 times a day. The Facebook algorithm loves [fill in the blank], it hates [fill in the blank]. This guarantees you will be seen.” My rule is simple: if I find something interesting and valuable, others might also. I post relevant news any time of day and if it is topical enough, people eventually find it. In fact,

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one of my most recent clients found me because of a post I posted over a year ago.

This makes your ideal client interested in returning to your page/profile in the future.

How do you find something interesting to talk about?

If you are unsure who potential parallel partners are, search using keywords or hashtags using any social media search function. See who keeps popping up, follow them. See who they follow and follow those who you think will provide you or your ideal clients value.

• What is the one thing you are known for talking about? • What is the area you love talking about? • What case law or articles do you find interesting? • What are questions your clients always ask you that you feel you can answer online without violating ethical rules? These are all possible ideas for posts on social media. Did you read a great article? Post the article, tell others why you found it to be valuable, tag the author and start a conversation with them about it. Did you have a rowdy conversation with your fellow lawyers during a meeting or at court? Continue the conversation online. My friend Anna Ivey once published a great article that was a reflection based on her notes from a meeting. Working on an article or presentation? Do what my friend Akil Bello does: Publish some of the slides in advance to generate interest or get feedback. If you can’t fit a slide into a presentation, make that your next social media post. When creating a post, think to yourself, “How can I

When creating a post, think to yourself, “How can I provide value while sharing my expertise?” provide value while sharing my expertise?” You do not need fancy graphics or cool videos when you start or even after you become established. Keep it simple, be true to yourself, provide value and eventually people will find you.

Find Parallel Partners

Who are your “competitors?” Start networking with them. Think of them as parallel partners rather than competitors. Provide value to your parallel partners without thinking “What’s in it for me?” Share any content that you think your ideal client would find valuable. Recognize by doing this that you are building connections while providing value to your ideal client. 100

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Another great way to identify parallel partners: read books, read magazines such as this one, read articles, watch YouTube videos, listen to podcasts. See who keeps showing up, then find them online. Talk to them about their work and tell them what you found valuable. Finding parallel partners allows you to: • Be aware of what is happening in your industry • Engage in conversations relevant to you, presenting additional content opportunities • Learn more about what is resonating and what isn’t- making you more effective in your communication • Discover new audiences • Build meaningful connections presenting new opportunities to expand. Another unexpected benefit I found to parallel partners is that they helped me grow my audience and ensure my content continues to be seen. My parallel partners tend to comment on my posts, engage with me online, and have back-and-forth dialogues. That interaction then gets seen by their followers. Many of their followers become my followers after they see the value I bring to the table. I also find that my parallel partners ensure I show up to the platform regularly. Sometimes I don’t want to get on social media, but I do want to see what my parallel partners are up to or see what they tagged me in so I can respond. Social media, in these instances, is not a chore. I am excited to return to continue conversations and move the dialogue forward, which is valuable to my ideal client.

Familiarize Yourself with Ethical Guidelines

Recently, I have seen a lot of ads by marketing companies who want to market specifically to lawyers. Many of them agree to work on commission under the “We don’t get paid, unless you get paid” rule. In addition, they advise lawyers to record automated general messages that can be used for “any scenario.” When I ask, “Are you aware of the ethical guidelines for lawyers?” many respond with, “What ethical guidelines?” When I ask the same question to lawyers, I get the same response. Many lawyers are unaware there are ethical rules

that exist to cover advertising. There are also ethical rules that cover fraud and misrepresentations as well as fee-splitting for referral purposes. [Take a moment to review Maryland Attorneys’ Rule of Professional Conduct, specifically Rule 19-307.2, if you haven’t lately.] Solicitation of clients is not the only rule implicated when you start making public statements online. You may find the rules of confidentiality to be important as you discuss cases. As you construct your social media profiles, bios, and even headlines, examine ethical rules of communication. Are you publishing client stories to generate word of mouth? Consider the impact on privilege, confidentiality, and then also make sure you examine provisions of the ethical rules that prevent lawyers from creating unjustified expectations or misleading the public. When sharing legal advice, make sure you have the disclaimers the ethical rules require. Also, examine the ethics decisions. When researching for this project, I learned quite a bit by reviewing the rules and ethics opinions. [Opinions of the MSBA Ethics Committee are available on the MSBA website at

adapt and find new connections, opportunities, and clients via social media. While COVID-19 has limited what we can do physically for the time being, it has also increased our opportunities to connect socially. And the best part is, once COVID-19 has passed and we are able to move forward, social media networking can continue to be a tool you deploy to grow your business as you network and connect in-person. JENNIFER JESSIE is a licensed attorney in Virginia who helps lawyers and small business owners find clients on social media. While studying for the Virginia bar exam, she started a TV blog that eventually landed her on the Emmy’s red-carpet. She’s been teaching profitable social media strategies for a decade. Her primary platform for marketing is LinkedIn, which is also the home for her course, Personal Branding on Social Media. The foregoing article was reprinted with permission of the Virginia State Bar. References to ethical rules, ethics opinions, and ethics hotline have been updated to include the information available for Maryland attorneys.

Lawyers who interact casually with prospective clients need to ensure that they don’t inadvertently establish attorney-client relationships.

MSBA.ORG/ETHICS.

