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Opinions – 9/10/12: Maryland Court of Appeals

Alternative Dispute Resolution

Grounds for vacating arbitration award

BOTTOM LINE: Appellate court erred when it vacated arbitration award on basis that award was “completely irrational” and demonstrated “manifest disregard of the law.”

CASE: Downey v. Sharp, No. 19, Sept. Term, 2011 (filed Aug. 23, 2012) (Judges Bell, Harrell, Battaglia, Greene, Adkins, Barbera & ELDRIDGE (retired, specially assigned)). RecordFax No. 12-0823-21, 23 pages.

FACTS: This case concerned an arbitration award under the Maryland Uniform Arbitration Act, Maryland Code (2006 Repl. Vol., 2011 Supp.), §§3-201 et seq. of the Courts and Judicial Proceedings Article.

In December 2008, Barry and Rhonda Downey filed a petition in the circuit court to confirm an arbitration award, while Nicholas Sharp filed a motion to vacate the same award. The arbitration award rejected Sharp’s claim of an express easement over the adjacent property of the Downeys. Sharp further contended that, even in the absence of an express easement, he was entitled to an implied easement by necessity over the Downeys’ property because, without such an easement, his property would be landlocked and inaccessible. The arbitration award also rejected Sharp’s claim of an implied easement by necessity.

In the arbitration award, the arbitrator briefly outlined the history of the two lots, explaining that the original owner, Ryan, had attempted to improve the “jeep trails” on the property without the necessary government permits, prior to dividing the property into two lots: lot 1, which was owned by the Downeys; and lot 2, which was owned by Sharp. The “Jeep Trails Easement” was the only viable route to gain access to the Sharp lot.

The arbitrator recognized three issues related to Sharp’s use of the Jeep Trails Easement. First, the arbitrator concluded that the Jeep Trails Easement did not extend to Morgan Station Road. Second, the arbitrator found that the Jeep Trails Easement stopped at the division line of Lot 1 and 2 and did not enter Lot 2 (the Sharp lot). Third, regarding an existing driveway over portions of both lots, the arbitrator found that parts of the driveway were not built within the easement designations and that the Downeys were entitled to remove the existing driveway on those areas not approved by proper permits.

In sum, the arbitration award determined that the Jeep Trails Easement did not connect to the Sharp lot or to Morgan Station Road, and that an existing driveway over parts of the Downeys’ property was not within the easement designations. Then turning to Sharp’s assertion that he had an easement by necessity, the arbitrator stated in the award that neither Ryan, the original owner, did not have an implied easement by necessity, nor did Sharp.

In a letter to counsel dated shortly after the award was issued, the arbitrator informed the parties that the final sentence of the award should be amended to read, “Ryan, now Sharp, does not have an implied easement by necessity, he does not need one.” The amendment added the language “he does not need one” to the final sentence of the paragraph titled “Implied Easement.”

After receiving this amendment, Sharp filed with the arbitrator a motion to reconsider, pointing out that the award was inconsistent on its face in that, by adding the words “he does not need one” to the award, the award suggested that an implied easement was not needed because an express easement already existed. In denying Sharp’s motion to reconsider, the arbitrator did not acknowledge any inconsistency.

The circuit court confirmed the arbitration award in its entirety.

Sharp appealed to the Court of Special Appeals, which reversed the circuit court, finding that the arbitrator erred in rejecting an easement by necessity and remanding the case with instructions to vacate several findings of the arbitration award on the basis that they were “completely irrational” and demonstrated “manifest disregard of the law.” The Court of Special Appeals denied Downeys’ motion for reconsideration of its decision.

The Downeys appealed to the Court of Appeals, which vacated the judgment of the Court of Special Appeals and remanded.

LAW: On appeal, the Downeys maintained that the grounds set forth in §3-224(b) for vacating an arbitration award under the Uniform Arbitration Act are exclusive and do not include either an award which, in the reviewing court’s judgment, is “completely irrational” or an award which demonstrates “manifest disregard of the law.”

In §3-224(b) and (c) of the Courts and Judicial Proceedings Article, the Uniform Arbitration Act enumerates the grounds upon which a court “shall vacate” an arbitration award. The grounds are: (1) if the award was procured by corruption, fraud, or other undue means; (2) if there was partiality by an arbitrator appointed as a neutral, corruption in any arbitrator, or misconduct prejudicing the rights of any party; (3) if the “arbitrators exceeded their powers; (4) if the arbitrators committed certain procedural errors in the conduct of the hearing, “as to prejudice substantially the rights of a party, (5) if there was no agreement to arbitrate.

Subsection (c) provides that a court shall not vacate or refuse to confirm an award on the ground that a court would not grant the same relief. The grounds for vacating awards under the Act do not expressly include the two additional grounds for vacating awards utilized by the Court of Special Appeals, namely awards which were “completely irrational” and awards which demonstrated “manifest disregard of the law.”

Moreover, these two grounds were not encompassed by the statutory grounds of an award that was procured by “undue means” or an award which exceeded the arbitrators’ “powers.” §§3-224(b)(l), 3-224(b)(3). The statutory phrase “undue means” refers to how the award came about or the means used to obtain an award. By contrast, an “irrational” award or an award demonstrating a “manifest disregard of the law,” refers to the final product, the final award itself. There is a distinction between the process (the “undue means”) and the product (the rational or “irrational” award). An award may have been procured by undue means, but the award itself could be quite rational and legally correct in the view of a reviewing court. By the same token, an award may have been properly procured, but could nonetheless be highly irrational and contrary to the law.

Neither does §3-224(b)(3), the statutory ground allowing for vacation of an award which exceeds the arbitrator’s powers, offer a valid basis for the Court of Special Appeals’ decision. An issue or matter resolved by an award may be rational and legally correct but the arbitrator, under the arbitration agreement, may have had no power or authority to resolve the particular issue. Likewise, an issue may have clearly been within the arbitrator’s powers, but the arbitrator’s resolution of the issue may have been irrational or manifestly erroneous as a matter of law. See Messersmith, Inc. v. Barclay Townhouse, 313 Md. 652, 659-661 (1988). As noted in Messersmith, the “completely irrational” standard has never been approved by the Maryland Court of Appeals.

Consequently, judicial review of an arbitrator’s award on the basis of “irrationality” or “manifest error of law” does not fall within any of the grounds contained in § 3-224(b) of the Uniform Arbitration Act. As such, it was necessary to consider whether an arbitration award subject to §3-224 of the Uniform Arbitration Act should be vacated by a reviewing court if the court finds that the award is “completely irrational” or demonstrates a “manifest disregard of the law,” even though those grounds are not included in §3-224.

In other jurisdictions, cases under the Uniform Arbitration Act, as well as cases under the similarly worded Federal Arbitration Act or other similarly worded statutes, are divided on that question. See Board of Education v. Prince George’s Co. Educators’ Ass’n, 309 Md. 85, 102-105 (1987).

However, the issue of whether an award subject to §3-224 of the Uniform Arbitration Act may properly be vacated by a reviewing court on the grounds that it is “completely irrational” or demonstrates a “manifest disregard of the law” was not presented by the facts in this case. Under Maryland law, reviewing courts generally defer to the arbitrator’s findings of fact and applications of law. Mere errors of law and fact do not ordinarily furnish grounds for a court to vacate or refuse enforcement of an arbitration award. Board of Education v. Prince George’s Co. Educators’ Assn, 309 Md. at 98-99.

In the case at bar, the Court of Special Appeals not only refused to defer to the arbitrator’s findings of fact and conclusions of law, but it also rendered its own findings of fact and conclusions, which were contrary to those of the arbitrator.

Moreover, the Court of Special Appeals did so in a case where there was no transcript of the proceedings before the arbitrator and where exhibits submitted at the arbitration proceedings were not included in the record. The exhibits and a transcript of the hearing before the arbitrator, if there had been one, might have shed some light upon the arbitrator’s apparent conflicting findings of fact. Even assuming, arguendo, that an award under the Act should be vacated upon a judicial determination that the award was “completely irrational” or that it demonstrated “manifest disregard of the law,” it would be impossible, upon the record of this case, to conclude that the award met those standards.

Accordingly, the judgment of the Court of Special Appeals was reversed, and the cased remanded to the Court of Special Appeals with directions to vacate the judgment of the circuit court and remand the case to the circuit court for further proceedings pursuant to the applicable section of the Maryland Uniform Arbitration Act, §3-225(a).

COMMENTARY: Although the grounds upon which the Court of Special Appeals ordered that the award be vacated were not valid, the arbitration award was, in part, clearly contradictory. Relevant to this situation is §3-225(a), which addresses vacating an award on grounds other than those stated in §3-224(b)(5). When a court orders a rehearing before an arbitrator pursuant to §3-225(a), because an award is contradictory, the court is not substituting its view of the law or the facts for that of the arbitrator. Rather, the decision of the arbitrator after rehearing will be the final award, subject to the very limited judicial review applicable to arbitration awards generally.

Accordingly, remand to the circuit court for further proceedings pursuant to §3-225(a) was appropriate.

PRACTICE TIPS: Mere inconvenience is not sufficient to justify the finding of an easement by necessity; it is only in case of strictest necessity that the principle of implied easement can be invoked.

Criminal Law

Duress

BOTTOM LINE: As a matter of first impression, duress is a valid defense to felony murder in Maryland, and to establish and be entitled to the defense of duress, a defendant need not first prove that defendant attempted to stop or thwart the offense that defendant alleged that he or she was compelled to commit; therefore, defendant who showed “some evidence” for each element of the defense was entitled to jury instruction on duress.

CASE: McMillan v. State, No. 132, Sept. Term, 2008 (filed Aug. 24, 2012) (Judges BELL, Harrell, Battaglia, Greene, Adkins & Eldridge (Retired, Specially Assigned)). RecordFax No. 12-0824-23, 33 pages.

FACTS: On November 16, 2005, Herman Haiss was found dead in his home in Forest Heights, Maryland. He had been bludgeoned to death with a baseball bat. The house had been ransacked, and most of the numerous weapons that the victim, a hunter, kept stored in a home safe, were missing. The word “Crips” was spray painted on a wall near Haiss’ body.

On December 16, 2005, defendant Nathaniel McMillan was arrested in connection with the murder. He had been Haiss’ neighbor approximately 12 years earlier. Thus, McMillan knew the victim and his grandchildren and, during the two years he lived next door to him, had spent time in the victim’s home.

