Maryland Bar Journal - July/August 2018 by Maryland State Bar Association

Volume LI â&#x20AC;˘ Number 3 July/August 2018

Immigration, Marijuana and the Golden State Killer

Volume LI • Number 3 July/August 2018

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Published bimonthly by the Maryland State Bar Association, Inc. 520 W. Fayette St. Baltimore, Maryland 21201 Telephone: (410) 685-7878 (800) 492-1964 Website: www.msba.org Executive Director: Victor L. Velazquez Editor: W. Patrick Tandy Assistant to the Editor: Lisa Muscara 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 The Maryland Bar Journal welcomes articles on topics of interest to Maryland attorneys. All manuscripts must be original work, submitted for approval by the Special Committee on Editorial Advisory, and must conform to the Journal style guidelines, which are available from the MSBA headquarters. The Special Committee reserves the right to reject any manuscript submitted for publication. Advertising: Advertising rates will be furnished upon request. All advertising is subject to approval by the Editorial Advisory Board. Editorial Advisory Board Hon. Vicki Ballou-Watts, Chair MSBA Officers (2018-2019) President: Hon. Keith R. Truffer President-Elect: Dana O. Williams Secretary: Deborah L. Potter Treasurer: Hon. Mark F. Scurti Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial Board or staff. Publishing an advertisement does not imply endorsement of any product or service offered.

The Fourth Amendment Features 4

The Legalization of Marijuana and Police Search and Seizure of Vehicles and Persons By Karen J. Kruger

Incidental Informants: Police Can Use Genealogy Databases to Help Identify Criminal Relatives - But Should They? By Natalie Ram

14 How Far Will the Third Party Doctrine Extend? By Kaitlin D. Corey

18 Deporting Parents Breaks Families By Alicia Altamirano

From Strategic Vision to Lawyer Well-Being: A More Proactive MSBA By the Honorable Keith R. Truffer

Departments 26 Committee on Ethics Ethics Docket No. 2016-05

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The Legalization of Marijuana and Police Search and Seizure of Vehicles and Persons By Karen J. Kruger 4

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The Fourth Amendment to the United States Constitution is one of the most familiar and well-known provisions of the Bill of Rights. No group of government employees are confronted with Fourth Amendment issues more frequently than law enforcement officers. In the law enforcement context, the interpretation and application of Fourth Amendment principles is as varied as the factual circumstances under which cases arise. It is a challenge to train police officers to understand and apply this body of law; even more so when legislative acts serve to change the landscape of criminal conduct. Action by the Maryland General Assembly to decriminalize possession of small amounts of marijuana and authorize the use of marijuana for medical reasons raise Fourth Amendment questions that must be answered by the courts. Until we have those an-

swers, law enforcement officers will be called upon to make the most judicious and reasonable decisions they can under the circumstance with which they are presented. The key principle to applying Fourth Amendment law is reasonableness, as the amendment prohibits the government from making unreasonable searches and seizures. As the Court of Special Appeals explained in Barrett v. State, 234 Md. App. 653, 661-62 (2017), “[w]hether a police action is reasonable ‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’” (citing Delaware v. Prouse, 440 U.S. 648, 654 (1979); accord Sellman v. State, 449 Md. 526, 540 (2016)). The court further explained that “[t]he general rule is that “searches conducted outside the judicial process, with-

out prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.” Id. (citing Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). It is well-established that a warrantless search of a person or a place is “reasonable only if it falls within a recognized exception” to the warrant requirement. Missouri v. McNeely, 569 U.S. 141, 148 (2013). Law enforcement officers are familiar with and often rely on these exceptions to the warrant requirement, that include (1) fresh pursuit of a suspected offender; (2) contraband or evidence seen in plain view; (3) the automobile exception (the “Carroll doctrine”); (4) stop and frisk; (5) consent; (6) exigent circum-

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stances; and (7) search incident to arrest. Grant v. State, 449 Md. 1, 16, n.3 (2016). In each instance, the object of the officer’s search is an item or object that is contraband in itself, such as counterfeit money or is evidence of a crime, such as the printer that produced the counterfeit money. Imagine the confusion that may arise when the object of the search was once contraband per se but now may be considered contraband only when its amount exceeds a certain quantity threshold, a threshold that may be impossible to measure; or when the status of the person possessing the purported contraband is authorized by State law to possess it under certain circumstances. At the same time, an officer must consider that the contraband is unlawful to possess under federal law, regardless of amount of intended use, but may be lawful to possess under State law. Such is the case with marijuana. Marijuana is classified as a controlled dangerous substance by both State and federal law and its possession is prohibited, but current State law permits its possession and distribution of it under certain circumstances.

The Odor of Contraband

The United States Supreme Court has long recognized that particular odors may be evidence of a crime. In 1932, the Court held that “[p]rohibition officers may rely on distinctive odors as a physical fact indicative of a possible crime.” Taylor v. United States, 286 U.S. 1 (1932). In Johnson v. United States, 333 U.S. 10, 13 (1948), a case involving opium, the Court recognized that “the odor of narcotics can be evidence of the most persuasive character.” In modern times, federal and State court rulings reflect this precedent. In United States v. White, 836 F.3d 437, 442 (4th Cir. 2016), a traffic stop case, the Court noted that it had repeatedly held that the odor of marijuana alone can provide probable cause that marijuana is present in a particular place, and that when the odor is detected in an automobile, police have probable cause to search the passenger com6

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Does the “immunity” from arrest also provide “immunity” from search simply because the possessor is a registered medical cannabis user? partment of the automobile without a warrant. In Bowling v. State, 227 Md. App. 460 (2016), the Maryland Court of Special Appeals held that a drug dog’s alert to the odor of marijuana was sufficient probable cause to support a search of an automobile without a warrant, despite the fact that the General Assembly had decriminalized the possession of less than 10 grams of marijuana and the dog did not have the ability to distinguish between less than ten grams and more than 10 grams. The Maryland Court of Appeals expanded on this same principle when it decided Robinson v. State, 451 Md. 94 (2017) addressing whether, in light of the decriminalization of possession of less than ten grams of marijuana, an officer could rely on the odor of marijuana to establish probable cause to search a vehicle. The Court unanimously held that the odor of marijuana – in any amount – constitutes probable cause to search as marijuana is still contraband and the odor gives rise to probable cause to believe that contraband or evidence of other crimes in contained in the vehicle.

Probable Cause versus Reasonable Suspicion

Soon after deciding Robinson, the Court considered Norman v. State, 452 Md. 373 (2017). The issue presented in Norman was whether the odor of marijuana emanating from a vehicle with multiple occupants gives rise to reasonable articulable suspicion to believe that the occupants are armed and dangerous to support an officer’s decision to pat down or frisk the occupants. While the Court reaffirmed its holding in Robinson that the odor

of marijuana alone creates probable cause to search the vehicle, it decided that the odor alone does not establish that any of the occupants is armed and dangerous and thus does not justify a frisk of the individuals. Most recently, we have the decision in Barrett v. State, 234 Md. App. 653 (2017), another case involving the search of a person, also a passenger in a car from which the odor of marijuana was emanating. Here, the Court recognized that the investigating officer could not discern from the odor the quantity of the suspected marijuana. Because Barrett admitted that he and other occupants were smoking marijuana in the car, even handing to the officer a hand-rolled cigar filled with green plant material, the officer had probable cause to arrest Barrett. During a warrantless search incident to arrest, the officer also recovered a loaded handgun from Barrett’s pants. Barrett argued that because the amount of marijuana he possessed was less than 10 grams punishable only by a civil citation, it could not constitute probable cause for an arrest. The Court held that it is not necessary that an officer be able to determine whether an offender is in possession of more than 9.99 grams of marijuana to establish probable cause to support an arrest. As the Court noted, certainty of that sort is inconsistent with the concept of probable cause.

