Diversity in the Legal Profession

Volume XLIV • Number 4 July/August 2011

Diversity In The Legal Profession July 2011 Maryland Bar Journal 1 Volume XLIV • Number 4 July/August 2011 Published bimonthly by the Maryland State Bar Association, Inc. The Maryland Bar Center 520 W. Fayette St. Baltimore, Maryland 21201 Features Telephone: (410) 685-7878 (800) 492-1964 Diversity In The Legal Profession Website: www.msba.org Executive Director – Paul V. Carlin Maryland Lawyers Who Helped Shape the Constitution 4 Editor – Janet Stidman Eveleth Assistant to the Editor – Jason Zeisloft By Jose’ Felipe’ Anderson Investing in the Future of Maryland Women 12 Design – Jason Quick By The Honorable Lynne A. Battaglia and Evelyn C. Lombardo Advertising Sales – Network Publications Black Women Judges: Three Decade Journey Subscriptions: MSBA members receive the maryland bar journal to Maryland Appellate Courts 20 as $20 of their dues payment goes to By The Honorable Anna Blackburn-Rigsby and Melissa Roca publication. Others, $42 per year. Postmaster: Send address change Blindly Taking the Maryland Bar Exam 26 to the maryland bar journal, 520 W. Fayette St., By Joshua L. Friedman and Gary C. Norman Baltimore, MD 21201. A Case for the Undocumented Immigrant 30 The Maryland Bar Journal welcomes By The Honorable Audrey J.S. Carrión and Matthew M. Somers articles on topics of interest to Maryland attorneys. All manuscripts New State Prosecutor Strong Advocate of Justice 38 must be original work, submitted for approval by the By Janet Stidman Eveleth Special Committee on Editorial Advisory, and must conform to the Extending Workers’ Compensation Liens – Journal style guidelines, which are Recoveries in Legal Malpractice Actions 42 available from the MSBA headquar- By Peter W. Sheehan, Jr. ters. The Special Committee reserves the right to reject any manuscript The Telling Story - Litigator to Novelist 46 submitted for publication. By Janet Stidman Eveleth Advertising: Advertising rates will be furnished upon request. All advertising is subject to approval by the Departments Editorial Advisory Board. Practice Tip Editorial Advisory Board When “Of” or “In” Matters 50 Elizabeth M. Kameen, Chair James B. Astrachan Ethics Docket Courtney Blair Marcella A. Holland Request to Refer Jurisdiction 52 Louise A. Lock Attorney Grievance Commission Victoria Henry Pepper Mary Langdon Preis Reinstatement to the Bar 53

MSBA Officers (2011-2012) President - Henry E. Dugan Jr. President-Elect - John P. Kudel Secretary - Michael J. Baxter Treasurer - Debra G. Schubert

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.

July 2011 Maryland Bar Journal 3 ouston family collection. H ouston family H . ouston, Jr. and the private C harles

Charles Hamilton Houston photo courtesy of

4 Maryland Bar Journal July 2011 Maryland Lawyers Who Helped Shape the Constitution Father of Freedom – Charles Hamilton Houston

By Jose’ Felipe’ Anderson

For most Americans Charles Hamilton Houston is barely a foot- note in history. Born in 1896, this Phi Beta Kappa graduate of Amherst College and Harvard educated African-American lawyer went on to win eight of nine cases in the United States Supreme Court. He designed the legal strategy for the historic Brown v. Board of Education decision, Brown v. Board of Educ. 347 U.S. 483 (1954). He was the first African American to be elected to the Harvard Law Review and the first to earn the degree Doctor of Juridical Science Degree.

July 2011 Maryland Bar Journal 5 By 1950 he would be laid to rest, to meet other important lawyers like At the time of the case Houston exhausted by his brutal multi-state the legendary Clarence Darrow and would urge members of the black law reform agenda that was the hall- Felix Frankfurter. community to show up in court to mark of his 25 year legal career. He Marshall would follow his men- support the case dressed in their would not live to see his efforts to tor’s lead and become one of the “Sunday best” to help the press take eliminate racial discrimination from founders of the Monumental City Bar interest in its importance. For that the face of the nation’s law books com- Association, a group of Black attorneys task he called upon the local NAACP pleted. Along the way he would work organized at a time when Blacks were branch president Lillie M.Carroll with several legendary Maryland law- not allowed to join either the American Jackson and her daughter Juanita yers in cases that were the blueprint Bar Association or the Maryland State Jackson who became NAACP’s for dismantling the sinister practice Bar Association. National Youth Director. Houston known as “Jim Crow” that poisoned Charles Houston’s father, attor- worked closely with the energetic and the nation’s ideal of equal justice ney William LePre’ Houston was courageous Juanita when they were under law. one of the founders of the National both at the NAACP national office. The Maryland courts were Houston’s Bar Association and became its He sent her to Scottsboro. Alabama laboratory. This native of Washington President once during the 1930s. in the 1930s to meet on behalf of the D.C. took many short drives and train Charles Houston helped start a simi- organization with the defendants in trips to Maryland to do legal battle. In lar organization, the Washington Bar the famous “Scottsboro Boys” cases, all, Houston was lead or co-counsel Association in the District of Columbia. where several young black men were in over a dozen precedent setting These associations became invalu- falsely accused of raping two white cases in Maryland appellate courts. able when later; Charles Houston women while all were hitch-hiking Because the District of Columbia was would need local lawyers to file civil on a freight train. not a state, Houston needed Maryland rights cases. When Houston left the Houston would encourage Juanita to reform equal protection under the Deanship of Howard Law School to to go the law school where she became 14th amendment to the United States become the National Association for the first African American women to Constitution. His goal was to overturn the Advancement of Colored People’s attend the University of Maryland the flawed “separate but equal” doc- (NAACP) first Chief Legal Counsel, and the first to be an Editor of its law trine announced in Plessy v. Ferguson he took Marshall with him to its New review. She would later become one of 163 U.S. 537 (1896). York headquarters. Maryland’s greatest lawyers, working Baltimore born Thurgood Marshall It was from the NAACP nation- on many precedent setting civil rights was Houston’s star pupil. He would al office that Marshall, Houston and cases of her own. personally train and mentor him to another African American lawyer from She would marry Clarence M. spearhead the battle against racial Baltimore named William I. Gosnell Mitchell, .Jr. who would serve for injustice. Marshall, of course, would would successfully litigate the case many years as the top lobbyist for the ultimately serve the nation as its first of Donald Gaines Murray who was NAACP. Clarence Mitchell would also African American Solicitor General denied admission to the University of work closely with Houston on many and United Stated Supreme Court Maryland law school. In a stunning national civil rights issues in congress. Justice. When Houston was Dean of victory after a trial in a Baltimore City Mitchell, the lawyer/lobbyist, would Howard University law school he courtroom, Judge Eugene O’Dunne become known as the 101st Senator as took notice of Marshall’s potential ordered the University to admit he guided the nation’s most important and began to teach him the legal Murray in what was the NAACP’s civil rights legislation through con- craftsmanship that would transform first major legal victory over racial dis- gress during the 1960s culminating in civil rights law. He got Marshall a crimination with Houston in charge of the signing of the Civil Rights Act and job in the school’s law library that its legal campaign. The University the Voting Rights Act by President allowed him more time to study and would appeal to the State’s appellate Lyndon B. Johnson. The historic court- pay for his daily train rides from court, but the trial judge’s order was house in downtown Baltimore where his Baltimore home. He would take upheld. Pearson v, Murray, 182 A. 183 the Murray case was won now bears Marshall with him to court cases and (Md. 1936). the name Clarence M.Mitchell Jr.

6 Maryland Bar Journal July 2011 Robert A. Gordon, Franklin Lee and Chief Judge Michael Waring Lee, in the Museum of Baltimore Legal History, April 18, 1985. Photograph by Guill Photo

Years after Houston’s death Juanita ally become the first African American Catbird’s Seat (Maryland Historical Jackson Mitchell would be part of the Chief Judge of Maryland’s highest Society) p.322 (1988). legal team representing a teenager court., the Court of Appeals. During the 1930s Marshall and named Robert Mack Bell in a famous William Marbury, a partner in one Houston would also represent downtown Baltimore lunch counter of Maryland’s greatest law firms Communist lawyer Bernard Ades in sit-in case that would go all the way would encounter Charles Houston his disbarment proceedings for trou- to the United States Supreme Court. while representing the Calvert County ble Ades allegedly stirred up during Bell v. Maryland, 378 U.S. 226 (1963). school board in law suits involving the death penalty trial of Euel Lee, on That team also included Robert B. teacher pay equality. White teachers Maryland’s eastern shore. Lee was Watts who spent the summer of 1948 were paid twice as much as black accused of killing the members of a law clerking for Charles Houston. teachers serving in the same positions White family he worked for in Berlin, Watts would become a well respect- during the 1930s. After litigation was Maryland. Ades persuaded Lee to ed Baltimore Circuit Court Judge. filed, the case was ultimately settled. bequeath Ades his body before Lee’s A prosecutor in the case, Robert C. Although Thurgood Marshall played imminent execution, taking it to New Murphy would go on to be the Chief a key role in many of the teacher pay York to display. Ades purpose was Judge of Maryland. suits across the state, William Marbury to raise funds for the International Today the state’s Courts of Appeal recalls that it was Houston who guid- Labor Defense, the legal representa- Building bears his name. In a touch ed the ultimate outcome. In his mem- tion arm of the Communist Party, that of extreme irony, Robert Bell, among oir Marbury would write that he was often defended black defendant’s free the Morgan State College students “deeply impressed by Dr. Houston’s of charge. arrested in that protest would go on handling of this very delicate situ- Houston saved Ades law license. to Harvard Law School and eventu- ation.” William L. Marbury, In the Houston would argue that Ades’ zeal

8 Maryland Bar Journal July 2011 in representing a black defendant in a racially charged case deserved some consideration. Judge Soper would rule, “Taking into consideration the unquestioned service rendered in the Lee case, the injuries which the respondent suffered at the hands of lawless men while acting as counsel in that case, and the fact that he has already suffered a suspension from the bar of this court for approximately five months, it is believed that a public reprimand will suffice”. In Re: Ades 6 F. Supp. 467(Md.1934). In another case Houston would rejoin Baltimore lawyers William Gosnell, Dallas Nicholas, the local branch of the American Civil Liberties Union and plaintiff Arnett Murphy of the Baltimore Afro American newspaper family in a lawsuit over Baltimore’s segregated golf courses. See, Durkee v. Murphy, 29 A.2d. 253 (Md. 1943). The golf course law suits would not be resolved until nearly five years later in federal court in Law v. Baltimore, 78 F. Supp. 346 (Md.1948) when a federal judge would rule that Baltimore’s separate accommodations for Black golfer’s were unequal. Houston would further fight successfully against discriminatory employment practices in the city’s public library system, Kerr v. Enoch Pratt Free Library, 149 F.2d. 505 (D.C.212 (4th Cir.1945); residential housing restric- tive covenants, Goetz v. Smith, 62 A.2d 602 (Md. 1948); and fight discrimination at the Maryland Institute College of Art, Norris v. Baltimore, 78 F. Supp.451 (D. Md. 1949). In the Norris case, Houston was joined by local lawyers Fred Weisgal, Harry O. Levin, and W.A.C. Hughes who were assisted by a promising Harvard law student named Melvin Sykes. Weisgal would fight many other great civil rights cases in the Maryland Courts

July 2011 Maryland Bar Journal 9 did not prevail, the appellate record of the case demonstrates a keen use of engineers, public documents and expert witness that would rival any modern complex litigation. Working with him on that case was another promising law student on his summer break named Milton B. Allen. After graduating from law school, Allen would be a founder of the first predominantly African American law firm in downtown Baltimore, Brown, Allen, Watts, Murphy, Russell and Dorsey. The firm would become the first to integrate its legal staff with the hiring of associate Stephen Harris in the early 1960’s. Harris would later become Maryland’s State Public Defender. Milton Allen would be elected the first African American State’s Attorney in Baltimore City in1970 and the first to hold the job of chief prosecutor in any major U.S. city. He would later serve as a Circuit Court judge. In a 1976 interview Milton Allen would describe Houston as a brilliant man who was far ahead of his time. In 1947 Houston would join forces with local attorney William H. Murphy Sr. in the representation of Eugene and the Supreme Court of the United eral well known middle class African James in a death penalty case involv- States, several on behalf of the ACLU. -American families who lived on ing the tragic murder of an eleven Hughes would work on many civil Druid Hill Avenue and McCullough year old girl in Northwest Baltimore rights cases with Houston. streets in Baltimore. The basis of City. James v. State, 65 A.2d. 888 (Md. Melvin Sykes who has had an out- the law suit was the City’s plan to 1949). Attempting to establish what standing career as one of Maryland change those streets from “two way” could be described as a “diminished greatest litigators remembers his to “one way” streets, placing what capacity defense” the legal team time with Charles Houston fondly, Houston would describe as a “super- called five mental health experts and describing the legendary attorney as highway” through the City’s most used for the first time in Maryland extremely bright, pleasant with an important African American commu- history the Rorschach ink blot test in understated sense of humor. “I was nity. Chisell v. Mayor of Baltimore, their defense strategy. They battled in proud to have worked with him”, 69 A.2d 53 (Md.1949). Houston the case against an outstanding team Sykes said in a summer 2009 tele- attempted to use taxation and due of trial lawyers that included lead phone interview. process arguments to show that the counsel Anselm Sodaro and Allan In what could be described as one of community had no way to protest Hamilton Murrell. the first environmental racism cases, the change that had a great effect The strategy did not prevail but at Houston filed suit on behalf of sev- on their safety. Although Houston the conclusion of the case Judge M.

10 Maryland Bar Journal July 2011 Herman Moser commented that no than accepting a scholarship to a seg- credit would be enough. William O. finer lawyer than Houston had ever regated school out of state. Douglas, the longest serving Justice appeared in his courtroom. Sodaro McCready v. Byrd, 73 A.2d 73 A.2d in United States Supreme Court his- won many high profile prosecutions 8 (Md.1949). In that case he was co- tory would say that he was one of the and served for many years with great counsel with Donald Gaines Murray, finest lawyers to ever appear before distinction as a Baltimore County the very same man who he had fought the Supreme Court. The Howard Circuit Court judge. The Maryland to get admitted to Maryland law University School of Law Building State Bar Association has honored his school fifteen years earlier as NAACP is named for Houston and the school memory with an award for judicial chief Counsel. is currently lead by Baltimore native civility in his name. After a brilliant Sadly, Houston died of heart and former Mayor Kurt L. Schmoke career as a defense attorney follow- failure a few days after McCready who is now its Dean. The University ing the James trial, Murrell was called brought him news of the victory to of Baltimore has presented several upon to establish the first statewide his hospital room. Houston’s nation- lifetime achievement awards in liti- public defender system in the 1970’s. al impact on equal protection of gation that bear his name. In 2009 the He served as its leader for 20 years. the law is clear. Equally clear is United States Postal Service issued a In his final legal victory, Houston the impact he had on the Maryland stamp in his Honor. would leave his hospital bed in Courts and the lawyers who worked Mr. Anderson is a Professor of Law at the Washington D.C. to finish his battle with him to establish many of those University of Baltimore School of Law against “Jim Crow” that he started groundbreaking legal principles. and an Adjunct Professor of Legal Studies in a lawsuit against the University of Thurgood Marshall would say that and Business Ethics at the University of Pennsylvania‘s Wharton School. He may Maryland School of Nursing in down- he was responsible for all the ground- be reached at [email protected] town Baltimore. Esther McCready work of the NAACP’s civil rights sought admission to the school rather litigation and that no amount of

July 2011 Maryland Bar Journal 11

Page intentionally left blank Investing in the Future of Maryland Women By The Honorable Lynne A. Battaglia and Evelyn C. Lombardo

A ttorneys who are female have the University of Maryland School been identified by and with their of Law, they organically forged gender since their admission to the relationships, in part because “the Maryland Bar in 1902. For instance, ladies” were required to use the in 1907, when Baltimore Law toilet facilities at the hospital across School closed its doors to women, the street. Katharine Thurlow, it was rumored in the media that Profiles, Maryland Bar Journal, June male law students had petitioned 1986, at 24. Still later, female litiga- the faculty for the women’s exclu- tors in Baltimore City, known as sion, because the female students the Portias, were grouped by their had outshone their male counter- gender when discussing attire, spe- parts academically and captured cifically hats, which they chose not all of the prizes. Women Students to wear in the courtroom. Portias Barred, Balt. Sun, Sept. 27, 1907, at May, But Don’t, Wear Their Hats 11. When Sarah Rosenberg Burke in City’s Courts, Balt. Sun, Apr. 9, and others gained admission to 1947, at 26.