[Generally, f ]or starters, always be cognizant of the jurisdictions where you are eligible to practice. Secondly, lawyers should be very careful not to give legal advice on social media to specific situations which is distinguishable from legal information, which is more general. Lawyers who interact casually with prospective clients need to ensure that they don’t inadvertently establish attorney-client relationships. Thirdly, lawyers should take care with their parallel partners who are other lawyers to make it clear to the public that they are not associated in the same firm when they are not.

Warnken, LLC welcomes former Maryland Workers' Compensation Commissioner Jeff Weinberg to the firm. Jeff will represent claimants.

When in doubt, don’t assume, ask a question. The [MSBA] also has an ethics hotline where lawyers can seek free, informal advice on ethical questions. Names and contact information for the attorneys covering the ethics hotline is available at msba.org/ethics.

Networking is not Over, it’s Just Moved Online

warnkenlaw.com

All networking is not over just because of COVID-19. Lawyers still have the ability to MARYLAND BAR JOURNAL | VOLUME 2 ISSUE 3

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The Modern Public Forum Theoretical Liability to Aid in Protecting Free Speech on Social Media Platforms BY JEREMY ROBINSON

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The 2016 and 2020 Presidential Elections threw into sharp relief the role social media plays in our society. We now receive a great deal of our information on the internet and one of these information vectors is social media. From objective fact and opinion to misinformation and disinformation, these platforms influence the world around us. The level of influence and ability to censor information that these social media platforms enjoy raised red flags with Congress because of putative bias in affecting this influence and ability.

his level of control by social media platforms allows private corporate interests to shape public opinion, affect national security, and determine the very essence of truth and fiction. Aside from legislation, we need legal stratagems to overcome the liability protections afforded to social media and hold them accountable for their actions. In this article, I will discuss the liability protections currently in place and how one might overcome these protections using First Amendment free speech protections and/or the tort of defamation. It is estimated that 3.8 billion people (hereafter, “User”) across the globe use social media.1 As of May 19, 2020, researchers found that 246 million Americans used social media.2 Merriam-Webster defines “social media” as “forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information...”3 There are too many social media websites to count due to the variety of niche interests combined with the fact that the number grows daily.4 When joining a social media platform (hereafter, “SMP”), a User must agree to a Terms of Service or 1

9 7

Use5 (hereafter, ToS) and abide by content policies6 of the SMP. To enforce the ToS and content policies, these platforms use a combination of software, algorithms, artificial intelligence, and human judgment when deciding what to allow and what to censor. Types of censorship include: flagging content with a link to competing information, hiding content behind a warning label, removing content from circulation, or outright deletion. In some circumstances, the platform might delete the User’s account.7 Users whose content is censored will usually receive some sort of notice from the SMP8. SMPs tend to keep the specific software and techniques used to monitor content and Users fairly close hold. Fortunately, on Nov. 17 and Oct. 28, 2020, of the Senate Judiciary Committee and the Senate Commerce, Science, and Transportation Committee, respectively, held hearings to delve into how some of the biggest SMPs use these tools to monitor content and Users, handle User content complaints, determine what/take action against content that is deemed offensive in accordance with the SMP’s ToS or policies. From these hearings we learned that Facebook uses two systems named “Tasks” and “Centra” to perform content monitoring.9

Koetsier, John (2020, February 18) Why 2020 Is A Critical Global Tipping Point For Social Media. Forbes. https://www.forbes.com/sites/johnkoetsi�er/2020/02/18/why-2020-is-a-critical-global-tipping-point-for-social-media/?sh=4f80ab1f2fa5 Clement, J. (2020, May 19) Social media usage in the United States - Statistics & Facts. Statista. https://www.statista.com/topics/3196/social-media-usage-inthe-united-states/ Merriam-Webster. (n.d.). Social media. In Merriam-Webster.com dictionary. Retrieved November 22, 2020, from https://www.merriam-webster.com/dictionary/ social%20media Wikipedia. (n.d.) List of social networking services. Retrieved November 22, 2020, from https://en.wikipedia.org/wiki/List_of_social_networking_services. This is a list of notable active social media websites but it excludes so many that it is not a reliable indicator of the overall number of social media services. Twitter. (n.d.). Terms of Service. Retrieved November 22, 2020, from https://twitter.com/en/tos. Facebook. (n.d.). Terms of Service. Retrieved November 22, 2020, from https://www.facebook.com/legal/terms. LinkedIn. (2020, August 11) User Agreement. Retrieved November 22, 2020, from https://www.linkedin. com/legal/user-agreement. LinkedIn. (n.d.). Professional Community Policies. Retrieved November 22, 2020, from https://www.linkedin.com/legal/professional-community-policies. LinkedIn. (2019, October 4). Publishing Platform Guidelines. Retrieved November 22, 2020 from https://www.linkedin.com/help/linkedin/answer/47545. Twit�ter. (n.d.). Rules and policies. Retrieved November 22, 2020, from https://help.twitter.com/en/rules-and-policies. Facebook. (2020). Community Standards. Retrieved November 22, 2020, from https://www.facebook.com/communitystandards/. Figure 1. Figure 2. Senator Hawley, Josh. (2020, November 17). Regulating social media content. [Video] Senate Judiciary Committee. CSPAN. https://www.c-span.org/vid� eo/?478048-1/facebook-twitter-ceos-testify-regulating-social-media-content.