The Next Variable – Medical Marijuana

In 2013, the Maryland General Assembly began enacting statutes to permit the use and possession of marijuana as a therapeutic agent, commonly referred to as “medical marijuana” or

“medical cannabis.” This action, as with the decriminalization of the possession of recreational marijuana in amounts less than 10 grams, is inconsistent with federal law which categorizes marijuana as a Schedule 1 Controlled Dangerous Substance, illegal to possess. The legislation established the Maryland Medical Cannabis Commission charged with enacting and enforcing regulations related to the possession, use, transportation and distribution of medical cannabis. The General Assembly took two major actions: one, it provided to medical cannabis patients an affirmative defense against criminal liability for possession of marijuana, MD Code Ann., Crim. Law Art., § 5-601; and two, it created an immunity from arrest and prosecution for “qualified” individuals for the medical use and possession of cannabis. MD Code Ann., Health Gen. Art., § 13-3313(a) (2017). This protection from arrest and prosecution for possession of marijuana that is classified as “medical cannabis” is only available to those who comply with the requirements of the Health General Article and the applicable Code of Maryland Regulations (COMAR) provisions. But law enforcement can expect to see abuses of these privileges that should be reserved for patients, caregivers and certified providers who are properly registered with the Commission and engage in responsible use of medical cannabis. There will be those who commit acts of fraud to criminally distribute marijuana in the guise of medical cannabis and law enforcement will be expected to enforce the State’s criminal prohibitions. Just as an officer (or drug detection dog) cannot determine the amount of marijuana present solely from its odor, an officer will not be able to distinguish medical cannabis from non-medical cannabis without further investigation. In addition, without more investigation, the officer cannot know whether or not the person in possession of the marijuana is authorized by law to possess it for medical reasons. Moreover, the odor of marijuana may

be evidence of other crimes such as the operation of a vehicle under the influence of a controlled dangerous substance, or the unlawful possession and distribution of medical cannabis, or the possession of fraudulent medical documentation as a means of evading criminal prosecution. Medical cannabis laws should not undermine the principle that the odor of marijuana emanating from a vehicle constitutes probable cause to search that vehicle without a warrant under the automobile exception. The Court of Special Appeals may have already signaled how it would rule on this question. The Bowling court included in its opinion a footnote arising from its conclusion that “possession of marijuana remains illegal in Maryland.” Bowling, 227 Md. at 470. The footnote notes that the General Assembly also recently enacted “medical marijuana” laws, providing that there is an affirmative defense to a prosecution in certain circumstances when possession of marijuana is for medical use, CR § 5-601(c)(3)(ii), and a licensed dispensary of products containing cannabis may not be penalized or arrested under State law for possessing or distributing these products (citation omitted). The impact of these laws was not addressed below, and therefore, this issue is not properly before us. Id., fn.8. Thus, if an individual claims that he is entitled to the protections of the Health General Article, or asserts an affirmative defense to criminal charges by virtue of section 5-601(c)(3)(ii), can he legitimately claim to a police officer that since his possession of marijuana is not a crime committed by him does not suggest criminal activity, its odor cannot serve as the basis of a warrantless search? Does the “immunity” from arrest also provide “immunity” from search simply because the possessor is a registered medical cannabis user? To what extent is an officer authorized to investigate the validity of the individual’s claim that he is protected by the

Health General Article, and does that affect the officer’s authority to search?

Conclusion

The legal landscape of the regulation of marijuana is complex and shifting. Law enforcement officers face challenges in maintaining their current knowledge of the applicable laws and in using their investigatory and charging discretion to apply those laws in a fair and proper manner. At the same time, it is difficult for citizens to understand when, where and why their possession of marijuana is classified as a civil offense (based on amount possessed) or a criminal offense, at the same timing appreciating that the substance they possess is still illegal under Maryland and federal law. Medical marijuana patients must understand, too, that while they may be protected from arrest and prosecution for possession of medical cannabis, this protection only attaches if they are acting in compliance with the applicable regulations. At some point, the Maryland courts will be faced with a case in which a law enforcement officer searched an automobile based on the odor of marijuana, and the citizen involved claims that the action was a violation of the Fourth Amendment because his possession of the drug was not a crime, given that he is a legitimate medical cannabis patient. When this case is presented, the courts should have little difficulty in ruling that the odor of marijuana remains a valid and reasonable basis on which to conduct a search. The status of the possessor does not determine the nature of the suspected contraband. The Bowling court held that “possession of marijuana remains illegal in Maryland,” and that searches made based on its odor remain a legitimate basis for a search under the Fourth Amendment, medical cannabis notwithstanding. Ms. Kruger has been a prosecutor and legal advisor to police and correctional agencies since 1992. She currently serves as the Executive Director of the Maryland Public Safety Education & Training Center.

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Incidental Informants

Police can use genealogy databases to help identify criminal relativesâ&#x20AC;&#x201D;

but should they? By Natalie Ram

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On April 24, 2018, California police arrested Joseph James DeAngelo, alleging that he is the elusive Golden State Killer. Over more than a decade in the 1970s and 1980s, the Golden State Killer is believed to have committed more than a dozen murders and more than fifty sexual assaults. If DeAngelo is indeed the Golden State Killer, his arrest and prosecution is a victory for public safety and for law enforcement. But the methods investigators used to identify DeAngelo raise significant questions and concerns about the relationship between the police and the people—and about the role of the state in regulating that relationship. Investigators employed three boundary-pushing methods of genetic profiling to investigate the Golden State Killer case and track down DeAngelo. This article identifies these methods and explains why neither the Fourth Amendment nor current Maryland law likely bars similar techniques. It argues, however, that such techniques are in tension with the statutory framework for police use of DNA that Maryland has enacted. Investigators are rushing to make use of these investigatory techniques in other cases. See Peter Aldhous, DNA Data From 100 Crime Scenes Has Been Uploaded To A Genealogy Website—Just Like The Golden State Killer, BuzzFeed News, May 17, 2018, https://bzfd.it/2xvoHyy. Before genetic surveillance for all becomes the norm, Maryland should act, as it has before, to preserve the genetic privacy of its residents. First, police in the Golden State Killer case searched an online genealogical DNA database, GEDmatch, to generate investigative leads. Although investigative searches of DNA databases are routine, the Golden State Killer case marks one of the first times police have successfully used a database not created for law enforcement purposes in this way. All 50 states and a variety of federal agencies collect, store, and share genetic information for law enforcement purposes through a central database known as the Combined DNA Index System (CODIS). See Maryland v. King, 569 U.S. 435, 445-45 (2013). Local, state, and federal forensic DNA laboratories may enter lawfully obtained genetic profiles into the CODIS “offender database,” while crime scene DNA profiles are stored in a separate CODIS index. See 34 U.S.C. § 12592(a). Today, CODIS contains the genetic profiles of millions of known felons, misdemeanants, and even arrestees. While the scope of includable individuals has expanded over time, no state—including Maryland—has authorized the collection and search of DNA from ordinary citizens for forensic investigative use. July 2018

