MD Lt. Gov. Rutherford Under Fire for Remarks about Hate Speech

Baltimore Sun, December 2, 2016:

Amid an uptick in hate speech following the divisive presidential election, Republican Lt. Gov. Boyd K. Rutherford said this week that he’d rather people “show their real colors than hide.”

Rutherford was tweeting in response to state Sen. Cheryl Kagan, a Montgomery County Democrat, who had tweeted that she was “shocked” by Rutherford’s lack of awareness about the root of recent anti-Semitic vandalism.

“You act as though hate is new,” Rutherford tweeted at the state senator. “It was always there. I’d rather people show their real colors than hide.”

The article goes on to discuss how Sen. Kagan characterized the Jewish community in and near her Montgomery County district as “mystified” by Lt. Gov. Rutherford’s remarks.

The divergence in perspective between the Lieutenant Governor, who is African-American, and Senator Cheryl Kagan, long a community pillar in greater Washington’s Jewish community both in office and out of office over the decades, should surprise no one.

It is quite common (though not universal) for African-Americans to prefer sunlight and openness regarding racism and for American Jews (and perhaps Jewish citizens of other nations) to find the same sunlight and openness more alarming.  More social commentators have noted this.  I will defer to others more learned than I as to the possible sociological and historical sources of this frequent divergence in response/coping strategy.

As for me, neither Jewish nor African-American and lacking actual chips on the table in dealing with either problem, I would hesitate to comment, other than to hope that our society improves such that racism and anti-Semitism are in the history books and not in the newspapers.  Doubt I will live that long.

Towards a more decent 2017

Politics are not a staple of Working Scribe and any number of other sites can slake the reader’s thirst for yet one more red Solo cup of politics from 2016’s skunked keg. Some things are more important in valence and precedence than politics – many things, in fact, but to talk about these things, we have to talk (a little, sorry) about “that thing.”

I don’t know whether the world I thought I once knew disappeared, or was never there, or was the mere reflection of a happy childhood, replete with Big Bird and 2nd grade teachers and Goofus and Gallant in every monthly issue of Highlights magazine. Our culture seems so brutal, so indecent, with no monopoly anywhere on indecency.

Could one have imagined a presidential candidate dismissing a majority of his opponent’s supporters – roughly a quarter of the republic’s electorate – as a “basket of deplorables” in 1996, or 1984 or 1960? Can one imagine living through the demeaning behavior and language that characterized a major candidate’s campaign persona? The mere language necessary to discuss the current events of politics, the lexicon, is not suitable for a 4th grade civics class. Politics isn’t just nasty, it’s too nasty even to discuss in social studies. This wasn’t true when I was in the 6th grade in 1980, when we held class mock elections in my Catholic elementary school. (The Republican won, and I backed the third-placed candidate – familiar pattern.)

Most people aren’t saints, but most are decent most of the time. Yet we have this indecency in our politics. It seems as if politicians had forgotten how to appeal optimistically and positively to the common (okay, not universal, but common) decency of most people.

After the election, I saw posts from advocates for a losing presidential candidate urge their comrades not to go for Thanksgiving to the parts of the country where the winner’s supporters predominated, urging instead that they host dinner and teach their benighted relatives “how people should be treated.” This is, in fact, not how people should be treated.

We hear “decency” used in reference to sexuality, especially out of the mouths of preachers and politicians seeking money; public indecency, for instance, does not refer to cruel words uttered on a sidewalk but to an unauthorized exposure of human skin. There is a place for decency standards in sexual matters but we have become indecent in so many issues greater than nudity or sexuality. Most of life is about other matters; even pornographic actors spend most of their lives NOT having sex. Christian friends of mine have noted that their Bible talks a lot more about money, especially helping the poor, than about sex. They and many others of similar sensible priorities have a point.

It is far easier to be indecent to strangers and outsiders, what some sociologists and social activists call, awkwardly, “the other.” I fear that we have become a society where there is no “society”, rather a basket not of “deplorables” but of isolated and mutually indifferent (or worse) gel capsules. In 1980, MTV did not exist except as a ambitious idea and cable was barely in existence; national television including respected television news had three major networks and pretty much that was it. I recall saying the word “indivisible” in the Pledge thousands of times; yet that word tells a lie. We are extremely divisible and have been micro-divided, as it turns out.

May 2017 give us a greater sense of being in “one nation”, ideally without the unifying force of a horrible tragedy. As for me and mine, we will eat dinner tonight in peace and health in the Red State part of Maryland, and play cards. and be decent and loving to one another, remembering a more unified and decent time, our different politics notwithstanding. May you enjoy a very decent and Happy Thanksgiving with you and yours, and may the end of this year soon start a more decent one for us all.

Baltimore City Terminates Contract with Neo-Nazi Attorney Consultant

Baltimore Sun, August 18, 2016:

The Rawlings-Blake administration said it had fired Glen Keith Allen, 65, a contract employee who had worked on complex litigation for the city since February. The city began investigating Allen’s background after the Southern Poverty Law Center reported that he had a history of supporting the neo-Nazi National Alliance.