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Tasks is a searchable database containing information about Users, adjudications on content, and other relevant information. It allegedly includes content that Facebook found offensive as well as content from Google and Twitter that is linked to a particular User submitted by the respective SMP.10 Senator Hawley alleged during the hearing that Facebook, Twitter, and Google collaborate and coordinate content monitoring activities.11 Centra is software that Facebook is alleged to use to monitor Facebook Users as they navigate the internet, in general, as opposed to only monitoring when the User is logged into Facebook. Centra can, inter alia, track and record different User profiles, dates of birth, message recipients, webpages the User has visited with Facebook social media icons, behavioral metrics, devices used, and photos taken.12 While not specifically addressed during the Committee hearing, it is safe to conclude that employees of these SMPs can access the content contained in Centra and Tasks or other such tools. It appears that Social Media content monitoring activities constitute a comprehensive cataloguing of Users activities on the internet. SMP liability for its content policing activities and aggregation of User data is an issue at the forefront of discussion in Congress; indeed, the purpose of the aforementioned Senate Committee hearings was to discuss liability protections conferred upon Social Media in Section 230 of the Communications Decency Act (hereafter, “Section 230”).

SMP liability for its content policing activities and aggregation of User data is an issue at the forefront of discussion in Congress Section 230 provides liability protection to a “provider or User of an interactive computer service” (SMP) for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or User considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or any action taken to enable or make available to information content providers or others the technical means to restrict access to material [herein described].”13 A more in-depth read of the statute reveals that Congress also included findings and policy in the statute to help frame the intent of the liability protection. In particular, Congress specified that, “The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”14 Congress further lays out its policy by affirmatively stating that the purpose of the liability protection is to, “to preserve the vibrant and competitive Id.

Id.

47 USC §230(c)(2).

Id. at (a)(3).

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Examples of social media censorship from Twitter, Facebook, and LinkedIn Censorship can include hiding the content and giving users the option to view the content; flagging the content and appending a note to competing information sources; removal of the content from circulation on the platform; and outright deletion of the offending content.

free market that presently exists for the Internet and other interactive computer services.”15 To put a fine point on its liability protection policy, Congress titled the liability protection section of the statute, “Protection for ‘Good Samaritan’ blocking and screening of offensive material.”16 We should ask at this juncture, why did Congress believe that SMPs needed liability protection? As a facilitator of communications by a diverse set of communicators and audiences, SMPs faced potential liability for content posted on their platforms. Congress recognized this need in Section 230. It distinguished between “interactive computer service[s]” and “information content provider[s]” in the definitions contained in the statute. "The term 'information content provider' means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."17 “The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple Users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”18 Congress bestowed Section 230 protections to, inter alia, “promote the continued development of the Internet and other interactive computer services and other interactive media; preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services[…]; encourage the development of technologies which maximize user control [emphasis added] over what information is received by individuals, families, and schools who use the Internet and other interactive computer services; […] and ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.”19 Aside from the stated reasons in Section 230 for its existence, there are other valid reasons why we need to maintain Section 230 protections for SMPs. The internet is global and so is Social Media. Since the rise of the internet in the 1990s, US-based companies that maintain a presence on the internet have run afoul of laws in other nations where free speech and commerce are not as protected as in the United States. In the late 90s and early 00s, Yahoo! became embroiled in legal action in France over the sale of Nazi memorabilia and books by Users on its platform.20 In recent weeks, a tribunal in Austria entered a global order that requires Facebook to remove content – including political speech – about a politician that is considered defamatory under Austrian 17 18 19 20 15

23 24

law regardless of jurisdiction.21 In the case involving Yahoo!, the French complainants hadn’t sought enforcement of the French order in the United States; thus, the Court did not address conflict of laws under our Constitution. However, it would not be unreasonable to assume that the Complainant in the case out of Austria or another similar case might result in legal challenges in the United States. If we are to preserve our commitment to free speech, Section 230 protections are worth having even if they might require reform. We the People need to reconcile our need to protect free speech in all public for a while also honoring private property rights. Section 230 has prevented U.S. citizens from holding social media companies accountable for the speech they allow and for the speech they censor. In other words, it allows SMPs to police content but does not take into account and permit redress for any bias in its policing activities. As Congress recognized the value of social media as the modern marketplace of ideas and codified that recognition in the statute, the construction of the statute raises several questions: • First, can actions by social media that are putatively in violation of the findings and policy of Congress in Section 230 void the liability protections found therein? • Second, do the liability protections in Section 230 void constitutional claims under the First Amendment to the U.S. Constitution? In our current context, the question arises to what degree is free speech protected on private property where the property in question is, in essence, intangible and operates as the modern public forum? • Third, what are the impacts of the words “good faith,” “Good Samaritan,” and the overall intent of Congress on liability claims against Social Media firms for the torts of slander and libel? I believe we can all agree that SMPs have become the modern public forum22 where numerous individuals of diverse backgrounds, interests, and beliefs meet to discuss any number of topics. The Supreme Court of the United States (hereafter, “SCOTUS”) has held that the First Amendment does not convey free speech rights on private property.23 However, SCOTUS has also held that, where a State’s free speech protections allow speech on private property by third parties – that is, parties other than the property holder/owner – enjoining the property owner/holder from prohibiting the speech does not constitute an inverse taking under the 5th Amendment takings clause.24 Article 10 of Maryland’s Constitution provides protection for free