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Indeed, Maryland’s statute authorizing a forensic DNA database includes meaningful limitations to protect ordinary individuals against routine DNA searches for crime detection purposes. Maryland’s DNA database is largely limited to individuals convicted of a felony. See MD. CODE ANN., PUB. SAFETY § 2-504(a). While Maryland law permits DNA to be collected from certain individuals merely charged (but not yet convicted) of crimes, the scope of that permission is circumscribed. Individuals whose DNA is collected prior to a conviction must be charged with a “crime of violence,” burglary, or an attempt to commit these crimes. Id. § 2-504(a)(3) (i). The State must also automatically destroy and expunge any such DNA samples and records if the prosecution for which DNA was collected is unsuccessful. Id. § 2-511(a). Thus, Maryland’s legislature has acted to protect individuals who have not been convicted of a crime from perpetual genetic surveillance. By contrast, investigators in the Golden State Killer case searched the DNA of hundreds of thousands of individuals with no known law enforcement connection by using a genealogical DNA database for crime detection purposes. While Maryland’s law establishes the limits of the State’s own database, and so does not expressly speak to police use of other genetic resources, such use is arguably inconsistent with the limits the legislature has put in place for its residents. Current Fourth Amendment precedent, meanwhile, is unlikely to bar warrantless police searches of genealogical DNA databases. The Fourth Amendment protects individuals “against unreasonable searches and seizures” by the government. U.S. Const., amend. IV. The Supreme Court has interpreted this protection as shaped by, among other things, an individual’s reasonable expectations of privacy. In Maryland v. King, the Supreme Court held that individuals have an expectation of privacy in their genetic information, such that compulsory genetic sampling and analysis 10

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for purposes of inclusion in the State’s official offender database constitutes a search. 569 U.S. at 446, 464-65. But the Court also concluded that compulsory sampling and analysis did not require a warrant—at least not where the individual to be sampled had been lawfully arrested, and therefore had diminished expectations of privacy. Id. at 462-63. Moreover, under another branch of Fourth Amendment precedent, individuals typically forego any expectation of privacy in information that they voluntarily share with a third party. See, e.g., Smith v. Maryland, 442 U.S. 735, 744 (1979); United States v. Miller, 425 U.S. 435, 442 (1976). Where, as here, an individual has voluntarily uploaded their genetic information to GEDmatch in hopes of forging genetic connections with others, it is difficult to see what sort of expectation of privacy might remain. The Supreme Court is currently weighing whether this “third party doctrine” continues to hold force in the digital age, in which nearly all data is shared in at least a nominal sense with an internet platform, cell phone company, or other online entity. See Carpenter v. United States, No. 16-402 (U.S. argued Nov. 29, 2017). Carpenter, in which the Supreme Court will determine whether police must obtain a warrant to access historical cell phone records revealing the movements and location of a cell phone user over a long period of time, could upend numerous police practices obtaining sensitive information without a warrant by seeking it from a third party. But until Carpenter is decided, existing precedent presents provides little protection against police use of a genealogical database for crime detection purposes. In searching the GEDmatch database to find the Golden State Killer, investigators employed a second type of genetic investigation that subverts that existing limits placed on police genetic surveillance. Investigators searched the database not for a direct match for the Golden State Killer, but rather for a partial match indicating that a relative of the Killer had made their DNA

available in the database. The use of partial matches indicating familial relationships—familial searching— raises difficult legal and ethical questions. Traditionally, law enforcement have searched forensic genetic databases only for direct matches; that is, matches indicating that the offender whose DNA matches the crime scene profile likely committed the crime in question. This makes sense. Individuals searchable as part of the offender database are supposed to have some connection to law enforcement already, like an arrest or conviction. Relatives of an included offender are not certain to have any such connection themselves. Indeed, familial searching is productive only in those instances in which a genetic relative is not otherwise in the known offender database. If the relative were himself included, a direct match would be found, obviating any interest in a familial identification. But a growing number of states have begun to conduct familial searches in their own state offender databases, effectively sweeping in the close genetic relatives of individuals in the database who are not themselves otherwise includable. The FBI, for its part, has steadfastly declined to take a position on familial searching, permitting but not embracing its use throughout CODIS. See COMBINED DNA INDEX SYS., BULLETIN NO. BT072006, INTERIM PLAN FOR THE RELEASE OF INFORMATION IN THE EVENT OF A “PARTIAL MATCH” AT NDIS (2006). Familial searches frustrate ordinary principles of Fourth Amendment analysis. Even if an individual whose DNA is catalogued in a database may be said to have a diminished expectation of privacy in his identity—either because he was lawfully arrested or because he has voluntarily shared his genetic data with a third party like GEDmatch—the same cannot be said of that individual’s genetic relatives. There is nothing voluntary about the ways in which genetic material is shared within families. Children inherit half of their genetic data from

each parent, and they are statistically likely to have about half of the same genetic data as their full siblings. See Natalie Ram, Fortuity and Forensic Familial Identification, 63 Stan. L. Rev. 751, 758, (2011). But these genetic patterns, which make familial searching possible, arise as a product of biology, not choice. Indeed, genetic ties are both involuntary and immutable. They cannot be controlled or escaped. It is therefore difficult to square familial searches with database searches based on diminished expectations of privacy. Yet, Fourth Amendment law makes it exceedingly difficult for an individual identified through a familial search to defend against it. Fourth Amendment rights are typically “personal,” meaning that an individual must have their own expectation of privacy infringed by the challenged search or seizure. See Byrd v. United States, No. 16-1371, slip op. at 6 (U.S. S. Ct. May 14, 2018). When investigators conduct a familial search, it is unclear in what sense a genetic relative’s own expec-

tation of privacy is violated. It is not, after all, their own cells that were analyzed to generate the genetic profile that was searched. Indeed, the law is presently ill equipped to grapple with the difficult nature of shared genetic material. I have elsewhere argued that courts should look to other forms of shared material to illuminate analysis about when an individual has a sufficient interest in searched genetic data that does not derive from their own cells. See Natalie Ram, DNA by the Entirety, 115 Colum. L. Rev. 873 (2015). To date, no court has done so. Maryland is one of only two jurisdictions to have enacted a statute forbidding familial searches in the State’s own database (the other is D.C.). MD. CODE ANN., PUB. SAFETY § 2-506(d). Although this prohibition strongly indicates disapproval of familial searches, it is unlikely that this prohibition would prevent Maryland investigators from proceeding like their California counterparts. The Maryland statute states, “A person may not perform a

search of the statewide DNA data base for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA sample was acquired.” Id. Searches of non-law enforcement databases do not fall within the terms of this prohibition, as they are not searches of “the statewide DNA data base.” Thus, an investigation like the one in the Golden State Killer case reopens the possibility of familial searching in Maryland. Finally, in a third controversial investigative action, once investigators zeroed in on DeAngelo, they collected a confirmatory DNA sample by following DeAngelo and surreptitiously collecting items he discarded. This trash was not itself informative, but it was covered with DeAngelo’s DNA. Indeed, individuals are perpetually shedding their DNA. We leave DNA behind as we move through the world—on the items we touch, the places we sit, and the pizza crusts we

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“ ” There is nothing voluntary about the ways in which genetic material is shared within families.

throw away rather than eat. Courts have consistently upheld police collection and analysis of shed DNA as consistent with the Fourth Amendment. In Maryland, the Court of Appeals held that police analysis of DNA shed on a chair at the stationhouse was permissible, even after the defendant had explicitly declined to provide a DNA sample voluntarily and police could not compel one. See Raynor v. State, 99 A.3d 753 (2014). The court concluded that shed DNA is like a latent fingerprint, with neither giving rise to an expectation of privacy to which Fourth Amendment protections might attach. Id. at 767-68. The court also cited approvingly a decision upholding as constitutional the collection of DNA by a fraudulently obtained saliva sample. Id. at 766. But DNA is not like a fingerprint—a fact that numerous courts, including the Supreme Court, have failed to appreciate adequately. At a minimum, as the Golden State Killer investigation shows, DNA is identifying to whole families, not merely the individual from whose cells a DNA profile is derived. By contrast, to date, there is no evidence that fingerprints can indicate relatedness. See Ram, DNA by the Entirety, 115 Colum. L. Rev. at 900. Nor can an individual reasonably avoid leaving their DNA behind, while a pair of gloves may eliminate unwanted latent fingerprints. Moreover, DNA contains significant and sensitive information not avail12

