July 2, 2013

Attorney Gets Punished for Faking In-State Tuition 13 Year Before

Sometimes, I think we should be harder on lawyers who have bad intent. But this is a little over the top for me.

In Attorney Grievance Commission v. Kepple, a lawyers was given an indefinite suspension of at least 30 days because 13 years ago she she hid her real state of residence so she could get in-state tuition. Basically, she pretended she lived in West Virginia to get in-state tuition.

How did she get caught? Her spiteful ex-husband ratted her out.

Lawyers who lie and steal from their clients need to be punished, probably more than they are now in Maryland. But this was a long time ago, she actually had good contacts with West Virginia because she worked there for a time... I just think this is a little over the top.

You can find the court's opinion here.

February 28, 2013

Gun Control Coming to Maryland

The Maryland Senate today took a big step forward on gun control today, approving legislation to require the training, licensing and fingerprinting of handgun purchasers and the banning of purchase of semi-automatic assault weapons.

The Sandy Hook tragedy continues to have long tentacles. Let's see what the House of Delegates does.

February 27, 2013

Maryland Court of Appeals Overturns 2006 Exxon Gas Leak Verdict

The Maryland Court of Appeals overturned a jury's verdict this week against Exxon Mobil for its role in the 2006 gasoline leak that contaminated the well water of homes in nearby Jacksonville. Two years ago, a jury awarded the homeowners $1 billion in punitive damages against Exxon.

The Court found that Exxon did not willfully defraud homeowners. According to retired Baltimore County Circuit Court Judge John Fader, "Punitive damages in Maryland can't be awarded unless there is fraud proven." The Court also struck down portions of separate verdicts totaling $650 million in compensatory damages.

This of course leaves the residents shocked and disappointed, many of which unknowingly drank the water and even made baby formula with the water. At this point, the homeowners' only option is to appeal to the U.S. Supreme Court - which is doubtful at best. Sad, but expected, outcome for these homeowners.

There were two opinions in this case. You can read them here and here.

February 13, 2013

Kayata Confirmed by Senate

The U.S. Senate finally confirmed William Kayatta Jr. 1st Circuit after making him wait for a year. Kayatta is the first new circuit judge to take the bench since the summer. Kayatta is not a judge but an obviously very well thought of lawyer in Maine. It is full circle for him; Kayatta once clerked on the 1st Circuit.

You can learn more about his confirmation here.

February 7, 2013

Title Company and Insurance Company Battle It Out in Federal Court: New Opinion

Last Wednesday, the United States District Court for the District of Maryland decided Cornerstone Title & Escrow, Inc. v. Evanston Insurance Co.

This case dealt with an insurance dispute between Cornerstone Title, a title and closing company, and Evanston Insurance. Title companies always seem to be getting themselves into trouble.

In this case, Plaintiff purchased an insurance policy from Defendant obligating Defendant to indemnify Plaintiff for all damages, which was defined as “the monetary portion of any judgment, award or settlement . . . not [to] include . . . (b) the restitution of consideration or expenses paid to the insured for services or goods.” The policy also contained several exclusions from coverage, which included claims “based upon or arising out of any dishonest, deliberately fraudulent, malicious, willful or knowingly wrongful act or omission committed by or at the direction of the Insured . . . [or] based upon or arising out of the Insured gaining any profit or advantage to which the Insured is not legally entitled.” Take a breath and digest that for a second.

Plaintiff was then sued by the Maryland Attorney General, Consumer Protection Division (“CPD”). CPD alleged that Plaintiff took part in a foreclosure rescue enterprise but did not give homeowners all of the money owed to them from the sale of their homes. Although Plaintiff consistently denied the allegations that they had violated the Protection of Homeowners in Foreclosure Act (“PHIFA”) and the Consumer Protection Act (“CPA”), Plaintiff reached a settlement with CPD and agreed to pay $100,100 in restitution fees, maybe in part because the Maryland Attorney General has to be a pretty scary foe if you are a company it is targeting.

Plaintiff then sought coverage from Defendant, who denied the request and claimed that the policy’s definition of damages excluded restitution claims. As a result, Plaintiff filed suit alleging that Defendant breached its duty to defend and sought indemnification.