Id. at (b)(2). Id. at (c). Id. at (f)(3). Id. at (f)(2). Id. at (b). Kaplan, Carl S. (2000, August 11). French Nazi Case Presents Jurisdiction Dilemma. The New York Times on the Web/Technology|CYBERTIMES/Cyber Law Journal. Retrieved November 22, 2020, from https://archive.nytimes.com/www.nytimes.com/library/tech/00/08/cyber/cyberlaw/11law.html. Lomas, Natasha. (2020, November 12). Facebook loses final appeal in defamation takedown case, must remove same and similar hate posts globally. TechCrunch. Retrieved November 22, 2020, from https://techcrunch.com/2020/11/12/facebook-loses-final-appeal-in-defamation-takedown-case-must-remove-same-and-similar-hate-posts-globally/. Farhi, Isabel. (2018, October 29). Twenty-First Century First Amendment: Public Forums in the Digital Age. Yale Law School Media, Freedom, & Information Access Clinic Case Disclosed. Retrieved November 22, 2020, from https://law.yale.edu/mfia/case-disclosed/twenty-first-century-first-amendment-public-forums-digital-age. Discussing SCOTUS and other federal court cases that have recognized Social Media as the new “public forum.” Lloyd Corporation, Ltd v. Tanner, 407 U.S. 551 (1972). Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).

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speech. Maryland Courts have held that free speech protections do not apply on private property where the activity or speech was uninvited25 and, from all appearances, have not had the opportunity to address the issue under the Pruneyard standard. Any First Amendment claim against an SMP for censorship under federal and Maryland law will likely turn on whether such censorship violates the policy of Section 230, was executed in “good faith,”26 the impact of the words “whether or not such material is constitutionally protected,”27 the view of Maryland Courts regarding speech on private property where the speech is “invited,” and the applicability of the ToS to these issues. A review of Maryland case law suggests that this issue would be an issue of first impression in Maryland Courts. To setup a factual scenario for this discussion, I will rely upon the facts concerning the recent revelations about a laptop purportedly belonging to Hunter Biden28 (“Biden Laptop”) and the actions taken by SMPs – Facebook29 and Twitter30 in particular. Prior to publishing its story on the Biden Laptop, the New York Post placed links to its stories on Facebook and Twitter to promote their circulation. When the New York Post published its story about the Biden Laptop, it followed its usual practice. Both Facebook and Twitter alleged that the information contained in the story was not reliable and censored the story by preventing any User on the platform from sharing a link to the story and Twitter, in time, locked the New York Post out of its SMP account. To evaluate the SMPs’ liability protection under Section 230 we need to look at whether the actions taken by SMPs against the New York Post were made in “good faith” against constitutionally protected speech and whether these actions violated the statute thereby potentially voiding its liability protection. One can strongly argue that the actions taken by SMPs were not in good faith. Regardless of what one wants to believe about the stories in question, there is no doubt that the laptop exists and that Social Media firms were not in possession of the laptop itself or other special information that would substantively show that the New York Post stories were “ob-

scene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable”31 as those terms were contemplated by the Congress32 when passing Section 230. The CEO of Twitter even admitted, under oath before Congress, that the actions taken against the New York Post were “a mistake.”33 These are sound grounds to argue that Section 230 liability protections do not apply and both SMPs can be held to First Amendment standards. Assuming we can overcome Section 230 protections, we next need to address whether we can apply First Amendment protections to private property where there is also a contract for use of the property involved. While federal courts cannot recognize First Amendment protections on private property under Tanner, nothing precludes Maryland courts from considering the issue. SMPs were created for individuals and companies to engage in speech. SCOTUS may need to revisit Tanner but, in the interim, let’s explore how Maryland might recognize free speech protections on social media. Tanner and Pruneyard combined show that states are free to recognize free speech rights on private property. Maryland’s jurisprudence on free speech on private property is somewhat indirect and only looked at speech where the speech was “uninvited.”34 As Social Media invites such speech, a case in Maryland courts would likely turn on the permissibility of the speech within the scope of the “invitation” and whether that speech becomes “uninvited” if it violates the ToS of the SMP. SMP ToS and content policies validity will turn on whether these contracts are “contracts of adhesion” and are void as a matter of public policy under the First Amendment or unconscionable under contract law. One can argue that the ToS and content policies that permit SMPs to have full, subjective control over content monitoring are prima facie invalid on public policy grounds due to its status as the new “public forum”35, the related constitutional protections of free speech in public fora, and the fact that these agreements are unconscionable as “contracts of adhesion”.36 Aggrieved parties might avail themselves of this legal theory to help combat social media censorship when