During his interrogation by police officers, McMillan professed to being afraid of his two acquaintances, “S.O.”and “Vel,” and what they would do to him if he did not do what they wanted him to do: facilitate their entry into the victim’s house by knocking on the door. McMillan thus began to suggest that whatever he did was done under duress. After seven hours of interrogation, McMillan was charged with Haiss’ murder.

McMillan was subsequently tried by a jury in the circuit court. At trial, McMillan’s defense was that his participation (knocking on Haiss’ door, which allowed the assailants to enter) in the crimes was coerced. Accordingly, he requested that the jury be instructed on the defense of duress. The trial court refused to give to the jury the requested duress instruction. McMillan was acquitted of first-degree premeditated murder and second-degree murder, but convicted of first-degree felony murder.

McMillan appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court, but rejected the State’s argument that the defense of duress is not applicable to felony murder. Neither McMillan nor the State was completely satisfied with that result. As such, when McMillan appealed the judgment to the Court of Appeals, the State likewise appealed, seeking review of that court’s threshold determination as to the applicability of the defense.

The Court of Appeals reversed the judgment of the Court of Special Appeals and remanded the case for a new trial.

LAW: The Court first considered the threshold issue of whether the defense of duress is an available, viable one to the charge of felony murder. This question was a matter of first impression in Maryland. It is well-settled that the defense of duress is a viable defense in Maryland, but that it does not apply in the case of murder. Wentworth v. State, 29 Md. App. 110, (1975); see also Frasher v. State, 8 Md. App. 439 (1970).

The issue of the applicability of the duress defense to murder was squarely presented in Wentworth. There, the defendant was charged with, and convicted of, murder. Wentworth, 29 Md. App. at 111. Her defense was duress. Id., 29 Md. App. at 116. The intermediate appellate court noted, “There is one critical limitation upon the defense of duress, which leaves the appellant here utterly bereft in terms of possible total exculpation as to the murder. Whatever the psychological reality may be, the law, as a matter of social policy, has declared that the defense of duress may not extend to the taking of an innocent person’s life.” Id., 29 Md. App. at 118. Thus, the law is clear that duress cannot justify the intentional killing of (or attempt to kill) an innocent third person. Id., 29 Md. App. at 118-19.

Murder is a common law crime in Maryland, separated into first and second degrees for the purpose of punishment. Clemons v. State, 392 Md. 339, 373 n.2 (2006). First degree murder includes murder that is committed in the perpetration, or attempt of, specific enumerated felonies, including robbery. Under the felony murder doctrine, the common law mens rea requirement for murder is satisfied by the actual malice of a defendant while committing the underlying felony. Watkins v. State, 357 Md. 258, 267 (2000). Accomplice liability for the murder extends to the participants in the underlying felony, even if they did not participate in the actual murder. Id., 357 Md. at 267. The defense of duress is applicable to the crime of robbery. Frasher, 8 Md. App. at 450.

The rationale of the defense of duress is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Rather it is that, even though he has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude. LaFave & Scott, Criminal Law 374-75 (1972).

At common law, the rationale for barring the duress defense in a prosecution for murder was that a person “ought rather to die himself than escape by the murder of an innocent.” 5 BLACKSTONE’S COMMENTARIES 30.

This rationale disappears, however, when the sole ground for the murder charge is that the defendant participated in an underlying felony, under duress, and the defendant’s co-felons unexpectedly killed the victim, thereby elevating the charge to felony-murder. As such, the Court of Special Appeals in the present case concluded that if duress would serve as a defense to the underlying felony, it is also available as a defense to a felony-murder arising from that felony, assuming the criteria for such a defense are otherwise satisfied. McMillan, 181 Md. App. at 328. As the Court of Special Appeals noted, a majority of jurisdictions that have addressed this issue have determined that duress is available as a defense. See, e.g., People v. Sims, 374 Ill. App. 3d 231, 267 (2007), cert. denied, 226 Ill. 2d 604 (2007). Moreover, States that explicitly disallow the use of duress as a defense to felony murder, do so because of statutes. See, e.g., State v. Ellison, 213 Ariz. 116, 131 (2006).

Logically, disallowing the duress defense in the case of felony murder, absent a statutory imperative, would be unwarranted. For instance, a defendant could have a complete defense to the felony that forms the basis of a murder charge and be exonerated of that charge, yet, because unable to present it as a defense to the murder charge, still be convicted of felony murder. Although in this case, McMillan was not charged separately with robbery, as in other cases, disallowing the duress defense in felony murder cases would create unacceptable results.

Accordingly, the Court of Special Appeals was correct in holding that duress is a valid defense to a charge of felony murder; however, the judgment was reversed and the case remanded for a new trial, to include a jury instruction on the defense of duress.

COMMENTARY: Having determined that duress is a valid defense to a charge of felony murder, it was next necessary to determine whether, in this case, the Court of Special Appeals correctly defined the elements of the defense, and whether, in a criminal case, an element of the duress defense is that the defendant have attempted at the earliest possible opportunity to stop or thwart the offense he was compelled to commit.

The elements of duress used previously by the Court of Special Appeals in Wentworth do not include any requirement that a defendant invoking duress attempt to ameliorate the harm caused by his or her coerced actions or to contact the police. Further, the Maryland Pattern Jury Instructions do not require that a defendant take steps to stop the crime in which he/she was forced to participate. Accordingly, a defendant who invokes the duress defense need not show, as an element of that defense, that he or she sought aid or otherwise attempted to thwart the crime after escape from duress.

Here, McMillan submitted “some evidence” that he believed reasonably that he was in danger of immediate or impending death or bodily harm if he did not participate in the robbery. He also produced “some evidence” that he had no reasonable opportunity to escape before knocking on the victim’s door. From McMillan’s statements regarding the threats allegedly made by S.O. and Vel, a jury reasonably could have found that McMillan was subjected to duress. In describing the onset of potential duress and the effect of his resultant behavior, McMillan met his burden, and provided “some evidence” that met the low threshold required for giving the jury instruction sought here.

PRACTICE TIPS: The Maryland Pattern Criminal Jury Instructions require a defendant to meet four elements to obtain a duress instruction: 1) the defendant actually believed that the duress placed him or her in immediate and impending danger of death or serious bodily harm; 2) the defendant’s belief was reasonable; 3) the defendant had no reasonable opportunity for escape; and 4) the defendant committed the crime because of the duress.

Criminal Procedure

Ineffective assistance of counsel

BOTTOM LINE: Criminal defendant was entitled to presumption of actual prejudice with regard to defendant’s Sixth Amendment ineffective assistance of counsel claim where, during course of representation by defense counsel, defense counsel filed lawsuit against defendant seeking unpaid attorney’s fees, thereby creating personal conflict of interest; however, remand was necessary in order for court to determine whether presumed conflict of interest adversely affected counsel’s representation of defendant.

CASE: Taylor v. State, No. 95, Sept. Term, 2011 (filed Aug. 24, 2012) (Judges Bell, Harrell, Battaglia, Greene, Adkins, BARBERA & McDonald). RecordFax No. 12-0824-21, 31 pages.

FACTS: In 2005, Grayson Taylor was charged with distributing and possessing a controlled dangerous substance. Taylor retained attorney Christopher Robinson to represent him in that case and in a separate criminal case. Taylor’s trial in the present case was scheduled originally for December 12, 2006. On that day, trial was postponed until January 9, 2007. On December 15, 2006, Robinson filed a civil complaint seeking judgment against both Taylor and his girlfriend, who had also signed the representation agreement, for unpaid fees. Robinson ultimately obtained a judgment of $6,000 against Taylor and his girlfriend after Taylor’s trial but before sentencing. Later in 2007, presumably after the representation had terminated, Robinson sought to garnish Anderson’s wages in satisfaction of the judgment.

The testimony given at Taylor’s trial on January 9, 2007, revealed that, on December 7, 2005, a confidential informant, whose identity was later revealed as Kevin Williams, purchased rock cocaine from an unidentified male in Cambridge, Md. The transaction occurred in Williams’ car, which had been equipped with a hidden camera. The camera captured and recorded the transaction, and Taylor was later identified by Corporal Scott Henry as the man who sold Williams the rock cocaine. The videotape was admitted into evidence and played for the jury.

Taylor’s defense at trial was that he was not the seller seen in the videotape.

On the morning of Taylor’s trial, before the jury was selected, Robinson, on behalf of Taylor, sought permission to call Anderson as an alibi witness in support of that defense theory. The trial court did not permit Anderson to testify as an alibi witness because Robinson had not timely disclosed his intention to call her, and the State had requested notice of all alibi witnesses. Robinson did not call Anderson to testify for any other purpose.

Ultimately, the jury convicted Taylor of distributing and possessing a controlled dangerous substance. At no time before or during the trial was the court made aware of Robinson’s pending lawsuit against Taylor.

Robinson filed a motion for new trial on behalf of Taylor. The trial court denied the motion and proceeded to sentencing. At that point, Taylor attempted to interrupt. The court told Taylor to remain silent, as he was represented by counsel. After Robinson and the State argued as to the appropriate sentence, the court asked Taylor whether he would like to say anything. Taylor proceeded to complain about Robinson’s representation of him and noted that Robinson had sued him. The trial judge told Taylor that the hearing was solely for the purposes of his sentencing. Taylor was sentenced to 14 years’ incarceration.

Represented by new counsel, Taylor appealed the conviction. The Court of Special Appeals affirmed.

Taylor then filed a pro se Petition for Postconviction Relief on Sept. 24, 2009, followed by a pro se amendment to that petition on Jan. 5, 2010. By the time of the postconviction hearing on Feb. 2, 2010, Taylor had obtained representation from the Office of the Public Defender.

Taylor argued that he had received ineffective assistance of counsel based on Robinson’s “inherent conflict of interest” in suing Taylor during the representation. The postconviction court granted Taylor a new trial based on his claim of ineffective assistance of counsel.

The State appealed the postconviction ruling to the Court of Special Appeals, which reversed the grant of postconviction relief.

Taylor appealed to the Court of Appeals, which reversed the judgment of the Court of Special Appeals and remanded the case.

 

LAW: In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-pronged test for determining whether a criminal defendant received the effective assistance of counsel that is guaranteed by the Sixth Amendment. The defendant must establish both that counsel’s performance was deficient and that counsel’s errors prejudiced the defense. Id. at 687. However, this general rule has an exception: a defendant is excused from proving the prejudice prong of the Strickland test upon a showing that counsel was burdened by an actual conflict of interest — that is, where the conflict actually affected the adequacy of counsel’s representation. Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980). Upon such a showing by the defendant, prejudice to the outcome of trial is presumed. Strickland, 466 U.S. at 692.