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able in existing fingerprint analysis. To be sure, forensic DNA typing in the United States typically analyzes highly variable but noncoding portions of genetic code, and courts have repeatedly emphasized the non-medical nature of this data. See Raynor, 99 A.3d at 761-68. But emerging research casts doubt on the notion that noncoding DNA is simply “junk.” Indeed, researchers have linked genetic disorders to sequences in noncoding DNA, including certain mental retardation syndromes and neurodegenerative disorders. See, e.g., Karen Usdin, The Biological Effects of Simple Tandem Repeats: Lesson From the Repeat Expansion Diseases, 18 Genome Res. 1011, 1011 (2008). Current Fourth Amendment jurisprudence thus may not fit well with emerging scientific understandings. These refutations of genetic privacy against government searches hold even less sway for searches like those in the Golden State Killer case. The genetic information investigators’ examined and searched in utilizing the GEDmatch database went far beyond the narrow band of genetic information that investigators typically use. To conduct their search in GEDmatch, investigators developed a much more complete genetic sequence for their then-unknown perpetrator. Indeed, a GEDmatch profile contains hundreds of thousands of genetic data points. See Justin Jouvenal, To Find Alleged Golden State Killer, Investigators First Found His Great-Great-Great-Grand-

parents, Wash. Post, Apr. 30, 2018, https://wapo.st/2xmss9p. Law enforcement searches in databases like GEDmatch, particularly when combined with familial searching and the surreptitious collection and analysis of shed DNA, signal a radical shift in who may be subject to genetic surveillance and what types of genetic information may be searched. Investigators in the Golden State Killer case made ingenious use of the limits of genetic technology. But as each such use becomes commonplace, the result is likely to become perpetual genetic surveillance for all. The Maryland legislature has acted before to prevent such a future—prohibiting familial searches in the State’s own DNA database and requiring the automatic expungement of DNA collected from individuals charged with, but ultimately not convicted of, serious crimes. Unfortunately, neither these existing limits nor the Fourth Amendment itself provides a ready safeguard against widespread genetic sampling and surveillance by other means. To preserve the genetic privacy of Maryland residents, the time is ripe for the legislature to act again. Ms. Ram is assistant professor of law at the University of Baltimore School of Law, where she is also the associate director of the law school’s Center for Medicine & Law. She is a Greenwall Faculty Scholar in Bioethics.

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How Far Will the Third Party Doctrine Extend? By Kaitlin D. Corey

Does the Fourth Amendment protect a person from a warrantless search and seizure of his or her data that is stored on a smart device or stored virtually on the cloud?

Today we have smart phones, smart watches, smart televisions, smart cars, smart refrigerators, just to name a few. They are capable of creating and transmitting data. These digital effects carry personal information about our daily life, our daily step count, who we have communicated with, where we have been, and what we have bought. Does the Fourth Amendment protect a person from a warrantless search and seizure of his or her data that is stored 14

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on a smart device or stored virtually on the cloud? In 1791 the states ratified the Fourth Amendment to the United States Constitution which protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...” U.S. Const.. amend. IV. The Fourth Amendment places constitutional limits on law enforcement’s power to conduct a “search” or a “sei-

zure”. Riley v. California, 134 S. Ct. 2473, 2494 (2014). A “search” occurs “when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). If the government’s conduct does not trespass on a person’s property or violate a person’s reasonable expectation of privacy, then the Fourth Amendment is not implicated. Illinois v. Andreas, 463 U.S.

765, 771 (1983); Kyllo v. U.S., 533 U.S. 27, 31 (2001). If the Fourth Amendment is implicated, unless an exception applies, a warrant supported by probable cause is required to conduct the search. A “‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” Jacobsen at 113. As written, the Fourth Amendment “bans searches and seizures of ‘persons, houses, papers, and effects.’ This literal language imports tangible things…” Berger v. State of N.Y., 388 U.S. 41, 78 (1967). But as technology rapidly evolves, searches by law enforcement are becoming much more complex than simply searching a person’s physical property. Instead of physical papers containing personal information, personal information is being stored in the form of digital data and is being transmitted through smart devices, and sometimes is not stored on the device at all but rather stored on the virtual “cloud.” Needless to say, the drafters of the Fourth Amendment did not consider the implications of data, smart devices and the cloud in 1791 – prior to electricity, let alone computers. In the 1970’s the Supreme Court held on two separate occasions, that the Fourth Amendment does not prohibit the obtaining of information exposed to a third party. See United States v. Miller, 425 U.S. 435 (1976), see also, Smith v. Maryland, 442 U.S. 735 (1979). The Third Party Doctrine strips any information or data that is exposed to third parties from Fourth Amendment protection under the theory that there is no reasonable expectation of privacy for information known or available to third parties. If the Third Party Doctrine is applied to data located on a smart device or on the virtual cloud, the data could be attained by law enforcement, without a warrant, to use against the user without any constitutional implications under the theory that most, if not all, data stored on smart devices is available to a third party.

The Protection of Intangibles: It Began with Wiretapping

This issue stems back to the much less complex issue of whether the Fourth Amendment protects the invasion of intangible property. In 1886, the Supreme Court decided Boyd which involved a court order demanding that a company produce private business papers. Boyd v. United States, 116 U.S. 616 (1886). The search in Boyd was not focused on the physical papers themselves but rather the information on the physical papers. Id. The Supreme Court concluded, “[i] t is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property… .” Id. at 630. The seemingly broad protection provided by the Fourth Amendment was limited in later cases to search and seizure of tangible objects. Following Boyd and until 1967, the Supreme Court resolved Fourth Amendment cases on the basis of whether persons, papers, homes, or effects were physically invaded. Courts did not consider technological developments that could invade a person’s privacy without trespassing on physical space. In Olmstead v. United States, a police officer generated millions of dollars each year from his bootlegging business during Prohibition. Federal investigators wiretapped his telephone line to listen to his telephone calls. Based on information obtained during these telephone calls, Olmstead was convicted. Olmstead’s appeal arrived on the steps of the Supreme Court with the question of whether wiretapping Olmstead’s telephone line was a violation of his Fourth Amendment rights. In a 5 to 4 decision, the Supreme Court held that wiretapping a person’s telephone line was not a violation of his Fourth Amendment rights. Writing for the majority, Chief Justice William Howard Taft wrote that there

was no search or seizure. Instead, the evidence was obtained by using the sense of hearing, not by entering Olmstead’s house or office. Olmstead v. United States, 277 U.S. 438, 464 (1928). The majority in Olmstead held that the Fourth Amendment protects only real property, “material things,” from search and seizure and that this protection only extends to “the person, the house, his papers, or his effects.” Id. However, Justice Brandeis wrote in his dissenting opinion, “invention[s] have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” Id. at 473. In 1928, Justice Brandeis predicted that “[s]ubtler and more far-reaching means of invading privacy [will] become available to the government…” Id. at 473. But it was not until nearly forty years later, and nearly a full century after the invention of the telephone, when Justice Brandeis’ predictions would become reality and the Supreme Court would recognize telephone conversations to be constitutionally protected against unreasonable searches. In 1967, the Supreme Court overturned the decision in Olmstead and held that wiretapping by state and federal investigators was subject to the Fourth Amendment. Katz v. United States, 389 U.S. 347, 361 (1967). Katz’s conversation with his gambling associates was overheard by the police through an electronic listening and recording device that was attached to the outside of a public telephone booth. Id. at 348. The Supreme Court acknowledged that while there was no physical invasion of the telephone booth, the Fourth Amendment protects “people, not places” and cited to the Supreme Court decision in Warden, Md. Penitentiary v. Hayden from earlier that same year, “the premise that property interests control the right of the Government to search and seize has been discredited.” Id. at 353, citing Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967).

