On the Record

On the Cover:  Welcome to the first Monday in October! This morning marks the Supreme Court debut of Maryland Attorney General Douglas F. Gansler and Assistant Public Defender Celia Anderson Davis, who will argue over a Hagerstown man’s child sex abuse conviction. The question is whether a request for counsel, years earlier, should have stopped police from questioning the suspect without a lawyer after they obtained additional information. Read the main story, some advice from Gansler’s predecessor, and a preview of the new term.

In the News: The Court of Appeals heard argument in a legal malpractice case that challenges the “case within a case” methodology … the ban on self-represented lawyers claiming attorneys’ fees applies even to bad faith or frivolous actions, the Court of Special Appeals holds … Maryland Legal Services Corp. renews its quest for a higher filing-fee surcharge … Sen. Ben Cardin finds a civil audience for his health-care talk at UB Law… and a former CBS Early Show personality appeals a ruling that knocked out his medical malpractice claim.

Also:

• Paul Tiburzi remembers the time he argued against the D.C. lawyer who went on to become Chief Justice of the United States;
• An Owings Mills man got a $588,000 verdict in his lawsuit against a home-improvement contracting firm, but will also seek to hold the contractor individually liable;
• Read the Week in Review and our Law Digest, this week with cases from the Court of Appeals, the 4th Circuit and the U.S. District Court for Maryland.

On the cover: With their progressive pilot potentially on the chopping block, the OPD’s Neighborhood Defenders in Park Heights are defending not only their clients but their problem-solving approach. Also, Caryn Tamber talks to University of Maryland law professor Danielle Citron about her research into online gender harassment and the law.

In the news: An EPA official says the agency wants more weapons in its arsenal; Maryland’s top court upholds a sex-abuse conviction based on the testimony of a 6-year-old victim; Mike’s Train House is sued for infringement; and an offshoot of the “driving while black” case will be the subject of a rare Court of Special Appeals en banc hearing.

 Also:

• Verdicts & Settlements features the case of an HIV-positive teacher who was fired from his job at a private elementary school in Arnold.

• Before there was “The Power of Nice” or his success as a sports agent, there was the Modern Bar Review Course. In My First/Business, Ron Shapiro reflects on the lessons learned from his initial foray into commerce.

• In Opinion/Commentary, Jack L.B. Gohn weighs in on the narrowing difference between blogs and journalism, while Edward J. Levin points out a key requirement under a Maryland deed of trust: naming an individual as the trustee. 

• Catch up with our Week in Review and the Law Digest, this week with cases from the Maryland Court of Appeals, Court of Special Appeals and the Office of Administrative Hearings.

ON THE COVER: Life after Law — You’ve earned your J.D., passed the bar and taken the oath. But now you realize you no longer want to practice law. Caryn Tamber spotlights lawyers who have chosen alternative careers.

A consumer, saying the Gateway computer he bought at Best Buy is defective,  challenges the arbitration clause in the manufacturer’s warranty — and wins in the Court of Special Appeals. Find out how in Danny Jacobs’ report on Barrington D. Henry v. Gateway Inc., et al.

In Breaking News, former Nigerian presidential candidate Godson M. Nnaka, a Baltimore lawyer, runs afoul of the Attorney Grievance Commission — but is nowhere to be found; and the Maryland Comptroller owes Lenox Inc. a refund of more than $280,000 on taxes the china company paid on a product-handling system at its Hagerstown facility.

Upper Marlboro lawyer Rick Jaklitsch presides over the Terrapin Club, the University of Maryland’s booster group that raises money and provides scholarships for the more than 700 student-athletes on the 27 varsity teams at College Park.

In Verdicts & Settlements, a toymaker settles with its founder’s Hunt Valley consulting company over fees and royalties.

Guest columnist Linda D. Schwartz provides advice on what to do upon receiving a letter from Bar Counsel.

Stay up-to-date with our Law Digest, which includes cases from the Maryland Court of Appeals and the U.S. District Court, Maryland.

I’ve admittedly been a slacker in my announced effort to track the annotations of Judge Glenn T. Harrell Jr. in his written opinions for the Court of Appeals.

Then Harrell himself provided just the jolt I needed last week in his opinion concerning the validity of a three-judge panel’s ruling when one of the judges dies before the decision is issued, which I wrote about in today’s paper.