At issue here was whether Taylor was entitled to the Cuyler “conflict of interest” presumption of prejudice.

Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice, as are various kinds of state interference with counsel’s assistance. Strickland, 466 U.S. at 692. One type of actual ineffectiveness claim warrants a similar, but more limited, presumption of prejudice. Prejudice is presumed when counsel is burdened by an actual conflict of interest. Cuyler, 446 U.S. at 345-350.

In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the above-described Sixth Amendment claims. Prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance. Id.

The Supreme Court’s cases on the subject of ineffective assistance of counsel claims based on conflict of interest, both before and since Strickland, have produced two distinct lines of analysis. Lettley v. State, 358 Md. 26, 35 (2000). The first, in which the trial court is informed in a timely manner of a potential conflict, is represented by Glasser v. United States, 315 U.S. 60 (1942), and Holloway v. Arkansas, 435 U.S. 475 (1978). The second, in which the trial court is not informed in a timely manner of a potential conflict, is represented by Sullivan.

Glasser and Holloway both involved situations in which the conflict stemmed from counsel’s simultaneous representation of co-defendants. In Glasser, the trial court created the conflict by appointing counsel with conflicting interests, over counsel’s objection. 315 U.S. at 71. The Supreme Court, commenting on the resulting prejudice to the defendant, noted that to determine the precise degree of prejudice caused by the court’s appointment of the same counsel for both Glasser and his co-defendant was at once difficult and unnecessary, as the right to assistance of counsel “is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser, 315 U.S. at 75-76. Similarly, in Holloway, the court rejected a rule requiring the defendant to establish specific prejudice generated by the conflict he and defense counsel had tried, through objection, to avoid. Holloway, 435 U.S. at 490.

The holding in Sullivan followed a separate line of analysis. Sullivan and two co-defendants were tried separately but represented by the same two privately retained lawyers. Sullivan, 446 U.S. at 337-38. Unlike in Glasser and Holloway, the conflict of interest issue was not raised in a timely manner to the trial court, but instead was raised in Sullivan’s collateral state and federal attacks upon the conviction. Id. at 338, 339.

The Supreme Court held that trial courts are not obligated to initiate inquiries into the propriety of multiple representation in every case but can instead rely on defense counsel’s ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial. Id. at 346-47. Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist. Id. at 346-47.

In the present case, attorney Robinson’s conduct in filing suit against Taylor, without obtaining his informed consent to continue representation notwithstanding the conflict, clearly created a real potential of an ethical conflict of interest, in violation of the Maryland Rule of Professional Conduct 1.7, which provides that a lawyer shall not represent a client if the representation involves a conflict of interest. Despite the mandate of MLRPC 1.7, Robinson continued to represent Taylor after he filed a civil suit against Taylor and Anderson seeking to collect the agreed-upon fees for his representation of Taylor in his upcoming criminal trial and the earlier case. Moreover, the suit remained active during the criminal trial. Robinson never obtained Taylor’s informed consent, even though there existed a significant risk that the representation would be materially limited by a personal interest of Robinson.

This conflict of interest was one governed by the Sullivan rubric. The post-conviction court correctly found that counsel’s representation was infected with an actual conflict of interest, and reversal of the judgment of the Court of Special Appeals was therefore appropriate.

Accordingly, the judgment of the Court of Special Appeals was reversed and the case remanded.

COMMENTARY: The Sullivan Court additionally concluded that, in order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Sullivan, 446 U.S. at 348.

Here, the postconviction court did not consider the case-specific facts to determine whether, and explicate how, the potential conflict of interest based on Robinson’s presumed MLRPC 1.7 violation adversely affected (if at all) his representation of Taylor. Instead, the postconviction court apparently operated from the premise that Robinson had violated MLRPC 1.7 and concluded, without further consideration of the facts, that such violation automatically constituted a violation of the constitutional entitlement to effective assistance of counsel.

As such, remand was necessary for development of the record on the question of whether Taylor could show that Robinson’s conflict of interest adversely affected his representation of Taylor.

PRACTICE TIPS: In order to demonstrate “prejudice” for the purposes of an ineffective assistance of counsel claim, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Criminal Procedure

Right to discharge counsel

BOTTOM LINE: With regard to a defendant’s request to discharge counsel after the judge began to question the venire panel, “meaningful trial proceedings” began once the venire panel was summoned to courtroom for questioning; therefore, Rule 4-215(e), which applies to requests to discharge counsel before “meaningful trial proceedings” have begun, did not apply.

CASE: Marshall v. State, No. 103, Sept. Term, 2011 (filed Aug. 24, 2012) (Judges Bell, Harrell, Battaglia, Greene, ADKINS, Barbera & McDonald). RecordFax No. 12-0824-20, 30 pages.

FACTS: Defendant Gregory Marshall, who was incarcerated in a Maryland prison, was approaching trial in the circuit court on assault charges stemming from a prison incident. On the morning before trial, several preliminary matters were considered, including a motion to sequester witnesses, Marshall’s withdrawal of a not criminally responsible plea, whether Marshall was competent to stand trial, Marshall’s rights and responsibilities during trial, and Marshall’s decision to wear prison clothing instead of a jacket and tie. Afterward, the venire panel was summoned to the courtroom.

As the trial judge began to address the venire panel, Marshall interrupted almost immediately, saying, “Your honor, I’d like to represent myself.” The judge deferred consideration of this request until after roll call of the jury was taken, at which point he excused the venire panel and heard Marshall’s request to discharge counsel. The trial judge, applying Maryland Rule 4-215(e), ultimately allowed Marshall to discharge counsel and proceed pro se.

Marshall was tried and convicted. He appealed to the Court of Special Appeals, arguing that the judge did not follow Rule 4-215(e)’s mandatory procedures for a discharge of counsel. The Court of Special Appeals affirmed the conviction, holding that Rule 4-215(e) did not apply because meaningful trial proceedings had begun when Marshall made his request.

Marshall appealed to the Court of Appeals, which affirmed.

LAW: Maryland Rule 4-215(e) prescribes mandatory procedures for a discharge of counsel. In its ruling here, the Court of Special Appeals held that Rule 4-215 did not apply to Marshall because “meaningful trial proceedings” had begun when Marshall stated his intention to represent himself. Because Rule 4-215 did not apply, the Court of Special Appeals looked to State v. Brown, 342 Md. 404 (1996), and held that the trial judge was required only to allow Marshall an opportunity to give his reasons for wanting to discharge counsel and to rule on that request.

In holding that “meaningful trial proceedings” had begun, the Court of Special Appeals relied on State v. Hardy, which explained the application of Rule 4-215(e). State v. Hardy, 415 Md. 612 (2010). The Hardy Court stated that when applicable, Rule 4-215(e) demands strict compliance; however, where a motion to discharge counsel is made during trial, Rule 4-215(e) does not apply, and the trial court’s ruling on a motion to discharge counsel is evaluated under the far more lenient abuse of discretion standard. Hardy, 415 Md. at 621. Hardy also cited Brown, which made clear that Rule 4-215 does not apply after “meaningful trial proceedings” have begun. See Brown, 342 Md. at 426.

In Brown, the trial had begun, and the defendant did not attempt to discharge his counsel until the State called its first witness. Id. at 410. However, the Hardy decision clarified that “meaningful trial proceedings” can occur before the trial itself begins. See Hardy, 415 Md. at 627. First, voir dire is a “meaningful trial proceeding” under the plain meaning of the phrase. There can be no trial without a trier of fact, and there can be no trier of fact in a jury trial without the jury selection process of voir dire. As such, the voir dire process represents a necessary step in any jury trial, and, therefore, with the beginning of voir dire, meaningful trial proceedings must have begun. Id.

Second, voir dire is a “meaningful trial proceeding” under the functional definition of the phrase. In situations where Rule 4-215(e) applies, it permits essentially a criminal defendant to discharge defense counsel almost at will. When the process of jury selection begins, however, the soon-to-be members of the jury share the courtroom with the defendant and defense counsel. From this point on, allowing the defendant to change at will his or her representation, as Rule 4-215(e) permits, would risk confusing the prospective jurors, one of the concerns against which Brown warned.

In addition, allowing such a change to defense counsel after the entire venire panel is summoned to the courtroom would pose a considerable risk of disruption to the trial proceedings in that courtroom, to the court’s jury assignment system (as it would be compelled to work around the court’s consideration of the defendant’s request), and to the court’s administration as a whole. Id.

These dual considerations — to honor the text of the Rule, and to avoid the dangers of disruption and jury confusion — led to the conclusion that “meaningful trial proceedings” have begun after a trial court has begun the voir dire process in a criminal trial. Rule 4-215(e) did not apply to the court’s consideration of Hardy’s motion to dismiss his trial counsel, which was brought after several voir dire questions had been asked. Id. at 628.

Here, Marshall had ample opportunity to assert his right to represent himself before meaningful trial proceedings had begun. Once the venire panel was summoned to the courtroom, however, meaningful trial proceedings had begun. Therefore, the Court of Special Appeals was correct in finding that Rule 4-215(e) did not apply to Marshall’s request.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: Given that Rule 4-215(e) did not apply because meaningful trial proceedings had begun when Marshall made his request to discharge his counsel, the appropriate standard of review for the trial judge’s decision was the “abuse of discretion” standard.

The intermediate appellate court cited Brown for the following criteria, which guide a trial court in deciding whether to allow a defendant to dismiss counsel: (1) the merit of the reason for discharge; (2) the quality of counsel’s representation prior to the request; (3) the disruptive effect, if any, that discharge would have on the proceedings; (4) the timing of the request; (5) the complexity and stage of the proceedings; and (6) any prior requests by the defendant to discharge counsel. Brown, 342 Md. at 428.

From there, the Court of Special Appeals considered the first two factors relevant, disregarded the others as irrelevant, and concluded that the trial court had not abused its discretion in granting Marshall’s request to discharge counsel and allowing him to proceed pro se. Thus, the Court of Special Appeals applied the appropriate standard of review, finding no abuse of discretion by the trial judge.