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It was then that the Supreme Court acknowledged that the Fourth Amendment protects more than just “material things” from search and seizure.

The Implications of the Third Party Doctrine

The Fourth Amendment continues to lag behind today’s rapidly evolving technology. The Supreme Court has not expressly stated whether the Third Party Doctrine applies to virtual data stored on the cloud and if it does apply, to what extent. If the Third Party Doctrine does apply, without limitation, data stored on the cloud (which is available to a third party) would not be protected by the Fourth Amendment. The Supreme Court has held there is no reasonable expectation of privacy for financial records held by a banking institution because “the Fourth Amendment doe[s] not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.” United States v. Miller, 425 U.S. 435, 443 (1976). Similarly, in Smith v. Maryland, the Court held that people gave up an expectation of privacy with regard to their phone records when dialing a phone number on their phone because the phone company receives and processes the phone number, becoming a third party to the transaction. 442 U.S. 735 (1979). These two cases pose the terrifying and unanswered question of whether the Third Party Doctrine extends to digital data. In today’s world, our personal information is stored digitally and maintained by third parties through smart devices. Our documents and pictures are stored on the cloud. Our location information is available to our phone companies. Our internet history is available to internet service providers. If digital data is not protected by the Fourth Amendment on the basis that a third party has access to it, the Fourth Amendment would be obsolete as it relates to virtual data. The Supreme Court has pondered the issue of the Third Party Doctrine and its applicability to digital data in United States v. Jones and perhaps un-

It was then that the Supreme Court acknowledged that the Fourth Amendment protects more than just “material things” from search and seizure. intentionally, the Court began the process of uprooting the Doctrine in Riley v. California. In 2012, the Supreme Court held that installing a GPS tracking device on a vehicle to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. United States v. Jones, 565 U.S. 400 (2012). In her concurrence, Justice Sotomayor opined, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Id. at 417 (Sotomayor, J., concurring). Acknowledging that in the digital age, “people reveal a great deal of information about themselves to third parties…[p]eople disclose the…URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and books, groceries, and medications they purchase to online retailers.” Id. Justice Sotomayor, troubled by the applicability of the Third Party Doctrine to digital data wrote, “I would not assume that all information voluntary disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.” Id. at 418. Two years later, the Supreme Court held that a search of data on a smart phone required a warrant and the search incident to arrest exception did not apply. Riley v. California, 134 S. Ct. 2473, 2495 (2014). Chief Justice Roberts acknowledged the complexity of the issue of how and where data is stored on smart devices; he wrote, “[t]o fur-

ther complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself.” Id. at 2491. The Court explained that cloud computing allows a smart device to “display data stored on remote servers rather than on the device itself.” Id. The Court’s detailed analysis of the unlimited amount of personal data stored or accessible through a smart device of which cannot be searched without a warrant (aside from limited exceptions) raises the question of whether the Third Party Doctrine pertains to virtual data. The Supreme Court may shed light on the Third Party Doctrine and its applicability to data located on smart devices in a case currently before the Court, Carpenter v. United States. This case raises the question of whether the warrantless search and seizure of historical cell phone records revealing location and movements of a cell phone user is permitted by the Fourth Amendment. United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016). The United States Court of Appeals for the Sixth Circuit, held that Carpenter’s cell data qualified as business records and not protected by the Fourth Amendment because it did not reveal content of any phone calls (only location and movements) and further, the data was obtained from a third party. Id. at 887. If the Supreme Court holds that location data is not protected by the Fourth Amendment because no content is revealed, the Court may not need to delve into the issue of how far the Third Party Doctrine extends with regard to smart devices and whether it extends to any and all data, including content that is accessible to third parties. Regardless, considering the evolving nature of technology in this day and age, it is an issue that will likely be addressed soon. As Justice Sotomayor wrote, the Third Party Doctrine is “ill suited to the digital age…”. United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring). Ms. Corey is an attorney at Astrachan Gunst Thomas, P.C.

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DEPOR

PARE

BREA

FAMI By Alicia Altamirano Though United States (U.S.) immigration laws appear to be just, forcing the separation of immigrant families may add to the calamitous history of judicial errors. Close to five million U.S. citizen children live with undocumented parents who face the threat of deportation. (Jessie Higgins, Millions of American children live with undocumented parents in the US, January 18, 2018, available at https://www.courierpress.com/ story/life/2018/01/18/millions-american-children-live-undocumented-parentsus/1014689001). Some parents may find a

RTING

ENTS

AKS

ILIES way to remain in the U.S., but what will happen to these children whose parents cannot? First, letâ&#x20AC;&#x2122;s examine why these parents are here and why they might make the devastating choice to have their children stay in the U.S. even when they, the parents, are being deported. Several parents are here because they left their former home countries, which were riddled by abject poverty and offered limited opportunities of prosperity. Others were brought here as children themselves

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and qualified for Deferred Action for Childhood Arrivals (DACA), a temporary policy and executive action established by President Barack Obama, which offered those brought here as children without documentation a relief from deportation. (DACA, March 17, 2018 10, available at https:// www.ilrc.org/daca, March 17, 2018 10:30 a.m.). And still, other parents came decades ago fleeing war or catastrophe—Temporary Protect Status (TPS) is a humanitarian program established by Congress and offered these immigrants a relief from deportation. (American Immigration Council, Temporary Protective Status, An Overview, March 17, 2018, available at https: //www. American immigration council. org/ sites/ default/ files/research / temporary_ protected _status _an _ overview.pdf). Many also came from Central American countries, countries that still lack the forces and infrastructure necessary to keep their citizens safe. Gangs

now overrun most of these countries. The same gangs that even our own Attorney General has titled terrorist organizations. (Christiano Lima, Sessions: MS-13 gang could be labeled a terrorist organization, April 18, 2017, available at https://www.politico. com/story/2017/04/sessions-salvador-gang-terrorists-237345). The United States Department of State has issued several travel warnings to these countries. El Salvador and Honduras are considered to be among the most violent countries in the world, and its citizens flee due to the high rates of gang violence that fosters rape, extortion, kidnapping, and drug trafficking. (Lily Folkerts, Daniella Burgi-Palomino, and Emma Buckhout, A Look at the Northern Triangle of Central America August 15, 2016, Sustained Violence and Displacement, available at http://www.lawg.org/action-center/ lawg-blog/69-general/1709-a-look-atthe-northern-triangle-of-central-america-in-2016-sustained-violence-and-