12 Maryland Bar Journal July 2011 July 2011 Maryland Bar Journal 13 The perception of women attor- “women’s loneliness in law school Sun, Dec. 11, 1934, at 4; Woman Lawyer neys as a distinct subset within the when they were vastly outnumbered Backed for Job, Balt. Sun, Jan. 1, 1935, legal profession led to the forma- by men.” Jennifer G. Brown, “To Give at 7; Honoring Women Law Graduates, tion of all-women’s legal organiza- Them Countenance”: The Case for a Balt. Sun, May 9, 1938 (on file with the tions in Maryland. These groups were Women’s Law School, 22 Harv. Women’s Enoch Pratt Library). established, in large part, due to the L. J. 1, 8 (1999); Seven Women Lawyers The 1930s also saw the development exclusion of women from mainstream To Attend Convention, Balt. Sun, Sept. of the Women Lawyers’ Luncheon bar associations until the late 1940s. 15, 1935 at SR 13. Club and the National Pro-Roosevelt After women gained access to once The Women Lawyer’s Association Association of Women Lawyers, only-male organizations, the utility of of Maryland, established in the Spring both social clubs apparently orga- all-women’s organizations was ques- of 1927 and intended to promote “fra- nized by Rose Zetzer, the founder of tioned, but their mission evolved to ternalism and an interchange of ideas,” Baltimore’s first all-women law firm, address new challenges, such as the was formed by former classmates at although the Pro-Roosevelt organiza- appointment of women to the bench, the University of Maryland School of tion also sponsored an essay contest the experience of women attorneys Law who were denied membership in on “Why President Roosevelt Must Be in the courts, and disparities particu- the Maryland State Bar Association. Reelected.” Essay Contest Planned by larly affecting women litigants. Today, Joan Bossman Gordon, Women of the Women Lawyers, Balt. Sun, Oct. 4, 1936, as the number of women attorneys Baltimore Bar, in Histories of the Bench at SC15; see also Book Review Session for grows and sensitivity to the plight of & Bar of Baltimore City 97, 99 (John Three Arts Clubs, Balt. Sun, Mar. 31, females in the court system evolves, Carroll Byrnes, ed. 1997). To accom- 1935, at AF15. we continue to ask whether there are plish this goal, the fifteen founding By 1936, the Women Lawyer’s opportunities for organizations com- women held monthly meetings, open- Association had merged into the mitted to women’s issues to coalesce ing membership to all women law Women’s Bar Association of Baltimore and thrive. students and members of the Bar. City, which had forty members who When we look at the historical expe- Judith A. Arnold and Elizabeth Lewis, met monthly in one another’s homes rience, we find that in the 1920s and History of the Women’s Bar Association of to discuss “timely subjects.” Arnold 1930s, women lawyers in Maryland Maryland, Bar Ass’n of Baltimore City & Lewis, supra; see also Gordon supra, forged structured alliances, primarily Centennial Edition–Supplement to the at 99. At an annual dinner hosted because organizations such as the State Daily Record, May 16, 1980. by the group, for example, members Bar and Baltimore City Bar Associations Two years later, Henrietta presented a satire entitled “It Might denied them access to membership Stonestreet, Emilie Doetsch, Helen Have Been,” written by Rebekah until, at the earliest, 1946. The first Sherry, and Marie Presstman formed Greathouse, who had graduated from organizations comprised solely of the Women’s Bar Association of American University’s Washington women included the Inez Milholland Baltimore City, after they had applied College of Law. The play involved the Club founded in 1927, named for the for and were denied membership admission of a male applicant to prac- New York Portia and suffragist. The in the Bar Association of Baltimore tice in a legal community composed club, touted as “Maryland’s first club City. Stonestreet said in an interview entirely of women attorneys and of women lawyers,” was founded to that the women had applied to “test judges. Women Lawyers to Meet, Balt. encourage growth in the numbers of whether that association truly rep- Sun, June 9, 1935, at SF13. The group women lawyers, and Helen Elizabeth resented” Baltimore’s Bar. Id. In the also engaged in civic causes, testify- Brown, admitted in Maryland in 1926, 1930s, the group campaigned for the ing before the General Assembly in became the group’s first president. appointment of women lawyers to favor of jury service for women in the See Women Lawyers Organize Club and positions in the Attorney General’s 1930s and 1940s. Virginia Corrigan, Name Officers, Balt. Sun, Mar. 24, 1927, Office and on the bench, because there Social News–Clubwomen to Fight for at 26. By 1935, the Inez Milholland were none, and also held social gath- Jury Service, Balt. Sun, Feb. 17, 1935, Club had merged into the women’s erings, including dinners, to honor at SA13. legal sorority, Phi Delta Delta, a social recent women law school graduates. In 1946, Rose Zetzer became the organizations with the goal of easing Woman Is Urged as Magistrate, Balt. first woman member of the Maryland

14 Maryland Bar Journal July 2011 for the development of mentoring Women Attorneys and the Black relationships, because “[t]he aver- Women’s Bar Association of Suburban age woman lawyer does not have Maryland were formed to facilitate the connections or the role models.” the professional development of Id. Jeanette Wolman, a founder of women attorneys, the Women’s Law what was then the Women Lawyers’ Center was established to “secure

H istory Association of Maryland, however, equal rights for women through liti- differed regarding the need for a sepa- gation and other lawful means.” The rate women’s bar, remarking, “After Women’s Law Center, Inc., Articles of aryland M aryland my admission [to the Baltimore City Incorporation (on file with author). Bar Association], I felt we had accom- Kathleen O’Ferrall Friedman, Ann plished what was needed.” Id. Hoffman, and Susan Tannenbaum While white women attorneys were were influential in its founding, A chievement in identified as other, women of color, which at its inception, boasted only also, were perceived as a distinct a telephone number and an office group within the legal profession. The on the premises of Antioch College first African American woman admit- on the second floor of the Belvedere ted to the Maryland Bar was Jane Hotel. K. Connie Kang, Women Set Up Jeanette Rosner Marshall Lucas in 1946. It took a num- Law Center, Women’s World, Jan. 12, Wolman ber of years thereafter, but, in 1979, the 1972, at C31. P hoto courtest of Women of Alliance of Black Women Attorneys In the 1970s, the Women’s Law State Bar Association. It took women was formed to promote the interests of Center engaged in litigation to secure until 1957 to gain membership in the women attorneys of color, as well as to unemployment benefits for women Bar Association of Baltimore City. increase their viability and recognition during pregnancy and to challenge After women lawyers were able to in the legal community. The group has a requirement that married women gain admission to these once male- engaged social media to gain expo- register to vote using their mar- dominated groups, the goals of the sure, with an active Facebook page ried names. Later, the Center became Women’s Bar Association evolved. promoting networking functions and the first group of lawyers to Chief among them was providing client contact. question judicial candidates regard- networking opportunities to enable Alliance of Black Women Attorneys, ing their membership in discrimi- women to advance to positions in the http://www.facebook.com/ natory clubs. Women’s Law Center judicial branch. As Judge Roslyn B. Bell pages/Alliance-of-Black-Women- of Maryland, Inc., 30th Anniversary of the Court of Special Appeals and Attorneys/223406956632?v=wall (last Celebration and Awards Ceremony (on before that, the Montgomery County visited Mar. 8, 2011). file with author). Circuit Court, noted, “There is a very The Black Women’s Bar Association Today, the Women’s Law Center direct correlation between the juris- of Suburban Maryland was estab- operates an employment and family dictions that have active women’s bar lished in 1987 also to encourage the law hotline, a Multi-Ethnic Domestic associations and those with women in professional development of African Violence Project and screens and plac- the judiciary.” J.S. Bainbridge, Lawyers American women lawyers. The group es low-income clients with pro bono debate benefits of women’s group, Balt. hosts social and networking recep- attorneys in child custody disputes. Sun, Apr. 22, 1984, at C1. tions and also provides law school The group also has developed ali- The Women’s Bar had developed scholarships to women attending mony guidelines. Kaufman Alimony a Judicial Selection Committee that area law schools. Black Women’s Bar Guidelines, Theory Supporting continues to this day to interview Association of Suburban Maryland, the Kaufman Alimony Guidelines, applicants for positions on the Bench Inc., http://www.blackwomen’sbar. http://www.kaufmanalimonyguide- in order to offer assistance to the com/events (last visited Mar. 7, 2011). lines.org/theory.html (last visited Governor. The WBA also took the While the WBA and its predeces- Mar. 7, 2011). Further, the Center opportunity to provide a platform sors, as well as the Alliance of Black has engaged in social activism, lob-

16 Maryland Bar Journal July 2011 bying the General Assembly regard- Bias in the Courts, May 1989, Maryland dial parent was required to pay was ing legislation affecting women. The State Law Library Digital Collections, often inadequate, disproportionately Women’s Law Center of Maryland, http://mdlaw.ptfs.com/awweb/ burdening the custodial parent; to Inc. – Legislative Alert! http://www. html/portal/index.html (follow “Task alleviate the burden, the Task Force wlcmd.org/legislativealert.html (last Force Reports Browse by Subjects” recommended that litigants provide visited Feb. 7, 2011). hyperlink; then follow “Women” judges and masters with more current The judiciary entered the fray hyperlink). The Task Force’s investi- information about the costs of child- in 1987, when, amidst a flurry of gation addressed substantive issues rearing, including the costs of child activity across the nation, Robert concerning family law, court treat- care. In a related vein, the Task Force C. Murphy, then Chief Judge of the ment of personnel, judicial selection, found that alimony awards were often Court of Appeals, engaged the gen- and women in the courtroom. too low and unpredictable and rec- der debate and appointed the Special The first major problem identified ommended the adoption of specific Joint Committee on Gender Bias in by the Task Force was the treatment guidelines for awarding alimony that the Courts (hereinafter the Task Force) of victims of domestic violence in consider the earning potential of eco- to gather information about preju- the court system, with education of nomically dependent women. dices women face in the judiciary. The judges and court personnel regarding Another area of concern was court Task Force was charged with examin- the special needs of domestic violence treatment of personnel, because the ing the justice system itself, and the victims, such as scheduling preferenc- Task Force had found that female 1989 Report concluded that gender es for such cases, being one of its rec- employees were paid less than male bias indeed “exists in the courts of ommendations. In the arena of child employees and were not promoted Maryland, and it affects decision-mak- support, surveys undertaken by the in proportion to their numbers. The ing as well as participants.” Report of Task Force indicated that the amount Task Force recommended reviewing the Special Joint Committee on Gender of child support which the noncusto- qualification requirements and salary

July 2011 Maryland Bar Journal 17 grades for all non-judicial employ- suggestion of the Select Committee, recently disbanded, because they had ees, increasing appointments of quali- the Judicial Institute asked instructors fulfilled their mission. fied women to all positions within to integrate gender fairness issues into In other states, the issue of gender the court system and developing a judicial education courses offered to has been subsumed into committees curriculum for all judicial and court Maryland judges and masters. considering not only gender, but also a employees to address gender bias and The Select Committee also was myriad of other issues, such as race and sexual harassment in the work place. instrumental in the development of access to justice. The Florida Supreme The Task Force also noted that gen- a curriculum addressing gender bias Court Gender Bias Study Commission, der bias existed in the judicial nomi- in the profession for the mandatory for instance, was established in 1988 to nating commissions, which contrib- professionalism course for new admit- gather information and make recom- uted to the lessened representation of tees. The Committee also pushed for mendations to eliminate gender bias women on the bench. The Committee the amendment of the personal data in the judiciary. Executive Summary, recommended that judicial nominat- questionnaire completed by all judi- Report of the Florida Supreme Court ing commissions eliminate questions cial applicants to include inquiries Gender Bias Study Commission (1990), to applicants regarding marital status concerning a candidate’s membership available at http://www.flcourts.org/ and child care arrangements and also in discriminatory private clubs. gen_public/family/diversity/bin/ suggested that bar associations review The Select Committee highlighted gender_biassummary.pdf. The Florida the judicial selection process. areas where more work was need- Commission was later subsumed into Lastly, regarding the experience of ed, such as whether and how the the Florida Supreme Court Standing women in the courtroom, the Task Force Committee should address complaints Committee on Fairness and Diversity, Report found that women attorneys, par- of “gender bias.” The 1992 Report fur- tasked with a broader mission, namely ties, and witnesses were sometimes sub- ther found that “glass ceiling” issues to “eliminate from court operations jected to disrespectful comments about went largely unaddressed in the 1989 bias that is based on race, gender, eth- their gender as well as their appearance report and sought to undertake fur- nicity, age, disability, financial status, or by judges, masters and court personnel. ther study of the status of women in any characteristic that is without legal The Task Force recommended manda- law schools and law firms, specifically relevance.” Supreme Court of Florida, tory training for judges, masters, and regarding hiring, retention, and termi- Administrative Order No. AOSC10-36, court employees to prevent such treat- nation rates, partnership track, com- In re Standing Committee on Fairness ment and also to review all court forms, pensation, assignment of work, and and Diversity, available at http:// manuals, and pattern jury instructions maternity leave policies. In 2001, the www.floridasupremecourt.org/clerk/ to insure that they employed gender Select Committee again issued a report adminorders/2010/AOSC10-36.pdf. neutral language. regarding strides in eliminating gen- In those states where gender equal- To facilitate the implementation of der bias in the courts through educa- ity committees remain autonomous its recommendations, the Task Force tional programs, judicial training, and and viable, there are some significant suggested the creation of a permanent other corrective measures, although commonalities, however. First, these joint bench-bar committee to encour- since that time the Committee has committees derive their authority age, evaluate, and report on efforts been largely moribund. from the judiciary and the imprimatur undertaken to implement the recom- When the Select Committee on of the respective state supreme courts mendations of the Task Force. In 1992, Gender Equality was established, has fueled their efficacy. The commit- when the Select Committee on Gender it was one of many state commis- tees also have a full-time staff to facili- Equality issued a report to gauge sions designed to study gender bias tate various projects. progress since the 1989 report, I was in the courts. Since then, many of And finally, and perhaps most sig- fortunate enough to be its chair, and them have become defunct, after nificantly, each committee appears we declared victory in a number of implementing a majority of their task to have been led by a person who areas, such as providing education to force recommendations and proce- approaches the committee’s work like District Court and Circuit Court judg- dures. For instance, North Dakota’s a “force of nature,” such as Chair of es on domestic violence and court- and Minnesota’s Gender Fairness the New York State Judicial Committee room demeanor. Specifically, at the Implementation Committees were on Women in the Courts, retired Judge

18 Maryland Bar Journal July 2011 Betty Weinberg Ellerin, who was a Gender and Justice Commission also committees may serve as models for founding member of the Women’s Bar operates under the imprimatur of the a reinvigorated commission focusing Association of the State of New York, judiciary, with the support of full time on gender issues, should the Court of for instance, and also a former president staff, and is chaired by Chief Justice Appeals continue to want to and be of the National Association of Women Barbara Madsen of the Supreme Court, able to invest in the future of women Judges. Telephone Interview with Jill who was instrumental in the state in Maryland. Perhaps a collaborative Goodman, New York State Judicial gender task force movement in the approach among the rich landscape Committee on Women in the Courts 1980s. Telephone Interview with Chief of organizations that are focused on (Mar. 4, 2011). The New York Judicial Justice Barbara Madsen, Washington the future of Maryland women, to Committee on Women in the Courts Supreme Court Gender and Justice explore the task of revitalization of also derives its authority from the judi- Commission (Mar. 4, 2011). Each the gender committee should be pur- ciary and maintains a full time staff. of the New Jersey, New York, and sued by the Court in order to deter- Similarly, the New Jersey Supreme Washington committees is engaged mine whether further investment in Court Committee on Women in the in educating the bench and bar in the Committee would reap further Courts is an arm of the judiciary and invidious forms of gender discrimina- dividends for women in the judicial has a full-time staff. The Committee is tion, studying the current landscape system, or whether we have already chaired by the Honorable Francine I. of gender issues, and collaborating reaped sufficient short term and long Axelrod, who sits on the state’s inter- with other organizations invested in term capital gains. mediate appellate court. Telephone women’s issues. Judge Battaglia has served on the Court Interview with Tamara Kendig, New The impact of Maryland’s Select of Appeals of Maryland since 2001 and Jersey Supreme Court Committee on Committee on Gender Equality has chaired the Editorial Committee of the Women in the Courts (Mar. 4, 2011). declined in the last decade, but the New Finding Justice Project. Ms. Lombardo serves as Judge Battaglia’s law clerk. Finally, Washington’s Supreme Court Jersey, New York, and Washington

July 2011 Maryland Bar Journal 19

Page intentionally left blank Black Women Judges: Three Decade Journey to Maryland Appellate Courts

By The Honorable Anna Blackburne-Rigsby and Melissa Roca

commemoration of the National Bar Association’s annual convention which will be held in Baltimore this summer, Judge Marcella InA. Holland, the first African-American woman Circuit Administrative Judge in the State of Maryland (Circuit Court for Baltimroe City, 8th Judicial Circuit,) asked me to write an article focusing on minorities in the Maryland judiciary. Judge Holland serves as the Chair of the National Bar Association’s Judicial Council. In a prior article written for the Howard Law Journal in 2010, I explored the historical journey of black women judges to the nation’s highest state and federal appellate courts and I thought it would be interesting to examine the journey of black women judges in the Maryland judiciary. While Maryland’s judiciary has made great strides and achievements in the area of diversity of judicial appointments, I could not help but notice the historic parallels that Maryland has experienced in its appointments of black women to appellate courts.