DISSENT: In Brown, the Court of Appeals recognized that there is a limitation on when a request to discharge counsel or to proceed pro se pursuant to Rule 4-215 must be made, defining it as being before “meaningful trial proceedings” Brown, 342 Md. at 426. In Hardy, a divided Court misapplied the Brown holding and began the erosion of defendants’ rights to counsel and to represent themselves pro se, a harmful trend which the present decision only exacerbates/ The majority’s holding blatantly undermines the right to counsel and self representation. Marshall made his request to proceed pro se before any trial proceedings began. When Marshall’s request was made, the venire panel had no knowledge of the case or the parties and, because it had not been sworn, no questions had been posed to it. Case law categorically excludes initial appearances and suppression hearings, pre-trial stages of trial, from the category of “meaningful trial proceedings.” Hardy, 415 Md. at 625. And, at the time that Marshall’s request was made, there was no jury, just venirepersons; hence, no “juror confusion” could have resulted from granting Marshall’s request. Finally, there was no reason to believe that Marshall made his request to discharge counsel in order to obstruct or delay the case.

PRACTICE TIPS: Jurisdictions differ on the exact point in time when a defendant’s right to discharge counsel is curtailed. Some courts have held, for example, that requests to proceed pro se are untimely per se if asserted after the jury has been selected. Other jurisdictions have established impanelment of the jury as the cut-off point. Still others have held that requests are untimely if asserted after “meaningful trial proceedings have commenced.”

Criminal Procedure

Warrantless collection of DNA

BOTTOM LINE: Defendant’s Fourth Amendment rights were not violated when the State recovered his DNA from saliva that he left on a straw in the course of complying with an alcohol monitoring program mandated by the terms of his probation for a drunken driving offense.

CASE: Corbin v. State, No. 48, September Term, 2011 (filed Aug. 22, 2012) (Judges Harrell, Battaglia, ADKINS, Barbera & Wilner (retired, specially assigned)) (Judges Greene & Bell dissenting). RecordFax No. 12-0822-20, 61 pages.

FACTS: In December 1995, Jacqueline Tilghman’s body was discovered near a farm road in Somerset County. An investigation concluded that the cause of her death was homicide, committed where she was found. Semen was found on vaginal and anal swabs taken of the victim. DNA samples obtained from the swabs were turned over to the Maryland State Police crime laboratory for further testing and storage.

The investigation into her death continued into 2001, at which point Tonto Corbin was identified as an associate of the victim. Investigators asked Corbin to voluntarily submit a DNA sample, but he declined. Investigators discovered that Corbin was on probation for a DWI conviction and therefore subject to court-ordered breath tests for alcohol consumption. One testing method is a “deep lung” test, requiring the probationer to blow into a straw. Upon learning that the straw would be discarded following the test, investigators arranged with Corbin’s probation officer to secure the straw after he had completed this test.

Once obtained, the straw was sent to the crime lab for DNA analysis. The crime lab matched Corbin’s DNA on the straw to DNA in the semen recovered from the vaginal and anal swabs of the victim taken earlier in the homicide investigation. Based on the match, police obtained a warrant for another DNA sample from Corbin, which confirmed the match. It was the second DNA sample that ultimately was admitted into evidence against Corbin.

In 2004, Corbin was indicted for murder. Before trial, Corbin filed a motion to suppress the DNA evidence on the grounds that the seizure of his DNA by the State without a warrant violated his rights under the Fourth Amendment. Corbin’s motion was denied.

After Corbin waived his right to a trial by jury, the parties submitted the case to the circuit court on an agreed statement of facts. Corbin was found guilty of involuntary manslaughter. The Court of Special Appeals affirmed.

Corbin appealed to the Court of Appeals, which affirmed.

LAW: “Fourth Amendment protection…does not extend to property that is abandoned. By abandoning property, the owner relinquishes the legitimate expectation of privacy that triggers Fourth Amendment protection.” Stanberry v. State, 343 Md. 720, 731 (1996).

In Williamson v. State, 413 Md. 521, 531 (2010), a suspect was arrested and, while he was in jail, investigators brought him a meal from McDonald’s; the DNA from his discarded McDonald’s cup was ultimately used to convict him on another matter. See id. at 524. The Court of Appeals held he abandoned the refuse, and the seizure of DNA was constitutional. Id. at 533-37.

The abandonment theory was not applicable here. Realistically, Corbin had no option to retain the straw as his own or protect his DNA from being taken. Corbin was taking an alcohol monitoring test, mandated by his probation officer while on probation for a drunk driving offense. Thus, the Fourth Amendment applied and governed this case.

Under the Fourth Amendment, Corbin had the burden of demonstrating that he had a legitimate expectation of privacy in the material to be seized. See Williamson, 413 Md. at 534.

The Supreme Court, in United States v. Knights, 534 U.S. 112, 118-19 (2001), provides the framework for evaluating a probationer’s privacy expectations in this context.

Knights was sentenced to probation for a drug offense. The probation order included the condition that Knights would submit to search at any time, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer. Id. at 114. Knights agreed to the terms of the probation order.

Three days later, a public utility telecommunications vault was pried open and set on fire. Based on surveillance and other information, and knowing that Knights was on probation, police entered and searched Knights’ apartment without a warrant. Inside, they found extensive items incriminating Knights. Id. at 115-16. The district court granted Knights’ motion to suppress the items on the ground that the search was for “investigatory” rather than “probationary” purposes. The 9th Circuit affirmed.

The Supreme Court concluded that when there was reasonable suspicion that a probationer committed a crime, even though unrelated to his probation, police could search the probationer’s home, despite the absence of probable cause or a search warrant. Id. at 117-20. The Supreme Court concluded that probationers have diminished expectations of privacy and adopted a “totality of the circumstances” analysis. Id. at 119.

Under Knights, then, probationers do not enjoy the same liberty rights as other citizens and have fewer legitimate expectations about privacy than law-abiding citizens.

The Court of Appeals acknowledged this limitation in King v. State, 425 Md. 550 (2012). There, the court examined DNA collected via a buccal swab of a person who had been arrested, but not convicted, and who was not on probation. The court held that such collection was a violation of King’s Fourth Amendment rights because he was a “mere arrestee,” as compared to a convicted felon. Id. at 594. “The State here cannot claim the same public safety interests present in cases addressing convicted felons, parolees, or probationers.” Id. at 598. See also Samson v. California, 547 U.S. 843, 846 (2006).

In 2000, Sgt. McCauley was assigned to take over the homicide investigation respecting the 1995 death of Jacqueline Tilghman. Before McCauley approached Corbin’s probation officer in February 2001, he had information to suggest that Corbin knew the victim. Furthermore, of the people identified as associates of the victim, Corbin was the only one whose DNA had not been tested.

Furthermore, information from the investigation file included a report from a third party that the victim did not get along with Corbin, that Corbin had been seen with the victim and another person on the day of her death; and that Corbin, when arrested on an unrelated crime, “reluctantly stated he had intimate contact” with the victim but that “it was a mistake that occurred a long time ago” and that he had not “had any intimate contact with the victim for years preceding her death.”

All of these facts, taken together, were sufficient to establish reasonable suspicion, as required in Knights. See also United States v. Midgette, 478 F.3d 616, 625 (4th Cir. 2007).

The State has a heightened interest in probationers with regard to “recidivism, public safety, and reintegration[.]” Samson, 547 U.S. at 855 n.4. Although the record did not contain the verdict against Corbin for the DWI, it was assumed that Corbin was convicted of a misdemeanor. See TP §27-101(a). Yet this misdemeanor offense carries the potential for significant jail time. See generally TP §27-101(k)(1). Moreover, a drunk driving offense is very serious and has a high rate of recidivism. See Md. Task Force to Combat Driving under the Influence of Drugs and Alcohol, Findings and Recommendations 1-2 (October 2008).

Thus, a person on probation from a drunken driving offense has a significantly diminished expectation of privacy. Moreover, a probationer’s expectation of privacy is diminished even when the new crime under investigation is not related to the crime that led to the probation sentence. See Knights, 534 U.S. at 117-18.

In balancing the concerns for individual privacy with the legitimate needs of the State, the circumstances presented here fall on the State’s side of the balance. It was a key factor that Corbin’s DNA was collected during his regular, probation-mandated testing for alcohol abuse. Corbin forfeited much of his right to privacy, if only for a limited time, by accepting probation for his earlier crime.

Corbin expected to submit to a breath test, and he did so at the ordinary time and place called for by his probation schedule. McCauley waited approximately a month for Corbin to come in for customary alcohol monitoring by his probation agent. That the State has a heightened interest in a probationer has been firmly established by the Supreme Court in Knights and Samson. Surely, Knights’ expectation of privacy in his home was greater than Corbin’s expectation of privacy in a straw that the State supplied for use in its fully legitimate monitoring of Corbin’s alcohol consumption, and that was never in Corbin’s possession.

Accordingly, the trial court’s denial of Corbin’s motion to suppress the DNA evidence was affirmed.

COMMENTARY: Corbin challenged the sufficiency of the evidence against him. “The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction…is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Smith v. State, 415 Md. 174, 184 (2010). This standard applies when circumstantial evidence is the basis for a conviction. Id. at 185.

The following relevant facts were stipulated: the victim was found lying on her back; Corbin’s semen was found in the victim’s body, but none of it was found in her underwear; and semen from another man was found in the crotch area of her panties, which were found around the ankle of her right leg. From those facts, fair and rational inferences could be drawn that the panties had been moved from her waist area after another man had sex with her and before Corbin ejaculated; Corbin was the last one to have sex with her; the victim remained in a supine position after Corbin ejaculated; and thus Corbin was the one who killed her.

The record also indicated Corbin lied to the police twice about his sexual history with the victim before admitting he had sexual intercourse with her near the time she died. Among the undisputed facts were that Ms. Tilghman was seen alive at approximately 1:30 a.m. on the day she was killed, wearing the same clothes that were found with her body at 7:30 a.m. that day and that Corbin admitted having had sex with the victim as late as 3:00 a.m. on that day. Thus, Ms. Tilghman, after 1:30 a.m., would have to have changed clothes, encountered Corbin, engaged in consensual sex with him, changed back into the same clothes she had worn earlier, gone out from that place, and encountered the murderer. Or, after 1:30 a.m., she would have to have encountered Corbin, engaged in sex with him, put back on the same clothes she was wearing earlier, gone out from that place, and encountered the murderer.