The real story – underreported – behind this is that Glen Keith Allen and his City-side boss George Nilson had both worked at mega-firm DLA Piper during different periods. Allen still (as of August 20) has a Client Protection Fund mailing address at DLA Piper’s Mount Washington office with the Maryland courts for his law license.  How a firm like DLA Piper – ironically, headquartered in its Baltimore office just over the City line at the edge of a predominantly Jewish and African-American neighborhood – had a neo-Nazi funder on its payroll is a horrifying mystery.

This well-publicized embarrassment to the city of Baltimore also cost George Nilson his job as city solicitor.

Maryland Lawyers’ Rule of Professional Conduct 8.4(e) designates as misconduct the knowing manifestation:

by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this section.

There is a good argument that funding a group like the neo-Nazi National Alliance with one’s personal funds doesn’t constitute action in a “professional capacity.” A Southern Poverty Law Center report indicates that Glen Allen not only acted at various times as an attorney for the National Alliance but on at least one occasion donated $500.00 of his own money to the organization.

The representation of neo-Nazis or an alliance of neo-Nazis does not constitute endorsement of neo-Nazi views; MLRPC 1.2(b): An attorney’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities. However, do donating one’s own funds to neo-Nazis and then acting as their attorney in another context constitute, together, a manifestation of an 8..4(e) violation?

The following comment is offered in my personal, not professional, capacity.  I do not see how one can reconcile the Maryland Attorney’s Oath (Md. Code Ann., BO § 10-212) with personal support for the views of Nazism, white supremacy or the German Third Reich:

I do solemnly (swear) (affirm) that I will at all times demean myself fairly and honorably as an attorney and practitioner at law; that I will bear true allegiance to the State of Maryland, and support the laws and Constitution thereof, and that I will bear true allegiance to the United States, and that I will support, protect and defend the Constitution, laws and government thereof as the supreme law of the land; any law, or ordinance of this or any state to the contrary notwithstanding.

Alan Hilliard Legum, R.I.P.

A very decent man died this week. Annapolis attorney Alan Hilliard Legum died this week according to a recent announcement by his law partner Shane Nikolao and reports in the Capital Gazette.

Alan was surprisingly gentle in his style for a litigation attorney, very understated in his personal demeanor but most effective in his practice – a model for young attorneys.  Among his professional focuses were large tort liability claims against large utility companies and government agencies.  His office on West Street was where I had my first post-law school clerk job..  His son Judd Legum is a nationally recognized public figure in his work in the founding of Think Progress, a liberal advocacy organization.

Alan cared a lot about fundamental justice and civil rights issues and was closely allied in civic life with controversial Annapolis alderman and civil rights activist Carl Snowden (later active in state government as well.)  The Legum family has long lived in the Annapolis area and has included several attorneys and judges.

Speaking personally, I am most grateful for something that Alan did – humanely but resolutely – to aid me in my professional development – namely, his firing me.  6 weeks after I got barred, Alan realized that his practice needed better than 6 weeks of lawyer experience from his clerk.  My drafting skills were not what they needed to be for his active practice, and he was too busy with the actual business of helping clients to train a green lawyer.  I felt disappointed in myself when this happened, but there’s no doubt he made the right decision for his clients’ needs, and he was such a decent human being about it. How he handled that situation says more about this good man than most of the accolades that you may read about him in the newspapers.

My condolences to Alan’s family and friends.  A very decent man and attorney has passed away. The Capital reports that there will be a memorial service this Sunday at 10 AM at Annapolis Roads, south of Eastport at a park facing the Severn River.

The White Elephant in the Room

What is “whiteness”? Specifically, what is “whiteness” in America?

Superficially, relatively pale European skin color (in its diversity) may be the result of the interplay between melanin, Vitamin D and folate/folic acid. Melanin impedes Vitamin D production, but aids the production/retention of folic acid, both of which affect human development even prenatally. Environments with little sun (high latitudes) put the ability to produce Vitamin D at a premium, so a lack of melanin is especially helpful in the north. On the other hand in sunnier latitudes, where production of melanin is less critical, melanin aids in protecting folic acid production from the damage of the sun’s radiation. Accordingly, northern climes in northern Europe tend to be habitats of fairer-skinned people, the opposite near the Equator. The palest people on earth are clustered near the Baltic Sea. The arctic Sami in the Nordic countries are darker than, say, Lithuanians or Estonians to the south. Some have conjectured that the Gulf Stream and adaptation to agriculture led to a reduction to Vitamin D exposure, promoting over time even paler skin on the Baltic shores.

But we don’t care about “whiteness” primarily out of curiosity about fetal development, anthropology or evolutionary scientific hypotheses. “Whiteness” is at core about sociology and power politics, not the detail of skin color. White people do not lose their caste status as white people after a week of bronzing at the beach.

“Whiteness” got invented in multiple places where Europeans exploited people who were not and didn’t look European. It represented a sort of cartel between uneasy competitors. Like many cartels, sometimes the membership isn’t so stable. “Whiteness” was enshrined into the laws of the American colonies, and in the first Naturalization Act passed by the first U.S. Congress, barring “non-whites” from citizenship by naturalization. Legal “Whiteness” protected the early caste system of the United States that operated not only in “slave” states but allegedly “free” ones as well.