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displacement). Gangs force young girls into sexual relationships; boys are recruited and forced into a life of crime. Families are forced to pay “renta”, which refers to a protection tax. (Anastashia Moloney, Deadly gang extortion rackets drive emigration from El Salvador, May 16, 2016, available at https://www.reuters.com/article/us-el-salvador-extortion/deadly-gang-extortion-rackets-drive-emigration-from-el-salvador-idUSKCN0Y71QW). If the family doesn’t pay, someone dies. Id. Impunity, reinforced by the dearth of a strong or ethical police force and an inept legal system, allows the gang violence to control. (Rocio Cara Labrador and Danielle Renwick, January 18, 2018, Central America’s Violent Northern Triangle, available at https://www.cfr.org/backgrounder/ central-americas-violent-northern-triangle). As such the citizens are more often than not left to succumb to the physical and monetary gang demands, otherwise, their only option is to flee and hope they make it safely to the U.S. The passage to the U.S.that these immigrants experience is most often one of violence However, the violence they experience in their home countries outweighs the violence they may face on their journey. Women are advised to start methods of contraception beforehand, in case of rape. Amnesty International reported that 80 percent of women and girls are raped crossing into the U.S. (Eleanor Goldberg, 80 percent Of Central American Women, Girls Are Raped Crossing Into The U.S., September 12, 2014, available at https://www. Huffington post. com/2014/09/12/central – America – migrants - rape_n_ 5806972. html). Families awaiting their loved ones are aware of the high probability of ransom demands for the release of their family members. (Alfredo Corchado, We own this place’: Gangs prey on deportees along the U.S.-Mexico border, Agust 27, 2017) available at https://www.dallasnews.com/ news/mexico/2017/08/27/willfulblindness-deportees-becoming-easy-

prey-gangs-along-us-mexico-border). And everyone is aware of the high risk of death. Once they arrive to the United States, they are often inhumanly treated; they are placed in “hieleras” which means freezers. In these immigration detention facilities, adults and

Attorneys in the fields of family law and estate planning generally do not believe the power of attorney is sufficiently legally binding. Parents will have to carefully qualify friends and family. Parents may not have anyone willing or able to take custody of their children. Those that

Children and Families of the Department of Health and Human Service, in 2016 there were 437,500 children in foster care. Once a parent has been detained, the children are usually not deported with the parent, and they could be assigned with Child Protective Services until custody or placement is de-

We can’t excuse the separation of families by cowering behind the pretense of judicial adherence. children experience extreme cold temperatures, are forced to sleep with the lights on, have limited access to bathrooms, and are not adequately fed. (Detained Immigrants Held In “The Freezers”, March 30, 2018, available at http://cmsny.org/detained-immigrants-held-in-the-freezers/). They also can experience lengthy detentions before release. Yet, these families are not deterred from seeking a life free of starvation, poverty, and violence and do not propose returning to the countries they were forced to flee. If a parent is facing deportation, some parents will assume the risk and will return to their home country with their children. But many parents face the possibility of leaving without their children to save their children from the violence and dangers in their Central American country. With this looming, families are forced to choose between unification and separation. Some families are faced with losing only one parent, while the other remains in the U.S.. Some will seek legal help to ensure that their children will have a guardian. This situation presents many emotional issues and procedural and legal challenges. Families may prepare a power of attorney for someone to handle their finances, assets, and other legal responsibilities, but this will probably not work as authorization for the care and custody of the children.

do have a family member or friend ready to care for their child may have to consider preparing a consent for a future court filing. If the parent chooses to prepare a consent, it is important they seek legal assistance. Most attorneys are aware of what each jurisdiction requires. For example, some jurisdictions mandate certain verbiage be included in the consent, and other jurisdictions require that such consents include a waiver of service of process. A consent is not required but may significantly advance this legal process. The guardian petitions the court for custody or guardianship, depending on what the parties have previously agreed. Parties may have to be served. Alternative service may be required, involving possible posting at the court and or publication in a newspaper, and motions for default may be required. The process can take several months, but eventually a legal guardian should be named for the children. As in all family law matters, a custody complaint or guardianship petition can prove to be a conundrum of civil procedures and cause financial hardship. It can easily deter pro se litigants. For situations when children will be left without any parents or guardians, questions arise about how and when does the State of Maryland step in as the parent to those children left without their parents? According to the Administration for

termined. This process may take several months during which the children could be separated from family and familiar faces for an extended period. Some of the children that stay will not be U.S. Citizens, but others will be in every sense of the term. They were born here, have an American education. They look forward to getting a driver’s permit, proms, spring breaks, and a higher education. They will probably never face gang threats and severities—a world far from that of their parents’. Our judicial history is not free of errors. From Native American People Treaties violations, to Dred Scott to the 1882 Chinese Exclusion Laws and beyond, the United States judicial process has denied basic human rights. Racially neutral laws, like the process of deportation can seem to be vital and fair on the surface,, but in reality serves as a pretext to dismantle families. Its attack on the family unit extorts constitutional encroachments. We can’t excuse the separation of families by cowering behind the pretense of judicial adherence. As President John F. Kennedy once said, “Perhaps our biggest hope for the future lies in the lessons of the past.” (John F. Kennedy, A Nation Of Immigrants 31(1964)). Ms. Altamirano is a sole practitioner in Columbia, Maryland, where she advocates for immigrant families.

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MARYLAND BAR JOURNAL

FROM STRATEGIC VISION TO LAWYER WELL-BEING:

A More Proactive MSBA

By the Honorable Keith R. Truffer Photo by Maximilian Franz/ The Daily Record

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July 2018

Editor’s Note: Judge Truffer delivered the following excerpted message upon assuming the office of President of the Maryland State Bar Association on June 16, 2018.

Background

I have always lived in Maryland. Born in Baltimore City, I grew up in Anne Arundel County. I attended the late, great Cardinal Gibbons High School in Baltimore City, completed college at Mount Saint Mary’s University in Emmitsburg, Maryland, and returned to Baltimore to pursue a legal career at the Harvard of Mt. Royal Avenue, the University of Baltimore School of Law, which I attended in the evening while working in the Mercantile Trust department during the day. During my last year in law school, I served a clerkship with Judge John Raine of the Baltimore County Circuit Court. I was very fortunate that the finest law firm in Baltimore County - Royston, Mueller, McLean & Reid LLP (RMMR) - took a flyer on me and hired me as an associate. At Royston, I had the opportunity to work with great lawyers such as Dick Reid and Tom McDonough, who taught me how to try a case and, more importantly, how to conduct oneself as a lawyer. Royston became my professional home for 33 years. I cannot conceive of a better group of lawyers or people with whom to spend my career as a lawyer. At a point in my career, I decided to take on a new challenge and apply for the bench. Suffice it to say, I was not immediately successful in that effort. I made my first application in the last millennium – in November 1999, and was first nominated in February 2000. Finally, on January 13, 2016, I received a call from Governor Larry Hogan, telling me that he had appointed me to the Baltimore County Circuit Court. When I was interviewing with the Governor, he seemed very surprised, as I guess most would be, that I would keep applying after being passed over so many times. He asked me that question repeatedly. I gave him an answer I had never offered in any prior interview over those 16 years. I had always thought that it may be a little too personal to be injected into a judicial interview. But my wife, Beth, encouraged me to explain that reason if I was asked. So I did. Throughout my life, my mother Alice Truffer made enormous sacrifices for me and for my four brothers and sisters in order to give us opportunities and to provide an education. I told the governor that for this reason, it would mean a great deal

to me for my mother to see me sworn in as a judge and to have her place the robe on me. It would be a way of showing that all of those sacrifices my mother had made were well invested. Thank you, Beth. And thank you, Mom – this is all for you.

MSBA Participation

My participation in the MSBA was encouraged at a very early stage by the partners at RMMR. I first served on the Board of Governors in 1989. By the end of this bar year, I will have served on 14 Boards and seven Executive Committees, in addition to other service on MSBA Sections and Committees, not to mention considerable involvement with the Baltimore County Bar Association. That experience has fostered within me a deep affection for the MSBA. I have benefited immensely from the opportunity to improve my professional skills and to develop business contacts which sustained me in my practice. But most importantly, I was able to forge long-lasting friendships with individuals I never would have met but for the MSBA. I am profoundly grateful for these opportunities, experiences and friendships and, in particular, to be able to represent the MSBA as its President at this exciting time in the Association’s history.

