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.

DLLR: Prison inmates received unemployment

Baltimore Sun, March 7, 2015:

The audit of the Division of Unemployment Insurance, which was released Friday, found that the agency did not periodically review whether people getting unemployment benefits were incarcerated, had the same address as others also getting benefits, or were DLLR employees. In a sampling, auditors found that four incarcerated people were paid about $17,700 in benefits between June 2012 and December 2013.

I am surprised that it was not much more, especially after counting people who are only locked up for very short periods while they are getting benefits. $17,700 is about 40 weeks of max benefits or little less than 2 beneficiaries maxing out on 26 weeks of benefits over 18 months out of a total Maryland population of perhaps 4 million adults. The minimum UI unit is a week of benefits; not everyone gets the maximum payment in a UI week, but this is not massive fraud or overpayment.

Friolo v. Frankel: 14 years of Maryland litigation and still going strong

Friolo sued Frankel under the Maryland wage payment and collection statute, and the rest has been 14 years of trial and appellate history, including the appointment of a special master and three trips to Maryland’s highest court.  A lot of the fighting has dealt with attorneys’ fees, specifically the reasonableness of requested fee-shifting under Md. Code Ann., Labor and Employment article, §3-507.2.

From the very recent opinion of Judge Wilner, specially assigned to this case after his retirement, I give you the first paragraph and last sentence thereof.

“This case is making its third appearance in this Court, having visited the Court of Special Appeals twice and having occupied the attention of the Circuit Court for Montgomery County on three occasions, one of which involved two separate proceedings. Like Kaufman and Hart’s man who came to dinner, it is wearing out its welcome….

“We would admonish Friolo and Goldsmith [ed. Plaintiff’s counsel] to be mindful of the risks of excessively gilding the lily and suggest to both parties that it is not too late to negotiate a settlement.”

For those poorly formed in the American theatrical tradition such as myself, this is a link to Wikipedia’s entry on The Man Who Came to Dinner.  Since I have no culture, I probably would have gone with Groundhog Day.

Unemployment and Severance Pay: Watch Out

Workers who receive severance pay are generally disqualified from receiving unemployment benefits for the period over which the severance accrues. This is true whether the severance is paid in a lump sum or in the payment method by which regular salary or wages were paid.

However, this is not the trap.

The trap is that severance is itself not subject to unemployment taxes; employers don’t pay premiums to the UI Division for severance. Severance is subject to income taxes and FICA, but not to UI taxes.

Why does this matter?

A worker who receives severance may fail, particularly if the severance period is lengthy and if the worker is in a higher-income field where jobs pay well but are scarce, to earn 10 times her weekly benefit amount in UI-taxable wages during the applicable benefits year as required by statute. In practice, someone on severance can earn out her severance, become eliglble for unemployment and then be disqualified.  Further, if the worker contacts the UI Division for unemployment benefits during severance, it may work as a Catch-22: the worker has established a benefits year during which no benefits are payable (due to severance), then may be “gotcha-ed” out of a more favorable benefits year due to the lack of earnings.

The problem is that UI Division publications encourage workers to apply for benefits immediately upon becoming unemployed, whether they are getting severance or not. For some workers, that advice is counter-productive, or at least deserves closer review and additional advice from legal counsel. Someone receiving severance is “unemployed”, but just disqualified under most circumstances. There is no provision to “fix” a poorly-chosen benefit year; it must start from the first claim/application for UI benefits.

Bottom line: if you or your client may be getting severance, don’t apply for UI benefits without first undertaking careful, detailed analysis of what the eligibility requirements are for that worker not in theory, but in practice.

Top ten things you need to know about practicing law in Maryland.

To young lawyers, new lawyers and visiting lawyers, here’s your top ten things to know about starting up in this state as a practicing lawyer in the view of one opinionated Baltimore County solo attorney.

1) Small.  This is a small state with a fairly sophisticated Bar, a very diverse one.  But it’s small.  If you get a reputation for being a jerk or an incompetent, it’s 4 degrees of separation, not 6.  And if you are connected in anyway to Loyola High School, it’s 2 degrees, starting with half the Baltimore County bench (as well as this attorney, ’87.) I am not advocating any of the foregoing, just describing it accurately.

2) Local Rules.  This rule has two parts: a) there are no local rules; and b) part a) is complete BS.  More accurately, the Rules use the word “may” a lot and “shall” less often.  How these rules get interpreted locally varies; get help if you are at risk of getting “hometowned.”

3) There is no “typical” Maryland court. Essentially, Maryland is 6 or 7 ministates united by a tax form.  The distance from Hagerstown to Bethesda is about 60 miles, but culturally it’s about the distance from Hagerstown to Brooklyn Heights.  Baltimore and Bethesda are 40 miles apart but they are different worlds, united by a tax form. Don’t even go to the Shore for legal business without local advice.