If you go visit the 1800s records of Germany or Italy, for example (those countries did not have those names politically in 1840) for evidence of “whiteness” in the records of the towns, you won’t find it. Those folks, including my German ancestors, identified themselves by birthplace, language, region, religion and social class. Their descendants came here, and became “white people” while giving up, to greater or lesser extents, their cultural heritages and identities, almost completely by the fourth generation (for German-Americans, often by the second generation.)

The important point about American whiteness as an identity is that it has essentially no substance that unites white people reliably AND distinguishes them reliably from designed non-whites, other than the “badges and incidents” of white privilege itself. “White people” aren’t a people with a culture; they are a caste. There’s no “white food”, “white music” (a few genres are much more popular with whites, but more on this later), “white religion.” There is no “white accent”, as one can tell by listening to Senators Ben Cardin (MD), Lindsay Graham (SC) and the late Ted Kennedy (MA) on YouTube and realize that these senators are of different religions, different regions, different accents but the same white caste in this country.

Some people might suggest that a few cultural artifacts, like hockey or country music or trips to Prague, are predominantly white entertainment or recreation, forming some basis for some “white culture.” The minor premises are true: marketing professionals will confirm that some cultural and non-cultural products are overwhelmingly white-bought/used/attended in the United States. But these artifacts are, in essentially every instance, sharply limited by class, subculture or region. One finds few hockey fans in Georgia, few country music buffs in New England and Long Island and Washington State, few aficionados of trendy European travel among blue-collar white people, even among those who might afford a longer, more expensive trip to Hawaii. Other cultural artifacts particularly popular among white-caste people have similar other limits.

What did Pee Wee Herman, Evel Knievel, the Lubavitcher Rebbe, Hillary Clinton, Flo from the 1970’s sit-com “Alice”, a white college student at the University of Washington, David Letterman, Klansman and neo-Nazi David Duke, Theodore Roosevelt and the author of this blog post have in common? All are “white by law” and de facto white by caste, the caste created before the founding to this Republic and reinforced by centuries of law, custom and individual and collective practice. All benefit from the violence, plunder, depraved indifference and hypocrisy of what some people call “white privilege.”

I don’t particularly like the term “white privilege” – the most common term for the peculiar institutions of white caste of this country, going back to 1650. “Privilege” is a semi-nice word. “I feel privileged to be here” is not a gripe but a statement of gratitude. In my law practice, I take pains to protect “attorney-client privilege.” The Constitution protects some “privileges and immunities.” It’s perhaps better than nothing, but the word “privilege” isn’t nasty enough to describe the nasty reality.

Theodore Roosevelt (may his name be blotted out) attacked corporations for collusion against the public in price-fixing, and declared war on them through enforcement of the Sherman Antitrust Act. Teddy Roosevelt never had the moral insight or character to declare war on white collusion against black American citizens in the U.S. South or elsewhere. Indeed, Teddy Roosevelt was an open and unapologetic advocate of explicit “race wars” by whites in America against Native Americans (expressing rough approval of the idea that the “only good Indian is a dead Indian”) and Filipinos. Roosevelt told black audiences that the “rapists and criminals” among them “did more harm to their race than any white man can possibly do them.” Roosevelt explicitly advocated that white people outbreed non-whites as a means of conquest so as to promote among whites “a clear instinct for racial selfishness.” White racist pathology, organized into the structure of an entire government and society, was the first “price-fixer”, and Roosevelt was among its bigger “big sticks”.

For his advocacy of criminality, war and injustice and the expansion of American empire, Roosevelt’s graven image appears for white people’s reverence carved at enormous expense into the side of Mt. Rushmore. May his name be blotted out by all who fear Justice.

A better term for the 350 years of white caste in this country is “white pathology.” People talk about “black socio-pathology” because of high crime rates and other admittedly serious social problems in many impoverished black neighborhoods. Yet what is more pathological than making peace with a history of murder, enslavement, sundown towns, theft, redlining, racist exclusion from unions, professional associations, licenses, housing, jobs, credit? What is more pathological than taxing people to make a monument to someone as atrocious, as hideous as Teddy Roosevelt? The answer, of course, is that white America sociopathically felt almost no guilt about its sociopathology or the conditions of black Americans even 40 years after emancipation. White people are not generally sociopaths, but white caste and white power have operated under a sociopathic model, and most white people don’t particularly give a damn about it.

The terms “white-race sociopathology” or “white American sociopathic politics” are clumsy but get the job done better than “white privilege.” Professor Robin DiAngelo has suggested the term “white fragility.” Lots of people who benefit from white caste don’t look particularly privileged materially.  Many whites are broke and REALLY hurting, and have been hurting for many years. But broke white people can count on knowing that America was built for them, for their caste and their children, for people who look like them, a few decades of civil rights statutes and economic growth in Black America notwithstanding. When white people hear “This Land is Your Land”, a folk anthem by self-described communist Woody Guthrie decrying inequality in the United States, white people aren’t generally thinking about non-whites.