Priorities

As you know by this time, the MSBA is undergoing a period of extraordinary change. During the upcoming year, we want to build upon and accelerate the great strides we have initiated to secure the near and long-term health of the Association. In addition to the improvements now underway there are three areas to which we will direct our focus and our energies over the next year, so as to best position us for years to come: 1. Policy Review Committee. Many of the policies of governance which the MSBA uses today date back many years, some to the very creation of the Association in 1896. These include: • The size, composition, and function of the Board of Governors; • The manner in which the MSBA reports and reviews its finances; and • The timing, location, and focus of the MSBA’s meetings, including its Annual and Midyear meetings. As the size of our membership has grown and the opportunities and challenges of the legal profession have become more complex, it is prudent and responsible to review those policies and, as necessary, to revise them to ensure that they comport with the best practices for our profession and for similarly situated associations. At the May 2018 meeting of the Board of Governors, I announced my intention to create a Policy Review Com-

mittee. This Committee will undertake a comprehensive review of the MSBA’s policies and practices, conduct research into and a comparison with the best practices in our industry, and ultimately recommend such changes to our bylaws as are necessary to implement these best practices. In this way, we can create a structure which best positions the MSBA to meet the new challenges we face and take advantage of the new opportunities presented. 2. Strategic Vision Committee. As we implement the many changes which are now in process, we also must be mindful of those challenges and opportunities which are on and beyond the horizon. We need to establish long-term priorities to guide our policies from year to year. We must make ourselves more anticipatory, and less reactive. To this end, we will create a Strategic Vision Committee with a long-term focus and a broad vision to plot a course for the MSBA over the next five to 10 years. This Committee will define the MSBA’s continuing role in shaping our profession while we serve our members and our community. It will assess the current and emerging trends affecting our members and our profession. The Committee, in consultation with the Executive Committee and the Board of Governors, will recommend a set of priorities which will: • drive our funding; • shape the work of our Sections and Committees; and • define the focus of staff and leadership – all towards the goal of aligning our work with those strategic priorities. Finally, I want to now address that which, if nothing else, will have a lasting impact as a result from my service as President. 3. Lawyer Assistance Program Today, throughout the state, too many of our friends, our partners, our colleagues and our associates are suffering. While we as lawyers and judges deal professionally with the problems of others with respect to alcohol addiction and substance abuse, there is nothing in a law degree that inoculates us from those problems. Indeed, as a profession, we are more susceptible than the general population to the incidence of depression and to alcohol and substance abuse. These problems crush lives, ruin careers, and harm our clients and our community. How big is this problem? In 2016, the American Bar Association (ABA) and the Hazelden Betty Ford Foundation jointly published a groundbreaking study in the Journal of Addiction Medicine. The study was the first of its kind in 25 years, and included nearly 13,000 practicing lawyers. It found that “whereas an estimated 7 percent of adults in the U.S. qualify as problem drinkers,” the percentage of practicing lawyers who qualify as problem drinkers skyrockets to between 21 - 36 percent. The study also noted that clinical “depression, anxiety, and stress are also significant problems for this population.” The study concluded that “compared with other populations, we find the significantJuly 2018

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Weâ&#x20AC;&#x2122;re here to support you. MSBAâ&#x20AC;&#x2122;s Lawyer Assistance Program offers free, confidential services to help MSBA members thrive. The Lawyer Assistance Program Committee oversees the services that MSBA provides for lawyers in need. Since 1981, LAP has helped lawyers dealing with everything from drug and alcohol abuse and depression, to chronic stress and family issues. Confidential phone lines Assessment, referral, and short-term counseling Intervention assistance and planning Mentorships for peer support Bar application assistance Twelve-step support group Education and orientations to the legal community Contacting our staff is free and confidential.

You can reach us by calling the Lawyer Assistance Program at

1-800-492-1964

Visit www.msba.org/health-wellness for more information

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July 2018

ly higher prevalence of problematic alcohol use among attorneys to be compelling and suggestive of the need for tailored, profession-informed services.” This problem for our profession is not restricted to practicing lawyers. The ABA/Hazelden study found that, for many participants, their drinking problems began in law school and continued through into their practice. This conclusion was supported by another study, also published in 2016 – that of 3,300 law students which appeared in the Journal of Legal Education. That study reported that “nearly 25 percent of law students responding to the study fit standardized criteria to be considered for further screening for problematic use of alcohol.” Lastly, while there is little data to rely on, it is unreasonable to conclude that judges are immune to these problems. The stress of deciding child custody and criminal cases with life-changing consequences, the relative isolation of the judge’s role on and off the job, and the management of what are often time-intensive, congested dockets can readily be seen as sources of immense stress on members of the judiciary. Moreover, by the nature of their position in the profession, judges may be even less likely to seek help than are lawyers. This is borne out by the fact that all Lawyer Assistance Programs across the country report a very low rate of judges seeking help. While the ABA/Hazelden study is the largest and most revealing to date on the subject, the conclusions that it reached should not be surprising. I am willing to bet that nearly everyone in this room today has had some exposure to these problems, whether directly or through a family member, a colleague or a friend. Yet, the very nature of the disease – and yes we need to move to a point of agreement with the medical profession on this; alcoholism and substance abuse is a disease - the insidious nature of that disease demands from those afflicted by it an extraordinary degree of secrecy and denial, conditions which hamper diagnosis and treatment. Lawyers. Judges. Law students. All suffering from a disease and in need of treatment and compassion – not ostracism and scorn. As leaders of our profession we must act. We must look at this problem in a different way and with a greater urgency. In August 2017, the ABA’s National Task Force on Lawyer Well-Being produced an enormously important Report entitled The Path to Lawyer Well-Being. It is a 72-page set of recommendations for use by bar associations, the judiciary, law schools, attorney and judicial discipline regulators, legal employers, professional liability insurers, and lawyer assistance programs. The goal is to create what it describes as a Profession Wide Action Plan to combat this threat to our profession, its members, and the broader community we serve. I have begun discussions about this problem with many of the stakeholders in Maryland – Jim Quinn, Director of the MSBA Lawyer Assistance Program; Chief Judge Mary Ellen Barbera of the Court of Appeals; Bar Counsel Lyd-

Presidential Priority:

Lawyer Health and Well-Being It is my goal for the MSBA over the next year, in partnership with these stakeholders, to develop for Maryland a coordinated effort, consistent with the recommendations of the ABA Path to Well-Being Report: •

to acknowledge the problems of alcohol addiction and substance abuse and to promote their awareness;

•

to expand the availability of treatment for these conditions;

•

to destigmatize and encourage those who need treatment; and

•

to emphasize the confidentiality of that treatment.

To meet this challenge is both an act of humanity to those lawyers who need our help and critically necessary to meet our responsibilities to our community and to our profession. ia Lawless; Court of Special Appeals Judge Michael Reed, Chair of the Judicial Disabilities Commission; Law School Deans Ronald Weich and Donald Tobin; and attorney Al Frederick, for the professional liability insurers. Each of these groups has a profound interest in combating the mental health issues of depression and alcohol and drug abuse which afflict Maryland’s lawyers, judges, and law students.