20 Maryland Bar Journal July 2011 The Honorable Marcella A. Holland

July 2011 Maryland Bar Journal 21 The Importance of Diversity in Appellate Courts The American Bar Association (ABA), in a 2003 report, emphasized that the judicial system should be racially diverse and reflective of the society it serves. Indeed, the ABA report concluded that diversity fosters public confidence, gives decision-making power to formal- ly disenfranchised populations, and promotes equal justice for all citizens. The report acknowledged that “efforts to diversify the bench” may in part solve the “need for promoting public confidence of the judiciary within segments of the The Maryland judiciary contin- attorneys or of the number of women community that have become ues to achieve gender equality and in the general population. increasingly suspicious of the racial diversity under the leadership This is particularly true for courts.” Further, diversity at the of Chief Judge Robert M. Bell, the African-American women judges appellate court level is critical First African-American Chief Judge who are disproportionately under because it enriches the discourse of the Maryland Court of Appeals. represented on Maryland’s appel- in the collegial decision making Chief Judge Bell supports the Select late courts. Notwithstanding the process that is inherent in Committee on Gender Equality that increase in the number of black appellate courts. was created in 1987 to examine the women judges who have been This is particularly important “nature and impact” of gender bias appointed to the district and circuit because, unlike trial judges, appel- and to make recommendations to courts in Maryland over the last ten late judges must hear cases as a panel eliminate gender bias in the Maryland years, the state still has yet to catch and discuss the cases in conferences. courts. Chief Judge Bell also formu- up with its neighboring states and As University of Maryland School lated the Commission on Racial and the nation in general with respect to of Law Professor Sherrilyn A. Ifill Ethnic Fairness in the Judicial Process the number of black women serving explains, “the value of diversity to address the issue of the pub- on Maryland appellate courts. should be measured by its effect on lic perceptions regarding racial and One cannot appreciate the move- the deliberative process.” ethnic bias in the Maryland courts. ment towards greater diversity on Certainly, Maryland has progressed Maryland’s appellate courts without Milestones in the significantly since contributing first discussing the importance of Maryland Judiciary author Janet Stidman Eveleth noted diversity on the bench at the appel- It is helpful to examine the social and in her 2002 article for the Maryland late level. Additionally, it is helpful historical context from which the first Bar Journal, that “no woman serves to examine those individuals who black judges and the first women as a judge” in fourteen Maryland paved the way in diversifying the judges emerged in Maryland. The his- counties. Nonetheless, despite judiciary, beginning with the first torical journey of black women appel- the progress that has been made, African-American judges in Maryland late judges in Maryland parallels the Eveleth’s assertion still holds true (who were men) and the first women historical journey of black women and the number of women serving judges (who were white) and only appellate judges nationwide. This on Maryland’s bench is not represen- recently, the first black women appel- historical journey was spearheaded tative of the proportion of women late judges. by the first black man to be elected

22 Maryland Bar Journal July 2011 as an appellate judge, Judge Jonathan league, Joseph Clemens Howard, Sr., to the Maryland Court of Appeals Jasper Wright, who was elected to the the first African-American to win an in 1979. Rita Davidson was also the South Carolina Supreme Court dur- election as a judge for the Baltimore first woman to hold the position of ing Reconstruction in 1870. City Supreme Bench and who was Secretary of the Maryland Department The first black man elected as an later appointed by President Jimmy of Employment and Social Services, appellate judge was followed decades Carter as the first African-American where she took the time to meet with later by the first woman elected as to serve on the United States District welfare mothers and sought to make an appellate judge, a white woman, Court for the District of Maryland. state service providers accountable Judge Florence Ellinwood Allen, who Indeed, there was some controversy for their work. Once appointed to was elected to the Ohio Supreme surrounding Judge Cole’s appoint- the Court of Special Appeals in 1972, Court in 1922 during the woman’s ment because acting Governor Blair Davidson became known for her sup- suffrage movement. I observed in Lee III favored Howard over Cole for port of welfare and women’s rights. my article for the Howard Law Journal the position on the Court of Appeals, that the Reconstruction Era and the but Governor Lee could not appoint Women’s Suffrage Movement paral- Howard because the Judicial Selection Chain Reaction in the leled the appointment of the first Committee nominated Cole instead. A 1980’s and 1990’s black male appellate judges and December 13, 1977 Baltimore Sun arti- During the 1970s, the first black man the first woman appellate judges. cle noted that Governor Lee “clearly and the first white woman were We can easily see the parallels in felt politically obligated to appoint a appointed to the Maryland appellate Maryland, where the modern Civil black.” Governor Lee’s press releases courts. However, it was not until a Rights Movement and the Feminist at the time “made it clear . . . that decade later that a black woman was Movement, spurred the appointment race was the primary consideration appointed to any court in Maryland. of Maryland’s first black male appel- in passing over two white judges on And the first black woman appellate late judges and first white woman a higher court.” judge would not be appointed in appellate judge in the 1970’s. Judge Cole was sworn in on the Maryland until nearly three decades Diversity is a quality that the same day that marked the Maryland later. In 1981, a unique candidate was Maryland judiciary has not always Court of Appeals’ 200th anniversary. chosen as the first black woman judge valued as an essential element. Cole noted in the December 13, 1977 to sit on a trial court in Maryland. Judge David T. Mason was the Baltimore Sun article that “the fact that Judge Mabel Houze Hubbard was the first African-American to be sworn this appointment [came] after 200 first black woman appointed to any into the Maryland Court of Special years could be an indictment in itself” bench in the State of Maryland. Appeals in 1974; however, it was not of the state’s judicial system. As a Only five years out of law school, until 1977 that Judge Harry A. Cole unique request, Judge Cole asked that she was first appointed as Master- was sworn into Maryland’s high- he be sworn into the Maryland Court in-Chancery for the Supreme Bench est court, the Court of Appeals. It of Appeals in the Senate Chamber, for Baltimore City (now the Circuit is interesting to note that Maryland where he had historically paved the Court of Baltimore City). According governors had been slow to appoint way as Maryland’s first black state to the Maryland Women’s Hall of blacks to the bench, even though at Senator. Judge Solomon Baylor, who Fame, Judge Hubbard was an English that time, a majority of the popu- served with Judge Cole, said “[Cole’s teacher and a vice-principal and her lation in Baltimore, Maryland was appointment] changed the theory that diverse background played an essen- African-American. the highest bench was just for certain tial role in her appointment. Judge Prior to his appointment to the types of people . . . [h]e was the most Hubbard encouraged women to Maryland Court of Appeals, Judge qualified, so people got the best.” pursue legal careers and mentored Cole served on the Supreme Bench Comparatively, in 1972, Judge Rita many African-American, women law of Baltimore City, where he chaired C. Davidson was appointed as the clerks, using her teaching experience the committee that created affirma- first woman to the Maryland Court to demonstrate how to write and tive action. He served with his col- of Special Appeals and ultimately, think like a lawyer.

24 Maryland Bar Journal July 2011 During the 1990s, an unprecedent- ed number of eleven black women judges were appointed to Maryland’s district courts and circuit courts. In the last ten years, that number has almost tripled. Certainly, Mabel Hubbard forged the way for the more than thirty black women judges who now serve on district and circuit courts in Maryland.

Black Women Judges of the 21st Century In 2006, following Judge Hubbard’s death, Judge Marcella Holland noted that “it was not until the 1980s that we got a black woman on the bench in Maryland.” This is surprising in light of the fact the nation’s first black woman judge, Jane Matilda Bolin, was appointed as a judge on New York City’s Domestic Relations Court in 1939. Even more surprising is the disparity between Maryland and the Court for Prince George’s Count, Governor O’Malley wrote that Judge nation concerning appointments of serving as the Civil Coordinating Watts is widely respected for her black women to its appellate courts. Judge prior to her elevation to the intelligence, high ethical standards, The first black woman to sit on a appellate court. Before joining the and commitment to the rule of law. state appellate court, the Honorable Circuit Court, she served one year Further, he added that “[t]hese quali- Julia Cooper Mack, was appointed as an Associate Judge for the District ties will serve her well on our state’s to Maryland’s neighboring court, the Court of Prince George’s County. intermediate appellate court.” District of Columbia Court of Appeals In a July 26, 2010 article published The appointment of these two in 1975. Only four years later in in The Daily Record, Hotten stated, “I black women to Maryland’s Court 1979, President Carter appointed the anticipate others will follow behind of Special Appeals is an important Honorable Amalya Kearse to serve me . . . [h]opefully there are people step in Maryland’s continuing efforts as a federal appellate judge on the standing in the wings.” Chief Judge to promote gender and racial diver- United States Court of Appeals for Bell could not have echoed more per- sity in its courts. One final frontier the Second Circuit. In contrast, it was fectly that, “[w]e’re still at a point remains. While three women cur- not until 2010 and 2011 that we saw where ‘first’ matters,” adding that rently serve on the Maryland Court the first black women appointed as Judge Hotten’s elevation “says a great of Appeals, no black woman has been judges on Maryland appellate courts. deal about the progress we’ve made appointed to Maryland’s highest On August 17, 2010, Judge Michele and the progress we need to make.” court and taking this step is funda- D. Hotten was sworn in by Governor Only six months later, Governor mental to achieving greater diversity Martin O’Malley, becoming the first O’Malley also swore in Judge Shirley in the Maryland judiciary. African-American woman to sit on the M. Watts as the second African- Judge Blackburne-Rigsby serves on the Maryland Court of Special Appeals. American woman on the Maryland District of Columbia Court of Appeals. Judge Hotten served for fifteen years Court of Special Appeals. In a press Ms. Roca is Judge Blackburne-Rigsby’s as an Associate Judge on the Circuit statement issued January 2011, Judicial Intern.

July 2011 Maryland Bar Journal 25 blindly taking

the maryland bar exam By Joshua L. Friedman & Gary C. Norman Imagine you are blind. You decide to go to law school. After studying for many months, you take the LSAT, you earn top marks and the right to matriculate at one of the prestigious law schools around the country. After spending three years as a law student, struggling with challenging legal principles and concepts, you graduate and begin preparation for the most difficult test you have ever taken: the bar exam. After months of full-time, intensive, daily preparation, you are ready to take the bar exam and earn the right to seek admission into the storied legal profession. Now, imagine that your request for disability accommodations on the bar exam is denied. What do you do?

This is the question that faced purposes must offer such examinations Elder, et al. v. NCBE Timothy Elder, Anne Blackfield and or courses in a place and in a manner The State of Maryland has been at the Michael Witwer - blind applicants for that will enable access to persons with forefront of affirmative disability litiga- the July, 2010 Maryland bar exam. disabilities. 42 U.S.C. §12189; 28 C.FF.R. tion surrounding the bar examination Their request for disability accommo- §36309. This affirmative requirement and reasonable accommodations. In dations was initially approved by the of the ADA covers entities that formu- 2010, the aforementioned applicants Maryland Board of Bar Examiners, late, provide or preside over standard- to the July, 2010 Maryland bar exam but the National Conference of Bar ized examinations and mandates that filed suit in the U.S. District Court Examiners (NCBE), subsequently such entities must select and adminis- for District of Maryland against the denied their applications. Elder, et al. ter those examinations that best gauge National Conference of Bar Examiners v. National Conference of Bar Examiners, abilities and performance, regardless and sought declaratory and injunctive Inc., 2010 WL 4063889 (N.D. Md. June of ability or disability. Id. Pursuant to relief. In their complaint, the Plaintiffs, 2, 2010) (Complaint and hereinafter the regulation, “A private entity offer- all of whom are legally blind, alleged “Compl.”). These three applicants were ing an examination covered by this the following. permitted to take the bar exam, but section shall provide appropriate aux- At the time of their application, the to pass, they would have unfamiliar iliary aids for persons with impaired Plaintiffs requested reasonable accom- accommodations not tailored to their sensory, manual, or speaking skills, modation of accessibility software - particular disability. unless that entity can demonstrate a verbalization suite or screen-reader that offering a particular auxiliary aid otherwise known as “JAWS,” or, in the would fundamentally alter the mea- alternative, a magnification software Applicable Law surement of the skills or knowledge known as “Zoomtext” that functions Title III of the Americans with Disabilities the examination is intended to test or in tandem with JAWS -- on all com- Act (ADA), as amended, provides that would result in an undue burden.” Id. ponents of the bar exam. Throughout parties offering courses or examinations at §36.309(b)(3). Arguably, this require- law school, the applicants used this in relation to application, certification, ment covers the bar exam. 56 Fed. Reg. software. See The Daily Record, “Blind credentialing or licensure for second or 35573 (Jul. 1991). Grads v. Bar Exam,” available at http:// post-secondary, professional or trade www.browngold.com/news/blind_