White people got offered a fairly tough bargain: drop the culture of your parents and buy into American culture including America’s peculiar institutions of white sociopathy and you too can eventually enjoy white caste. White caste was not always fully open to all Europeans at all times.  Many might be surprised to learn that at different times and places in the US, Hungarians, Irish, Sicilians, Greeks, Arabs from the Levant and even perhaps surprisingly Swedes were distinguished from “white people” and excluded, at least partially, from white caste. I refer the reader to the scholarship of Noel Ignatiev and Robin D.G. Kelley for some of the history details.

White caste was fully open to Germans in Maryland.  My German (and, elsewhere, non-German) ancestors came here and eventually they and their descendants became white-caste Americans, retaining little more than the name “Rupp” from the old country. America made a hard bargain but it was in the end a bargain. Germans, white by US law, came and became white-caste Americans by the millions, both before and after the US Civil War.

My ancestors’ experience – coming into the port of Baltimore, meeting other German-Americans, buying a little farm land, starting businesses, becoming white-caste American people – was quite different from that of my friend and college roommate Professor Anton Treuer of Bemidji State University. His father escaped Hitler’s Anschluss of Austria by a few days, came to America and married Tony’s mother, an Ojibwe from a reservation near Bemidji MN. Tony’s father got white privilege here but spent much of his life undermining that privilege as a journalist and socialist activist. The Ojibwe and other native nations on this continent did not get white caste. Even the U.S. citizenship of Native Americans was in legal doubt for centuries.

There is much more to say about the history of white caste and Native Americans than what I, unstudied, am qualified to say.  I would refer the reader to Anton Treuer’s extensive scholarship. Tony’s life’s work has involved unwinding what violence and cultural extermination white sociopathology and its institutions infliction to the Ojibwe and other Native American nations.  Specifically Tony’s work involved preserving and promoting the Ojibwe language in immersion schools, scholarship, history, dictionaries, recordings and also in common parlance and commerce in Bemidji among Ojibwe and non-Ojibwe alike.  In other words, his work involves the direct rollback of aspects of white caste power, which was particularly oppressive against the Ojibwe of northern Minnesota.

Getting back to white caste. One of the effects of the size and wealth of the country’s white caste is the ability to live inside its boundary lines, economically, culturally, socially. The same white American folks who know a lot about Prague (today, perhaps, Warsaw, Istanbul, Bucharest) and wander its streets will often die knowing not a damn thing about Black American life. You can see it in my hometown Baltimore. When you saw the maps of the locations of the “riots” (some of which were bona fide riots, some of which were crimes short of riot and some were no crimes whatsoever), you saw clusters in west and northwest Baltimore and others on the east side, in a shape that looks roughly like a bow-tie. The MTA and mayor shut several metro stations down in NW Baltimore, turned them into “ghost stations” like those that existed in East Berlin after the Wall was built over the tunnels and split the city. Transit service on the largely white Light Rail, running north-south linking to predominantly white suburbs and skirting some of the city’s wealthiest neighborhoods, was unaffected. There were a few demonstrations in overwhelmingly white neighborhoods like Hampden, where white demonstrators challenged the City’s curfew. The Baltimore City police were much more polite in Hampden, in deference to white caste, than they were at overwhelming black Penn-North, where more direct and violent policing methods were employed. But most white people could avoid the “bow-tie” or “butterfly” entirely.

A personal, though perhaps trivial (you decide) example of living in a white bubble, was a comment that I made to a black friend in law school. He and I were coming out of the law school and we were discussing television. I mentioned that “Seinfeld” was a dominant program on Thursday night TV and a touchstone for the country. My friend patiently informed me that “Living Single” was much more popular among black Americans at the time, that “Seinfeld” was not particularly popular among black Americans. I then realized to my embarrassment that “Seinfeld” was set in New York, a city where white people were a minority, but on the show there were essentially nothing but white people. Even in New York, perhaps especially in New York, white people often live in a white cocoon. So can white law students in a city that’s 65% black.

One of the annoying things about white pathology is that white people tend to think of “racism” as something to do with a personal outlook. “I’m not racist,” comes the reply. That’s nice, and irrelevant. If the only contact that white people have with the peculiar race-caste institutions of this Republic is the opportunity to disavow “impure thoughts”, they prove rather than challenge the general point. “Racism” becomes a personal disavowal, like removing gluten from one’s diet: might be nice for your digestive tract but it doesn’t move the needle for the rest of the human race.

Black Americans (and others burned by white caste pathology in this society) aren’t trying to get validation and warm fuzzies from you or me or your or my racist uncle.  By and large, Black Americans are trying to design, build, operate and maintain their lives in a society that for most of its history has made doing all of the above very difficult or impossible. Many white people have maintained the conceit that they have a right not to be made uncomfortable about such discussions, not to have their consciences challenged. CS Lewis once wrote that the one sin that the devil could not make popular was cowardice, but the American white caste has proved him wrong.  Life involves conflict, and believe oneself to be exempt from the discomfort of conflict is, historically speaking, pretty peculiar.