Under either scenario, the finder of fact, in order to conjure a reasonable hypothesis of innocence, would have to conclude that the actual murderer transported Ms. Tilghman from the place of their encounter without a detectable and identifiable trace of Corbin’s semen getting on her panties. Further, the fact finder would have to conclude that, once in the field, the actual murderer beat the victim, took down her clothing, and strangled her, but never raped her, or raped her without leaving any semen and without disturbing, from any orifice, the residuals of semen deposits made by Corbin at 3:00 a.m.

Viewing these facts in the light most favorable to the prosecution, a rational trier of fact could conclude that Corbin was present at the time of the victim’s death. A rational trier of fact could further conclude that involuntary manslaughter was proved beyond a reasonable doubt. Therefore, sufficient evidence existed to sustain Corbin’s conviction.

CONCURRENCE: According to the concurrence, the Fourth Amendment was not implicated because the straw was abandoned property.

DISSENT: According to the dissent, Corbin’s DNA evidence collected, analyzed, and used for investigative purposes, constituted a search subject to Fourth Amendment scrutiny. Therefore, the burden rested with the State to establish that a recognized exception to the warrant requirement applied. Since the State failed to establish an exception to the warrant requirement, evidence and the results flowing from the comparisons of that evidence should have been suppressed.

Family Law

Uniform Child Custody Jurisdiction and Enforcement Act

BOTTOM LINE: A Maryland court had authority under Uniform Child Custody Enforcement and Jurisdiction Act to relinquish jurisdiction to a Virginia court in the county in which the child’s mother lived; it was not abuse of discretion to relinquish jurisdiction on the basis of inconvenient forum, given that the mother intended to call multiple witnesses, including professional witnesses, who lived in Virginia and would incur unnecessary expenses if required to travel to Maryland.

CASE: Miller v. Mathias, No. 146, Sept. Term, 2008 (filed Aug. 27, 2012) (Judges BELL, Harrell, Battaglia, Greene, Murphy, Adkins & Barbera). RecordFax No. 12-0827-20, 38 pages.

FACTS: Joseph Miller and Amanda Mathias were the parents of a minor child whose custody, legal and physical, they agreed to share. Under their joint custody agreement, executed when both parties resided in Maryland, the parties agreed that regardless of the precise number of hours each party shall had custody of the minor child, neither party would be deemed to have primary residential custody of the child. The agreement also contained a mediation clause.

Although when the agreement was signed, the parties both resided in Maryland, it was known and contemplated that Mathias would be moving to Virginia with her new husband.

Miller came to reside in Takoma Park, Maryland, and Mathias began living in Burke, Virginia. For two years, the circumstances of the parties remained unchanged. Thereafter, without first pursuing the mediation option, Mathias filed, in the Juvenile and Domestic Relations Court of Fairfax County, Virginia, a Motion to Modify Custody. Concurrently, again without resorting to mediation, she filed, in the circuit court for Montgomery County, a Motion to Relinquish Jurisdiction to the Commonwealth of Virginia.

In the Maryland motion, while acknowledging that, pursuant to 28 U.S.C. §1738 (A) (f), the Parental Kidnapping Prevention Act, and §9.5-202, the circuit court, because it made the initial custody determination and because Miller continued to reside in the State, had exclusive, continuing jurisdiction, Mathias averred that the court could relinquish such jurisdiction if it found that it was an inconvenient forum.

Miller moved to dismiss the Virginia action on jurisdictional grounds. He also filed an Opposition To Motion To Relinquish Jurisdiction To The Commonwealth Of Virginia, Or In The Alternative, Motion For Stay Of Proceedings. The circuit court denied Mathias’ Motion to Relinquish. On the same day, the Virginia court denied Miller’s motion to dismiss, stayed the proceedings, and ordered that once a judge was appointed in Mathias’ Motion to Relinquish Jurisdiction to Virginia, her counsel immediately notify Miller’s counsel. The circuit court also ordered that the judges in both states communicate with each other in a specified manner.

After the circuit court entered its order denying her motion to relinquish jurisdiction, Mathias filed in that court a Motion to Alter or Amend, or Alternatively to Revise Judgment. In that motion, she attached the initial Virginia court order, as well as the order issued subsequently by the next judge assigned to the case, which indicated that both parties’ attorneys agreed that the courts in Maryland and Virginia had not communicated per the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). For those reasons, Mathias requested that a telephone conference take place in order for the judges from the respective courts to communicate with each other, with the parties and counsel participating, to determine where jurisdiction and venue were appropriate. Miller neither answered Mathias’ motion nor filed an objection to proceeding with the consultation prior to resolution of the motion. He did not object to the conference call.

A conference call hearing subsequently took place. In addition to the judges, a sworn court reporter and both parties’ attorneys were present on the call. During the call, Judge Harrington of the circuit court for Montgomery County relinquished jurisdiction to Virginia. In implementation of that decision, Judge Harrington issued two orders, one granting Mathias Motion to Alter or Amend or Alternatively to Revise Judgment and vacating the court’s earlier denial of Mathias’ Motion to Relinquish Jurisdiction to the Commonwealth of Virginia and the other relinquishing jurisdiction to Virginia. Miller thereafter filed a Motion to Alter or Amend and Motion to Vacate or Stay Order of August 25, 2008. Alternatively, pursuant to Md. Rule 2-632, Miller sought a stay of the circuit court’s order, pending appeal.

When Miller’s motions were denied, he appealed to the Court of Special Appeals. While the case was pending in that court, the Court of Appeals, on its own motion, granted certiorari. and affirmed the judgment of the circuit court relinquishing jurisdiction to the Virginia court.

LAW: Miller argued that the circuit court erred in applying an “inconvenient forum” analysis because Maryland had continuing, exclusive jurisdiction, thus precluding any and all such claims. Determining whether the inconvenient forum analysis conducted in this case was appropriately done involved the statutory construction of §9.5-207(a) of the UCCJEA. Section 9.5-207(a)(1) provides, “A court of this State that has jurisdiction under this title to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” Miller contended that jurisdiction could be terminated pursuant to §9.5-202 (a), but, because that section applies to initial child custody determinations, its exercise could not be declined pursuant to §9.5-207(a).

However, neither §9.5-202, on which Miller relied, nor §9.5-207 contains any threshold requirement or addresses, as an element, the determination of custody. The purpose of the UCCJEA is to provide stronger guidelines for determining which state has jurisdiction, continuing jurisdiction, and modification jurisdiction over a child custody determination. In re Kaela C., 394 Md. 432, 455 (2006). The two statutes do not conflict, as both §9.5-202 (a) and §9.5-207 are clear and unambiguous and address separate situations: the former, the circumstances in which the court’s continuing exclusive jurisdiction may be terminated; and the latter, when the court’s exercise of the jurisdiction to make a child custody determination may be declined. Thus, the statutes can, and do, co-exist. Clearly, a statute that defines when a court’s jurisdiction will be terminated is not at all inconsistent with one which permits a court with jurisdiction, upon consideration of enumerated factors, to decline to exercise that jurisdiction. After all, in order to be able to decline to exercise jurisdiction, the court must have jurisdiction in the first place. See, e.g., Watson v. Watson, 724 N. W. 2d 24, 33 (2006).

Miller was incorrect in suggesting that §9.5-207 might apply only in the context of an initial child custody determination. The language of §9.5-207 does not include any reference to the “initial child custody determination,” and its generality belied any such interpretation. Therefore, the circuit court was not precluded from conducting an inconvenient forum analysis simply because it had “continuing, exclusive jurisdiction.” Rather, it was required by §9.5-207 (a) to do so.

Miller contended that even if it was appropriate for the circuit court to conduct an “inconvenient forum” analysis, the court erred in the conclusion it reached as a result of that analysis. The decision whether to relinquish the court’s jurisdiction in favor of a more convenient one is one left to the sound discretion of the court. See Krebs v. Krebs, 183 Md. App. 102, 117 (2008). That the matter is on for the circuit court’s discreation is confirmed by the fact that the statute authorizing the making of the decision enumerates a number of factors that the court must consider, without prescribing what the decision should be. In re Yve S., 373 Md. 551, 583-84 (2003). An abuse of discretion is discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006).

Section 9.5-207(b)(2) sets out eight factors, the relevant ones of which §9.5-207 (a)(1) requires the court to consider when addressing the question of the convenience of the forum. In her motion to the circuit court seeking relinquishment of jurisdiction to Virginia, Mathias emphasized particularly the factors of the nature and location of the evidence, concluding that it would come from teachers, doctors, therapists and coaches, all of whom lived in Virginia, and some of whom were professional witnesses, who would have to be compensated for their time and travel. In issuing its ruling relinquishing Maryland’s jurisdiction, the circuit court found that although both jurisdictions were equally poised to hear the case, Mathias had lined up more professional witnesses than Miller, and that it was important to consider the convenience of the professionals, their schedule, their time and their ability to appear.

The circuit court judge’s decision was not beyond the fringe of what was reasonable or acceptable. Therefore, there was no abuse of discretion when the circuit court, pursuant to §9.5-207, relinquished jurisdiction to the Virginia court.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Miller also asserted that his time to respond to Mathias’ motion to alter or amend was cut short by the circuit court’s phone conference and subsequent ruling. While it was true that, without regard to the time provided to answer the motion and without there being an order shortening time to answer, the circuit court consulted with the Virginia court, signed the order granting Mathias’ motion to alter or amend and filed that order, all before the time for Miller’s answer had expired, he was not entitled to relief on this ground. Significantly, Miller was very much aware of the reason for Mathias’ post trial motion (to facilitate the consultation between the Maryland and Virginia courts on the jurisdictional issue) and the relationship of that consultation to the initial motion she filed, that motion, if granted, would have resolved any conflict between the courts.

Notwithstanding that knowledge, Miller neither answered Mathias’ motion nor filed an objection to proceeding with the consultation prior to resolution of the motion. Instead of objecting to the conference call, Miller cooperated in facilitating the consultation. His first objection to the ruling on the motion to alter or amend or to proceeding with the consultation came ten days after the ruling, after the time for answering the motion had expired. Where, as here, the overriding issue in both the Maryland and the Virginia courts was the determination of jurisdiction between them, as required by the UCCJEA, the court appropriately ruled on the motion to alter or amend and did not err in doing so.

PRACTICE TIPS: Under Maryland law, when motions and other pleadings are considered by a trial judge, it is the substance of the pleading that governs its outcome, and not its form. In other words, the nature of a motion is determined by the relief it seeks and not by its label or caption.