4) Judicial districts and circuits don’t matter. OK they matter internally for budgeting and assigning judges, but they don’t matter.  No one talks about circuit or district numbers except for lawyers doing criminal marketing mailings, and even they don’t talk about them but simply acknowledge them on the database.  They don’t matter; you will never see a reference to them on a pleading.  Counties and Baltimore City matter; counties often have very strong powers of home rule in a manner completely foreign to New Englanders who bumble in.

5) Contributory negligence is real.  If you utter “comparative fault” in this state you get the shocked looks that you deserve from working lawyers. Someday it may change if the insurance lobby stops seed-spreading the cash.  Until then, expect to have a bear of a time with slip and fall cases.

6) It’s a fairly forgiving Bar here.  Maryland ethics rules are fairly forgiving on some of the esoteric advertising nonsense that we hear out of Florida (e.g. no flags?).  Then again, Florida has to put up with “Florida Man” and we don’t. Annual bar dues have been the lightest in the country for many years and the bar association is voluntary (which in my view makes it better).  CLE is not mandatory, which in my view also makes it better.  How to stay out of trouble?  Be honest; don’t mishandle other people’s money; know what you are doing and do it promptly, and don’t be a disgrace.  The rest is commentary.

7) Sanctions are used sparingly in state and federal court. Both state rules and the local federal rules discourage sanctions filings in theory and in practice.  In the state systems, fee sanctions are remedial, not punitive.  I have asked for sanctions against opposing counsel three times in my career, and regretted it once.  Moral to the story: don’t make yourself a test case, as you will stand out.

8)  The Annotated Code of Maryland is the official code.  Righteous people who adhere to the Blue Book (which, to my knowledge, has not been made a canonical resource by the Court of Appeals through any official act) will tell you to cite the Code as “Md. Code Ann.” rather than “Md. Ann. Code.” Someone in Massachusetts actually gets paid to issue this rule to us.

9)  You should go to Ocean City in June if you can.  The MSBA puts on a rather good show, good spread, lots of CLE, most of it very good from working lawyers.  You deserve a deductible trip downyocean to learn.

10)  Bar members here are, in my experience, exceptionally generous.  When I was coming up in the Bar, I was too intimidated to seek out advisers, to ask for help.  Part of why I give back now is that I don’t want young lawyers to make my mistake.  Lawyers in this state are almost always freely giving of their time to young attorneys when they can, and that’s a very good thing (and something I wish I knew when I was 25.)  The MSBA list-serv for small firms and solos is an excellent example of this.

Mentoring Program of the Maryland Professionalism Center

photoI am pleased to report a successful year in the Mentoring Program through the Maryland Professionalism Center, Inc., a non-profit organization that works in close coordination with the Maryland Court of Appeals, particularly with the Hon. Lynne Battaglia of Maryland’s highest court. My mentee this year was a young aspiring family law attorney whose prior mentor through the program failed to follow through. Despite a major medical upheaval on my end mid-year and logistical issues, my mentee and I successfully completed the entirety of the program in a timely manner.

The mentoring program requires six meetings between mentor and mentee on topics ranging from, among others, unwritten “customs” about postponement requests, major malpractice and ethics pitfalls, conflicts of interest, time management, legal writing style, ethical and effective client development strategies and, perhaps most importantly, how to select suitable cases (my translation: how to reject flaky, meritless and inefficient cases.)

I encourage any experienced Maryland attorney who has the time and inclination to join the Mentoring Program; it is a great way to discharge part of the hortatory pro bono publico duty.

UPDATE 4 Feb 2014: I thank Ms. Monise Brown, Executive Director of the Maryland Professionalism Center, Inc., for alerting me to potentially misleading language in the title of this post, since corrected.  While the Maryland Professional Center, Inc., serves the interests of the Bar of Maryland in the sense of the collectivity of Maryland attorneys licensed under the supervision of the Court of Appeals, it and its Mentoring Program are not part of the Maryland State Bar Association, Inc. (MSBA), Maryland’s voluntary bar association to which about 1/2 of Maryland attorneys belong (myself included.)  The MSBA may have meritorious mentoring programs of its own.

“New” Maryland Rule 2-305

Effective January 1 of this year, a new rule provision went into effect governing damages clauses in civil complaints in Circuit Court. Under newly modified Rule 2-305, a demand for a money judgment less than $75,000 shall specify the amount sought, but a demand for more than $75,000 shall not specify the amount, but merely indicate that the sought amount exceeds $75,000.

According to the Reporter’s Notes from the 174th meeting of the Standing Committee on Rules and Practice and Procedure on November 1 of last year, the Rules Committee thought that “ad damnum clauses are damaging to defendants who become frightened upon receiving complaints with huge amounts specified in the clauses; to plaintiffs who may become disillusioned as to the value of their cases; and to the legal profession because they lead to a negative public perception by distorting the attorney’s actual valuation of the case.” Presumably by “ad damnum” clauses the Committee referred to the large, round figures in ad damnum clauses now prohibited in most cases by this Rule. Per the Reporter’s Notes the $75,000 figure is designed to allow parties to be aware promptly of the possibility of diversity jurisdiction in federal court, and the damage amounts for lesser claims affect the jurisdiction of the courts and the right to a civil jury trial.