Some will say that I am “bad-mouthing” America, and on the eve of Memorial Day, no less. I shrug my shoulders and invite critics to correct my errors and check my math. Some will suggest that America has been far less bad than many other societies in history. This might be true; our species does have a poor track record. The Byzantine emperor Basil the Bulgar-Slayer, upon defeating an enemy army of Bulgars, blinded 99% of the survivors and plucked one eye each out of the other 1%, leaving them to lead the other 99% back home to their king. Empire after empire in history has inflicted cruelty and mass killings,.  The Romans, Phoenicians, British, French, Chinese, Japanese, the Greek-speaking “Romanoi” of the Eastern Roman/Byzantine Empire, the Songhai, the Egyptians, the Sumerians, the Axum empire in Ethiopia, the Babylonians, Alexander the Great, Tamerlane, Genghis Khan, the Aztecs, the Third Reich, the Russian Empire and its successor Soviet empire. Perhaps others can grade the American Empire on the curve.

To its merit, the US has been more protective (though not absolutely so) of free speech and assembly than most of the societies named above, allowing for some better hope of civic remedies short of revolution, The US, at times, has ruthlessly suppressed free speech and assembly through, for example, COINTELPRO, the suppression of Native American languages and religion even by violence, FBI infiltration of political organizations, the bugging of both Martin Luther King Jr. and Malcolm X.  Even when we get a little bit exceptional, we find that we are not exceptionally exceptional.

Back to the central question: What is “whiteness”? The answer, counter-intuitive as it seems to people, is that American whiteness is as artificial as a silicone implant. It is as artificial as being “British” was in Philadelphia on the eve of Independence. It is as artificial as the Klingon language spoken on “Star Trek”. American whiteness got invented to protect the power and assuage the greed of slaveholders, who learned that they could not safely enslave Africans and others merely on the basis of being “infidels” (non-Christians.) Race and racial caste came to define life-time chattel enslavement in Virginia, my beautiful and beloved Maryland and elsewhere. White caste sociology and pathology remain to this day in the explicit political consciousness of some white-caste Americans (Rush Limbaugh, Jared Taylor of American Renaissance, Lee Atwater, David Duke, Chuck C Johnson come to mind (Author note: 2019 examples would include Steve Bannon, Tucker Carlson, Professor Amy Wax and occasional CNN commentator Richard Spencer) and in the implicit world views of perhaps most white-caste Americans, replete with some level of cognitive dissonance.

White-caste Americans should, if they actually believe the words of the Hebrew Bible “Tzedek Tzedek Tirdof“, reject as a criminal conspiracy, as illegitimate, what white-caste politics, sociology and institutions have done on this continent. We should be more fearless than were those who rejected British identity in Philadelphia, even at the cost of our lives, our fortunes and our sacred honor. Five million “taxed without representation” Americans resided in the colonies on Independence Day. 36 million black Americans, most the descendants of enslaved inhabitants of this continent, of persons taxed without the right to vote throughout the Jim Crow south, are better moral claimants for a moral revolution than were British subjects who shot hot lead into the bellies of British regulars in the American Revolution.

Who is a traitor, and who is a revolutionary? We generally do not call George Washington a “traitor”, though had the British Crown defeated the Continental Army there is a good chance that Washington would not have received from the British Crown the mercy that the United States showed to its enemies Robert E. Lee and Jefferson Davis. Washington and his army, with some key help, prevailed.  Washington’s face is on Mount Rushmore next to Teddy Roosevelt’s. Winning helps. What I advocate is unapologetic treason to what American history and present society has constituted as the American white caste – in a certain sense, “race treason” as an ethical obligation.

Caste/race treason requires white caste people in this country to face the fact that this country, like the fields and villages and shtetls of Eastern Europe, like the plains where Basil the Bulgar-Slayer plucked out 20,000 eyeballs of his enemies, is to some extent a crime scene. America is hardly unique in being a crime scene.   The human race has been horrible in its history. A small example with which to end: If you drive up Troyer Road (pronounced like the surname of my friend Anton Treuer mentioned above, but Anglicized by one of my fellow German-American white caste members or an immigration clerk) in northern Baltimore County near the PA line, you will pass by a crime scene. It won’t look like a crime scene, but a black American of my acquaintance lives on Troyer Road. He enjoyed success in business and other professional life, and purchased the specific parcel of land on which white caste pathology enslaved his very own ancestors, just below the Mason-Dixon Line.

Yet it doesn’t look like a crime scene.  It looks like a rather nice-looking fenced piece of rural property in northern Baltimore County, 25 minutes away from the nearest police station. Americans, including especially self-congratulatory white-caste Americans, are not exceptions to human nature in wanting not to face reality.

Unlike the Byzantine soldiers under Basil the Bulgar-Slayer, we seem at times to have plucked out our own eyes. It’s time to start seeing clearly, and to address with moral courage the aftermath of our bloody, or to admit honestly that we – those whose ancestors’ fateful choice to join the white American caste – in fact do not and never will give a damn about justice.  Either we can choose to see, or we can keep pretending that we have no eyes.