Professional Responsibility

Reciprocal discipline

BOTTOM LINE: An indefinite suspension, with the right to reapply after attorney is re-admitted unconditionally to the Bar of the District of Columbia, was the appropriate sanction where attorney’s financial misappropriation actions were negligent rather than intentional.

CASE: Attorney Grievance Commission of Maryland v. Tun, Misc. Docket AG No. 71, September Term, 2011 (filed Aug. 22, 2012) (Judges Bell, HARRELL, Battaglia, Greene, Adkins, Barbera & McDonald). RecordFax No. 12-0822-22, 16 pages.

FACTS: Between 1999 and 2003, Harry Tun practiced criminal defense law. As part of his practice, he accepted appointments from the Superior Court of the District of Columbia to advise and represent indigent criminal defendants. Tun would submit vouchers to the Superior Court claiming payment for legal services rendered to indigent defendants. In each voucher, Tun would set forth the time he started and stopped working for a particular client for each day he claimed payment.

A review of the vouchers that Tun submitted between 1999 and 2003 reflected that Tun sought payment for the same time period for two or more clients on 162 occasions. As a result of the double billing for multiple clients, Tun sought and received payment for 1,180 hours of services he did not provide, or that he did not provide at the time that he claimed.

D.C. Bar Counsel initiated an investigation and filed charges against Tun. The D.C. Court of Appeals issued an order approving a petition for negotiated discipline in which Tun admitted violating D.C. Rules of Professional Conduct (D.C. RPC) 1.5(a) and (f) (Fees); 3.3(a)(1) (Candor Toward the Tribunal); and 8.4(c) and (d) (Misconduct). Tun was suspended from the practice of law in the District of Columbia for 18 months, with six-months stayed, followed by a one-year probationary period, during which certain conditions were to be met.

Concomitantly, the 4th Circuit issued, under reciprocal discipline principles, an order suspending Tun from the practice of law for 18 months, continuing until he is readmitted to the Bar of the District of Columbia and petitions the 4th Circuit Court for readmission. The United States District Court for the District of Maryland also suspended Tun for 18 months, with six months stayed, followed by a one-year period of supervised probation.

The Maryland Attorney Grievance Commission, through Bar Counsel, filed a petition for disciplinary or remedial action against Tun based on the misconduct supporting the D.C. RPC violations. The petition charged Tun with violations of the analogous Maryland Lawyers’ Rules of Professional Conduct (MLRPC) 1.5(a) (Fees); 3.3(a)(1) (Candor Toward the Tribunal); and 8.4(c) and (d) (Misconduct).

The Court of Appeals suspended Tun indefinitely from the practice of law in Maryland, with the right to reapply after he is re-admitted unconditionally to the Bar of the District of Columbia.

LAW: The Court of Appeals has “original and complete jurisdiction over attorney disciplinary proceedings.” Att’y Griev. Comm’n v. Weiss, 389 Md. 531, 544 (2005). In an action for reciprocal discipline, the Court of Appeals treats as conclusive evidence of attorney misconduct from “a final adjudication in a disciplinary or remedial proceeding by another court, agency, tribunal.” Rule 16-773(g); see also Att’y Griev. Comm’n v. Thaxton, 415 Md. 341, 361 (2010). This does not preclude, however, Bar Counsel or the attorney from “introducing additional evidence or preclude the attorney from introducing evidence or otherwise showing cause why no discipline or lesser discipline should be imposed.” Rule 16-773(g).

Tun admitted submitting vouchers to the Superior Court seeking payment for services rendered during the same time period for two or more clients on 162 occasions. He admitted also that, although the “double-billing” was the result of his “abysmal record-keeping,” the misconduct violated D.C. RPC 1.1(a) and (f), 3.3(a)(1), and 8.4(c) and (d).

In deciding what is the appropriate sanction in a reciprocal discipline action, the Court balances “[its] tendency to follow the original jurisdiction’s sanction under our reciprocal discipline doctrine, against our prior cases and the sanctions imposed upon members of this Bar for similar misconduct committed in this jurisdiction, always with a view towards the protection of the public.” Weiss, 389 Md. at 546.

Rule 16-773(f) states that the Court may impose corresponding discipline, not that it shall impose identical discipline.” Thaxton, 415 Md. at 362.

Rule 16-721 provides five possible sanctions for attorney misconduct under Maryland’s regulatory scheme, including: (1) disbarment by the Court of Appeals; (2) suspension by the Court of Appeals; (3) reprimand by the Court of Appeals or, with the attorney’s consent, by the Commission; (4) conditional diversion in accordance with a Conditional Diversion Agreement entered into pursuant to Rule 16-736; and (5) termination of a disciplinary or remedial proceeding accompanied by a warning pursuant to Rule 16-735(b).”

None of these sanctions corresponded precisely to the 18-month suspension, with six months stayed, followed by one year of probation with conditions, as imposed by the D.C. Court of Appeals.

In Thaxton, the D.C. Court of Appeals imposed a one-year suspension, with six months stayed, for misappropriation of settlement funds, in violation of D.C. RPC 1.2(a), 1.14(a) and (3), 1.4(b), 1.5(c), 1.15(a) and (3), and 8.4(d). Thaxton, 415 Md. at 343. After reviewing cases of similar misconduct in Maryland attorney discipline cases, the Court of Appeals concluded that the sanction imposed by the D.C. Court of Appeals was the “functional equivalent to our sanction of indefinite suspension.” Id. at 365. The Court concluded also that “exceptional circumstances” under Rule 16-773(e) existed because, had Thaxton’s conduct occurred in Maryland, the Court would have imposed an indefinite suspension. Id. The Court considered also the contrast between Maryland’s two-tired approach that distinguishes “between the intentional misappropriation of client funds and the misappropriation of client funds resulting from negligent or otherwise unintentional behavior.” Id. The District of Columbia recognizes three separate categories of misappropriation: reckless, intentional, and negligent. In re Carlson, 802 A.2d 341, 348 (D.C. 2002).

“[E]xceptional circumstances,” as meant in Rule 16-773 (e), existed here. Under Maryland’s two-tiered system, intentional misappropriation warrants disbarment ordinarily, but where the conduct was unintentional or due to negligence, indefinite suspension is the appropriate sanction usually. See, e.g., Att’y Griev. Comm’n Cafferty, 376 Md. 700 (2003). The D.C. Court of Appeals concluded that Tun’s misappropriation was due to his “abysmal record-keeping,” rather than intentional misconduct.

In Attorney Grievance Commission v. Calhoun, 391 Md. 532, 543 (2006). the Court of Appeals suspended indefinitely an attorney who violated MLRPC 1.1, 1.3, 1.4, 1.5, 1.15, 8.4(a), 8.4(c), and 8.4(d) during her representation of a client involving a civil damages claim for sexual discrimination against the client’s former employer. The Court stated that “‘[i]t is not the finding of effective dishonesty, fraud or misappropriation, however, that is essential to our determination whether disbarment is the appropriate sanction, but rather the attorney’s intent.’“ Calhoun, 391 Md. at 572 (quoting Attorney Grievance Commission v. Culver, 371 Md. 265, 280 (2002)). In a case of misappropriated client funds, “‘where there is no finding of intentional misappropriation…and where the misconduct did not result in financial loss to any of the respondent’s clients, an indefinite suspension ordinarily is the appropriate sanction.’“ Calhoun, 391 Md. at 572 (quoting Att’y Griev. Comm’n v. Zuckerman, 386 Md. 341, 376 (2005)). Because Calhoun’s actions were not fraudulent intentionally, the Court of Appeals imposed an indefinite suspension, rather than disbarment. Calhoun, 391 Md. at 574. See also Att’y Griev. Comm’n v. Sperling, 380 Md. 180 (2004).

Thus, an indefinite suspension, with the right to apply for readmission in Maryland after Tun is readmitted unconditionally in the District of Columbia, was the appropriate sanction here because it is consistent with other sanctions in Maryland attorney misconduct cases where the attorney’s financial misappropriation actions (whether impacting a client or third party) were negligent, rather than intentional.

COMMENTARY: The Rules, although alluding to conditions that may be appended to sanctions (Rule 16-721(c) and 16-760(h)) and probation after reinstatement (Rule 16-760(h)), do not contemplate or authorize stays of portions of a suspension, whether indefinite or for a fixed period. The closest to the concept of a stay of a part of a period of suspension is deferral of the effective date “to allow the respondent a reasonable opportunity to comply with requirements of section (c) of this Rule.” Rule 16-760(a). Rule 16-760(c) sets out the obligations of an attorney for winding-down administratively his or her practice before commencing a disbarment, suspension, or going on inactive status.

PRACTICE TIP: In a reciprocal discipline action, Bar Counsel is not precluded from introducing additional evidence from the other court and the attorney is not precluded from introducing evidence or otherwise showing cause why no discipline or lesser discipline should be imposed. Rule 16-773(g).

Professional Responsibility

Suspension

BOTTOM LINE: A 60-day suspension was the appropriate sanction where attorney violated several Rules of Professional Conduct, including competence and diligence, and his violations were repeat offenses following an earlier 30-day suspension.

CASE: Attorney Grievance Commission of Maryland v. Walker-Turner, Misc. Docket AG No. 16, September Term, 2011 (filed Aug. 22, 2012) (Judges Bell, HARRELL, Battaglia, Greene, Adkins, Barbera & McDonald). RecordFax No. 12-0822-23, 23 pages.

FACTS: John Walker-Turner entered his appearance on behalf of Leslie’s Limousine’s Service (Leslie) and Leslie Anderson individually (Anderson) in the district court in a suit against Leslie and Anderson by Yellow Book Sales & Distribution Company. Walker-Turner negotiated with Yellow Book’s attorney, Michael Botsaris, reaching in principle a settlement agreement the day before the scheduled trial.

The terms of the settlement agreement provided that Anderson and Leslie would pay Yellow Book $6,500 in two installments: $2,100 due on or before January 31, 2007 and $4,400 due on or before April 26, 2007. If Anderson and Leslie did not make payments according to the terms of the agreement, Yellow Book would be entitled to a consent judgment for the full amount requested in the original statement of claim.

Botsaris, who apparently Walker-Turner had not met face-to-face previously, reduced the agreement to writing and faxed a signed copy to Walker-Turner’s office at 5:10 p.m. the night before the scheduled trial. In turn, Walker-Turner requested that Anderson come to his office and sign the written settlement agreement that evening and told him that he did not need to appear in court the next day if he signed the agreement. Anderson was not available that evening, but indicated that he would come to Walker-Turner’s office for that purpose before 8:00 a.m. the next day. At 8:30 a.m. on the day of the trial, Anderson had not arrived at the office.