26 Maryland Bar Journal July 2011 grads_v_bar_exam.pdf. The Maryland readers, audio disk and Braille were In Enyart v. National Conference of Bar Board approved the request regarding available to the bar applicants. Examiners, Inc., 2010 WL 4475361 (N.D. the essay portion of the exam, and After the court declined the pre- Cal. June 2010), aff’d. 2011 WL 9735 (9th provisionally approved the request as liminary injunction, the Plaintiffs were Cir. Jan. 4, 2011), Judge Breyer of the U.S. to the multiple-choice component of the confronted with the Hobson’s choice of District Court for the Northern District exam. Compl. at paragraphs 3, 20, 31 sitting for the bar exam with the accom- of California granted a preliminary and 41. The provisional acceptance was modations least suited to their disabili- injunction in favor of Stefanie Enyart, subject to the NCBE’s approval as to the ty, or not sitting for the bar at all. While the bar applicant. Enyart was permit- multi-state component of the bar exam. far from ideal, they decided to rely on ted to utilize a mixture of accessibility the That request was denied by the NCBE. human readers for the multi-state com- software that would provide auditory maryland bar exam The Complaint reflects that the request ponent of the bar exam. In a demon- feedback and enlarge the print size of for the accessibility software and the stration of the best of the human spirit, the bar materials. Because of eye-strain extent to which it would be granted pluckily proceeding forward under the and fatigue (typically caused by screen would be predicated upon whether the brunt of adversity, all three passed the enlargers), she requested a screen-read- NCBE possessed an electronic copy of July, 2010 bar exam. Brendan Kearney, er (what she utilized in law school), to that component of the bar exam. Compl. All Three Blind Bar Applicants Pass Exam, best suit her needs. Id. at *2 at paragraphs 3 and 12. Notably, at its Daily Record (Nov. 8, 2010), http://fin- Similar to what transpired in core, the conflict that arose between darticles.com/p/articles/mi_qn4183/ Maryland, the California State Board of the Plaintiffs and the NCBE is whether is_20101108/ai_n56275946/. Bar Examiners granted the accommoda- organizations that provide standardized The fact that the parties ultimately tions requested by the applicant, but the exams must, in accordance with §309 passed the bar examination without NCBE denied the request as to the ethics of the ADA, furnish their materials not their requested accommodations does and multi-state portion of the bar exam only in an accessible form, but also in not negate the underlying legitimacy of because it could not provide nor did it a way that is best suited to provide a their application for reasonable accom- possess an electronic copy of the exam. “level playing field” to exam applicants modations. In this case, the balance of Id. Instead, the NCBE offered an alter- - even if that requires providing the harm “tipped decidedly” in favor of native number of allegedly reasonable most advanced, technological, reason- the applicants given the State board accommodations, including, but not able accommodations. Tom Huddlest, Jr., approved their reasonable request limited to, migraine medication, human “Blind Bar Grads See Injustice In Bar Exam for accommodations. See Kelly v. West reader assistance, a non-computer based Rules,” available at http://amlawdaily. Virginia Board of Bar Examiners, 2008 WL enlarger and audio CD’s with the ques- typepad.com/amlawdaily/2010/07/ 3891036 (S.D. W. Va. 2008)) (the District tions prerecorded on them. Id. law-students-ncbe.html (Jul. 2010) . Court denied the Plaintiff’s motion for Again, the NCBE contended that The NCBE sought dismissal or sum- injunction based on his request for dou- it offered and would have provided mary judgment by arguing that the ble time on the bar exam, where the reasonable accommodations was not Plaintiffs failed to state a claim because: “ample evidence” demonstrated that required to provide the preferred 1) the NCBE is not a covered entity Plaintiff’s request was unreasonable.) accommodations of the bar applicant. within the meaning of §309 of the The NCBE’s failure to provide the rea- Id. at *3. The court found in favor of ADA, and 2) the NCBE could not pro- sonable accommodation to these appli- the applicant regarding the balance vide an accessible version of the multi- cants had the dire potential to cause of hardships, irreparable harm and state component of the bar exam, and irreparable and immediate harm. the interest of the public in the issue. as such, would demand alteration to its Id. The court noted that the NCBE’s fundamental goods and services. Def.’s primary concern with the provision of Mem. Supp. Mot. Dismiss at 21-23. Enyart v. NCBE computerized aids required preserva- Judge J. Frederick Motz signaled his In contrast to the Maryland District tion of the confidentiality of test ques- position on the issue early in the injunc- Court’s order in Elder, a recent en banc tions, which the NCBE argued tipped tion hearing by accepting the view that decisionhanded down by the Court the balance of hardships and irrepara- granting the usage of the accessibil- of Appeals for the Ninth Circuit evi- ble harm factors in its favor. However, ity software would be “extraordinary dences a more expansive approach to the court dismissed the NCBE’s secu- relief” when other options of human granting reasonable accommodations. rity concerns by countering that the

July 2011 Maryland Bar Journal 27 NCBE could provide its own computer As such, the court concluded that the The bar examination is a challenging, or laptop, which would remain in the District Court did not abuse its discre- multi-day examination that requires bar examiner’s possession after the test tion in holding that the applicant had applicants to be exceedingly well-pre- taker completed the examination. Id. demonstrated a likelihood of success pared. A diminutive distortion of the The NCBE appealed Judge Breyer’s on the merits. The NCBE did not “best test circumstances can easily mean the decision. The Court of Appeals for the assure” the applicant’s “natural apti- difference between passing and failing Ninth Circuit affirmed en banc, finding tude or achievement level” rather than for many applicants. As such, the provi- that the many factors required for a pre- his or her “impaired sensory, manual, sion of unfamiliar accommodations or liminary injunction would be likely met or speaking skills.” Id. at *7 citing 28 accommodations that limit or reduce in this circumstance. Id. The court dis- C.F.R. § 36.309(b)(1)(i). the applicant’s capacity to succeed on missed the NCBE’s arguments that the Finally, the NCBE also argued that the bar exam is inconsistent with the applicant had previously received the “because it offered to provide auxiliary mandates of the ADA. same reasonable accommodations, such aids expressly identified in the ADA, Therefore, the bar applicant’s request as human reading assistance, while in the regulations, a DOJ settlement agree- for disability accommodations should college and while studying for the LSAT, ment and a Resolution of the National be viewed in the light most favorable as “beside the point.” Id. at *2 Federation for the Blind, courts should to the applicant and all reasonable The court discussed that prior exams not require it do more.” Id. at *8. The inferences should be drawn in his or are not comparable to the bar exam; court failed to find the NCBE’s argu- her favor. See EEOC v. Federal Express hence, reasonable accommodations that ments persuasive. The court expressed Corp., 513 F.3d 360, fn.3 (4th Cir. 2008), were previously suitable and granted several times that what constitutes “rea- citing ABT Bldg. Prods. Corp. v. Nat’l for college course work or the LSAT’s sonable” accommodation for the bar Union Fire Ins. Co., 472 F.3d 99, 113 did not equate summarily to the mag- examination is not based on the regula- (4th Cir. 2006). Utilizing this “summary nitude of the bar exam. Id. Furthermore, tions nor the history of the applicant’s judgment” standard best assures that the court wrote that the facts suggested prior accommodation, but rather, must the applicant receives the accommoda- that the reasonable accommodations be based on a case-by-case review of tions sought, thereby placing the appli- offered by NCBE would specifically the applicant’s needs at that time. Id. at cant on an equal playing field with result in poor performance (i.e. eye **8-9. This clear-cut decision hails as a non-disabled peers. fatigue, lesser reading comprehension victory for the blind. This standard might require the and migraines) based on the applicant’s application of controlling weight to a) disability- a result expressly prohibited accommodations typically offered to by Title III of the ADA. Id. at *3 Policy Recommendations the disabled in the professional com- The NCBE also alleged that the ADA The NCBE’s analysis in both Enyart and munity, and b) the accommodations only vaguely requires entities to pro- Elder is facially deficient and inconsistent that bar exam applicants receive dur- vide “reasonable accommodations.” with the ADA. Provision of accommoda- ing college or law school when decid- It claimed that following the DOJ’s tions, per se, is not an inherently prima ing applications for reasonable accom- interpretation of regulations such as facie reasonable accommodation. Clearly, modations. See, e.g., Avranofff v. Law 28 C.F.R. § 36.30 (requiring entities to after careful scrutiny of the applicant’s School Admissions Council, Inc., 97 F. administer licensing exams in a man- profile, State Boards are more amenable Supp. 2d 86 (D. Mass. 1999) (While not ner “so as to best ensure” that the to the equitable provision of bar exam in our circuit and relating specifically results reflect whatever skill or apti- accommodations based on the totality to the LSAT’s, the case has relevance tude the exam purports to measure), of the applicant’s circumstances, whereas injunctive relief was granted for a exceeded the mandate intended by as the NCBE is not. Who has the best request of reasonable accommodation Congress. Id. at *7. The court held that vantage point to verify reasonable when the same accommodation was this regulation was subject to Chevron accommodations - the inundated NCBE, provided during college). deference. Id. at *6. (See Chevron U.S.A., or the local State Board -- the entity That being said, applications for rea- Inc. v. Natural Resources Defense Council, to whom the applicant has furnished sonable accommodations on the bar Inc., 467 U.S. 837 (1984)) (ambiguous documentation, and with whom he/she exam are not, and should not be, loosely statutes require deference to a reason- has interacted regularly and negotiated granted. See, e.g., In re Application of able interpretation of the statute). for accommodations? Kimmer, 392 Md. 251, 896 A.2d 1006

28 Maryland Bar Journal July 2011 (Md. 2006)(denying the claimant’s of the ADA. One possible option is to Omnipresent among bar examiners application to the bar given that he was use the Commerce Clause: Congress is the concern that applicants with dis- unreasonably provided with accommo- can tie federal funding for the NCBE abilities should not receive an undue dations during the bar examination). and/or other related organizations to advantage when taking the bar exam. Applicants may seek reasonable test their provision of reasonable accommo- The authors agree. The provision of accommodations only to ensure that he dations. U.S. Const. Art. I, § 8, et al. reasonable accommodations - even or she “receives a fair and equal oppor- Congress could also consider the direct those preferred by applicants with dis- tunity to fully demonstrate his or her provision of federal funding to justify abilities - is not an ostensible grant of competence Maryland State Board of and enable the widespread accommoda- an undue, one-time advantage for the Law Examiners Test Accommodations, tions that the NCBE alleges it is unable bar exam. Rather, this accommodation available at http://www.courts.state. to provide. A third option might be the presumably meets the needs, on a case- md.us/ble/pdfs/testaccommodations. creation of a federal commission, board by-case basis, of applicants who would pdf. To do so, applicants must provide or reviewing agency, not affiliated with continue to utilize that accommodation extensive supporting documentation of the NCBE, to oversee accommodations in the “real world.” Just because a bar their disability. See, e.g., appeals. Finally, Congress has the power examiner is unaware of the latest tech- This includes, inter alia, the following: to create a court of independent jurisdic- nological advancements, or does not a) evaluation reports from treating health tion to oversee discrimination matters desire to put forth effort to convert a file professionals, b) college/law school doc- - for example, through the appointment into an accessible format, does not mean umentation of accommodations, c) proof of a special master in the federal courts it can hide behind protestations of false of accommodations received/denied for to oversee these appeals as they arise. security concerns, benign largess or out- bar exams in other jurisdictions, d) test See, e.g., U.S. Const. Art. III, § 1 (noting right discriminatory treatment. scores on all standardized examinations that Congress may “from time to time The reader should keep in mind that on which accommodations were pro- ordain and establish” the presence of the onus is on the bar applicant to provided, and e) law school and college “inferior Courts.”). duce evidence of his or her disability transcripts, and any other supplemental through verifiable documentation and relevant materials. Id. to bear the costs for doing so. This is In both Enyart and Elder, the appli- Conclusion “reasonable” and even permitted by cants alleged that the accommodations These opinions and decisions dem- the ADA. However, reviewing requests they utilized in law school were con- onstrate the varying views of the law for reasonable accommodations with sistent with the accommodations they respecting disability rights and access to preconceived notions, and/or deny- requested on the bar exam. Although the the legal profession. When access issues ing said requests on a reflexive basis, NCBE promised accommodations such related to the Maryland bar exam have perhaps grounded on benign attitudes as Braille text in lieu of the applicants’ resulted in litigation, the trend thus far is of the appropriate accommodation for requested accommodations, such “rea- to find in favor of the bar examiners. The individuals with disabilities, goes afoul sonable” accommodations are generally hope is that Maryland will eventually of the spirit, if not the letter, of the law. considered outdated and are unused by follow the guiding wisdom of the Ninth To the extent that the bar examination the majority of the disabled populace. Circuit. As more and more law students is a “gateway” to the practice of law, See The Daily Record, supra, (noting that with disabilities sit for the bar exam the bar examiners must recognize that the while half of the blind individuals in the hoped for experience of all involved majority of bar applicants with disabili- 1940’s used Braille text, only 15% contin- would be a collaborative and reason- ties seek merely a natural and unim- ue to do so now). As such, the applicants’ able process of discussion and agree- paired chance at passing the bar exam. requests for JAWS or Zoomtext software ment of reasonable accommodations to Mr. Friedman is an Attorney were reasonable under the “summary be provided for the bar exam. While this Advisor with the U.S. Social Security judgment” standard. particular essay is expressly tailored to Administration. He may be reached at Alternatively, Congress possesses the blind applicants for the bar examination, [email protected]. Mr. Norman is a Staff Attorney with the Centers for affirmative mandate of legislating on there is no reason why the same legal Medicare & Medicaid Services, Office behalf of the people to actively protect principles should not apply to applicants of the Attorney Advisor. He may be disabled bar exam applicants against with other physical or mental disabilities reached at [email protected]. entities that seek to constrain the impact requesting reasonable accommodations.

July 2011 Maryland Bar Journal 29

Page intentionally left blank 30 Maryland Bar Journal July 2011 A Case for the Undocumented Immigrant

By The Honorable Audrey J.S. Carrión and Matthew M. Somers

o the words we utter make a difference? Some months ago, I attended a forum on diversity Dand tolerance sponsored by the Education Based Latino Outreach Inc. of Baltimore. One of the panelists challenged the use in our language of the terms “illegal alien” and “illegal immigrant,” and urged the audience to “Drop the I-Word.” Although he conceded that they may be here in violation of the law, he argued that not all immigrants are criminals and postured that they are otherwise productive members of society.

July 2011 Maryland Bar Journal 31 It is difficult to pinpoint a particular origin for the terms “illegal alien” and “illegal immigrant.” Indeed, the terms appear to have become woven into the vernacular as a result of the public’s perception of certain classes of undocumented immigrants. See Mexican American Legal Defense and Educational Fund, Legal and Policy Analysis: Local Illegal Immigration Relief Act Ordinances (referring to the term “illegal alien” as “unconstitutionally vague” in certain contexts because it is “not a legal term of art that can be applied to describe an individual’s immigration status….”). Scholars have traced the concept of the “illegal immigrant” to a shift in ideology regarding the standard for deportation from the United States. See, e.g., Leti Volpp, 2005 Survey of Books Related to the Law: Impossible Subjects: Illegal Aliens and Alien Citizens: Impossible Subjects: Illegal Aliens and the Making of Modern America, By Mae Ngai, 103 Mich. L. Rev. 1595, 1600-01 (May 2005). According to some, the Johnson- Reed Immigration Act of 1924 was the first to authorize the Immigration and Naturalization Service (“INS”) to deport at any time any person who was present in the United States without proper documentation. Id. at 1601. Prior to the enactment of the Johnson-Reed Act, an undocumented person generally would not have been deported unless it was determined that independent grounds would have precluded the person from entering the country in the first place. Id. at 1600. Various statutes of limitation, the longest of which was five years from arrival in the United States, also restricted the time within which the federal government could deport an undocumented individual. Id. at 1601. However, after the Johnson-Reed Act became effective, undocumented entry was considered, in itself, a criminal offense for which an individual could