Since there was no dispute of material fact (both parties agreed on the terms of the policy), summary judgment was appropriate. Maryland law uses a two-step process to determine if the insurer has a duty to defend. First, the court will review the policy to figure out the scope of the coverage. In this step, the court will give the words in the contract “their usual, ordinary, and accepted meaning.”

Second, the court will determine whether the allegations against the insured represent a case covered by the insurance policy. It is interesting to note that in Maryland, if the allegations do not clearly bring the case under complaint within the coverage (the allegations might be vague, for example), the general rule is that the insurer has a duty to defend as long as there is potentially a case under the coverage umbrella. That is, where there is doubt, the court will construe the policy in favor of the insured.

Consequently, the court had to figure out two questions: (1) whether the restitution relief fell under the definition of damages, and (2) whether any of the exclusions in the policy applied. Because the definition of damages included “the monetary portion of any judgment,” and the restitution in question was not “restitution of consideration or expenses paid to the insured for goods or services,” the relief did fall under the damages definition. Although Plaintiff argued that legally, damages and restitution are different, the court will look to the language of the contract. In this case, “damages” was clearly defined.

As for the exclusions, Defendant argued that by perpetrating willful and intentional fraud, Plaintiff’s actions fell under the policy exclusions. However, Plaintiff countered by contending that violations of PHIFA and CPA do not require willful or intentional conduct. Because Plaintiff never admitted to fraudulent or dishonest acts, they assert that the allegations do not clearly bring the case under complaint within coverage, so therefore doubt must be resolved in their favor.

The court found in favor of Defendant on this issue. Although the truthfulness of the allegations was uncertain, the allegations themselves were clear: They stated that Plaintiff had engaged in willful and intentional fraudulent behavior. Citing Utica Mutual Ins. Co. v. Miller, the court explained that the exclusions here only require that the claim arise from the actions described in the exclusions – a determination of liability is not necessary. The exclusion applies to claims of liability. As a result, the court granted Defendant’s motion for partial summary judgment.

January 16, 2013

Welcome Back to the Maryland Bar!

We welcome back to bar in Maryland a lawyer convicted of a felony after taking an active role to
conceal immigration fraud that permitted non-citizens to enter theU.S. illegally. To make this more palatable for us, he described this as "negligent" in his Petition for Reinstatement. I don't know about you, but that makes me feel tons better. I hope Lance Armstrong tells us his doping scheme was negligent tomorrow.

January 7, 2013

CareFirst of Maryland Wins Claim in Federal Court Against Family of Nursing Home Patient

CareFirst of Maryland fought off a lawsuit in federal court last week alleging that its denial of claims for a woman with Alzheimer in a nursing home during the last years of her life violated her health insurance contract with CareFirst.

There is some interesting commentary in the opinion about the deference due to a treating doctor and exceptions to be made to the deference that might be of interest to personal injury lawyers in Maryland.

You can find the court's opinion in Carefirst of Maryland v. Wolfehere.

January 7, 2013

Alston Out Says Maryland High Court

The Maryland Court of Appeals affirmed a P.G. County Circuit ruling that determined that convicted former delegate Tiffany Alston will not return to Annapolis. The governor will fill the vacancy.

The court did not offer a basis for the opinion. They wanted to get a ruling out because of the importance and immediacy of the case. Presumably a more detailed opinion will follow.

But, in sum: this mess - this utter mess - will be resolved in a way that does not make us all hate our politicians even more than we do now.

November 29, 2012

New Attorney Client Privilege Opinion

This is an interesting new case from the Maryland Court of Appeals that underscores the limits of the attorney client privilege: you can't use it as a sword and a shield. Here, the defendant in
a breach of contract action hung his hat in his defense of a bad faith allegation by citing letters with his lawyers to show he was acting in good faith.

The court held that if you crack that door, you have to open the whole thing. This is a problem for the defendant if another correpondence to his lawyers is referred to by the court as the "stop the
bastards email." You can imagine this had an unhappy ending for defendant, which is did to the tune of $40 million

You can read the entire opinion in CR-RSC Tower I, LLC, et al. v. RSC Tower I, LLC, here.

October 23, 2012

Restricting Off the Ballot Lawsuit Fails

A deeply divided Maryland high court agreed to allow us to vote on congressional redistricting plan.

The plaintiff are the some of the powers that be among Maryland democrats: Dennis Whitley III (who gets his name on the case), Matthew Thomas, Anne Neal and Karren Jo Pope-Onwukwe.