Walker-Turner went to the courthouse. He looked in the courtroom where the case was scheduled to be tried, but found no judge on the bench. He did not check-in with the courtroom clerk, however, to determine where the case was on the docket or when it might be called. Walker-Turner called Anderson from the courthouse. Anderson told Walker-Turner that he was at Walker-Turner’s office, where he had executed the written agreement and left a check for the first payment of $2,200.

Walker-Turner encountered Botsaris in the hallway as Botsaris exited the courtroom. Walker-Turner inquired whether the Yellow Book case had been called yet. Botsaris informed him that the case had been called and concluded. Introductions took place and Walker-Turner informed Botsaris that Anderson had signed the settlement agreement. Walker-Turner did not inquire from anyone about the disposition of the case in the courtroom. Botsaris did not tell Walker-Turner that when the case was called, he had requested and obtained a default affidavit judgment against Anderson and Leslie for $7,827, plus $2,694 in pre-judgment interest, $90 in costs, and $2,582 in attorneys’ fees. Walker-Turner, unmindful of the judgment, returned to his office, counter-signed the written agreement, and claimed to mail it that day, along with Anderson’s check, to Botsaris.

Several months later, Anderson received a request for oral examination (as to assets), filed by Botsaris, attempting to collect on the judgment. Walker-Turner contacted Botsaris and Botsaris agreed to authorize the filing of a consent motion to vacate the judgment. Walker-Turner filed a consent motion to vacate the judgment, stating as the sole ground for relief sought that a settlement agreement was reached between the parties.

The motion was denied by a simple order.

The next month, Walker-Turner mailed to Botsaris Anderson’s second and final payment under the settlement agreement, with a letter requesting that Botsaris send a letter to credit bureaus stating that the debt to Yellow Book was paid. Walker-Turner later mailed separately to Botsaris, for his review, a motion for reconsideration of the previously denied motion to vacate default judgment. Upon receipt of the draft motion, Botsaris entered a notation to dismiss the scheduled oral examination and also filed a line of satisfaction in the district court. Walker-Turner did not file the motion for reconsideration or pursue otherwise clearing the judgment from Anderson’s or Leslie’s credit record.

The judgment found its way onto Anderson’s credit record and, as a result, encountered problems refinancing his home. Anderson testified that he also believed that he was turned down for a security job, which required a credit check during the security clearance, because of the judgment.

The Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed a petition for disciplinary or remedial action against Walker-Turner, charging Walker-Turner with violating Maryland Lawyers’ Rules of Professional Conduct (MLRPC): 1.1 (Competence); 1.2(a) (Scope of Representation and Allocation of Authority Between Client and Lawyer); 1.3 (Diligence); 1.4(a) and (b) (Communication); and 8.4(a) and (d) (Misconduct). The hearing judge concluded that Walker-Turner violated MLRPC 1.1, 1.3, 1.4(a)(2) and (b), and 8.4(a) and (d).

The Court of Appeals suspended Walker-Turner from the practice of law for 60 days.

LAW: MLRPC 1.1 requires that an attorney provide competent representation to his/her client. Failure to appear for a trial, absent an acceptable explanation, constitutes incompetent representation. See Att’y Griev. Comm’n v. De La Paz, 418 Md. 534, 553 (2011).

There was no dispute that Walker-Turner failed to appear in court on behalf of his clients at the January 2007 trial. Walker-Turner explained that, since the parties had reached a settlement the night before trial, there should have been no trial requiring his attendance. This did not explain, however, his failure to check-in with the courtroom clerk when he entered the courtroom initially or to locate Botsaris, knowing that he had not provided yet Botsaris with a signed copy of the agreement. After he was told by Botsaris that his clients’ case had been called, he did not inquire of anyone as to the actual court disposition of the matter. Under the circumstances, Walker-Turner’s representation of his clients was incompetent.

A failure to file a necessary appeal or revisory motion within the allowable time period may constitute incompetence in the practice of law as well. Att’y Griev. Comm’n v. Byrd, 408 Md. 449, 458, 478 (2009).

Although Walker-Turner asserted that he did not receive the written notice from the district court as to the entry of judgment against his clients, he waited longer than the 30-day period, after which the judgment became enrolled, in which to file a motion for reconsideration. See Rule 3-534 & 3-535. The motion was untimely. Walker-Turner’s failure to appear or timely file a proper revisory motion constitutes a violation of MLRPC 1.1. His exceptions were overruled.

MLRPC 1.3 requires that lawyers “act with reasonable diligence and promptness in representing a client.” In addition to constituting a violation of MLRPC 1.1, an attorney violates MLRPC 1.3 when he/she fails to appear at a trial and fails to file timely an appeal or revisory motion to protect a client. Byrd, 408 Md. at 458, 478.

In Att’y Griev. Comm’n v. Ficker, 319 Md. 305, 313 (1990), an attorney failed inadvertently to appear at a client’s trial on a charge of driving while intoxicated because the attorney failed to enter the date on his calender. Id. at 308-09. The Court of Appeals maintained Maryland’s position that a single failure to appear, even if inadvertent or not associated with a pattern of irresponsibility, is actionable neglect. Id.

Walker-Turner did not appear at his client’s trial and did not provide an excuse. These actions show a lack of diligence in his representation of his clients and, thus, violate MLRPC 1.3.

Walker-Turner violated MLRPC 1.3 also by failing to ascertain the status of his clients’ case after he missed the trial. Walker-Turner, an experienced trial attorney, should have considered reasonably that negative action may have been taken against his clients when he failed to provide Botsaris with a signed settlement agreement before the trial, failed to find and inform Botsaris or the courtroom clerk of his presence in the courthouse, failed to answer the docket call, and failed to appear for trial.

The time lapse between the trial date and Walker-Turner’s eventual filing of a motion to vacate showed a lack of promptness in pursuit of protecting his client’s interest. A copy of the judgment was mailed by the district court to Walker-Turner the day after the trial. Walker-Turner claimed to have not received the notice. Walker-Turner then filed a tardy motion to vacate.

Motions must be accompanied by an articulation of the grounds supporting the relief sought, set forth with particularity. Rule 3-111(c). The motion filed by Walker-Turner was untimely and failed to set forth an adequate explanation as to why his clients failed to appear at the trial. Walker-Turner’s failure to appeal or file timely a cogent motion to vacate constitutes violations of MLRPC 1.3. His exceptions were overruled.

An attorney is required to keep his/her client informed reasonably as to the status of a matter undertaken by the attorney. MLRPC 1.4(a)(2). The attorney must explain the matter to the extent reasonably necessary to allow the client to make informed decisions about the course of the representation. MLRPC 1.4(b). Walker-Turner did not inform timely Anderson that a judgment was entered against him and Leslie because of his failure to appear at the trial or ascertain the actual disposition of the case. Because of the failed communication, Anderson was not able to make informed decisions as to the best course to correct Walker-Turner’s earlier failures. Walker-Turner violated MLRPC 1.4. His exceptions were overruled.

When an attorney violates several of the MLRPC, he/she violates necessarily MLRPC 8.4(a). Att’y Griev. Comm’n v. Foltz, 411 Md. 359, 411 (2009). Because Walker-Turner violated MLRPC 1.1, 1.3, and 1.4(a)(2) & (b), he also violated 8.4(a).

MLRPC 8.4(d) prohibits attorneys from engaging in conduct prejudicial to the administration of justice. Walker-Turner’s failure to appear at the trial, to check-in with the courtroom clerk or opposing counsel, or to follow-up regarding what happened to the case in his absence in the courtroom when the case was called resulted in a judgment being entered against his clients, despite that apparently a settlement agreement in principle was reached the night before trial. Walker-Turner violated MLRPC 8.4(d). See Ficker, 319 Md. at 315. His exceptions were overruled.

COMMENTARY: In 2002, the Court of Appeals imposed on Walker-Turner a 30-day suspension for the unauthorized practice of law, a violation of MLRPC 5.5(a). Att’y Griev. Comm’n v. Walker-Turner, 372 Md. 85 (2002). In 2006, the Commission issued to Walker-Turner a reprimand for violations of MLRPC 1.1, 1.3, and 1.4 in connection with his representation of a client in a personal injury case. Walker-Turner was reprimanded again by the Commission in 2007 for failing to appear at a court hearing and his failure to communicate properly with his client.

In imposing sanctions in attorney discipline matters, “our aim is to protect the public and the public’s confidence in the legal profession rather than to punish the attorney…[and] to deter other lawyers from violating the” MLRPC. Att’y Griev. Comm’n v. Taylor, 405 Md. 697, 720 (2008). The Court evaluates the facts and circumstances of each case to ensure that the attorney’s sanction is commensurate with the gravity and intent of the misconduct. Att’y Griev. Comm’n v. Ruddy, 411 Md. 30, 76-77 (2009).

The Court looks to the ABA’s standards for attorney sanctions which pose four rhetorical questions as an analytical template: “(1) What is the nature of the ethical duty violated?; (2) What was the lawyer’s mental state?; (3) What was the extent of the actual or potential injury caused by the lawyer’s misconduct?; and (4) Are there any aggravating or mitigating circumstances?” Id.

The hearing judge did conclude that Walker-Turner’s failure to appear at the January 2007 trial was inadvertent, but that this failure (and its ramifications) could have been prevented by checking-in with the courtroom clerk or Botsaris before the case was called and “tried.” On the other hand, Walker-Turner has received letters of reprimand from the Commission previously for failing to appear at a trial.

Walker-Turner worked with Botsaris in an attempt to cure the consequences of the entry of the judgment. However, the judgment appeared on Anderson’s credit report and impaired his ability to refinance his house. It appears still on his credit history, even though he made his payments to Yellow Book timely pursuant to the settlement agreement. Anderson applied for a job requiring a security clearance (that included a credit check), and he believed that he was not hired for that job because of the judgment that appeared on his credit report.

Walker-Turner is a solo practitioner with over ten years of experience. Because Walker-Turner has served already a 30-day suspension and the nature of his repeated similar violations suggests that more incentive is required to protect the public, a stronger sanction was warranted. The Court of Appeals imposed a 60-day suspension on an attorney who violated MLRPC 1.1, 1.2, 1.3, 1.4, 1.8(h), 3.4(c), 4.2, 8.1, and 8.4, considering that his violations were repeat offenses following an earlier 30-day suspension. Att’y Griev. Comm’n v. Butler, 426 Md. 522, 539 (2012). Thus, an appropriate sanction was a 60-day suspension.