32 Maryland Bar Journal July 2011 be deported at any time. Id. The strength of association between to a disparity between the numbers of Because an emphasis was placed the term “illegal immigrant” and “legalized” undocumented European on the illegality of entering the United undocumented Mexican immigrants immigrants and “legalized” undocu- States without proper documentation, was bolstered by the enactment of mented Mexican immigrants. Id. many began to view the undocument- new immigration policies during the During the same period that legisla- ed immigrant as a person possessing 1930s. See Id. at 1602-03. These poli- tive and administrative policies were general criminal tendencies. Id. Thus, cies, which provided vehicles for law- effectively increasing the population perhaps changing the public’s per- abiding undocumented immigrants to of “legalized” European immigrants in ception of the undocumented immi- evade deportation proceedings, dis- the United States, “repatriation” pro- grant permanently. Some in the INS proportionately affected immigrants grams were initiated to remove undoc- propagandized undocumented immi- of various nationalities. Id. at 1602. For umented Mexican immigrants from grants as persons whose “‘first act example, the Registry Act was adopted the country. See Kevin R. Johnson, The upon reaching our shores [is] to break in 1929 to provide a path to legaliza- Fifteenth Annual Dyson Distinguished our laws in a clandestine manner.” tion for “honest law-abiding citizens Lecture: The Forgotten “Repatriation” of Id. (quoting Mae Ngai, Impossible who may be in the [United States] Persons of Mexican Ancestry and Lessons Subjects: Illegal Aliens and the Making under some mere technical irregu- for the “War on Terror,” 26 Pace L. Rev. of Modern America 61 (Princeton larity.” Immigration Policy Center, 1, 4 (Fall 2005). In fact, it is estimated University Press 2004) [hereinafter De-Romanticizing Our Immigrant Past: that a collaboration of federal, state, Ngai]). One INS official even com- Why Claiming “My Family Came Legally” and local officials forced between mented that “because the ‘wetback’ Is Often a Myth (Nov. 25, 2008). The 400,000 and one million individuals of starts out by violating a law, … it is Act required only payment of a twen- Mexican ancestry to leave the United easier and sometimes appears even ty-dollar fee, a showing of continuous States during the 1930s. Id. at 4-5. more necessary for him to break other residence in the United States since Because Mexican immigrants were laws since he considers himself to be 1921 and a showing of “good moral systematically turned away while an outcast, even an outlaw.” Id. (quot- character.” Id. However, although the European immigrants were welcomed, ing Ngai at 149). Act did not officially favor any one Europeans “became legitimated as the The affiliation of the term “ille- class of immigrants over another, over center of American citizenship,” while gal immigrant” with immigrants eighty percent of the 115,000 immi- Mexicans were stigmatized as “hav- of Mexican origin was the product grants who registered between 1930 ing no rightful claim of belonging.” of tightened restrictions on immi- and 1940 were of either European or Volpp, 103 Mich. L. Rev. at 1603. This gration across the Mexican Border. Canadian origin. See Volpp, 103 Mich. held true despite the fact that approxi- Although Mexican citizens were his- L. Rev. at 1603 n.20. mately sixty percent of the Mexican torically allowed free passage into During the 1940s and 1950s, the INS nationals removed from the United the United States, the federal govern- was similarly granted the discretion- States during the “repatriation” pro- ment imposed new, more stringent ary authority to suspend the deporta- grams were U.S. Citizens. See Johnson, entry requirements in 1919. Volpp, tion of an undocumented immigrant 26 Pace L. Rev. at 4. 103 Mich. L. Rev. at 1601-02. Not possessing “good moral character” if Additional fodder for the term “ille- surprisingly, many Mexican immi- the immigrant’s deportation would gal immigrant” came with the repeal grants attempted to circumvent the result in “serious economic detri- of the Foran Act of 1885. For years, new requirements. As a result, the ment” to the immigrant’s family. See the Foran Act had prohibited undoc- United States employed a number of Id. at 1603. Pursuant to this authority, umented immigrants from entering measures, including the use of the the INS suspended the deportations the United States under the author- Border Patrol and criminal prosecu- of thousands of undocumented immi- ity of labor contracts executed prior tion of undocumented immigrants, to grants per year. Id. However, although to their arrival. Volpp, 103 Mich. L. enforce its entry requirements. Id. The the official policy did not discriminate Rev. at 1605. However, in response use of these measures further dam- between certain classes of immigrants, to severe labor shortages during the aged the perceived image of Mexican the majority of immigrants who had 1930s, Congress repealed the Act to immigrants who entered the United their deportation proceedings sus- make way for the “bracero” program. States without proper documentation. pended were of European origin. Id. Id. at 1605-06. The “bracero” program Id. at 1602. Accordingly, these policies contributed provided a legal avenue for Mexican

July 2011 Maryland Bar Journal 33 laborers to enter the United States for California and Arizona in search of ent nationalities, the Act arguably did purposes of employment despite the undocumented immigrants. John not provide Mexicans, per volume, fact that they otherwise lacked proper Dillin, How Eisenhower Solved Illegal the same opportunities to enter the documentation. In fact, the program Border Crossings from Mexico, THE United States legally as it provid- paved the way for approximately 4.6 CHRISTIAN SCIENCE MONITOR ed other countries. Id. The dearth of million Mexican farm laborers to legal- (July 6, 2006). By mid July, over 50,000 legal immigration options for Mexican ly enter the United States between immigrants had been apprehended, immigrants was exacerbated by sub- 1942 and 1964. Id. at 1605. and an additional 488,000 had fled the sequent quota reductions. The immi- However, the government’s “bra- United States in fear of arrest. Id. gration quota for the entire Western cero” program produced two, addi- As the Operation spread to other Hemisphere was set to 120,000 in tional classes of undocumented states, including those that had been 1968, and the quota for immigrants Mexican immigrants. First, Mexican excluded from the “bracero” pro- originating in Mexico was reduced to farm laborers admitted through the gram, the number of undocumented 20,000 in 1976. Id. at 1607. “bracero” program were not uniform- immigrants removed from the United These restrictions dramatically ly successful in retaining their labor States increased. By September, 80,000 increased the number of Mexican positions. Id. at 1605-06. Attrition rates undocumented immigrants had been immigrants who entered the United from the “bracero” program averaged taken into custody in Texas alone, and States without proper documenta- approximately ten percent per year. Id. an estimated additional 500,000 to tion every year and, consequently, As these legal Mexican laborers either 700,000 had fled the state for fear of increased the number of Mexican deserted or were forced to leave the arrest. Id. immigrants deported from the United “bracero” program, the numbers of The events of Operation Wetback States each year. Id. Therefore, if for undocumented Mexican immigrants were “sanctioned by U.S. public opin- no reason other than sheer volume, in the United States increased. Second, ion, which blamed ‘wetbacks’ for the the undocumented Mexican immi- upon the request of the Mexican gov- propagation of disease, labor strikes grant became the most visible class of ernment, Texas, Arkansas and Missouri in agriculture, subversive and com- “illegal” immigrant. were excluded from the “bracero” pro- munist infiltration, border crimes, low The terms “illegal alien” and “ille- gram because of these states’ demon- retail sales in South Texas, and adverse gal immigrant” remain a part of mod- strable explicit discrimination against effects on domestic labor.” Manuel ern daily speech. To be sure, interest Mexican immigrants. Id. at 1606. Garcia y Greigo, The Importation of groups track the populations of “ille- However, the exclusion of Texas, Contract Laborers to the United States, gal immigrants” by state, and com- Arkansas and Missouri from the “bra- 1942-1964, in Between Two Worlds: mentators debate the strains that “ille- cero” program did not eliminate the Mexican Immigrants in the United gal immigrants” place on the nation’s demand for farm laborers in these States 58 (David Gregory Gutiérrez economy. See, e.g., Estimated Number states. Growers in each of the excluded., 1996). Therefore, Operation of Illegal Immigrants (Most Recent) By ed states continued to heavily recruit Wetback was as much of a govern- State, StateMaster.com; A Nation of undocumented Mexican laborers. Id. ment crackdown on immigration as it Illegal Immigrants, BusinessWeek. See Therefore, large numbers of undoc- was a reflection of the American pub- also Ari Shapiro, Do Illegal Immigrants umented Mexican immigrants were lic’s negative perceptions of undocu- Burden the Justice System? (April 27, lured into the United States to take up mented Mexican laborers. 2006). The terms also carry many of labor positions outside the legal con- Subsequent developments in immi- the same stigmatizations that were fines of the “bracero” program. Id. gration law have not served to dis- associated with “illegal immigrants” In response to the growing num- suade public opinion regarding in the 1920s and 1930s. ber of undocumented laborers in the undocumented Mexican immigrants. “Illegal immigrants” are still per- United States, the INS began to pursue In 1965, the Hart-Cellar Immigration ceived by some to have general more aggressive immigration enforce- Act established uniform country of criminal tendencies and to be a bur- ment techniques. See Id. Perhaps the origin immigration quotas. Volpp, den on local communities. See, e.g., most extensive of these techniques 103 Mich. L. Rev. at 1606. However, Valley Park, Mo., Ordinance No. 1708 was “Operation Wetback.” See Id. because the Act did not take into (2006) (indicating that “illegal immi- Upon commencement of the Operation account significant differences in the gration leads to higher crime rates, on June 17, 1954, INS agents swept volume of emigration across differ- … and destroys our neighbor hoods

34 Maryland Bar Journal July 2011 and diminishes our overall quality of life….”); Impacts of Illegal Immigration: Crime Summary, The Dark Side of Illegal Immigration: Facts, Figures, and Statistics on Illegal Immigration, USillegalaliens.com. Furthermore, voluntary repatriation programs, similar to those initiated in the 1930s, are still utilized as a method to remove “unlawful[]” Mexican immigrants from the United States. See Ice Announces Results of Repatriation Program, U.S. Dep’t of Homeland Security (September 30, 2010). Both terms have appeared in local ordinances designed to restrict the rights of undocumented immigrants. For example, in July 2006, the City of Valley Park, Missouri enacted an “Ordinance Relating to Illegal Immigration” designed to “abate the nuisance of illegal immigration by aggressively prohibiting and pun- ishing the acts, policies, people, and businesses that aid and abet illegal aliens.” Valley Park, Mo., Ordinance No. 1708 (2006). Among other provisions, the Ordinance provided that “[i] llegal aliens are prohibited from leasing or renting property,” and established sanctions for any person who “knowingly allows an illegal alien to use, rent or lease their property….” Although the terms are used as if defines an “immigrant” as an “alien” Id. §§ 2, 3. they carry legal significance, neither who meets certain additional require- Similarly, the Township of “illegal alien” nor “illegal immigrant” ments. See 8 U.S.C. § 1101 (a)(3), (a)(15). Riverside, N.J. enacted its “Illegal is well defined at either the state However, the Code does not expressly Immigration Relief Act” in 2006 to or federal level. The concept of the define the terms “illegal alien” or “abate the nuisance of illegal immi- “illegal immigrant” is loosely defined “illegal immigrant.” Similarly, it does gration.” Riverside, NJ, Ordinance in federal statutes. Indeed, when the not appear that the Code of Federal 2006-16 (2006). To this end, the Act City of Valley Park amended its Illegal Regulations contains any definition of prohibited individuals from “…hir- Immigration Ordinance in August either term. See, e.g., 8 C.F.R. § 1.1. ing … illegal aliens, renting or leasing 2006, it re-defined “illegal alien” as a Furthermore, both the terms “ille- to illegal aliens, or funding or aiding person “who is not lawfully present gal alien” and “illegal immigrant” are in the establishment of a day labor- in the United States according to the referenced in federal case law. See, e.g., er center that does not verify legal terms of United States Code, Title 8, Muehler v. Mena, 544 U.S. 93, 96 (dis- work status.” Id. § 4. Other localities Section 1101, et seq.” See Riverside, cussing a situation involving a gang have enacted similar ordinances. See, NJ, Ordinance 2006-26 (2006). Title 8 “composed primarily of illegal immi- e.g., Hazleton, PA, Ordinance 2006-18 U.S.C. § 1101 does define an “alien” as grants….”); Hoffman Plastic Compounds (2006); Farmers Branch, TX Ordinance “any person not a citizen or national v. NLRB, 535 U.S. 137, 147-48 (2002) No. 2892 (2007). of the United States,” and likewise (discussing how the Immigration

July 2011 Maryland Bar Journal 35 Reform and Control Act of 1986 was thrust to the forefront of pub- light of their non-citizen status. For “made combating the employment of lic debate. Some classified the pro- example, the California Supreme illegal aliens central to ‘the policy of gram as an unjustified “reward” to Court recently considered whether immigration law.’”). However, no case “illegal aliens.” See Patricia Medige, “unlawful aliens” could be lawfully expressly defines “illegal immigrant” Perspectives on the Bush Administration’s exempted from paying nonresident or “illegal alien.” In fact, some cases New Immigrant Guestworker Proposal: tuition at California state universi- appear to use the term “illegal alien” Immigrant Labor Issues, 32 Denv. J. ties. Martinez v. The Regents of the as a substitute term when referring to Int’l L. & Pol’y 735, 737 (2004). University of California, et al., 241 P.3d federal statutes regulating “unauthor- Others were concerned that the pro- 855, 861-62 (Cal. 2010). Opponents of ized aliens,” without explaining any gram allowed “illegal aliens” to go the state law authorizing the exemp- reason for the substitution. See, e.g., “unpunished.” See Volpp, 103 Mich. tion argued that it was preempted Hoffman, 535 U.S. at 147-48; 8 U.S.C. L. Rev. at 1609 n.44. Still others were by federal immigration law, and was § 1324(a). disconcerted with the possibility that therefore unconstitutional. Id. The fact that neither the term “ille- the program could become a path to In particular, opponents argued gal immigrant” nor “illegal alien” is “amnesty” for many “illegal immi- that the State law ran afoul of certain expressly defined in federal immigrants.” See Id. However, neither pro- sections of the U.S. Code, including gration law further exemplifies the ponents nor opponents of the program 8 U.S.C. § 1623, which provides that fact that both terms result from pub- are justified in the use of the term “…an alien who is not lawfully pres- lic opinion regarding undocument- “illegal” when referring to undocu- ent in the United States shall not ed immigrants. For example, when mented immigrants. be eligible on the basis of residence President George W. Bush proposed Recently, much of the debate within a State … for any postsecond- a temporary-worker program in has involved the rights that “ille- ary education benefit….” Id. at 862-63. January 2004, the term “illegal alien” gal immigrants” are entitled to in However, the Court found that the

36 Maryland Bar Journal July 2011 state law was not preempted and was the National Association of Hispanic repealed a resolution that encouraged not unconstitutional. Id. at 866, 868-69, Journalists issued a press release urg- the investigation of a person’s immi- 870. Therefore, the Court upheld the ing the news media to stop using gration status regardless of whether exemption from nonresident tuition dehumanizing terms when covering that person had committed a crime. for “unlawful aliens.” Id. at 860-61. immigration. NAHJ Urges News Media See Escondido, CA, Resolution No. The degree to which the Court’s to Stop Using Dehumanizing Terms 2010-89 (July 20, 2010). decision polarized public opinion is When Covering Immigration, National Likewise, scholarly authors illustrative of the continued relevance Association of Hispanic Journalists. have made a point to use the term of “illegal immigrants” in today’s The Association indicated that the “undocumented immigrants” in lieu culture. Some have applauded the terms “illegal alien” and “illegal of the terms “illegal immigrants” decision as a “small step toward rein- immigrant” have the effect of inac- or “illegal aliens.” See, e.g., Clifton tegrating [unauthorized immigrants] curately “criminalizing” immigrants R. Gruhn, Filling the Gaps Left by into the mainstream of American soci- who, although undocumented, have Congress or Violating Federal Rights: An ety.” Louis Freedberg, Lacking Path to broken no law. Id. Analysis of Local Ordinances Restricting Citizenship, In-State Tuition Law Falls With respect to the term “alien,” Undocumented Immigrants’ Access to Short, California Watch Blog. Others the Association cautioned that the Housing, 39 U. Miami Inter-Amer. L. have questioned whether the deci- term conveys a sense of “hostility” or Rev. 529, 529 (2008). Therefore, the sion inappropriately authorizes “… lack of “belonging.” Id. Therefore, the perception that the undocumented spending hundreds of millions on Association recommended that the immigrant is intrinsically “illegal,” those who are not even supposed news media use the terms “undocu- which was shaped by the immi- to be in the country….” Daniel B. mented worker,” or “undocumented gration policies of the mid twenti- Wood, California Court Backs In-State immigrant” as more accurate and eth century, may be on the decline. Tuition for Illegal Immigrants, THE less damaging alternatives to the Notwithstanding this trend, the CHRISTIAN SCIENCE MONITOR. terms “illegal immigrant” and “ille- terms “illegal immigrant” and “ille- Analysts agree that in-state tuition gal alien.” Others have expressed gal alien” remain powerful forces in may be the “new illegal immigration similar sentiments. See, e.g., Kung Li, the mainstream media and in pop- battleground.” See Id. We Need to Dump the Word “Illegal,” ular culture. See, e.g., Dave Kehr, However, the “battleground” Truthout (May 24, 2010). One com- Princesses, a Pugilist and a Rooster, regarding “illegal immigration” is mentator even expressed disappoint- N.Y. TIMES, October 31, 2010, § MT, not narrowly limited to matters such ment in President Obama for refer- p. 16; Julia Preston, Illegal Immigrant as the provision of in-state tuition ring to undocumented immigrants Students Await Votes on Legal Status, for illegal immigrants. For example, as “illegals” during a recent speech N.Y. TIMES, December 8, 2010, at some have even raised national secu- to Congress on healthcare reform. A18; Julia Preston, Immigration Vote rity concerns regarding the large See Jerry Kammer, Jorge Ramos, Leaves Policy in Disarray, N.Y. TIMES, numbers of “illegal aliens” in the Disappointed in Obama, Lines Up Sunday December 19, 2010, at A35. United States. George M. Kraw, Court Interview, Center for Immigration As lawyers, educators, judges and Upholds Government’s Illegal Alien Studies (September 2009). gate keepers of the idiom of our pro- Detention Authority, Legal Opinion The trend has been away from fession, this may be the appropriate Letter, Vol. 16, No. 22 (Washington the stigmatizations generally associ- time to step back, take stock and have Legal Foundation, August 18, 2006). ated with these terms. For example, a conversation regarding the usage of Therefore, it is evident that the use of in 2007, the United States Court of these terms. the term “illegal immigrant,” and the Appeals for the Third Circuit affirmed debate regarding the proper role of a lower court decision enjoining the The views in this article are those of the “illegal immigrant” in American City of Hazleton, PA from enforc- Judge Carrion and not necessarily those of society, remains relevant. ing an ordinance that placed various the Maryland Judiciary. Many have raised concerns regard- restrictions on the rights of “illegal Judge Carrión, Maryland’s first Hispanic ing the continued use of the terms aliens.” See Lozano v. City of Hazleton, Judge, serves on the Circuit Court for “illegal immigrant” and “illegal alien” 620 F.3d 170, 221-224 (2010); Hazleton, Baltimore City. Mr. Somers serves as Judge to refer to undocumented Mexican PA, Ordinance 2006-18 (2006). The Carrión‘s law clerk. and Hispanic immigrants. Recently, town of Escondido, California recently