United Food & Commercial Workers Int'l Union v. Wal-Mart Stores, Inc., 228 Md.App. 203 (2016); Weis Markets, Inc. v. United Food and Commercial Workers Union, Local 400, AFL-CIO, CLC, 85 Md.App. 284 (1990). (Deciding the issue of trespass and public nuisance actions in relation to free speech guarantees and involvement of pre-emption under federal statutes concerning labor disputes, Maryland courts have held that such causes of action are permitted and free speech protections do not apply where the offensive conduct is uninvited by the property holder.) 26 470 USC §230(c)(2)(A) 27 Id. 28 Morris, Emma-Jo and Fonrouge, Gabrielle. (2020, October 14). Smoking-gun email reveals how Hunter Biden introduced Ukrainian businessman to VP dad. New York Post. Retrieved November 22, 2020, from https://nypost.com/2020/10/14/email-reveals-how-hunter-biden-introduced-ukrainian-biz-man-to-dad/. 29 Manskar, Noah. (2020, October 29). Investor Lonsdale breaks from Facebook to protest move to ‘authoritarian left’. New York Post. Retrieved November 22, 2020, from https:// nypost.com/2020/10/29/investor-lonsdale-breaks-from-facebook-to-protest-move-to-authoritarian-left/. 30 Feis, Aaron. (2020, November 17). Tweet-a-culpa: Twitter CEO Jack Dorsey admits Post lockout was ‘a mistake’. New York Post. Retrieved November 22, 2020, from https://nypost. com/2020/11/17/jack-dorsey-admits-lockout-of-the-post-was-a-mistake/. 31 47 USC §230(c)(2)(A). 32 Id. at (a)(2, 3). 33 Feis, Aaron. (2020, November 17). Tweet-a-culpa: Twitter CEO Jack Dorsey admits Post lockout was ‘a mistake’. New York Post. Retrieved November 22, 2020, from https://nypost. com/2020/11/17/jack-dorsey-admits-lockout-of-the-post-was-a-mistake/. 34 See Weiss, 85 Md.App. 284 (1990) and WalMart Stores, Inc., 228 Md.App. 203 (2016). 35 Packingham v. North Carolina, 137 S.Ct. 1730 (2017). 36 Walther v. Sovereign Bank, 386 Md. 412 (2005) (setting forth the analysis Maryland will use to adjudge contracts of adhesion as unconscionable). 25

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that censorship is clearly slanted toward one perspective. As an alternative, we should consider the tort of defamation as a viable means of holding SMPs accountable for the subjective determinations they make and publicize when determining whether posted content violates their ToS and content policies. At the outset, one might reasonably object to using the tort of defamation as a means of holding SMPs accountable on the grounds that one is obligated to abide by their ToS and content policies. These agreements and policies usually grant SMPs both liability immunity and subjective control over content posted on the platforms. One would also have to contend with liability protections under Section 230 to succeed in pursuing this tort. However, there are supportable arguments in favor of these torts. As discussed infra, there are grounds to argue that Section 230 liability protection does not apply because the censorship is not executed in “good faith”. Likewise, as discussed infra, there is a good argument one can make that the ToS is void as an unconscionable contract of adhesion. If the foregoing arguments are successful, then the door is opened for courts to

Defamation is a tort that contains the separate offenses of libel and slander and, as such, amount to a single tort in Maryland. consider the tort of defamation. Defamation is a tort that contains the separate offenses of libel and slander and, as such, amount to a single tort in Maryland.37 The elements of a defamation claim are: (1) a defamatory communication/publication; (2) provable falsity; (3) fault by negligence or actual malice; and (4) harm.38 There is potential liability for Social Media under these torts in how they enforce and adjudicate conduct under their content monitoring policies. Readers will notice

that the content monitoring policies that these Platforms enforce are not well defined and do not give User a concrete idea of what constitutes a violation of these policies. In enforcing these policies, the Platform employees enter these violations into Platforms into tools like the aforementioned Tasks and Centra. In making a determination about content, the Platform makes a subjective determination that it sets forth as fact in its violation notices. Due to the arguable nature of these determinations, such language could be construed as a defamatory statement due to the vague nature of the policies in question and the subjective nature of the adjudication of the content stated as fact. Such determinations are publicized or communicated as they are entered into software that is accessible and searchable by numerous employees of the SMP. However, complainants will run into trouble in asserting “provable falsity” and “harm.” It is possible to show harm from these statements if there is provable damage to one’s reputation that can be expressed in tangible form. In the New York Post instance, the actions taken by the platform were both injurious to the reputation of the company but also potentially had financial repercussions as well. With an individual, that standard will be harder to establish but we have seen cases that were successful on this front.39 There are too many dependencies at this time to make a clear case that a defamation suit would be successful in Maryland courts. However, it is clear that the issue of social media censorship and its impact on its Users in light of its modern public forum status is quickly coming to a head. Reviewing the current state of play in the law regarding First Amendment protections for free speech on private property, Section 230, and the tort of defamation, we see that there are potential avenues to hold Social Media platforms accountable for the content it censors and, perhaps, stop that censorship altogether. Whatever the solution, it is clear that there is no turning back the clock on how information is shared in cyberspace. It is therefore incumbent upon us as a society and as lawyers to find solutions to make the modern marketplace of ideas functional. We might not always agree with our fellow Americans but that does not mean we should allow unaccountable corporations to prohibit them from speaking in the public forum. JEREMY ROBINSON is a licensed attorney in Maryland and has practiced law for over ten years. He is involved in providing advice and counsel to government and private entities on the intersection of law, advanced technology, security, and strategy. He can be reached at jeremy.robinson.esq@gmail. com or 443-535-1682.

Paul Mark Sandler and James K. Archibald, Pleading Causes of Action in Maryland, §3.161, 364-366 (4th ed., MICPEL 2008)

Sandler and Archibald, supra at §3.163, 368.

Ehline Law Firm. (2020, July 28). Why the Sandmann Settlement Shows the Importance of Libel Laws: Crucial to Understanding How Libel Works in Media and Courts. Retrieved November 22, 2020, from https://ehlinelaw.com/blog/sandmann-libel-wapo-left.