Basically, the referendum’s opponents wanted the court to throw out some of the petitions that had been signed to bring this issue to the voters. But I would be lying if I said I fully understood it.

The court also agreed - unanimously on this one - that on-line petitions are okay. So at least we are in 2012 on that one.

I have no real opinion on redistricting except to say it is one of those issues that probably should be voted on by the people. I also think that generally Democrats should be in favor of giving the people a chance to be heard. I'm sure these plaintiffs would agree.. unless it is something they want off the ballot in which case the people should put a sock in it.

You can find the opinion here and the oral arguments here.

September 12, 2012

Maryland Court of Appeals and Electronic Filing

For the past several years, the Maryland Judiciary has been developing plans for a comprehensive electronic case management system for the District Court, the Circuit Courts, and the two appellate courts. That system will involve court records being filed, maintained, and accessible in electronic, rather than paper, form. The Judiciary has chosen Tyler Technologies, a leading provider of software solutions for the Court and Justice community, as its partner in this endeavor. The Judiciary and Tyler are in the process of designing how the software will operate in the courts and interface with justice partners including the attorney community. The Court’s Standing Committee on Rules of Practice and Procedure is now in the preliminary stages of developing Rules to accommodate MDEC. It is anticipated that the system will be installed sequentially by county or groups of counties, commencing in Anne Arundel County on or about September 30, 2013.

Five core issues of basic judicial policy and certain possible options regarding those issues have been identified, upon which the Court invites public comment. Comments may present other issues and suggest other options. All comments should be in writing and sent to Sandra F. Haines, Esq., Reporter to the Standing Committee on Rules of Practice and Procedure, 2011-D, Commerce Park Drive, Annapolis, Maryland, 21401 on or before September 21, 2012.

The Court will hold a public meeting on October 18, 2012 at 2:00 p.m., to consider the timely written comments. Oral presentations will not be permitted except by invitation of the Court. Decisions reached by the Court will guide the Rules Committee in the further development of Rules necessary to implement MDEC.

The issues and some possible options identified by the Rules Committee are:

(1) To what extent should the electronic filing of documents be mandatory?

(a) With minor and well-defined exceptions, mandatory for all filers;

(b) Optional for all filers;

(c) Mandatory for attorneys and judicial personnel, optional for self-represented litigants;

(d) Optional for judges;

(e) To the extent practicable, mandatory for government agencies required by law or court order to file reports, records, or other documents in cases to which they are not parties;

(f) Electronic filing supplemented by reduced number of paper copies in appellate courts.

(2) What should be the requirements for a filer’s signature on electronically filed documents?

(a) Typographical signature, such as “/s/” suffices for all filers and documents;

(b) Scanned or digital signature should appear on all documents;

(c) Scanned or digital signature should appear on documents required to be filed under oath or affirmation;

(d) Scanned or digital signature of the judge or judicial appointee should appear on orders and judgments.

(3) Will the electronic version of electronically filed documents be the official record of such documents?

(a) Electronic version is the official record;

(b) Electronic version is not the official record;

(c) Written transcripts should continue to be required of electronically recorded proceedings in open court.

(4) What access should be allowed to the electronic record? [Editor's note: this is going to be big deal.]

(a) Subject to a protective order, parties and attorneys of record should have full access, including remote access, to all case records in cases to which they are parties or attorneys of record;

(b) Judges, judicial appointees, and judicial personnel should have full access, including remote access, to all case records when such access is necessary to the performance of their official duties;

(c) The public should have free access to all unshielded case records, but only from public access terminals in the clerk’s office or at other specified locations;

(d) The public should continue to have free remote access presently provided to the unshielded names of litigants and docket entries;

(e) The public should have remote access to all unshielded case records by subscription, for which a fee would be charged.

(5) What kinds of fees, if any, should be charged for (i) the electronic filing of documents; (ii) the filing of paper documents; (iii) remote access to electronic records; or (iv) general operation and maintenance of the MDEC system?

That was from the Court of Appeals... back to me... Change is scary for everyone, particularly on something as big a deal as getting an appellate brief filed. But I think this would be a wonderful thing if the court could implement it without too many bumps.