July 2011 Maryland Bar Journal 37 new state prosecutor strong advocate for justice

By Janet Stidman Eveleth

In the last few years, the State his new job. “I always wanted to be federal law enforcement agencies to Prosecutor’s Office has been pushed a prosecutor, advocating in the court- work together to protect Marylanders into the limelight by several high pro- room for what I believed in.” He has from corruption. file cases, most notably the corrup- great respect for the adversarial system tion trial of former Baltimore Mayor we have in this country and “strongly Background Sheila Dixon. These trials generated believes in the prosecution of white Davitt brings a wealth of experience widespread media attention and vis- collar crimes.” This energetic new State and legal expertise to his new position, ibility for the state agency that serves Prosecutor is committed to maintain- including that of a teacher and guidance as the political corruption watchdog ing public confidence in state govern- counselor. After graduating from the for Maryland. Recently, this Office wel- ment through the investigation and University of Virginia, Davitt became comed Emmet Davitt, a strong advo- prosecution of corruption cases. an educator, teaching U. S. history at the cate of justice, as its new leader. Davitt “The major thrust of this Office is to Good Counsel High School in Wheaton, plans to tenaciously fight white col- be available as an independent agency Maryland where he also served as a lar crime to protect Marylanders from to look into allegations of political cor- guidance counselor. After eight years public corruption. ruption,” affirms Davitt. “We play an of teaching, Davitt was ready for a new Last December, Maryland Governor important role as the state’s watch- challenge so, following in his father’s Martin O’Malley appointed Emmet dog. We are responsible for pursuing footsteps, he pursued a J. D. degree at Davitt the new State Prosecutor, and prosecuting ‘white collar’ crime night at the University of Maryland replacing retiring State Prosecutor and we target political and public fig- School of Law, graduating in 1988. Robert A. Rohrbaugh. Davitt, a for- ures, including elected individuals and The State Prosecutor decided he mer teacher, guidance counselor, employees of state agencies.” wanted to be an advocate in the court- Assistant State Attorney and Assistant In a recent interview with the room and was “fortunate to serve as Attorney General, brings diverse expe- Maryland Bar Journal, Davitt shared a law clerk for both Judge Paul E. rience to his new post. An accomplished his perspective of our legal system, Alpert of the Court of Special Appeals courtroom advocate, Davitt is known as his views on his agency’s role and the of Maryland and Chief Judge Robert a compassionate yet tough prosecutor challenges he faces. He is very proud C. Murphy of the Court of Appeals who is devoted to our system of justice. of his small office and its outstanding of Maryland.” He dealt with civil and Davitt jumped right in as State staff and has already reached out to criminal cases and was intrigued by Prosecutor, enthusiastically tackling forge partnerships with local, state and criminal law.

38 Maryland Bar Journal July 2011 Emmet Davitt

July 2011 Maryland Bar Journal 39 Davitt liked the prosecutorial side. started in the district court prosecut- dence,” Davitt emphasizes. “We do not “I like being part of the whole experi- ing drug addicts; this involved people answer to any office so we can follow ence. I am not a harsh person by any from all walks of life but many were our mandate and make decisions in an means but I felt comfortable in the from lower economic backgrounds. independent way without being affect- role of prosecutor, advocating what I You prosecute them because they are ed by politics. The Legislature created believed in.” So he joined the Office breaking the law and it has to be done this agency to be totally independent of the State’s Attorney for Baltimore to keep order in society. But many for this reason and limited the State City as an Assistant State’s Attorney in times, you are sympathetic to their Prosecutor to a six-year term.” 1991, prosecuting a criminal docket that plight. You sympathize with the very The Maryland General Assembly cre- included felony narcotic jury trials. people you are prosecuting. Often, you ated the State Prosecutor Office in 1977 In 1996, he became an Assistant recommend things like drug treatment to instill public trust and confidence Attorney General with the Office of and do not have to be a harsh person.” in Maryland State Government. This Attorney General and for the next 11 “But, I am far less tolerant of white Office serves as Maryland’s political years, Davitt investigated and prosecut- collar crime and political corruption,” corruption watchdog, monitoring the ed white collar crime for, respectively, asserts Davitt, “because I think the peo- activities of elected political officials and the Insurance Fraud Unit, the Criminal ple often committing these crimes are public employees of state government Investigations Division and the Criminal not people from dire backgrounds or and municipalities to guard against cor- Appeals Division, finally serving as the people from poverty. Rather, they are ruption in the state’s bureaucracy. The Governor’s Extradition Hearing Officer. people of privilege, in many cases well- agency’s mission is the “consistent and In 2007, Davitt signed on as the Deputy educated people of means, so I have less fair enforcement of the corruption, brib- General Counsel for the Maryland sympathy. I feel they had more of a clear ery and election laws without regard to Public Service Commission, managing choice and they made the wrong choice. political affiliation.” this agency’s public utility investiga- Part of me understands why people go To foster public confidence in the tions and representing its decisions in that way, the temptation, but they had a state’s government, Maryland’s top judicial review proceedings. choice, they chose the wrong path and prosecutor proactively pursues indi- they have to understand there are con- viduals who take advantage of their sequences. I believe strongly in this type public positions. The Office investigates New State Prosecutor of prosecution.” criminal offenses of corruption charges In November 2010, Governor Martin “I have always been fascinated by involving public officials and employ- O’Malley appointed Emmet Davitt to the the adversarial system we have in this ees of public agencies in Maryland. post of the top prosecutor in Maryland country and the constitutional rights of These include: violations of state elec- for a six-year term. Davitt believes his every individual,” states Davitt. “Our tions, public ethics and conflict of inter- clerkships and work as a prosecutor system puts great emphasis on fairness est laws; bribery laws involving public with the City and the Attorney General’s and attempts to level the playing field. officials or employees; misconduct in Office “well-equipped him” for his role I admire the way our system is set office by public officials or employees; as State Prosecutor. up to prevent unfair prosecutions and and extortion, perjury, or obstruction of “I headed up the Attorney General’s believe society tries to make a decision justice related to any of these laws. Insurance Fraud Unit which is quite as to someone’s guilt or innocence in Additionally, it closely monitors and similar to this Office in size and state- the fairest way.” enforces the state’s election laws, fin- wide jurisdiction,” remarks Davitt. “In ing political contributors who exceed addition, investigations in both Offices the legal donation limits and fail to file are conducted through grand juries. Role of State financial reports in a timely manner. You do not just take cases that have Prosecutor Office “We are responsible for all election been investigated by the police. You The State Prosecutor’s Office is law violations,” explains Davitt. “Some actually do the investigations yourself Maryland’s watchdog for political cor- seem small or petty and are treated with the investigators. You make the ruption - of elected officials, appoint- accordingly, like a referral about some- charging decisions.” ed officials and various government one who voted twice, and it turns out it “This is the type of prosecution that officials. “One of the most important was a confused 81 year-old senior citi- really interests me,” he continues. “I aspects of this agency is its indepen- zen who filled out both a provisional

40 Maryland Bar Journal July 2011 ballot and a regular ballot.” Then there investigators so we could be even more now rely on our law enforcement part- are the serious violations which are productive, but times are tough.” So nerships to help us. They assist us and thoroughly investigated and, if war- he will enhance community outreach we assist them.” ranted, prosecuted. efforts and share resources with his law Davitt hopes to meet regularly with “The statute also allows us to pros- enforcement partners. “Outreach is our his local, state and federal counterparts ecute multi-jurisdictional violations,” number one priority.” to share information and assets. “In Davitt continues. Occasionally, the State these tight economic times, prosecutors Prosecutor investigates alleged crimes at all levels need to share their resources which occur partly in Maryland and Community Outreach so they may collectively work toward partly in another jurisdiction or in mul- Recognizing that partnerships are vital effective prosecutions in Maryland.” tiple state political subdivisions. “These to the success of all prosecutors, Davitt Davitt’s outreach efforts also include cases do not necessarily involve a state plans to strengthen his Office’s tradition Maryland’s Bar. “Our office is important official or public figure; many relate to of outreach in the law enforcement com- and I take my job very seriously. I rely crimes that occur in one county with munity. One of the first things Davitt not only on the public but lawyers in tentacles reaching into another county. did after assuming his new post was to particular because they are the ones out This makes it difficult for the local state’s spend a lot of time on the road going out there in the trenches and often become attorney to handle so, upon the request and meeting with various police chiefs, aware of things this Office should know of a local jurisdiction, we take it.” states’ attorneys, superintendents of about.” He invites all members of the Cases land at this agency’s door the state police and assistant Attorney Bar to communicate with him. in a number of ways. Referrals can Generals. “I introduced myself and let “Lawyers have an interest in justice originate with the Governor, Attorney them know that we are open for busi- and minimizing or preventing corrup- General, Legislature or State Ethics ness. Of course they are already aware tion, and they are often in a position Commission. Some hail from an inspec- that our Office exists, but I wanted to let where things come to their attention.” tor general, an auditor or a member them know we are here, are available So other than the “obvious client limi- of the public who reports suspicious and open for referrals.” tations and conflicts of interest” Davitt activity. Others originate within the “I think it is important to form these encourages his “brothers and sisters Office. As long as they have merit, the personal relationships. I want to let of the Bar to assist this Office when matter is investigated. them know I am here. I intend to be appropriate.” As State Prosecutor, Davitt also over- fair, take every complaint, treat it fairly sees the Office’s Computer Forensics and give it due consideration,” avows Laboratory, a valuable resource in the Davitt. “This is a relationship-driven Conclusion pursuit of public corruption. “We have business and we are a small operation Maryland’s innovative State fabulous forensic equipment which we quite limited in budget and staff so we Prosecutor plans to move his Office acquired through a federal computer must rely on the support and resources forward despite fiscal and staffing analysis grant,” he declares. Created of other law enforcement agencies.” constraints. Sharing resources with in 2006, the Forensics Laboratory As an example, Davitt points to the the law enforcement community will strengthens the Office’s law enforce- execution of a search warrant. “We go a long way in fostering prosecuto- ment investigation capabilities by have to call the Maryland State Police rial partnerships to pursue white col- analyzing digital evidence from com- so they can execute all search war- lar crime and political corruption in puters, cell phones, personal digital rants because our investigators are not Maryland. As State Prosecutor, Davitt assistants and other digital devices. He sworn officers; they are all ex-police is committed to serving as the state’s plans to share this resource with the officers but not sworn officers. So, we watchdog for political corruption to law enforcement community. need to have the state police or a local protect Maryland citizens and uphold Davitt became State Prosecutor police agency join us in these actions.” their confidence in state government. during tough economic times and the Sharing resources is high on Davitt’s Janet Stidman Eveleth is the Director of worse state budget crisis in recent his- list. “We have great computer analy- Communications for the Maryland State tory. Thus, his Office faces serious staff sis equipment here but our lab does Bar Association and the Editor of the and budget limitations. “We are a small not have anyone certified to testify in Maryland Bar Journal. Office and need more attorneys and court. We lost the ones we had, so we

July 2011 Maryland Bar Journal 41 Extending Workers’ Compensation Recoveries in Legal Liens- Malpractice Actions

By Peter W. Sheehan, Jr.

As employers, insurers, and attorneys are well aware, Maryland’s Workers’ Compensation law creates a lien on any recovery that a compensated employee obtains in an action against the third party who may have caused the employee’s work-related injury. For instance, if an employee is injured at work because of a defective product manufac- tured by someone other than his employer, the employer has a lien, in the amount of any benefits paid to the employee, on any jury award or settlement that the employee obtains in an action against the manufacturer of the defective product. What is not clear, however, is what happens when the employee fails to receive compensation from the third party, and then sues his lawyer for malpractice. Does the employer’s lien extend to the employee’s recovery against his attorney? Lawyers representing employers and insurers should be aware of this possibility, and attorneys litigating legal malpractice claims might consider this possibility an important factor in settlement negotiations. This article attempts to explain the arguments for and against extending workers’ compensation liens to recoveries in legal malpractice actions by evaluating Maryland’s workers’ compensation law and providing some general analysis of the case law supporting both sides of the debate.

42 Maryland Bar Journal July 2011 The Workers’ Compensation not addressed that argument, it is statutory provision, concluded that an Statute in Maryland worth considering how other states’ employer’s lien does attach. Compare Maryland Code (Repl. Vol. 2008), Labor courts have resolved the issue. Williams v. Katz, 23 F.3d 190 (7th Cir. and Employment Article (the “Workers’ 1994) (J. Posner) (applying Illinois Compensation Statute”), Section 9-901, law and holding that employer’s lien authorizes a workers’ compensation Case Law from Other States attaches to employee’s recovery in sub- recipient to bring an action against the In the absence of controlling Maryland sequent attorney malpractice action), third party that “is liable for the injury case law, a Maryland court might look with Mosier v. Long-Airdox Co., 706 . . . for which compensation is payable to see how other states’ courts have N.E.2d 83 (Ill. App. 1999) (holding that under [the Workers’ Compensation applied similar provisions of their no lien attaches to recovery in subse- Statute].” But Section 9-902(e) provides respective state workers’ compensa- quent attorney malpractice case). that, if the employee “recovers damag- tion statutes. Those courts that have The courts in states near Maryland es” from the third party, the employee decided this issue are split. Although a are decidedly split as well. The must reimburse his employer or its majority of them support the view that Supreme Court of Pennsylvania insurer for the workers’ compensa- an employer’s lien does not attach to the recognizes that an employer’s lien tion benefits already paid. The Court employee’s recovery in a subsequent attaches to the employee’s recovery in of Appeals interprets the employer’s legal malpractice case, the difference is a subsequent legal malpractice case, right of reimbursement as a statutory not so great that it significantly under- Poole v. Workers’ Compensation App. lien on funds recovered by the injured cuts the contrary argument. Research Bd., 810 A.2d 1182 (Pa. 2002); however, employee. See Erie Ins. Co. v. Curtis, reveals that courts in ten states have trial courts in Delaware and Virginia 330 Md. 160, 164, 623 A.2d 184, 187 taken the position that an employer’s reached the opposite conclusion when (1993). Sub-section (e) is augmented by lien does not attach, while courts in six applying their states’ respective work- sub-section (a), which subrogates an states have taken the position that such ers’ compensation laws. Mt. Pleasant employer only to an injured employ- a lien does attach. Special School Dist. v. Gebhart, 378 A.2d ee’s claim “against the third party who The argument that the lien attaches 146 (Del. Ch. 1977); Va. Municipal is liable for the [employee’s] injury.” is bolstered by the fact that five of the Group Self-Ins. Ass’n v. Crawford, 66 Va. Thus, when the entire statutory six state courts taking that position are Cir. 236, 2004 Va. Cir. LEXIS 310 (Cir. scheme is considered as a whole, state supreme courts. See Bongiorno v. Ct., Fairfax County 2004). it could be read to mean that an Liberty Mut. Ins. Co., 630 N.E.2d 274 Although the specific language of employer’s subrogation interest and, (Mass. 1994); Frazier v. N.J. Manuf. Ins. Maryland’s Workers’ Compensation therefore, its lien, attaches only to Co., 667 A.2d 670 (N.J. 1995); Nicholas Statute is not the same as that used the employee’s recovery from the v. Morgan, 58 P.3d 775 (Okla. 2002); by analogous statutes in the states third party who caused his inju- Toole v. EBI Cos., 838 P.2d 60 (Or. 1992); whose courts have weighed in on ry. However, an argument could Poole v. Workers’ Compensation App. Bd., this issue, the exact wording of be made, through the creative use 810 A.2d 1182 (Pa. 2002). Only two Maryland’s statute probably will not of the word “liable,” that a work- state supreme courts have held that have much impact on which line of ers’ compensation lien also attaches the lien does not attach. See Sladek v. cases a Maryland court would choose to an injured employee’s recovery K-Mart Corp., 493 N.W.2d 838 (Iowa to follow. All of the statutes interpreted from the lawyer who mishandled 1992); Haugenoe v. Workforce Safety & by the various state courts that have his underlying personal injury case Ins., 748 N.W.2d 378 (N.D. 2008). grappled with this issue involved the against the third party that caused Additionally, the persuasive value of same components as Maryland’s stat- his injury. The argument would be the Appellate Court of Illinois’ having ute: (1) a subrogation interest held by that because of the lawyer’s negli- adopted the view that no lien attaches, the employer, and (2) a corresponding gence, the lawyer became “liable” is undermined by the fact that the lien or right of reimbursement on any for the employee’s injury. Because U.S. Court of Appeals for the Seventh recovery by the employee from a third Maryland’s appellate courts have Circuit, applying the same Illinois party liable for the employee’s injury.

