I have never felt like practicing law in Maryland was like practicing in Mayberry. But the Maryland Daily Record reports today that the Maryland Judiciary is holding a contest to rename the title “master” that is given to those designated to assist and advise judges, typically in family law and juvenile cases. The Judicial Cabinet, the judiciary’s policy-making body, will determine the contest winner who will be treated to dinner.
The Maryland Daily Record reports today that four judges and one lawyer have applied for the vacancy created on the Maryland Court of Appeals by Judge Irma S. Raker’s reaching retirement age.
Judge Raker sits from the 7th Appellate Circuit which covers Montgomery County. Accordingly, her replacement must also come from Montgomery County.
The judge applicants are Maryland Court of Special Appeals Judges Mary Ellen Barbera and Patrick L. Woodward, Montgomery County Circuit Court Judges Michael D. Mason and Chung K. Pak, a U.S. administrative patent judge and Maryland Higher Education Commissioner. William J. Chen, Jr. of Chen, Walsh, Tecler & McCabe in Rockville is the only lawyer on the list. I guess the correct term would be non-judge since every judge in Maryland is a lawyer. (Interestingly, I’m not sure what the Maryland Court of Appeals eligibility requirements are, but you do not need to be a lawyer to sit on the United States Supreme Court.)
Judge Raker will be the third Court of Appeals judge to reach retirement age. A long time ago, I wrote that the most lasting impact of the O’Malley-Ehrlich election might be the selection of Maryland Court of Appeals judges. Governor O’Malley’s last choice replaced a conservative judge - arguably the most conservative judge on the Court - Alan M. Wilner, with Judge Joseph F. Murphy, Jr. No one is really talking about it, but this alone is a major shift in the political bent that is going to impact the Court for the next seven years. Judge Raker’s replacement is going to be a little bit less of an impact because she is more moderate than Judge Wilner, but a moderate to liberal swing, coupled with Judge Murphy, could have a real impact. O’Malley will get yet another chance to make an imprint on the Court when he announces a replacement for Judge Dale R. Cathell, who retired last July.
For personal injury and medical malpractice lawyers in Maryland, a shift in the Court will probably not have a great impact. Under a best case scenario, the Court would eliminate caps on economic damages, perhaps evolving theories like the fact there is new evidence that caps on damages are sexually discriminative. But I do not think this is in store for the near future. Certainly, a more liberal Maryland court could abolish contributory negligence but this is also probably pie-in-the-sky given the Maryland legislature’s attention to the issue (even I don’t think it would be appropriate, honestly).
One of the weaknesses inherent in Judge Murphy’s selection (putting those nine words together will shock anyone who followed the lovefest after he was selected) is that as impressive a jurist as he is, he will only have seven years on the Court before mandatory retirement at seventy. Assuming greater wisdom does not prevail and seventy remains the mandatory retirement age, O’Malley might want more of a legacy selection a la George Bush in nominating John Roberts. In this case, he will likely go with Judge Barbera, who I think is the youngest of the candidates, probably by at least five years (although I don’t have much information on Judge Pak).
Legislation is pending in West Virginia that would prohibit lawyers from seeking damages in personal injury and wrongful death cases in plaintiffs’ complaint. This bill is receiving universal support from everyone in West Virginia. The legislation passed unanimously in both the West Virginia House and Senate. West Virginia Governor Joe Manchin received the bill last week and it has received support of plaintiffs’ lawyers and defense lawyers alike. West Virginia already has a similar law in medical malpractice cases.
In the Maryland Daily Record last week, I read an article about a police brutality or false arrest case (I can’t remember which) in Baltimore. Plaintiffs sued the state of Maryland for $115 million. So, of course, the $115 million was in the title of the article. This is the exact problem that would be eliminated.
In a 5-2 decision yesterday, the Court of Appeals overturned a State Ethics Commission’s decision suspending the lobbying license of Lobbyist Bruce C. Bereano. Bereano’s lobbying license was suspended because he contracted to receive a financial bonus if he achieved favorable government action, which is in blatant violation of ethical rules. Incredibly, as I’ve written before, this case was heard by the alternative universe Maryland Court of Appeals. Only two of the judges that decided the case are active members of the Court, as five judges recused themselves because of their relationship with Bereano.
The court ruled in favor or Bereano because it found that the Commission improperly inferred that the lobbyist was not being truthful when he said the unlawful contract provision was drafted by the client because the client did not appear to testify at trial. The Court found that the finder of fact cannot infer fault because an ostensibly defense witness did not appear.
The majority opinion is an interesting read from the very beginning, when Judge Harrell paraphrases the classic “What we have here is a failure to communicate” line from Cool Hand Luke. The opinion essentially conveys that the “prosecution” was able to have their cake and eat it to too by not calling a witness they could have called because there was no evidence that the witness was under the sole power of the defendant.