Practitioners need to be aware that the failure to plead properly under this new Rule may result in the dismissal of a Complaint or, perhaps more likely, an Order granting time to amend a non-compliant damage clause under pain of possible dismissal. A close-to-the-statute of limitations filing might have serious problems with an error on this point, and it is easy to imagine a large claim being filed close to the statutory limit in, say, a major personal injury or other claim.

This Rule went into effect with relatively little fanfare, such that at the MSBA Annual Meeting this year, Judge Battaglia as emcee stumped much of the room during the “Are You Smarter Than A Law Clerk?” session. I was part of the “stumpees” at the time; I had not become aware of this rule from any source including the MSBA Solo and Small Firm listserv (it may have been discussed, but I missed it) or any other source to my knowledge.

What is a Stipulation of Dismissal?

A recent comment on this blog suggested the following post for information purposes.

For those (maybe my mentees) who don’t practice routinely in the Maryland or federal civil courts, a stipulation of dismissal is a tool by which a plaintiff may dismiss any unserved defendant, any defendant who has not yet filed a responsive pleading or motion or any defendant who consents in writing to the dismissal.  In practice, it is the tool by which claims settled after litigation has commenced get off of the court’s docket, either due to settlement in full or in collection cases for payment agreements that allow a case to be revived in the event of a payment default.

In state court, Rules 2-506 and 3-506 govern the stip dismissals; Rule 3-506 in particular applies in many collection settlement cases.  In federal court, Rule 41(a)(1)(ii) provides for a stipulated dismissal and subsection (i) of that rule governs notices of dismissal in cases where a defendant has filed no answer or motion for summary judgment.

Dismissals under these rules are everyday settlement “hardware” and do facilitate both efficient practice and efficient court administration.

Dan Friedman on the Jones v. Anne Arundel County decision

Sometimes legal issues have public “sizzle”; sometimes they are a little dryer and of interest primarily to true legal scholars.  My law school classmate Dan Friedman, author of a major reference text on Maryland constitutional law, has written in The Daily Record a critique of the reasoning of the Court of Appeals in Daryl Jones v. Anne Arundel County, regarding the power of the Anne Arundel County Council to pass a law to fill the practical vacancy on that council of a seat occupied by a councilman who served a period of several months’ incarceration due to his failure to file personal income and employee withholding taxes for several years.

The article lies behind the Daily Record paywall but Dan was kind enough to forward me a electronic copy of the article; I will not reprint the article here out of respect for the copyright of the Daily Record, as Dan’s forwarding it to me would in my view fall under fair use privilege but my reprint here of his copy probably would not.  If you don’t subscribe and don’t want to spent the dollar, go to the public library and take a look at it; it is page 15A of the Monday, August 5, 2013 issue of The Daily Record.

I would be tempted to write a casenote of the case as part of my “Major Maryland Cases” series but my effort wouldn’t do the matter justice.  This is Dan’s wheelhouse, but I will try to summarize his points.

Three issues presented themselves in the case:

  • did the Council have the power to pass the law that it passed,
  • did Councilman Jones move his “residence” outside of his councilmanic district when he served his federal sentence, causing his seat to be vacated, and
  • did Councilman Jones lose his ability to challenge the County Council under the doctrine of unclean hands.

The Court’s majority answered each question in the negative, while the dissent argued that there was an insufficient record by which to determine whether the clean hands doctrine applies and that the legislative history of the Anne Arundel County Charter indicated that “residence” meant actual residence and not domicile (i.e. permanent intended residence, presumably for Mr. Jones his home in Anne Arundel County and not federal prison.)

Dan criticizes the majority opinion for its apparent prohibition on charter counties from passing “special laws”, i.e. laws written merely for one person, as opposed to “local laws” applying more broadly.  Dan argues that three paragraphs of the majority opinion regarding “special laws” are poorly conceived insofar as charter counties, unlike the General Assembly of Maryland, should not be considered to be banned from making “special laws”, and that prior precedent holds that a local law may affect a class of persons numbering exactly one member if an important public concern is at stake.  Dan further suggests that the paragraphs regarding special laws in the opinion may be dicta, i.e. speculative commentary not necessary to the decision and therefore of no value as precedent; the majority opinion held that Jones had not changed his residence and was not prohibited by unclean hands from bringing the case, so the special laws discussion wasn’t necessary to the holding that Jones retained his seat.

Go give your brain a workout; read his piece – twice, maybe three times.  It will convince you that Dan Friedman belongs in service to the people of Maryland on an appellate court (though I was convinced of that quite a while ago myself.)