July 2011 Maryland Bar Journal 43 One court based its opinion that an cases is that, for the employee to pre- rate action against his prior lawyer. employer has no lien on the employ- vail in a legal malpractice action, the See, e.g., Travelers Ins. Co. v. Breese, 675 ee’s recovery in a legal malpractice employee must demonstrate that, but P.2d 1327, 1330-31 (Ariz. App. 1983); action primarily on statutory text for his attorney’s negligence in han- Mosier, 706 N.E.2d at 87-88. with no Maryland equivalent; that dling the underlying personal injury Conversely, courts holding that language fixed the employer’s sub- case, he would have recovered for his an employer’s lien attaches to the rogation interest on an employee’s physical injury from the person who employee’s recovery from his negli- claims for injuries sustained “under caused it. Attorneys who handle legal gent lawyer reason that the employ- circumstances creating” liability in malpractice actions refer to this as the ee’s recovery is still for his under- some third party. Ramsey v. Kohl, 591 “case within a case” doctrine. lying compensable physical injury. N.W.2d 221, 224 (Mich. App. 1998). In addition, the measure of damages These courts emphasize the compet- But, other courts reaching the same in a legal malpractice case is what the ing maxim directing that a statute be conclusion generally base their deci- employee would have received for his read in a way that fosters the legisla- sions on the rationale that recovery physical injuries in an action against ture’s purpose. Legislatures, so this for legal malpractice redresses an the original tortfeasor. Thus, these rationale proceeds, enacted statutory economic injury to the employee, not a courts recognize that, in effect, the workers’ compensation liens to pro- compensable physical injury in which employee recovers for the compens- hibit double recoveries by employees an employer holds a subrogation able physical injury when he recov- at the expense of employers. See, e.g., right. See, e.g., Sladek v. K-Mart Corp., ers from the negligent attorney. See Williams, 23 F.3d at 193 (explaining 493 N.W.2d 838, 839 (Iowa 1992); Bongiorno v. Liberty Mut. Ins. Co., 630 that the employee’s argument that Mosier, 706 N.E.2d at 737; ATS, Inc. v. N.E.2d 274, 278 (Mass. 1994); Frazier v. no lien attaches is “excessively liter- Listenberger, 111 S.W.3d 495, 499 (Mo. N.J. Manuf. Ins. Co., 667 A.2d 670, 676 al-minded”); Bongiorno, 630 N.E.2d App. 2003); Haugenoe v. Workforce (N.J. 1995); Toole v. EBI Cos., 838 P.2d at 278 (explaining that allowance Safety & Ins., 748 N.W.2d 378, 384 60, 65 (Or. 1992). These courts con- of the lien is in furtherance of the (N.D. 2008); Smith v. Long, 505 N.W.2d clude that an employer’s lien attaches state’s workers’ compensation stat- 429, 432 (Wisc. App. 1993). to the employee’s recovery in the mal- ute); Toole, 838 P.2d at 65-66 (explain- Like most workers’ compensation practice suit, as it is essentially an ing that “legislative policy can be statutes, Section 9-501 of Maryland’s action to recover for a compensable vindicated only if the paying agency Workers’ Compensation Statute physical injury. has a lien”). specifies that a compensable injury Accordingly, how a court chooses to For a court considering whether a (in which an employer has a subro- interpret what constitutes a compens- workers’ compensation lien attach- gation right), is an “accidental physi- able injury is critical. Courts hold- es to an employee’s recovery in a cal injury.” Therefore, those holdings ing that a legal malpractice recovery legal malpractice case, two, compet- providing that no lien attaches to redresses pecuniary harm, as opposed ing maxims of statutory construction an employee’s recovery in a sub- to physical harm, generally empha- are at issue: (1) that statutes be read sequent legal malpractice case are size the maxim that courts should to further their purpose, and (2) that not inconsistent with Maryland’s apply the plain language of the stat- the plain language of statutory text be Workers’ Compensation Statute and ute. Those courts reason that allowing applied. As is often the case with ques- potentially could be embraced by a the employer’s lien to attach would tions of statutory construction, courts Maryland court. require the court to read too much into can rely on either maxim to achieve Cases holding that an employer’s the statutory text. See, e.g., Mosier, 706 differing results, and on this particular lien does extend to an employee’s N.E.2d at 736-37; Sladek, 493 N.W.2d at question, neither maxim appears to recovery in a legal malpractice action 840. They also reason that, because the have the support of the clear weight generally rely on similar statutory lan- employer only has subrogation rights of authority. Thus, it is important to guage defining a compensable injury in an action against the underlying consider whether Maryland has any as a “physical” injury arising in the wrongdoer, the employer cannot have other relevant case law that poten- course of the employee’s employment. a lien on any subsequent recovery tially could color the manner in which The rationale supporting this line of obtained by the employee in a sepa- a Maryland court addresses the issue.

44 Maryland Bar Journal July 2011 Guidance From Existing cal injury caused by the underlying where there is a possibility of a double Case Law in Maryland wrongdoer, the employer is entitled to recovery for the employee and no reim- A Maryland court considering the a lien on the employee’s recovery. bursement for the employer. Second, argument that an employer enjoys a In addition, it is worth commenting in Curtis, the employee sued the auto- lien on an employee’s recovery in his that several courts declining to extend mobile insurance carrier for breach of malpractice action against his former an employer’s workers’ compensa- contract under the uninsured motor- lawyer would not be doing so on a tion lien to an employee’s recovery in ist provision. The court emphasized blank slate. The court’s decision prob- a subsequent legal malpractice action the fact that the action against the ably would be shaped by the Court of reached that conclusion, in part, by automobile insurance carrier sounded Appeals’ decision in Erie Insurance Co. relying on what they considered to in contract, not tort. Thus, it is dif- v. Curtis, 330 Md. 160, 623 A.2d 184 be analogous case law from their ficult to glean how the court would (1993), in which the court addressed respective jurisdictions holding that assess a legal malpractice action based whether an employer’s lien attached an employer does not have a lien on negligence where, under the case- to the employee’s recovery in an on the employee’s recovery in an within-a-case doctrine, the measure of uninsured motorist coverage action uninsured or underinsured motor- damages necessarily would be what against the employer’s automobile ist action. See Sladek, 493 N.W.2d at the employee was owed for his under- insurance provider. 840; Woodward v. Pratt, Bradford & lying physical injury. In concluding that the employer did Tobin, 684 N.E.2d 1028, 1034 (Ill. App. not have a lien, the court emphasized 1997); ATS, Inc., 111 S.W.3d at 500; that the employer has a subrogation Chance, 66 Va. Cir. at 247-48, 2004 Va. Conclusion right (and, therefore, a lien), only in Cir. LEXIS, at *27. Thus, Curtis, when Like that of many other states, tort actions against the underlying viewed as a bellwether, indicates that Maryland’s Workers’ Compensation wrongdoer. Curtis, 330 Md. at 168-69, Maryland courts would not permit Statute is worded in a way that per- 623 A.2d at 188-89. Among its reasons an employer’s lien to extend to an mits a compelling argument that for holding that the employer had no employee’s recovery in a legal mal- an employer’s workers’ compensa- lien, the court noted that the insurer practice action. tion lien should extend to an injured that paid the employee under the pol- Nevertheless, Curtis can be dis- employee’s recovery in a subsequent icy was not the insurer of the underly- tinguished in two, very significant legal malpractice action against the ing tortfeasor who caused the employ- ways. First, a separate statute at issue lawyer that mishandled his underly- ee’s injury. Id. at 172, 623 A.2d at 190. in Curtis allowed the automobile ing personal injury case against the In addition, neither the employer nor insurance carrier to deduct from its third-party that caused his injury. its workers’ compensation insurance award to the employee, the amount Extending the lien in this manner also carrier was a third-party beneficia- of money that the employee recov- is consistent with the statute’s spir- ry of the contract that required the ered from his employer in workers’ it and intent of prohibiting double automobile insurance carrier to make compensation benefits; thus, there recoveries at the expense of employ- uninsured motorist payments to the was no threat of the employee receiv- ers. Lawyers faced with the possibil- employee. Id. ing a double recovery. As explained, ity of this issue may want to familiar- Apparently, it did not factor into the public policy against permitting a ize themselves with the case law on the court’s decision that the injury double recovery at the expense of an both sides of the argument, as there is for which the employee ultimately employer has factored significantly more than ample room for debate. recovered was the same injury that into the reasoning of those courts Mr. Sheehan, an associate with Whiteford, entitled the employee to workers’ holding that an employer’s workers’ Taylor & Preston, LLPísí Product Design, compensation benefits. This suggests compensation lien attaches to the Manufacturing, and Distribution industry that the Court of Appeals likely will employee’s recovery in a subsequent group, focuses on business litigation and products liability. He may be reached at not be quick to embrace the argument legal malpractice case. [email protected]. that, because an employee recovering Curtis simply does not illuminate funds from his prior lawyer, in effect, how Maryland courts would interpret is being compensated for the physi- the Workers’ Compensation Statute

July 2011 Maryland Bar Journal 45 Ronald S. Liebman

The Telling By Janet Stidman Eveleth Story - Litigator to Novelist

46 Maryland Bar Journal July 2011 Litigators are storytellers who carefully craft their narrative within the confines of the facts and the law. Litigator/novelists are storytellers who invent the plot, the storyline and the characters and are constrained by neither. The challenge is going from writing a factual “legalese” brief to writing purely fictional legal prose.

So, what does it take to become to-be lawyer writers. “Most lawyers ent,” he explains. “I was taken with the a litigator/legal novelist who has have a short story, or poem or a screen- courtroom practice of law, making jury published several legal thrillers? One play in their head or in their desk draw- arguments, cross-examining witnesses MSBA member has found out. Ronald er,” he declares. “There is a connection and especially legal writing.” He enjoyed S. Liebman combined his litigator skills between being a lawyer, certainly a the legal writing so much he switched and storytelling talents to write legal litigator, and being a storyteller.” careers and became a novelist. fiction and has published four novels: The key is telling the story in fast- Grand Jury, Shark Tales, Death by Rodrigo moving, well written legal prose as and Jersey Shore, released last month. opposed to legalese. Writing legal fic- Background Liebman always loved stories and tion is very different from writing legal Liebman actually started out as musi- story-telling, although he did not plan briefs and the transition from legalese to cian. His father was a jazz musician so to become a writer. But fate intervened, flowing prose is not always easy. “Legal he followed in his footsteps, becoming guiding him down a diverse career briefs are very different. Lawyers are a drummer. But his father had other path from musician to would-be teach- constrained because they are bound by plans. “The one thing my father did er to lawyer to litigator/novelist and the facts,” explains Liebman. “Fiction not want me to be was a musician,” ultimately to a successful legal novel- writers make things up, invent facts, he reminisces.” So the future novelist ist. How did he accomplish this? He characters and storylines and are not wound up attending Western Maryland capitalized on his creative talent, his constrained by anything.” (now McDaniel) College and, given his By Janet Stidman Eveleth imagination, his gift for story-telling, His inspiration for plotlines and char- love of storytelling, decided to become his litigator experience in prosecution acters comes from his legal experience. an English teacher. and defense and his familiarity with “I was a defense lawyer and a pros- This career path was short-lived too. the criminal justice system. ecutor so I saw both sides of the aisle Liebman graduated in 1966, during the In a recent interview with the in criminal cases. These experiences height of the Vietnam War, and law Maryland Bar Journal, Ronald Liebman inspired my interest in writing fiction.” school was a deferment so he chose offered his perspective on writing legal Ironically, Liebman did not plan to law school over Vietnam. “I kind of novels, shared some “lessons learned” be a lawyer yet thoroughly enjoyed his backed into law,” he recalls. “I was not along the way and discussed the chal- legal career. “I liked being a champion, really serious about being a lawyer.” He Novelist lenges lawyer/novelists face, along being the person who stood between attended the University of Maryland with some words of wisdom for want- possible dire consequences and my cli- School of Law with no specific law