I read the Maryland Daily Record summary of the opinion before reading the actual opinion and, at first, I was a little concerned about whether this was a new rule that would set precedent for the way Maryland personal injury lawyers can argue the failure of the other party to call a witness. But this rule in this case appears limited to an administrative hearing, in part because of the relaxed rules of evidence that apply.
What I find truly crazy about the opinion, and Judge Rodowsky touched on the issue briefly but then backed off in a way that did not make sense to me, is that it really makes no difference to the State Ethics Commission’s opinion who drafted the language. It was a superfluous finding that was completely ancillary to their opinion. If this is not harmless error, the doctrine does not exist in administrative cases. Moreover, I think this is an illusory victory for Bruce Bereano because the chance of the State Ethics Commission altering their finding after this remand is the same as Elliot Spitzer co-hosting The View next week.
The dissent points out that the fact finder is not really making a presumption, but instead is making an inference that is permissible. The dissent asks rhetorically why a jury is permitted as fact finder to make the inference but an administrative body cannot.
Besides the stare decisis of this ruling, it is hard to think this ruling will set a precedent in Maryland because only two judges who actually sit on the Maryland Court of Appeals were involved in the decision.
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In my Insurance Law class at the University of Baltimore last week, somehow the topic of the bar application came up. One student complained about how detailed and arduous the application process is to complete. I mused that I didn’t know why they make you jump though all of these hoops when they let just about every non-felon in anyway.
I was dead wrong. The Maryland Court of Appeals ruled last week in a 23 page opinion that a bar applicant, never accused of any crime, was unfit to practice law for two reasons: (1) bad credit history that the applicant lied about, and (2) an inappropriate relationship with a 15 year-old girl.
You can guess as to the bad credit history problem. He had bad credit, tried to fix it right before he made the bar application, and then lied about it. The situation with the girl sounds like something out of a TV movie. The girl – now a 22 year-old woman - apparently went to the Character Committee – via a letter from her mother - and told them about the relationship. When she testified, the woman recanted much of what she told the investigators. It was also revealed that she had committed acts of vandalism and violence against the bar applicant, and apparently had threatened suicide when he threatened to break up with her.
So you might think those allegations wouldn’t hold up, but enough stuck to make it meaningful to the Maryland Court of Appeals. The bar applicant claimed he was a father figure to the girl, but admits that he (1) lied about his age when he met her, (2) found her very attractive and (3) had a sexual relationship with her (there was debate as to whether the relationship started when she was 15 or 16).
The Character Committee found he showed poor judgment in having a relationship with someone who was not “emotionally mature.” I don’t necessarily disagree with the result, if only because I find it creepy for a man to say he was a “father figure” to a 15 year-old girl he met and slept with. But I wish the semantics were a little more specific. I’m not sure how many of us were “emotionally mature” when we took the bar exam. The problem, it seems, is not that she was emotionally immature but that that she was only 15 or 16. I don’t see why we can’t say that is a bad thing, and I really don’t know why Maryland law does not reflect that this is a bad thing.
For better or worse – largely for the better – we live in a culture of forgiveness. I think if this applicant gets his act together, he will be admitted to the bar. You can find a copy of the Court of Appeals’ opinion here.
There was an interesting article today in the Maryland Lawyer section of the Maryland Daily Record about a $1.2 million verdict rendered last week in a Baltimore truck accident case.
The Plaintiff suffered a fractured vertebra, a fractured elbow, and hurt his ankle in the accident. The vertebra was eventually removed and from now on the Plaintiff, who was a foreman at Severn Cable, can only perform light duty work. Incredibly, before trial the Defendant offered $475,000.00 and the Plaintiff demanded $500,000.00. Rarely do cases of this size fail to resolve when only $25,000.00 separates the parties. But in this case the parties and their counsel, Bill Ober of the Law Offices of Matt M. Paavola and Milton P. Warren for the Plaintiff and Mary Malloy Dimaio from the Law Office of Maher and Associates (in house counsel for AIG and all the American International Companies), dug their feet in over the $25,000.00.
In a case like this, authority is often in a pretty round number. It is possible that someone – either the lawyer or the adjuster below the decision maker – had the full $500,000.00 in authority and chose not to offer it. If this was the case in this truck accident claim, that lawyer or adjuster has a lot of explaining to do.
Congratulations to the Plaintiff and his lawyers on their courageous effort and ultimate victory.
A lawyer in New York wrote to tell me that Elliot Spitzer has already tacitly admitted violating the Mann Act, a felony that leads to an automatic suspension or disbarment (he could not remember which) in New York.
The Mann Act makes it a felony to aid in the transportation of a woman in interstate commerce “for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl” to commit immoral acts.