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GORDON ON MARYLAND FORECLOSURE 5th Edition

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M S BA . OR G /G O R D O N

FOR YOUR PRACTICE

| ATTORNEY GRIEVANCE UPDATE

The Trust Account Scam Redux BY LYDIA E. LAWLESS, BAR COUNSEL

Maryland Bar Foundation Fellow Since March 2020, we have all changed the way we practice law. In-person meetings are rare, most of us are working remotely, and we rely much more heavily on electronic communications. The changes to the way we practice may provide increased opportunities for internet fraud schemes targeting attorneys and their trust accounts. The original scams mostly targeted solo practitioners with collections practices. That is no longer the case. In the past several months, I have seen a number of attorneys fall victim to increasingly sophisticated scammers. Default on a Loan In one matter, the attorney received an email from a potential client, Ms. Smith.1 Ms. Smith advised that she is a Canadian resident and that she loaned several hundred thousand dollars to Mr. Jones. She stated that Mr. Jones resides in the county where the attorney practices, that the loan was secured by a promissory note, and that Mr. Jones had defaulted on the loan. She requests the attorney help her negotiate a settlement and, if necessary, file suit. The attorney did a fair amount of due diligence. He spoke with Ms. Smith by phone and questioned her in detail about the case and the circumstances of the underlying loan. He requested and received copies of the promissory note, the check evidencing the loan, and copies of a series of checks showing that Mr. Jones made several payments on the loan as well as a copy of Ms. Smith’s passport. The attorney also researched Mr. Jones and confirmed that an individual with the same name lived at the address provided by Ms. Smith. The attorney agreed to represent Ms. Smith at an hourly rate and requested a substantial retainer. Ms. Smith agreed and advised that she would inform Mr. Jones that she had retained counsel. A short while later, Mr. Jones contacted the attorney by email and stated that he was anxious to resolve the matter. Mr. Jones and the attorney spoke by phone and agreed that Mr. Jones would make an initial payment toward the debt and that the parties would enter into a forbearance agreement for a period of time to allow Mr. Jones to sell his home and satisfy the remaining balance. The attorney received a check from Mr. Jones in the agreed amount of $75,000, along with a letter advising that he should deduct his retainer fee from the payment. The check was drawn on the account of a foreign company. The attorney contacted Mr. Jones and questioned him about the source of the funds. Mr. Jones explained that he was an investor in the foreign company and that he drew on his investment to make the payment. An internet search confirmed Mr. Jones’ connection with the foreign company. The attorney deposited the funds into his trust account. After a few days, he withdrew his retainer fee. The deposit was subsequently returned as counterfeit. Ms. Smith and Mr. Jones had disappeared. 1

Enforcement of a Settlement Agreement In a second matter, the attorney was contacted through his firm’s website by a potential client, Mr. Johnson. Mr. Johnson provided the attorney with a copy of a settlement agreement on the letterhead of a large well-known pharmaceutical company. Mr. Johnson reported that, six months after settling his claim, he had not been paid the agreed amount and requested the attorney file suit against the company. The agreement was well-written and provided that the company would pay Mr. Johnson $95,000 in resolution of his employment discrimination claim. The agreement was signed on behalf of the company by Jane Miller, Director of Human Resources. An internet search confirmed that the company’s HR Director was named Jane Miller

All names have been changed.

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and that Mr. Johnson was a former employee of the company. The attorney agreed to represent Mr. Johnson on a contingency fee basis and, several days later, filed suit against the company in Circuit Court. Mr. Johnson provided the attorney with what appeared to be a legitimate email address for Ms. Miller, jane.miller@pharmaceuticalcompany.com. The attorney emailed a copy of the complaint and summons, along with a demand for payment to the email address and received a response from “Ms. Miller” advising that the non-payment had been an oversight and that a check would be delivered immediately. A few days later, the attorney received a cashier’s check payable to the attorney and purportedly issued by a national bank. The attorney went to his local bank and deposited the check into his attorney trust account. He was told that he should wait two days to make disbursements from the account. After waiting two days, the attorney wrote two checks from his trust account totaling $95,000, one to Mr. Johnson and one to himself. The attorney sent Mr. Johnson’s check by FedEx (he purportedly resided out of state) and deposited his attorney’s fees into his operating account. Mr. Johnson then contacted the attorney, advised that he would not be able to pick up the FedEx package and asked, repeatedly, that the funds be wired. Six days after depositing the cashier’s check, the attorney’s bank contacted the attorney and advised him that the cashier’s check was returned as fraudulent. Mr. Johnson never picked up the FedEx package or responded to any of the attorney’s further attempts to contact him. Real Estate Settlement The attorney in a third matter is the owner of a small firm in a small county. The attorney was contacted by a local and known Realtor who advised that he (the Realtor) had a client located in China who was in the process of purchasing a local farm. According to the Realtor, the client, Mr. Cooper, advised that he was not comfortable paying the $10,000 deposit to the Realtor and insisted that the funds be held by an attorney. After speaking with Mr. Cooper by phone and receiving a copy of his passport, the attorney agreed to serve as an escrow agent and provided wiring instructions. Rather than receiving a wire in the amount of $10,000, the attorney received a cashier’s check in the amount of $300,000 issued by a Canadian bank. Mr. Cooper advised the attorney that the additional funds were to be held in trust and disbursed as instructed for expenses associated with the farm. The attorney deposited the check into his attorney trust account. Mr. Cooper then arranged for an inspection of the farm and sent the attorney invoices from a construction company with instructions to pay the invoices from the trust funds. An internet search showed that the construction company was real. The attorney called the construction company and spoke with the purported owner about the invoices. After speaking with the owner, the attorney concluded that the transaction was fraudulent and contacted Mr. Cooper. Mr. Cooper became belligerent and insisted that his funds immediately be wired to his account, allegedly in Cambodia. Twenty days after depositing the funds in his trust 110