August 14, 2012

Maryland Legal News

  • Walter Olson at Overlawyered in getting into putting together Maryland most legal related links
  • The Anne Arundel County chief of police will retire August 1, it was announced just as the state prosecutor was wrapping up his investigation of the police chief for his role in County Executive John Leopold's alleged abuse of power scandal. The indictment against Leopold alleges that he used his police protection to do research on his adversaries and to drive him to sexual liaisons around town.
  • A referendum approaches on same-sex marriage in Maryland.
  • A Maryland lawyer and "balloon entertainer" who was sentenced to 10 years in federal prison for trying to entice a minor for sex has consented to disbarment.
  • Conservative bloggers claim victory in a Maryland case where a somewhat notorious liberal ex-con sued to stop a blogger from writing about him. A judge vacated an injunction (issued by what Salon calls "a confused old judge who didn't understand the Internet") preventing lawyer/blogger Aaron Walker from writing about Brett Kimberlin.
  • Red-light cameras do not seem to prevent accidents and may actually lead to more serious ones, according to Westminster officials, who will remove two of the town's three cameras.
  • "The city of Baltimore is at the forefront of a federal court battle alleging banks artificially depressed a benchmark rate for borrowing, leading to large losses for cities that entered into interest rate swaps."
June 22, 2012

Maryland Legal News

  • Surprise! The job market for lawyers is still terrible.
  • The man charged with the murder of 16-year-old Phylicia Barnes pleaded not guilty today.
  • Oh, this doesn't seem fishy at all. HT: Baltimore Crime.
  • Will the Court of Appeals' pit bull ruling produce unintended consequences? The Capital writes, "Associations representing landlords said the ruling makes them responsible for pit bull attacks but powerless to stop them without banning the dogs." And here's more on the pit bull issue.
  • A criminal defense lawyer writes about her reaction to last week's Court of Special Appeals opinion in Dixon v. Maryland, a case stemming from the murder of the lawyer's nephew.
  • NPR illustrates a story about a funding crisis for legal aid to the poor by visiting the Maryland Legal Aid Bureau.
June 13, 2012

Maryland Dream Act on the Ballot in 2012 High Court Rules

The Maryland Court of Special Appeals today set the stage for an Election Day referendum on the state's Dream Act, which would permit qualified undocumented students to receive in-state tuition at Maryland public universities and colleges.

The court ruled that the Dream Act is subject to a statewide vote, rejecting a lawsuit by Casa de Maryland, an immigrant rights group, arguing that the law governs appropriation of state funds and, thus, is constitutionally barred from being put before the voters.

The court moved on this fast: it heard arguments in the case Tuesday and gave its ruling without a written opinion today.

The General Assembly passed the Dream Act in 2011, but people with nothing better to do opponents collected enough signatures to force a voter referendum on whether we are going to extend this small courtesy to immigrants who live here.

Continue reading "Maryland Dream Act on the Ballot in 2012 High Court Rules" »

June 12, 2012

New Maryland Small Estate Law

One thing the Maryland legislature accomplished this year was streamlining Maryland's probate process for small estates. This new small estate law, SB No. 535, which becomes effective on October 1st. Under this law, it will be much easier for survivors to deal with property left by a person who has died. You now may be able to convey larger amounts of property using this new shortcut, saving precious time and money.

Our lawyers become probate lawyers in wrongful death cases where we need to open up an estate for the decedent.

You can read more about this new law on the Maryland Probate Lawyer Blog put out by McCollum & Associates, LLC.

May 21, 2012

Maryland Appellate Opinions Today

Four new Maryland appellate opinions today. None relate to personal injury claims, but I glanced at all four and figured I would make a blog post out of it.

  • Attorney Grievance Commission v. Butler: A 60-day suspension is in order if a lawyer shows up for trial without a good reason and without adequate communication with his client. In this case, the client got hit with a default judgment. To make matters worse, the lawyer did not tell the client, "Hey, you have a potential, ah, legal malpractice claim against me." Judges Harrell and Battaglia argued in the dissent that the suspension should be longer. I'm inclined to agree with the dissent.
  • McNeil v. State: This was actually the subject of my moot court project during my first year of law school. I even remember my fictionial client's name: Darryl Dare. Anyway, the question is whether jury verdicts in a criminal case can be factually inconsistent or illogical. The answer: they can. Juries don't have to make sense because the verdict may be a compromise, but judges do. This has always been the law of Maryland, but the Court of Appeals muddied the waters a little bit four years ago in Price v. State.
  • Maryland State Board of Elections v. Libertarian Party of Maryland: The Green Party and the Libertarian Party join forces to fight the Maryland State Board of Elections. That's all I know.
  • McCloud v. Handgun Permit Rev. Bd: If you commit a crime somewhere else, and it sounds like a crime that would ban you from getting a handgun for here in Maryland, you can't have the gun.
April 30, 2012