It’s right in the first sentence: “With the filing of this opinion, this Court will have completed a ‘Goldilocks’ trilogy,” a reference to two prior cases also dealing with the proper amount of judges needed for a proceeding. The footnote cites a folklore dictionary.

Thus inspired, I reviewed Harrell’s other decisions from this year. A March 12 opinion concering real property ownership begins, “This fracas over lebensraum.“ The German word means “living space” but, as a concept, is most closely associated with Hitler’s plan to expand Germany’s borders under the Third Reich.

In the same opinion, Harrell uses the word “demurrer,” defining it in a footnote for “our newer generations of lawyers” because the term is no longer part of pleading requirements in the state.

That’s all for now. Stay tuned for more updates — provided I don’t forget again.

What effect will the Supreme Court’s ruling on drug-label warnings, Wyeth v. Levine, have in the state’s trial courts? While it will undoubtedly move cases forward, lawyers in Maryland don’t expect a flood of new litigation. As one noted, “There hasn’t been this huge holding back” by trial lawyers here.

MICPEL, already struggling with the economy, faces a new hurdle: replacing its longtime executive director, Brent Burry, who will return to his native South Carolina next month.

In other news:

• Med-mal defense litigators at Whiteford, Taylor & Preston will be leaving for Hodes, Pessin & Katz in the coming weeks;
• The top court dismissed Bar Counsel’s action against a Tydings partner who billed the firm for the fair market value of flights he purchased with frequent-flier miles;
• Bankruptcy lawyers continue to switch firms — and some have formed a new Annapolis boutique firm;
• Investors suing golf-course developer Neal Trabich haled both him and his former attorney into court in a discovery dispute. (The judge found no fault with the “experienced, highly talented and widely respected” Andrew Radding, but withheld judgment on Trabich); and
• The new U.S. Attorney General, Eric H. Holder Jr., was in Baltimore on Friday to address the National District Attorneys Association’s board of directors.

In Verdicts and Settlements, a former tenant was awarded $10,000 in attorneys’ fees for defending against retaliatory back-rent suits by her landlord. (Also, see this story about the settlement of a suit between rival car dealerships.)

Three years out of school, Alicia N. Ritchie may be a young lawyer, but she’s already an old hand at pro bono representation.

In Opinion/Commentary, Our Editorial Advisory Board looks at the shadow banking industry, while DLA Piper’s Jack Machen outlines what’s right and what’s wrong with Baltimore’s green-building ordinance.

PLUS: On the Move, Briefs/Week in Review and our weekly Law Digest of cases from the Maryland appellate courts and the 4th U.S. Circuit Court of Appeals.

The Appellate Judicial Nominating Commission has deemed three of the six applicants for Judge Sally Adkins’ former Court of Special Appeals seat qualified for the job.

Adkins was elevated to the Court of Appeals in June. Her replacement must be from the same appellate circuit she is from, which covers Caroline, Cecil, Dorchester, Kent, Queen Anne’s, Somerset, Talbot, Wicomico and Worcester counties.

Six people applied for the seat: Michelle Barnes, Elise Davis, Robert J. Greenleaf, Christopher Burlee Kehoe, Victor H. Laws, III and Leah J. Seaton.

The three whose names the commission has passed on to the governor are Kehoe, Laws and Seaton. Kehoe is a lawyer with Ewing, Dietz, Fountain & Kehoe P.A. in Easton (Eastern Shore types and appellate judge aficionados will recall that he also applied for the Court of Appeals seat that went to Adkins), Laws is a federal magistrate judge and attorney with Laws & Robertson in Salisbury and Seaton is the Wicomico County Master for Domestic Relations and Juvenile Cases.

The governor will now consider the applicants and make his decision.

CARYN TAMBER, Legal Affairs Writer

Sometimes judges mercifully take the edge off their legalese-heavy opinions by employing literary devices.

A federal judge in Washington grabbed headlines last month with his penchant for rhyme. In an opinion in May, Court of Appeals Judge Glenn T. Harrell opened with an allusion to Julius Caesar’s account of his formative military campaign through Central Europe. And retired Court of Special Appeals Judge Charles E. Moylan Jr. rarely pens an opinion without some dramatic turns of phrase or esoteric references.