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account, the attorney was advised by his bank that the check was fraudulent and had been returned. Trust Your Instincts The above examples are just a few of the schemes I have seen targeting attorneys in the past year. Traditionally, most of these scams targeted collections attorneys and the initial communication came via email from an international company. The emails were often poorly written, and the slightest amount of due dili-

The schemes today target all types of attorneys and involve more sophisticated legal matters, the documents are well-written, and the scammers have convincing stories. gence would reveal the fraud. The schemes today target all types of attorneys and involve more sophisticated legal matters, the documents are well-written, and the scammers have convincing stories. The companies and individuals involved are often “real,” internet searches corroborate the scammers’ story, and the counterfeit checks are perfect. In each of the above scenarios, the attorney reported that he was suspicious from the outset and that hindsight revealed that the scam was obvious. From my vantage point, many of the scams succeed because the attorney, against better judgment, takes a risk to obtain a fee (often for minimal work). Trust your instincts. WEB EXTRA

Ms. Lawless is a frequent presenter for the MSBA. Check out her session on Succession/Disaster Planning from the 2020 Solo & Small Firm Summit at MSBA.ORG/PLANNING-LAWLESS

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ETHICS

| ETHICS OPINION

Maryland State Bar Association, Inc.

Committee on Ethics MSBA ETHICS DOCKET NO. 2021-02

How Does an Attorney Proceed Ethically When the Client Refuses to Endorse the Check From a Judgment Debtor and the Debtor Then Offers to Reissue the Check and Make It Payable to the Attorney Alone?

YOU HAVE ASKED our opinion on: (1)

whether a Maryland attorney may ethically accept payment by a judgment debtor directly to that attorney after that attorney obtains a judgment on a client’s behalf; and (2) whether a Maryland attorney may subsequently issue various payments from the judgment proceeds upon a rejected proposed settlement distribution. We believe it is proper for the attorney to secure the judgment proceeds but we do not believe it is proper to make disbursements in light of the client’s objections. We understand the facts as follows. Your 112

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firm represented a client in a personal injury trial. Your client was awarded medical bills and lost wages but the jury awarded nothing for pain and suffering damages. No appeal was taken and a judgment was entered. The judgment debtor mailed you a check for the judgment payable to the client and you. Your office then provided a proposed Settlement Memorandum to the client. The client then notified you that she was refusing to sign the Settlement Memorandum and check for the judgment. The judgment debtor has indicated that it is willing to reissue the now stale check payable to your firm’s IOLTA account.

Reissuance of Draft in Firm’s Name A Maryland attorney has an obligation to keep safe the property and funds of their clients. Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) Rule 19-301.15. An attorney also is required to keep safe the property and funds of clients and third parties with the care required of a professional fiduciary. Id.., cmt. [1]. We previously addressed this issue in the context of a Maryland attorney being in possession of a settlement check issued to both the client and the attorney, which the client refuses to sign. We concluded that the Maryland attorney should file an interplead-

er, inter alia, to seek authority to negotiate the check. See MSBA Ethics Docket No. 2009-01 (“The Committee concludes that it would be appropriate for Attorney to file a civil action to adjudicate his right to a portion of the settlement proceeds and to obtain the right to negotiate the check for purposes of obtaining his fee and distributing the remainder of the proceeds.”)(emphasis added); MSBA Ethics Docket 2004-22 (“The Committee believes that Rule 1.15 allows you to file an action to properly adjudicate the entitlement of all parties to the proceeds of the recovery and to seek authority to negotiate the check and sign the releases necessary to consummate the arbitration.”). See also MSBA Ethics Docket No. 2000-30 (opining that an interpleader is the appropriate vehicle to resolve a conflict between a third party and a client over funds that an attorney holds in trust) (emphasis added). Your case is distinguishable because the judgment debtor is willing to reissue the check directly to you. Rule 1.15 contemplates that an attorney may hold property of clients and/or third persons even when the property is subject to continuing dispute. MARPC Rule 19-301.15 (“An attorney shall hold property of clients or third persons that is in an attorney’s possession in connection with a representation separate from the attorney’s own property.”). See also MARPC Rule 19-301.15(e) (acknowledging that held property may be subject to dispute). Accordingly, we believe that it is ethical to take possession of the judgment proceeds under these specific circumstances so long as the attorney also complies with the obligations set forth in MARPC Rule 19-301.15(d)(e). Disbursing Judgment Proceeds A Settlement Memorandum is an accounting prepared at the conclusion of a case wherein the attorney obtains consent from the client to disburse the property in a specified fashion.

ethically to disburse the disputed funds. Because your client has indicated that she is refusing to sign the Settlement Memorandum, we believe this indicates that your client is objecting to all of the distribution. “When an attorney in the course of representing a client in possession of property in which two or more persons (one of whom may be the

Because your client has indicated that she is refusing to sign the Settlement Memorandum, we believe this indicates that your client is objecting to all of the distribution. attorney) claims interests, the property shall be keep separate by the attorney until the dispute is resolved. The attorney shall distribute promptly all portions of the property as to which the interests are not in dispute.” MARPC Rule 19-301.15(e). Therefore, you are ethically required to keep safe the portion of the funds that are disputed until such dispute is finally resolved.