Talbot County Mooring Referendum: New CSA Opinion

In Koste v. Town of Oxford, Judge Robert A. Zarnoch starts out the Maryland Court of Special Appeals opinion like this:

    Which comes first: a law's enactment or a referendum drive? In this case, we consider the classic chicken/egg casualty riddle in the legislative/political setting. And in the context of petitioning to referendum of a municipal annexation resolution, we conclude that the Legislature has required enactment to precede petitioning. We turn form the abstract to the concrete.

Honestly, I'm not sure what this means. In the bubble of personal injury cases in which I live, it is amazing to me how many other legal issues there are for judges to get there minds around.

In any event, the Maryland Court of Special Appeals ruled in favor of the Town of Oxford in a this case regarding petition signatures stemming from a dispute over the regulation of mooring regulations for buoys adjacent to the town. This opinion reverses a Talbot County Circuit Court judge's summary judgment ruling in favor of a resident who had granted a judgment in favor of an Oxford resident who had challenged a town resolution on mooring.

You can read the opinion here. I tried to understand it and gave up.

April 23, 2012

Yes, That Sounds About Right

I like this summary of the Maryland Court of Appeals opinion in Attorney Grievance Commission v. Camus:

    Disbarment is the appropriate sanction when an attorney is unprepared and repeatedly late for court appearances, fails to enter her appearance in a case after being directed to do so by the court, sends an unreasonable bill to a client in apparent retaliation for the filing of a complaint with the Attorney Grievance Commission, takes funds from a trust account purportedly for fees without notice to, or assent by, the client, and fails to respond to reasonable requests for files relating to clients after termination of representation. MLRPC 1.1, 1.2(a), 1.3, 1.4, 1.5(a),(d), 1.15(a),(d), 1.16(d), 3.4(c), 8.1(b), 8.4(b),(c),(d).

Ah, yeah, disbarment sounds about right.

April 18, 2012

Maryland Law School Politics

Maryland state Senator Richard Colburn wants to help the University of Baltimore School of Law with a $500,000 grant. Okay. Deal.

Oh, wait. Nothing is really free, is it? Senator Colburn is upset because the University of Maryland Environmental Law Clinic is doing what law clinics do: fight for causes. Their cause is a lawsuit against a local chicken farm. Colburn represents Caroline, Dorchester, Talbot, and Wicomico Counties, so he loves Purdue Chicken and chicken farmers.

Coburn wants to take the Maryland money and give it to the University of Baltimore Law School to assist "farmers in the state with estates and trusts issues, compliance with environmental laws and other matters necessary to preserve family farms." The measure failed this year. I'm sure it will be back next year.

I'm not attacking Colburn, really. He's fighting for his constituents which is all well and good, I guess. But if the Maryland legislature ever goes along, it will prove our worst suspicions about our state politics.

Here is the Baltimore Sun article. I get the Sun so I refuse to pay to read the paper online. But, if you cut and paste real quick, you can get the article. More fun than breaking and entering.

April 5, 2012

Alleged Maryland Lottery Winner Hires New Lawyer

The Baltimore woman who says she has the winning Maryland Multi-Million (or whatever it is called) lottery held a news conference with her lawyer yesterday.

Her lawyer went after the media:

    I cannot say with any certainty that this ticket exists and I would caution anybody, until it’s presented to the lottery commission for processing, that it does exist. We are only preparing in the event that people might challenge what we believe to be a legitimate claim....
    “I think the easiest way to be over with all this is for you all to go home and then when we get ready, Ms. Wilson gets ready then we can do what she desires to do. I think that sometimes there are external forces that work on us, that push us into situations that we just have to deal with. And this is one of them. I don’t know where it came from. I can’t identify who it was. But I do know that it has to be dealt with in a way that the law affords her due process.

I was going to do a rant about the different levels this is insane. But, really, we all get it, right?