Unemployment Insurance, Baltimore Shutdown Edition

The following information may be useful for readers who live or work in or near the scenes of recent disturbances in Baltimore. By reading this, you do not become my client.  I might be suing you, and so I don’t want to become your attorney by you reading this. Statutes cited are from the Maryland Unemployment Insurance Law, Md. Code Ann. LE § 8-101 et seq.

1) If a worker loses her job because the business got burned down, can she get unemployment in MD?

Maybe. In general employees who lose their job “through no fault of their own” per the general language of § 8-102(c) are eligible if otherwise qualified and not disqualified for other reasons. Losing one’s job due to arson is an example of this, unless the worker purposefully or, perhaps, negligently burned or allowed to be burned her place of employment.

2) If a worker loses her job due to the curfew, can she get unemployment in MD?

Maybe. The curfew is a strong public policy in Baltimore City; people are being held in Central Booking for violating it right now (April 30). The question is very fact-specific. A bar might have to shut down if its customers cannot walk the street or its workers commute in or out. On the other hand, night-shift work is often 10PM-6AM, and the curfew might not affect those workers directly. Most workers are permitted to commute under the curfew, but curfew might interrupt other services necessary to the business or to getting to work (transit interruptions.)

3) If I get locked up, can I get unemployment?

Maybe, but it’s doubtful. While you are locked up, you cannot get unemployment for multiple reasons, most specifically because you are not “able, available and actively seeking work” while a jail or correctional facility is preventing you from working. If you get locked up and released, a lot depends on what led to the lock up and what happened after.

Whether getting locked up is either a form of “misconduct” (8-1002or a “voluntary quit” depends on the details. The Unemployment Insurance Division has opined that the mere fact of incarceration, without later conviction, does not constitute a “voluntary quit” from employment, provided that the worker notifies the employer. Lansinger v. Baltimore County Fire Department, 1305-BR-82. Whether workers locked up in Central Booking with dubious access to communications, per recent reports, would be excused from not contacting their employer immediately is debatable.

The other issue is whether getting locked up constitutes “misconduct” under § 8-1003 or, by analogy, related §§ 8-1002 or 8-1002.1 To effectuate a misconduct disqualification, an employer must fire a worker as a disciplinary response to misconduct, which is “a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction of duty, or a course of wrongful conduct committed by an employee within the scope of his employment relationship, or on the employer’s premises.” Hollenbaugh v. Whitcraft Transmission 1101-BR-85 If the firing is not the result of a disciplinary choice, or it is not “connected with the work”, it does not constitute a basis for a misconduct disqualification. The first duty of the worker, however, is to show up for work. The issue then becomes whether one’s misconduct that led to the arrest is sufficiently connected to the work, through the risk of arrest and schedule interruption, to constitute “misconduct connected with the work.” Since riot – the common-law charge under which many people have been charged or arrested in Baltimore – carries no maximum penalty, one who commits riot probably risks arrest, high bail ($500,000.00 in some recent cases) and indefinite incarceration in a way that constitute an act of misconduct connected to the work.

4) If I get fired for what I put on Facebook about the demonstrations, can I get unemployment?

Maybe. It’s illegal for an employer in Maryland to demand the passwords to social media accounts such as Facebook. However an employer is at liberty to read whatever is open to be read, and may take offense and even fire a worker for online (or non-online commentary.) The right of the employer under at-will employment to fire a worker is a separate question from whether a worker’s online activities constitute a transgression or dereliction connected to the work.

If your job relates to public safety, public health or administration, might be a good idea to run your actual and proposed social media feed by your own attorney before you make commentary.

5) What if I cannot get work for a while in the face of this unrest?

Unemployment lasts up to 26 weeks, depending on worker eligibility. Under some circumstances, workers may be eligible for extended unemployment benefits that are funded in part by Congress.

6) What if I have more specific questions about my eligibility?

You need to consult with an attorney. Some attorneys are working pro bono in the aftermath of the recent unrest. I cannot take on much pro bono work myself in my Montgomery County practice, but I would be happy to help pro bono callers get to pro bono resources in Baltimore and the surrounding area.


Rebuild It Now

Seven months ago, I joined Jezic & Moyse (then Jezic Krum & Moyse)  in Montgomery County, and soon thereafter I moved to northern Prince George’s County in Calverton, a modest fairly quiet suburb with not much going on. Most of my social network is located “north of the River” – the Patuxent River – and the intense, client-focused work pace at J&M is enough to keep one from developing a massive new social circle (especially for someone like myself, relatively reclusive anyway and focused on fatherhood every other weekend.)

Most of the attorneys I know are north of the Patuxent River, the statistical boundary between the two major metropolitan areas. Back when local calling areas really mattered, most of the people north of the river could call Baltimore for free, most south could call Washington for free. The legal cultures differ, the accents are different. In Baltimore, Senators Ben Cardin and Barbara Mikulski sound … normal.

Most weekends I am north of the river at least briefly, either to get or drop off my children or to get my mail from the PO Box I have had in Reisterstown for the last ten years. Those from out of town reading this may be aware that the unrest in Baltimore caused the Reisterstown Road Plaza shopping center to close today (27 April); I lived in the outer suburb of Reisterstown connected by Reisterstown Road, formerly Reisterstown Pike, to the City.