References Rules cited: • MARPC Rule 19-301.15 & cmt. [1]

Cases cited:

You may have additional obligations to notify other person(s) having a legal interest in the judgment proceeds, such as a lien or assignment. In Att’y Griev. Comm’n v. Ellison, the Maryland Court of Appeals determined that a violation of Rule 1.15 occurred because the attorney, who was in possession of settlement proceeds, made no effort to contact third-party healthcare providers claiming that they had received a partial assignment of the settlement proceeds. 384 Md. 688, 867 A.2d. 259 (2005).

• Att’y Griev. Comm’n v. Ellison, 384 Md. 688, 867 A.2d. 259 (2005).

Ethics Docket Nos. cited: • Ethics Docket No. 2000-30 • Ethics Docket No. 2004-22 • Ethics Docket No. 2009-01 • Ethics Docket No. 2018-03

We continue to believe that the proper mechanism to resolve this dispute is the filing of an interpleader action. See MSBA Ethics Docket Nos. 2018-03, 2009-01, 2004-22, and 2000-30.

Assuming arguendo that your firm was already in possession of the disputed funds, we do not believe that your firm is permitted

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Together, we are

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How does the legal profession deal with new challenges?

together.

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M S B A . O R G / S T R O N G E R TO G E T H E R

STAFF PROFILE

| ANDREA SOLAN, ESQ.

Meet Andrea Solan, Esq. MSBA LEGAL CONTENT EDITOR

Andrea Solan joined the MSBA as a Legal Content Editor on January 13, 2020 (exactly two months before the COVID-19 shutdown). Prior to joining the MSBA, Andrea was a practicing attorney in Howard County, Maryland focused primarily on family law. Read on to learn more about one of MSBA’s newest team members.

Tell us a bit about your background.

I grew up in San Jose, California, and moved to Maryland for the last two years of high school. I graduated from the University of Delaware with a major in Political Science and a concentration in Journalism, then attended the University of Baltimore School of Law.

Tell us a little about your legal career before joining MSBA. I have done everything from document review, hospital healthcare collections, legal publishing, and custody trials. I worked as a legal editor for the American Health Law Association in Washington, D.C., before taking a lengthy hiatus to stay home with my three children—

Ultimately I realized that I wanted to return to legal publishing, so I took a leap, left family law, and found a new home at the MSBA. although I continued to do freelance work as a legal editor. When I returned to working outside of the home I practiced family law exclusively with a small firm in Howard County. Ultimately I realized that I wanted to return to legal publishing, so I took a leap, left family law, and found a new home at the MSBA.

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What do you do at the MSBA? My role with the MSBA mainly involves working on our legal treatises. It is my job to take publications from ideas to author submissions to final products. I also create content for our various platforms, including weekly emails and blog posts. My favorite part of the job is working with colleagues who put their all into everything they do, with the shared goal of producing high-quality resources for Maryland’s lawyers.

My favorite part of the job is working with colleagues who put their all into everything they do, with the shared goal of producing high-quality resources for Maryland’s lawyers. What's an interesting fact about you we wouldn't find on your resume? I’ve been to 43 states and would like to add the remaining seven (Alabama, Alaska, Louisiana, Mississippi, Kansas, Michigan, and North Dakota--not necessarily in that order) in the post-COVID future. I’m also a huge Billy Joel fan.

What do you do to de-stress or unwind? Currently, anything that helps me separate “work” from “home” when it’s all the same place. This includes doing puzzles, cooking, and getting outside for walks as often as possible.

What advice would you give to others considering pursuing law as a career? Don’t get caught up in trying to match an image of what you think an attorney “should” be. Different personalities have different things to offer in the field of law, and being true to yourself will naturally lead you to the best way you can contribute.

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Warnken Law PAGE 101

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MSBA.ORG | VOLUME 2 ISSUE 3

Your Partner. An Advocate for Your Clients. Accepting referrals in the areas of birth injury, cerebral palsy, complex medical malpractice and catastrophic personal injury litigation.

George S. Tolley III

1966 Greenspring Drive Suite 500 Timonium, Maryland 21093 Toll Free: 1.800.408.2080 Phone: 410.308.1600 Fax: 410.308.1742 www.medicalneg.com

Alison D. Kohler

Bruce J. Babij

Maryland State Bar Association, Inc.

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Maryland Bar Journal

Electronic Service Requested

The McCammon Group

is pleased to welcome Our Newest Neutrals

Hon. Sally D. Adkins (Ret.) Retired Judge Court of Appeals of Maryland

Hon. Toni E. Clarke (Ret.) Retired Judge Prince George’s County Circuit Court

Hon. Thomas G. Ross (Ret.) Retired Judge 2nd Judicial Circuit Court of Maryland

Hon. Nelson W. Rupp, Jr. (Ret.) Retired Judge Montgomery County Circuit Court

Hon. Patrick L. Woodward (Ret.) Retired Chief Judge Court of Special Appeals of Maryland

Hon. Alexander Wright, Jr. (Ret.) Retired Judge Court of Special Appeals of Maryland

For a complete list of our services and Neutrals throughout MD, DC, and VA, call (888) 343-0922 or visit www.McCammonGroup.com

Maryland Bar Journal – Volume 2 Issue 3

Articles inside

From Paralegal To Member

The Rise of Smart Cities

Talking to Two Million People at a Time // How Lawyers Can Build Business with Social Media

The Untold Story: COVID-19 Impact on Attorney Mental Health

Attorney, Author, and Entrepreneur

A Look at the 2021 General Assembly Session