Okay, ah, I think Eliot Spitzer is guilty of that. Spitzer committed a felony technically. But at some point, prosecutors are charged with applying a little common sense. Does anyone think it is a more serious crime in 2008 to bring a prostitute across state lines than it is to hire a local prostitute? Should prosecutors give a ton of deference to a statute that was named the "White Slave Trade Act" as opposed to applying common sense?
Again, I'm glad Spitzer resigned because we desperately need to rid ourselves of the hypocracy that Spitzer and politicians of his ilk represent. If Spitzer is foolish enough to plead not guilty and wants to go to trial (chances: million to one), then by all means charge him with a felony. But if the investigation uncovers that he was not using campaign or public funds, Spitzer should be able to quickly plead to a misdemeanor with a small fine (let's say around Kristen's hourly rate) and let us, Spitzer and his family all move on from this.
As regular readers of the Maryland Injury Lawyer Blog and the Maryland Lawyer Blog know, I rarely digress into issues of the day because I think they are best addressed outside these niche lawyer blogs. But I really can't help myself because I find this Elliot Spitzer mess so fascinating.
Like many of us, I have followed closely the Elliot Spitzer saga with sadness, fascination, and amazement. My quick two cents: I think what Elliot Spitzer did was awful and I think he no longer has the moral authority to lead New York. The hypocrisy is just stunning. The irony is I don't think most Americans believe what Elliot Spitzer did should send him to jail but he does (oh, unless, Elliot Spitzer is the defendant.)
But I think it is also insane to suggest, as the Associated Press reported some are, that Spitzer should be disbarred or his license to practice law should be suspended. The standard to be governor of the state of New York is different from the ability to participate in the livelihood of practicing law.
Lawyers who commit (relatively) victimless crimes should be prosecuted because, as Elliot Spitzer knows full well, you cannot pick the laws that you choose to follow (at least the ones that are not unconscionable, which pretty much includes every enforced law in this country). But they ought to be allowed to keep their jobs. It is also worth noting that no one would suggest that a doctor should no longer practice medicine for sleeping with prostitute.
What an incredible irony it would be if Elliot Spitzer was suspended or disbarred for sleeping with a prostitute when we do not suspend or disbar lawyers who drink and drive and put innocent children at risk.
According to the Sports Business Journal, Major League Baseball and its Players’ Association are submitting a Writ of Certiorari to the U.S. Supreme Court to overturn a ruling made by the 8th Circuit Court of Appeals that allows fantasy baseball companies to continue to use players’ names and statistics without paying a licensing fee.
Major League Baseball has argued that players should be paid when their names are used for fantasy baseball leagues. Conveniently, they believe the players should be paid in the same way they are paid when their names are used to endorse products.
The problem Major League Baseball has had in advancing this argument is that their position flies in the face of existing copyright law. As the 8th Circuit pointed out, it would be strange law, to say the least, that a person would not have a First Amendment right to use information that is available to everyone in the public domain. There is no violation of the right of publicity.
Given the difficulty in getting certiorari from the Supreme Court, Baseball's brief argues for the need to establish uniform standards for publicity right disputes.
In raising this issue, I suspect Major League Baseball will cause themselves, and likely other sports, far more harm than good. Based on the 8th Circuit's ruling and the likelihood that baseball will not only lose on appeal but not even receive certiorari, you have to wonder how the sports video games industry is going to respond. While I would not expect the major players like the Madden franchise to discontinue paying the NFL a licensing fee for the use of the players names, it has to have an impact during negotiations when someone from Madden looks across the table and says, "Tell me again exactly what we are paying you guys for?"
Moreover, is this really a battle baseball wants to win? Do they want less people playing fantasy baseball? If they do hold all of the fantasy providers hostage, demanding licensing fees, wouldn't you think Congress, many of whom play fantasy baseball, might find that problematic? Congress waves the antitrust exemption in front of baseball at every turn and there is no reason to think they would not do the same thing here. You would think that in light of the Mitchell Report and the Clemens debacle, major league baseball would want to lay low and try to curry the favor of its most ardent fans and Congress. It seems the skippers of Major League Baseball continue to direct their ship towards short term profits at the long term expense of this great game.
You can read the 8th Circuit's opinion here.
The Associated Press reports that the Maryland General Assembly is considering raising bar exam fees from $150 to as much as $400.
Certainly, there is a lot of inertia to raise taxes in Maryland without actually raising taxes. Maryland lawmakers are apparently learned well from former Governor Ehrlich who had the scheme of increasing fees instead of taxes down to an art form. I know my law students are often struggling to get the money to pay for overpriced textbooks and they do not have an extra $400 lying around. But Maryland needs to get its budget in order and a lot of people are going to be paying the price. The Maryland Senate may add struggling law students to that list of payees.