Most of my formative experiences happened out there: family, high school, life in the Church (no longer part of my life, but remembered fondly), learning to drive. I remember going on a double date with my buddy Alan, his girlfriend and one of her best friends on Labor Day; we parked the Chevette at what is now the Eutaw Street pedestrian zone in front of the B&O Warehouse, what was then free parking on a holiday behind a warehouse. I lived in the City for three years in law school, started out as a young attorney in Fells Point.

Baltimore is violent, drug-addicted, impoverished, provincial, corrupt, petty. It so rarely misses an opportunity to miss an opportunity. But it is real. I pass by restaurants in Washington with ridiculous pretension in, well, everything: fake food at fake prices sold by fake people to thronesniffers. That’s not the totality of life in DC, of course, but it’s so startling to someone from a city where you find broke-ass residents of every ethnicity. It’s hard for someone from Baltimore not to respond dysfunctionally to the thronesniffers, the patricians who run Washington, Inc., not to puncture the television when the Sunday morning talk show pretenders prance and bray. A Baltimore politician won’t pretend to be some figure of high moral character; he will simply direct you to his bag man for payment. In such small things, one finds integrity.

Former Mayor William Donald Schaefer was known for his urgency in getting things done. His favorite phrase was “do it now.” Schaefer was old Baltimore if old Baltimore ever existed. The Inner Harbor, once a rotting underused waste, became a major tourist draw under his inspiration and drive. Later when serving as Maryland’s governor, Schaefer conceived the current incarnation Baltimore’s Light Rail and got it built fiarly rapidly, warts and all (and it has warts.) Schaefer wasn’t perfect, but he never claimed to be and did not expect humanity to be “perfect” either. He was always looking for the chance to do it now, build it now, not to wait for perfect conditions. He knew that conditions aren’t perfect and that imperfect is the permanent condition.

I don’t have anything to say about the demonstrations regarding the death of Freddie Grey and the riots (these are two different things that happened in the same time in the same city) except to say that people don’t go from organized protest to busting down Italian grocer and food distributor Trinacria on North Paca Street, and that “they” didn’t riot. We, or some of us, did. They didn’t demonstrate. We, or some of us, did. The “they” that comes so easily to white people, especially in the suburbs, is part of the problem that holds the City back. If politics and civic life mean a damn thing, it’s that this “they” barrier needs to do. One of us got died in police custody due to a severed spine. We demonstrated. We burned the City down and shut it down. It is as true as saying that “we” won the Second World War; I didn’t fire a shot, wasn’t born until 24 years later.

I commend my colleague in the Bar J Wyndal Gordon for organizing a lot of attorneys to help with the aftermath of the unrest in Baltimore.  His perspective is distinct and focused on protecting the civil rights of Baltimoreans from police brutality; he is working with the National Bar Association, an association of predominantly African-American attorneys. One of the best ways to reach him may actually be Facebook, a medium at which he excels. What he is doing is very important, but the crisis of the events of this past week will eventually subside. The aftermath will be much longer and more severe.

Baltimore still has not recovered from the 1968 riots after the death of Martin Luther King. Much of West Baltimore is still in economic disarray; a walk down North Avenue from the JFX west will show that. It’s going to be easy to isolate Baltimore politically; Baltimore’s population has shrunk over the last thirty years (with tiny reversals) and Montgomery County has by now 1 million people and so much of the money in this state. More importantly, economic rent-seeking from the government can’t last and cannot solve the core problems in the City.

As an attorney, I am obliged (encouraged strongly) to provide pro bono services to people who need it. Lots of people are going to need pro bono help in the aftermath of the unrest (which included riots, but wasn’t just riots.) There will be people needing lots of help probably for the next 18+ months due to this unrest; the economic damage the City under curfew (no pub crawls, that means you, Fells Point) alone will damage people, cause businesses to shut down. Unemployment hearings, foreclosures, fights with insurance companies, evictions, you name it. The City will be a “target-rich zone” for unmet legal needs even more than before. Accordingly, I intend (subject to practical requirements of the Bar, geography and the entirely justified business-side expectations of my employer) to meet my advisory pro bono requirement by helping people who suffered losses and need legal help in the aftermath of this mess in the City.

Somebody should help; if you have a Maryland law license, you are “somebody” who can help. We need to rebuild it now, and lawyers can help. Don’t wait for Chief Judge Barbera or some MSBA functionary to send you a letter. Your name on the attorneys’ Test Book in Annapolis is your invitation. Rebuild it now. Do it now.

The Ten Rules of Lawyering

Rule 1: Get Paid Up Front
Rule 2: Don’t Win The Ethics War, Avoid the Ethics War (Foonberg the Great)
Rule 3: 90% of Law School is a Waste, but Which 90%?
Rule 4: Never Believe Career Services, Especially When They Tell The Truth
Rule 5: Law School Is a Terrible Investment; Make the Most of It
Rule 6: It’s Impossible to Kiss Up to a Court Clerk Too Much
Rule 7: “Garbage Law” Doesn’t Exist; It’s All Garbage and It’s All Gold
Rule 8: Swim With a Buddy
Rule 9: Flakes Gonna Flake (aka Screw-Ups Screw Up)
Rule 10: Integrity Is “Good Selfish”

AGC v. Marcalus and some advice to new attorneys

If you practice in MD, go read AGC v. Marcalus, though possibly NOT on your work computer.