Apparently keen to flex his facility with literary devices, U.S. District Judge Roger W. Titus took advantage of the transportation subject matter in the case of Beckham v. National Railroad Passenger Corp., et al. to explain his ruling in an opinion last week.

The case involves a commuter’s racial discrimination claims against Amtrak and the Maryland Transit Administration for a series of hostile interactions with a conductor on the MARC Penn line two years ago.

“Much like that train, this case has traveled from the District of Columbia to Maryland following the granting of MTA’s motion to transfer the case to this Court,” Titus begins rather innocently.

“When this case pulled into Greenbelt from the District of Columbia, MTA immediately sought to disembark from the case based in part on its purported Eleventh Amendment immunity …,” Titus continues. “Plaintiff, however, contends that MTA should have raised its immunity argument before buying its ticket and catching the train to this Court.”

Titus dismissed all claims against the MTA except one, concluding, “[n]evertheless, MTA cannot exit the train just yet, as the Court declines to award it summary judgment as to Plaintiff’s Count V claims.”

Are you “all aboard” with injecting a bit of levity into the disposition of motions or did Titus’ train run away?

BRENDAN KEARNEY, Legal Affairs Writer

As I wrote in today’s paper, the Court of Special Appeals has held that a man who claimed to be the father of a child born during his marriage, despite evidence to the contrary — including his vasectomy — remains responsible for child support even after a paternity test proved otherwise.

The court reached this decision in part because the presumed father had waited almost 13 years to contest paternity. Citing the doctrine of laches, the court held that the man had “slept on his rights” by waiting for so long to claim the child was not his.

The court’s opinion mentions that other states have, by law, limited the time a presumed father can challenge paternity. The “small but growing number of states” include Colorado (within a reasonable time but no later than five years after the child’s birth); Delaware (no more than two years after the birth of the child); Illinois (within two years of obtaining “knowledge of relevant facts”); and Wyoming (no later than five years after the child’s birth), to name a few.

Do you think the intermediate court was trying to send a message to the General Assembly that Maryland should have a similar time limit on the books?  Or do you think the doctrine of laches is clear enough to bar similar challenges?

CHRISTINA DORAN, Assistant Legal Affairs Editor

Good afternoon! Here are a few law-related links for your Monday.

• A lawyer who handles automobile lemon claims blogs about the latest lemon-law decision (PDF) from the Court of Special Appeals.

• The governor has “moved at a snail’s pace” in appointing judges to the Court of Appeals, says The Maryland Lawyer Blog.

• Law prof Nancy Polikoff wonders why friends of Janice — of the same-sex custody case (PDF) Janice M. v. Margaret K. — didn’t tell her to stay out of court.

• The Carroll County State’s Attorney’s Office has a therapy pooch. Cute, no?

• Carolyn Elefant at MyShingle posts about a study finding that 76 percent of law firms discount their fees.

• What do you think of this ad campaign by a female-owned firm that uses the lawyers’ gender as a selling point?

CARYN TAMBER, Legal Affairs Writer

The Appellate Judicial Nominating Commission has drawn up a short list for Judge Frederick Sharer’s seat on the Court of Special Appeals, and it contains the names of all but one of the applicants.

There were six candidates for the judgeship — a seventh applied but withdrew his name early on — which must be filled by someone who lives in Western Maryland. All but Judge Gary Leasure, administrative judge of the Allegany County Circuit Court, made the commission’s list of qualified candidates.

The applicants who made the list are Karen Federman Henry, a division chief in the office of the Montgomery County attorney; Kathryn Grill Graeff, chief of criminal appeals in the Office of the Attorney General; Frederick County Circuit Judge Julie Stevenson Solt; Washington County Circuit Judge Donald Beachley and Howard County Administrative Judge Diane Leasure.

Beachley and Leasure were pool candidates, meaning that they applied for a judgeship sometime in the last two years and made the short list then.

As we reported in the paper this morning, the commission has also forwarded three names to the governor for Judge Irma Raker’s former Court of Appeals seat: Court of Special Appeals Judges Mary Ellen Barbera and Patrick L. Woodward and Montgomery County Circuit Court Judge Michael D. Mason.

Of the candidates for the two seats, who do you think has the best reputation and is most qualified?

CARYN TAMBER, Legal Affairs Writer