July 2011 Maryland Bar Journal 47 career in mind, graduated in 1969 and “George Beall was U.S. Attorney for up early every morning, at 4:30 AM, was “very fortunate” to land a clerkship Maryland at the time so here I was, and write.” Liebman adhered to this with the Honorable R. Dorsey Watkins, barely 30 years old, reporting to Beall routine for his first three novels and Chief Judge of the United States District and investigating the Vice President of “learned the true meaning of fatigue.” Court District of Maryland. the country. The investigation detected In 1981 Liebman started plotting his “Serving as a law clerk to Judge zoning corruption in Baltimore County, first novel, “Grand Jury.” Capitalizing Watkins was a great experience because how zoning was changed, influenced, on his art of story-telling, prosecu- I was able to see lawyers in action in the peddled and the like.” Before Agnew tion and defense legal experience, he courtroom every day. I had not been became Vice President he had been “invented characters and plotlines.” interested in litigation and planned Maryland’s Governor and Baltimore But he concedes “luck” paved the way to pursue something along the lines County’s Executive, and allegations to “getting published,” although the of property law, but once I watched quickly catapulted to corruption charg- right connections certainly helped. courtroom action I was hooked; I was es of Agnew, who eventually pleaded When plotting his first novel, Grand intrigued by the lawyers I saw. I wanted no contest, was sentenced to probation Jury, Liebman was friendly with Carl to become a litigator.” and ultimately resigned from Office. Bernstein and his wife, who connect- “After that, we prosecuted Maryland ed him with a New York publishing Governor Marvin Mandel, charged company, Random House/Ballantine The Litigator with a series of fraud-related offenses, Books. “I met with the publisher, gave After his clerkship, Liebman joined twice. We took the first case to trial and them 30 pages of my manuscript, they the Baltimore law firm Melnicove, it terminated due to jury tampering liked it and offered me a contract.” Asch, Greenberg & Kaufman in 1970 charges, as the jury was compromised. Set in Philadelphia, Grant Jury depicts as an associate. “I was an apprentice to But we tried Mandel’s case again with the experiences of two prosecutors, one Arnold Weiner, whose practice at the a guilty verdict from the jury and the seasoned and one young, involved in a time involved defense, mostly white Governor served time in jail. It was zealous grand jury investigation of the collar criminal work.” Weiner taught appealed and eventually overturned mayor and his cronies. In this purely Liebman how to work cases hard and by the Supreme Court. fictional “thriller,” Liebman offers color- work them diligently. “I learned that After that, Liebman went into pri- ful descriptions of the trials and tribula- no matter how smart you are, how well vate practice as a partner, first at the tions of lawyers and the court system. you can digest cases when you read Washington D.C. law firm, Sachs, “I actually wrote the novel during them and how good you are at legal Greenebaum & Taylor in 1979 and a period of transition. I had just left writing, you still have to work your two years later at the D.C. firm Patton the U.S. Attorney’s office and joined case relentlessly and keep working it.” Boggs, LLP, handling criminal and civil a Washington law firm as a young With defense litigation under his defense work, mostly white collar cases partner, so I wrote the book in the belt, Liebman next tried prosecution, along with civil commercial litigation. early hours of the morning before joining the U. S. Attorney’s Office for At this time, Liebman’s career blos- going to work.” Liebman’s average the District of Maryland in 1972 as an somed as a litigator and novelist. day involved getting up at 4:30 A.M., Assistant U. S. Attorney. Barely there sometimes earlier, grabbing coffee and a month, he was selected to be the writing until it was time to clean up junior member of a three-person pros- The Litigator/Novelist and go to work – his day job. ecutorial team to investigate public The biggest challenge a litigator/novel- “I lived in Washington, so I could corruption in Maryland. “The focus ist faces is balancing the full-time prac- walk to work and as I did, I plotted was initially on zoning activity in the tice of law with time to write a novel. out the next day’s writing in my head. state, so a grand jury was impaneled “I practiced law throughout the course When I got to office I went into work to investigate whether there was cor- of my career and as a practicing lawyer mode.” This routine lasted for a year, ruption in the zoning industry. Before I was very lucky to have opportuni- before Grand Jury was published. The we knew it we were investigating the ties to write books,” he declares. “But novel did “reasonably well.” But it Vice President of the United States, I practiced full-time and the only way drained Liebman to the point where Spiro Agnew.” I could do that and write was to get he did not write anything else for a

48 Maryland Bar Journal July 2011 long time. “I was busy developing a in the rough; they were exceptional not do another one for years.” practice and spending time with my yet as far from big firm lawyers as one Now the litigator is a full time nov- family and young children.” could get.” He was so impressed he elist. “I still write in the morning, all But, in 1999 he received a call from began plotting Death by Rodrigo, his morning, and edit in the afternoon. I another publisher, Simon & Schuster, next novel. no longer fall asleep at dinnertime. My asking him to consider writing a “I started thinking about a story sequel to Rodrigo, Jersey Law, which novel. “We agreed that I would serve set in Camden and I talked to my has just been published, involves the as an editor/writer for a compendium publisher. I wrote a chapter, he liked same two lawyers in Camden, whose of lawyer stories, which I thought it so I started writing Death by Rodrigo. client base for the most part is low- would be a much easier way to get a The story was inspired by the setting – est of the low.” Jersey Law portrays book out,” he explains. “It turned out Camden and the two lawyers. Parts of a series of cases involving the same to be incredibly time consuming and a down-and-out Camden reminded me two lawyers interacting with various lot of fun.” of parts of down-and-out Baltimore. interesting clients, scenarios and the “I crafted a form letter and sent it Having grown up in Baltimore I felt criminal justice system. out to a cross section of lawyers at comfortable with the environment. Now Liebman is basking in his sec- random, soliciting stories for a book of The lawyers were simply inspiration ond career. He is enjoying the suc- lawyer tales, telling them I was inter- for my characters. I saw a wonderful cess of his books, has time to read for ested in any story they might have: a story there, though nothing like the pleasure, get a good night’s sleep and funny story, a story about the smart- case I was handling.” travels for pleasure these days, not est judge you ever came across, the The main plotline of Rodrigo involves business which “had become quite tir- time you really screwed up in court, a foreign drug lord who sneaks into ing.” But he does miss being a lawyer, the time you were brilliant in court.” New Jersey, gets arrested and becomes “sort of. It was my life for so many The response was overwhelming. “So intimately acquainted with Camden’s years. I do miss the practice of law many lawyers practicing law had sto- criminal justice system. “The central but when I think back on it, I think I ries,” he exclaims. “I opened the flood characters are two lawyers who rather erase the stressful parts.” While he has gates for lawyer stories.” bumble around but are really, really remained an active member of the Bar, However, “I discovered many of good in court,” states the author. “They and “wouldn’t say I would never go the stories were great stories but they don’t write briefs or letters but really back to practicing law,” right now he is were written like legal briefs. The know what they are doing.” Liebman happy to be a full time novelist. story was buried in the legal brief.” blends humor, other characters and And his advice to those would-be So Liebman learned the art of editing. different twists along the way. Death lawyer novelists – write. “The only Although he had never been an editor, by Rodrigo was published in 2007 and way to be a writer is to write, just write, he quickly realized many of the sto- before it was released, the publisher and hope ‘luck’ is on your side. I have ries needed to be edited to “keep the requested a sequel. talked to many lawyers who have a author’s voice while focusing on the short story or a poem. There is a con- story.” Still practicing law and writing nection between being a lawyer and at 4:30 AM, he edited while contribut- The Novelist being a story teller.” A good litigator ing his own stories and the end result, At this point Liebman gave up his day tells a story. A good litigator/novelist Shark Tales, was published in 2000. job and became a full-time novelist. “I writes a good story. In 2007, Liebman moved on to had been with my law firm for 26 years This litigator/novelist is writing his another D.C. law firm, Dewey & and wanted to try my hand at writing next novel, which is likely to be another LeBoeuf and was still on a “writing without having to worry about briefing successful “legal thriller.” And he has hiatus” until he handled a criminal dates and client pressures and the every- come full circle - Liebman is a musician case in Camden New Jersey. “I spent day pressures of the practice of law.” again, a drummer. time a lot of time in Camden and Balancing law practice and writing was Janet Stidman Eveleth is the Director of was fascinated, not only by this run- getting to be too much. “That was why Communications for the Maryland State down, down-in-the-heels town but by I would write a book while practicing Bar Association and the Editor of the Maryland Bar Journal. its local lawyers. They were diamonds law, then stop and catch my breath and

July 2011 Maryland Bar Journal 49 When “Of” or “In” Matters in A Forum Selection Clause

Editor’s Note: This is the third in a series the basis of diversity of citizenship prohibitions contained in 28 U.S.C. of articles by Ira C. Wolpert on the inter- jurisdiction. Findware then filed a § 1447(d). pretation and enforceability of forum and motion to remand the case to state The court said that the limitations venue selection clauses, see 27 Md. B. J.55 court based upon the forum selection contained in that section applied only (September/October 2004) and 43 Md. B. clause in the contact with the parties. to appeals from remand orders based J. 50 (March/April 2010). The Defendants argued in the upon lack of subject matter juris- District Court that the phrase, “or to diction or a timely raised defect in An Imaginative and resourceful coun- be transferred to” in the forum selec- removal procedure, and that every sel has, as expected, limited access to tion clause must have contemplated circuit to have considered the issue of a federal court because a forum selec- federal court jurisdiction because a appellate jurisdiction had held that a tion clause used the preposition “of” state court cannot transfer a case to remand order based on a forum selec- rather than “in”. another state’s court, whereas fed- tion clause is reviewable on appeal, On November 29, 2010, the United eral courts, alone, have authority to citing cases from the first, second, States Court of Appeals for the Fourth transfer venue to a federal court in a third, fifth, sixth, seventh, ninth, tenth Circuit held that a forum selection different state. and eleventh circuits. clause which required that jurisdiction Findware asserted that the word The court then determined that its and venue of “any dispute or legal “transfer” should not be interpret- review of the district court remand action brought by either party to this ed so narrowly, and that the sim- was de novo on an issue of contract Agreement...shall lie exclusively in, ple meaning of “transferred” is to interpretation. or be transferred to, courts of the State go or to be taken from one place of Virginia, USA”, was a clear and to another. unambiguous expression of sover- District Judge Gerald Bruce Lee The Holding eignty which precluded federal court granted the motion to remand The court upheld the district court’s jurisdiction in the federal courts because “exclusively in” refers to a finding that where a forum selection of Virginia. FindWhere Holdings, court in the State of Virginia, it is not clause uses the term “in a state”, that Incorporated v. Systems Environment possible to transfer a case from one expresses the parties’ intent as a mat- Optimization, LLC, 626 F.3d 752, 2010 state to another state, and the federal ter of geography, permitting juris- (C.A.4 2011). court is not a federal court in the State diction in both the state and federal of Virginia. courts of the named stated, whereas The defendants then filed an appeal. use of the term “of a state” connotes Proceedings Below sovereignty limiting jurisdiction over Findware Holdings, Inc. filed suit the parties’ dispute to the state court in the Circuit Court for Loudoun Jurisdiction and of the named state. County, Virginia against Homeland Standards on Appeal More specifically, the court said Security Networks, Inc. and others Although the appellate court had that federal courts are not courts for damages for breach of contract. appellate jurisdiction pursuant to “of” the State of Virginia because The defendants removed the case to 28 U.S.C. § 1291, it first addressed they find their origin in the fed- the United States District Court for whether it could hear an appeal eral government, and so the contract the Eastern District of Virginia on from a remand order because of the language that “any dispute or legal

50 Maryland Bar Journal July 2011 action brought by either party to this federal court outside of Virginia, in Agreement...shall lie exclusively in, clear violation of the forum0 selection or be transferred to, courts of the clause granting exclusive jurisdiction State of Virginia, USA”, referred to in Virginia, followed by removal of sovereignty rather than geography the action from the non-Virginia court and limits jurisdiction over the par- to a Virginia federal district court, fol- ties’ dispute to state court. lowed by a motion to transfer venue The court rejected the conten- to a federal district court in Virginia. tion that insertion of the language Drafters of forum selection clauses, “or to be transferred to” implied and those litigating the applicability that the parties intended that there of those provisions, are forewarned be concurrent federal and state that a simple preposition can seri- court jurisdiction within Virginia ously affect the jurisdiction of a because of the plain language of the contract dispute. clause and its ordinary and usual meaning as defined in both Black’s By Ira C. Wolpert Law Dictionary and the Merriam- Webster Dictionary. Mr. Wolpert is in solo practice in The court refused to engage in Bethesda, Maryland concentrating in speculation whether one of the par- complex commercial litigation. He can be ties might bring suit in a state or reached at [email protected]

July 2011 Maryland Bar Journal 51 Request to Defer Jurisdiction

In your communication, you have Court of Appeals to practice in In our recent opinion, Ethics sought the advice of the Committee this State is subject to the disci- Docket 04-04, we addressed a on whether it is permissible for a plinary authority of this State for Maryland attorney’s obligation to Maryland lawyer to file in another a violation of these rules in this or follow Maryland law when practic- jurisdiction, without the assistance any other jurisdiction. ing in other jurisdictions. of local counsel, a request to defer jurisdiction to a Maryland court. Consequently, if the rules of Committee on Ethics In addition, you have advised that ethics and the laws governing the you are not a member of the bar practice of law within the other of the jurisdiction in which you jurisdiction prohibit your filing intend to file the request to defer the request to defer jurisdiction, jurisdiction. Finally, you have then you must refrain from doing advised us that this matter is so. Failure to adhere to the laws governed by the Uniform Child and rules of the other jurisdiction Custody Jurisdiction Act (“the Act”) will subject you to the disciplinary which, in Maryland, can be found authority of the Court of Appeals in Subtitle 2, Family Law Article of of Maryland and of the other the Annotated Code of Maryland, jurisdiction. rules in this or any Section 9-201, et seq. other jurisdiction. While the underlying course of In addition to the possible viola- action that you have determined is tion of Rule 8.5, you should also governed in Maryland by the Act, be aware that you must under- the conduct of litigation and the take to represent your Maryland representation of your client in the client competently as required by other jurisdiction is governed by the both Rule 1.1 and Rule 8.5. Without provisions of the Act as enacted and the assistance of local counsel who administered under the laws of the is familiar with the rules of eth- other jurisdiction. ics, the Act and the rules of civil Pursuant to Rule 8.5(a) of the procedure as promulgated in that Rules of Professional Conduct other jurisdiction, it is difficult for promulgated by the Court of Appeals the Committee to conclude that of Maryland (“Rules”) gives guid- you would be able to fulfill your ance to your ethical responsibility, ethical duties to your client and as follows: that you would not be engaging in the unauthorized practice of law in (a) A lawyer admitted by the that jurisdiction.

52 Maryland Bar Journal July 2011 Reinstatement to the Bar

In a recent case, Judge Glenn Harrell, petitioner’s original misconduct, her Counsel. Years ago, before the adop- speaking for the Court of Appeals, subsequent conduct and reformation, tion of the rule, petitions for reinstate- explicitly noted that mitigating fac- current character, and her present ment, which had to be fully inves- tors in a disciplinary case, insuffi- qualifications and competence to prac- tigated, were given low priority by cient to overcome the sanction of tice law. A list of eight specific criteria our office. Current and pending com- disbarment in a case involving wilful is included in that rule. A failure to plaints were deemed more urgent dishonesty for personal gain, may candidly address each of these criteria than the investigation of disbarred or be relevant to the determination of probably will result in Bar Counsel’s suspended lawyers’ fitness to return. an attorney’s fitness to return to the office opposing reinstatement. The adoption of the reinstatement Bar after disbarment. Att’y Grievance There are two basic aspects to the rule, in 2001, reduced our office’s Comm’n v. Palmer, 417 Md. 185, 215, 9 reinstatement regime in Maryland: investigative burden, allowed us to A.3d 37, 46 (2010). Unlike some other the verified petition and the require- research quickly and generally per- states, Maryland permits readmission ment to provide information to Bar mitted a response to the petition for of disbarred attorneys and the Court, in Palmer, appears to invite a review of facts associated with the life of the attorney before the sanction as part of the process of readmission. One of the more important functions of Bar Counsel’s office, but one that gets relatively little attention from the Bar or public, stems from the requirement, set forth in Maryland Rule 16-781 (f), that responses be filed to Petitions for Reinstatement of those lawyers who have been disbarred or suspended. It is up to Bar Counsel to answer the petition, recommend a disposition and present reasons for supporting or opposing the petition. Bar Counsel has supported and opposed reinstatements and the reasons for each position varies with the circumstances. We look to the criteria for reinstatement set forth in Rule 16-781 (g). Those criteria include the nature and circumstances of the

July 2011 Maryland Bar Journal 53 reinstatement within the thirty day Appeals recognizes that people can no threat to the profession or public timeframe set forth in the rule. This be given second chances. If the Court and can again contribute to the life is because the petitioner now must orders reinstatement, it is because the of the law. supply a large amount of specific petitioner has fulfilled all the require- detailed information and documents ments of the verified petition (set Bar Counsel to Bar Counsel at the time the peti- forth in Rule 16-781 (a)) and because Glenn Grossman tion is filed. it is convinced that the petitioner is That data, beyond the elementary contact and employment facts, include comprehensive financial information, the identity and address of all credi- tors, tax returns for three years pre- ceding the effective date of discipline and each year thereafter, and comprehensive information about all civil and criminal cases pending during the period of discipline. The petitioner is also given the opportunity to provide any information that she believes is relevant to determining whether she possesses the character and fitness necessary for reinstatement. Often, such information comes in the form of letters of endorsement from the petitioner’s employers and colleagues attesting to the petitioner’s engagement in the community and her charitable and civic endeavors. I often field calls from those who wish to be reinstated or from their counsel. I refer them to the rule and let them know that the burden is on the petitioner to demonstrate her fitness to return to practice. Unless, I believe that too little time has elapsed since the imposition of discipline, I try not to discourage those who wish to be reinstated. I am, of course, able to refer to petitioners whose undertakings fell short, but I also refer to successful petitions that can be models to emulate. Our experience, with one or two notable exceptions, has been that reinstated lawyers are a credit to the legal community. The Court of

54 Maryland Bar Journal July 2011