A few points.

1) The attorney in question was barred one year before me, which means that he got his law license about one year before the words “World Wide Web” were well known.  I got barred in 1994, and around the time of my swearing in I learned that phrase, meaning that all of my legal education was pre-Net and essentially all of my practice post-Net.  The respondent was admitted in December 1993.  On the one hand, Respondent’s ethics education predated much of modern telephony and hand-held technology.  On the other hand, the Court of Appeals found his substantial experience in the practice of law since 1993 to be an aggravating factor, per well-established precedent and ABA guidelines.

2) Bar Counsel is not walking around looking for an opportunity to invade your sex life. Its attorneys and investigators have other things to do. Unless your dating life affects your professional work itself – sexting an unrepresented counterparty in this case or sexting one’s own client in a prior misconduct case by the same Respondent attorney – Bar Counsel doesn’t want to make your bedroom its business, and almost certainly never will (barring extremely bizarre or patently outrageous law-school scenarios.) But if you bring that part of your life into your professional life – by dating your subordinate, flirting with opposing counsel during a deposition and especially if you get involved sexually with your client, you are inviting a world of humiliation on yourself and the people you care about.

3) The wisest policy is the most conservative: a complete separation of your dating life and work. Don’t put the embarrassing details of your social life into the datastream of your work life, don’t let the people in your job and the people in your intimate life overlap unless it’s something stable and permanent (e.g. spouses as partners, etc.).  Dear heaven, don’t date clients, counterparties, opposing counsel, people in your firm.  I’d even recommend against dating fellow attorneys in your practice area in your town, though that’s admittedly very conservative advice. Don’t date your associates; sexual harassment by attorneys is explicitly against the DC rules and is probably by implication prohibited under MD Rule 8.4(d) and (e). Keep sexual innuendo out of the office, for multiple reasons.

If you want to have a dalliance, to do something foolish, fine: have your nonsense. Just do it (if you must) with a real estate agent across town or the owner of a boutique three zip codes away with no connection to your files, your clients or your firm. Maybe don’t sext, as well; maybe it’s fun and games but to Bar Counsel it’s discoverable electronically stored information.

4) Not every violation of your promise “at all times to demean myself fairly and honorably” (per the Oath you took before signing the Test Book) has an explicit black-letter rule section in the Maryland Lawyers’ Rules of Professional Conduct. Be aware that Rule 8.4(d) prohibits conduct that tends to prejudice the administration of justice, but that it’s in the case law that examples are found. To some extent, it is perhaps the “junk drawer” of the Court of Appeals; they put it there when no other obvious location suffices but a disciplinary response is needed to unfair or dishonorable conduct.

Earlier this year, an attorney caught a reprimand for calling his family-member client an obscene epithet in an email.  Judge Watts of the Court of Appeals wrote that unanimous decision, and wrote for a unanimous Court of Appeals in the Marcalus case as well this week.  Neither violation would have been as likely in the 1970s, where email did not exist, cell phones and texting did not exist; perhaps the foolishness of sending an indecent Polaroid or a handwritten or Selectric-typed epistle would have caused greater reflection (or maybe not).  Bottom line: the increase in technology in communications has created increased fora in which to have a bad day and make a serious lapse in judgment. If you have a Maryland law license, you should anticipate that your iPad and your cellphone are accountability zones for that license; disciplinary precedent makes that point clear.

Adam Reposa, Attorney at Law….

This report shows how attorney Adam Reposa of Austin has gotten jailed for contempt of court for using a lewd gesture at a prosecutor during a trial, made crazy ads and now created stickers bearing the seal of the City of Austin marking businesses as for “white people only” and affixed them to businesses in gentrifying neighborhoods in Austin, Texas.

Previously I suggested that attorney marketing by means of vulgarities was not so wise. Mr. Reposa’s “” impresses me neither, both because it promises something not objectively verifiable and it’s also just tacky, crude and lawyer-centered, not client-centered. Of greater concern is Mr. Reposa’s “Why Hire Me” page, in which Mr. Reposa states:

“Then once you are convinced that I will give you as good of a chance, if not a better chance, of beating your case as any lawyer alive, my staff will work with you to make a workable fee schedule.”

This is the sort of unverifiable claim that attorney ethics rules discourage – ESPECIALLY when made with the specific intent to persuade a perspective client to hire (as the title of that page suggests.”

The State Bar of Texas reports that Mr. Reposa underwent a “fully-probated suspension” for three years. Because the Maryland Bar does not use a disciplinary status, I do not know precisely what that means. Mr. Reposa was admitted to the Bar. Mr. Reposa was admitted to the Bar in September 2003 and graduated from the respected University of Texas School of Law in June 2001.