Conclusion

Before I conclude, I would like to make a final point. Over the last year-and-a-half, the MSBA has had to make many difficult choices as to its future course. In considering those decisions, there are voices among us who insist on looking backward, clutching on to what we have been rather than looking to what we can be. With a full understanding of our noble history and a deep appreciation for the contributions and sacrifices of so many who have made the MBSA the premier organization that it is, let me eliminate any ambiguity. I stand with those who look forward. Those who see change as an opportunity rather than a peril. With this in mind, I am very excited and proud to work with the Judiciary, led by Chief Judge Barbera; with our superb Executive Director, Vic Velazquez, and the excellent MSBA staff; with the Officers: Dana Williams, Judge Mark Scurti and Deb Potter; with the Board of Governors, our Sections and Committees to propel the MSBA forward at this critical and vibrant point in its history. July 2018

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS ETHICS DOCKET NO. 2016-05 26

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Question Presented:

Summary Conclusion:

If the lawyer is permitted to appear before the federal agencies in accordance with federal law and the lawyer’s practice is limited to those federal matters, that practice would be permitted the Maryland Rules of Professional Conduct. However, the Committee emphasizes that this opinion is subject to several limitations and caveats, which are discussed below.

Facts Provided:

In your inquiry you pose the following scenario: You would like to have an individual who is an active member in good standing of the District of Columbia Bar (and an inactive member of the Illinois Bar) who is NOT a member of the Maryland Bar work with your law firm on matters involving federal agencies and federal regulations as Of Counsel from his home in Maryland. He would not meet with his clients at his home, but would meet with them in a public place or government building prior to any hearing or appearance, and those meetings might take place in Maryland. Current members of your firm are licensed in California and the District of Columbia and none are members of the Maryland Bar. All current members work from their homes in California and the District of Columbia. The firm does exclusively Federal Security clearance appeal matters –which are administrative proceedings before Federal Departments and Agencies such as the Department of Defense, National Security Agency and others. There is no right to judicial review in these matters; administrative rulings are final. The firm does its work and contact with clients electronically (a “virtual law office”) and members physically appear at various locations with clients in California, Maryland, Virginia, the District of Columbia and various other states where the Federal Agencies may conduct a hearing. Clients never come to the home offices and are met in person only at the hearing locations (or, on rare occasions, in a public place). The individual whom you propose to add to the firm as Of Counsel would work in the same fashion. His home office in Maryland would NOT be listed as a firm location, nor would it be advertised and no clients would meet with him at his home in Maryland. He would maintain a private home office in Maryland for the purpose of writing, elec-

tronic research and communications. You have represented that all advertising of your firm prominently advises that your practice is limited exclusively to matters and proceedings pertaining to denial or revocation of Federal personnel security clearances (and, as an ancillary matter, “Common Access Cards”). Publicly-available mailing addresses for your firm are in Washington, D.C. and California only, but you do advertise that your federal security clearance practice is nationwide. The security clearances are needed for access to Federal classified information or performance of sensitive duties affecting the national security, and Federal Common Access Cards are needed for access to Federal Buildings or computer systems. Denial or revocation of these personnel security clearances and Common Access Cards are governed exclusively by Federal law.

Opinion:

The Committee first notes that the unauthorized practice of law in Maryland is governed not only by the Rules of Professional Conduct, but also by statute. Maryland Code, Business Occupations and Professions Article, § 10-601, Practicing without admission to Bar, provides that, “[e]xcept as otherwise provided by law, a person may not practice, attempt to practice, or offer to practice law in the State unless admitted to the Bar. (Emphasis added). In addition, with respect to advertising and other communications, Section 10-602. Misrepresentation as authorized practitioner, provides that “[u]nless authorized by law to practice law in the State, a person may not represent to the public, by use of a title, including “lawyer”, “attorney at law”, or “counselor at law”, by description of services, methods, or procedures, or otherwise, that the person is authorized to practice law in the State.” The “practice” of law is defined in Section 10101, which provides that the practice of law includes: (i) giving legal advice; (ii) representing another person before a unit of the State government or of a political subdivision; or (iii) performing any other service that the Court of Appeals defines as practicing law. The practice of law is also governed by the Maryland Rules of Professional Conduct. Under Rule 5.5, Unauthorized Practice of Law; Multijurisdictional Practice of Law: (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. …. (d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: … (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction. July 2018

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(Emphasis added). With respect to your inquiry, several of the “COMMENTS” to Rule 5.5 are also instructive. COMMENT [18] Paragraph (d)(2) recognizes that a lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent. (Emphasis added). COMMENT [19] A lawyer who practices law in this jurisdiction pursuant to paragraph (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a) and Md. Rules 16-701 and 16-731. COMMENT [21] Paragraphs (c) and (d) do not authorize communications advertising legal services to prospective clients in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Rules 7.1 to 7.5 govern whether and how lawyers may communicate the availability of their services to prospective clients in this jurisdiction.1 Based on these rules and the related comments, if federal law permits the attorney to practice before the federal department or agency, then subject to the caveats below, the attorney may work from his home in Maryland on matters relating to that federal practice.

Caveats:

First, as noted above, in order to do what you propose to do, the lawyer in question would have to be authorized by federal law or executive order to represent, or to provide legal services to, clients regarding federal security clearance appeal matters. If that caveat is met, an attorney who is licensed in a jurisdiction other than Maryland, who is registered and authorized to practice before a federal security clearance appeal Administrative Judge or Board, and who is a member of a law firm can provide legal services and representation related to federal security clearance appeals to all clients needing such services and representation regardless of where the clients are located. These services and representation may include rendering legal advice and/or written opinions for clients on issues related to a federal security clearance appeal. The attorney can conduct this practice and provide these services while physically in Maryland and without the supervision or association of a Maryland licensed attorney, so long as the attorney limits his/her activity to the practice of a federal security clearance appeal law and is not in any manner attempting to practice Maryland law, or holding him or herself out as a Maryland attorney. Provided the attorney’s practice is limited as described herein, he or she may also maintain an office in Maryland to conduct that limited practice. The attorney would also be permitted to provide advice and counsel regarding a federal security clearance appeal matter to a Maryland client from a location outside of Maryland, without running afoul

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of unauthorized practice in Maryland. However, the extent to which the attorney can conduct his/her practice outside of Maryland will depend upon the unauthorized practice rules and/or rules of professional conduct in those other jurisdictions. While a non-Maryland security clearance attorney can fully engage in a federal security clearance appeal practice from an office in Maryland, Rules 7.1 and 7.5 would require that an attorney who is not licensed in Maryland exercise caution regarding public information concerning his or her practice. Specifically, the attorney would need to confirm that all information on the internet (as well as letterhead, business cards, etc.)clearly indicate his/her limitations of practice. This can be accomplished either by denoting the jurisdiction(s) where the attorney is licensed, stating that the attorney is “not licensed in Maryland” and by indicating that the attorney’s practice is limited to an area of federal law by permitted federal law, which does not require Maryland State Bar membership. See e.g., Attorney violated Maryland statute and Rules 5.5 and 7.1 regarding unauthorized practice by failing to indicate on his business cards, stationery or office signs that his practice was limited to the federal courts in Maryland, by representing clients in the Maryland State courts, even though he had not been admitted to practice in those courts, and by leading clients, the court, and the general public to believe that he was admitted to practice in the State courts of Maryland. Att’y Griev. Comm’n v. Alsafty, 379 Md. 1, 838 A.2d 1213 (2003).

Conclusion:

Based the information you have provided, if the caveats set forth above are met, and there is a federal statute, rule or executive regulation that permits attorneys to appear before the ALJ and/or Appeal Board, the arrangement you propose would be consistent with the Maryland Rules of Professional Conduct. We hope this opinion has been responsive to your inquiry. 1. Rule 7.1. Communications Concerning a Lawyer’s Services, provides that [a]lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. Rule 7.5. Firm Names and Letterheads, provides that (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1, and (b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers must indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

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