Workers’ Compensation

Covered employee

BOTTOM LINE: Washington Redskins football player was “covered employee” for purposes of Maryland Labor and Employment Article because he was injured in Buffalo, Philadelphia, and Virginia while working for professional football league outside of Maryland on an “incidental or occasional basis,” and Maryland Workers’ Compensation Commission therefore had jurisdiction to hear his workers’ compensation claim.

CASE: Pro-Football, Inc. v. McCants, No. 116, Sept. Term, 2011 (filed Aug. 23, 2012) (Judges Bell, Harrell, Battaglia, Greene, Adkins, BARBERA & McDonald). RecordFax No. 12-0823-20, 21 pages.

FACTS: Darnerien McCants played wide receiver for the Washington Redskins professional football team between 2002 and 2004. The Redskins football team was operated by Maryland corporation Pro-Football, Inc. Despite its name, the Washington Redskins maintained only a minimal presence in Washington D.C., playing half its yearly, 20-game football schedule (two pre-season games and eight regular-season games) at FedEx Field in Landover, Maryland. The remaining games were played in stadiums at different locations around the country.

From 2002 to 2004 McCants played in 34 football games as a member of the Redskins team. In 2002, he played eight of those games at FedEx Field in Maryland and six at stadiums in other states. In 2003, he played seven games in Maryland and eight games in other states. In 2004, he played three games in Maryland and two games in other states. In total, McCants played 18 games over a span of three football seasons in Maryland and the remaining 16 games in other states. On separate occasions during the 2003 and 2004 football season, McCants sustained six accidental injuries while engaged in either team practices or games for the Redskins in Buffalo, Philadelphia, and Virginia.

Consequently, McCants filed with the Maryland Workers Compensation Commission six separate claims against Pro-Football to recover compensation for those injuries. The Commission denied five of the claims on the ground that McCants was not a “covered employee” under §9-203 of the Maryland Code (1999, 2008 Repl. Vol.), Labor and Employment Article, because he was working for the Redskins outside of the State when he sustained the injuries underlying the claims. McCants petitioned for judicial review of the Commission’s decision to the circuit court, which affirmed the Commission’s decision.

McCants appealed to the Court of Special Appeals, which reversed the decision, holding that McCants was a “covered employee” within the meaning of the law. Pro-Football appealed to the Court of Appeals, requesting that it determine whether a football player employed by the Washington Redskins is a “covered employee” and therefore entitled to avail himself of Maryland’s workers’ compensation laws, when injured while practicing and playing football outside of Maryland. The Court of Appeals answered that question in the affirmative, and affirmed the judgment of the Court of Special Appeals.

LAW: When an individual seeks to secure workers’ compensation coverage for an injury sustained on the job, the first question to be resolved is whether he or she is a “covered employee.” W.M. Schlosser Co. v. Uninsured Employers’ Fund, 414 Md. 195, 206 (2010). The reason for this threshold question is that the Workers’ Compensation Commission has jurisdiction to hear only those claims brought by a “covered employee” as that term is employed in the Workers’ Compensation Act. See generally §§9-709 through 9-711. Whether an individual is a “covered employee” depends on whether the individual is an employee of the employer, and on the site of the employment. See §§9-202(a), 9-203; see also McElroy Truck Lines, Inc. v. Pohopek, 375 Md. 574, 581 (2003). As to the site of employment, an individual who is employed wholly outside of the State of Maryland is not a “covered employee,” and an individual whose work takes place entirely in the State is a “covered employee.” §9-203.

The question is a closer one when an individual’s employment necessitates work both inside and outside of Maryland. Under §9-203(a)(2), an individual working across state lines may qualify as a covered employee if the individual works “regularly” in Maryland and on a “casual, incidental, or occasional basis” outside of the state. An individual who works only “intermittently or temporarily” in Maryland is not a covered employee if five other conditions (not pertinent here) are met. See § 9-203(b)(i)-(v). In the present case, the parties agreed that McCants was an employee of the Redskins. The parties further agreed that he worked neither wholly inside nor wholly outside of Maryland. The parties’ dispute centered on whether McCants’ interstate employment qualified him as a “covered employee” under §9-203(a)(2). The parties specifically disputed whether McCants’ work in Maryland — i.e., participating in ten football games at FedEx Field in Landover — constituted regular employment in the state.

The provisions of the Workers’ Compensation Act are to be construed liberally, where possible, in order to effectuate the broad remedial purpose of the statutory scheme. Uninsured Employers’ Fund v. Danner, 388 Md. 649, 659 (2005).

The present case was not the first in which Maryland courts have had to determine whether an individual was regularly employed in the State. The court has developed an elastic test for determining whether an employee is “casual” or “regular,” with the factors to be considered being the nature of the employer’s work, the scope and purpose of the hiring and the duration of the employment, whether it is occasional, incidental, accidental, or a usual concomitant of the employer’s business. McElroy Truck Lines, Inc. v. Pohopek, 375 Md. 574, 586-87 (2003). Other factors may include whether the employment arrangement contemplated a regular presence in the particular jurisdiction, the consistency of the claimant’s work in the particular jurisdiction, and representations made by the employer as to where the claimant would be working. Hodgson v. Flippo Construction Company, Inc., 164 Md. App. 263, 269, cert. denied, 390 Md. 285 (2005).

Many of these factors do not shed light on whether McCants was regularly employed in Maryland during his time with the Redskins. The terms of McCants’ contract set a three-year duration for employment, but over those three years, McCants consistently practiced in Virginia and played half of the pre-season and regular season games in the Redskins’ home stadium in Maryland. The contract also contemplated McCants’ presence in both Virginia and Maryland, stipulating that McCants was required to attend both practice sessions and football games. Essentially, the only factors that could determine whether McCants was regularly employed in Maryland were the nature of his work and whether that work (whether in Maryland or Virginia) was incidental to the Redskins’ business.

Simply stated, the question before the Court was whether McCants was “regularly working” when he was practicing in Virginia or when he was playing games in Maryland.

The Court of Special Appeals addressed this exact question in Pro-Football, Inc. v. Tupa, 197 Md. App. 463 (2011) aff’d___ Md. ___ , No. 29 September Term 2011 (Filed August 22, 2012). The Court of Special Appeals held that Tupa was indeed a “covered employee” under §9-203(a). Id. at 474. Specifically, the Court of Special Appeals explained that the ultimate purpose of Tupa’s employment with the Redskins was to play in professional football games at FedEx Field in Maryland and at various stadiums around the country. Id. at 473, 14 A.3d at 683. The Court recognized that while Tupa spent much time practicing football in Virginia, all of that time was geared towards improving his performance at the games. Id. The Court further noted that Tupa’s employment in Maryland was “consistent and predictable,” consisting of eight regular season and two pre-season games every year. Id. at 473. As such, the Court of Special Appeals concluded that Tupa was regularly employed in Maryland because he had an ongoing relationship with his employer, a Maryland corporation, for the purpose of playing in football games, more of which took place in Maryland than in any other state. Id. at 474; see also Pro-Football, Inc. v. Dep’t of Emp’t Services, 588 A.2d 275 (D.C. 1991).

The reasoning of the Court of Special Appeals in Tupa and the D.C. Court of Appeals in Department of Employment Services was persuasive. The purpose of a football player’s employment with a professional football team is to play in professional football games. Football practice is merely a means to an end — better performance in football games — and is not an end unto itself. The nature of a football player’s employment, then, is defined by the games in which he participates, not the practices he attends.

Applying §9-203(a)(2) to these circumstances, McCants was regularly employed in Maryland while he played for the Redskins between 2002 and 2004. Because McCants was regularly employed in Maryland while playing football games in the State, his presence in other jurisdictions for practice or playing purposes necessarily was merely incidental or occasional. Thus, McCants was a “covered employee” for purposes of §9-203. The Workers’ Compensation Commission was legally incorrect to conclude that it did not have jurisdiction to hear McCants’ claim, and the Court of Special Appeals correctly reversed the circuit court judgment affirming the Commission’s decision and remanded the matter so that McCants could move forward with his claims.

The judgment of the Court of Special Appeals was accordingly affirmed.

COMMENTARY: The second facet of Pro-Football’s argument was that because McCants spent most of his time as an employee of the Redskins practicing and preparing in Virginia for football games, the location of those preparatory duties (Virginia) was the place where McCants was “regularly employed.” As such, the Redskins asserted that, because his employment contract required McCants to engage in a constant and routine performance of essential employment functions in Virginia, his time in Virginia could not be characterized as casual, incidental, or occasional. However, Redskins players are signed, and required to attend practice in Virginia only so that they can perform well in games to achieve wins and earn revenue for the team. The nature of a football player’s employment, then, is defined by the games in which he participates, not the admittedly important, yet nonetheless ancillary, practices he attends.

PRACTICE TIPS: In reviewing a decision of the Workers’ Compensation Commission, Maryland courts recognize the Commission’s expertise in the field of workers’ compensation and consequently grants a degree of deference to the Commission’s interpretation. A court is under no constraint, however, to affirm an agency decision premised solely upon an erroneous conclusion of law.

Workers’ Compensation

Jurisdiction

BOTTOM LINE: Forum selection clauses in an employment contract are ineffective to divest the Maryland Workers’ Compensation Commission of the ability to exercise jurisdiction.

CASE: Pro-Football, Inc. v. Tupa, No. 29, September Term, 2011 (filed Aug. 22, 2012) (Judges Bell, Harrell, Battaglia, Greene, Adkins, Barbera & ELDRIDGE (retired, specially assigned)). RecordFax No. 12-0822-21, 17 pages.

FACTS: In March 2004, Thomas Tupa and Pro-Football, Inc., trading as the “Washington Redskins,” entered into a four-year NFL employment contract for Tupa to play football as a punter. Pro-Football, Inc., t/a the Washington Redskins, is incorporated in Maryland and owns its stadium, FedEx Field. All of Pro-Football’s “home” games are played at FedEx Field, and the practices before the games also occur at FedEx Field. Pro-Football’s headquarters and practice facility is in Virginia, and most practices are at the Virginia facility.

The employment contract between Tupa and Pro-Football contained, in an addendum, a forum selection clause which provided that claims for workers’ compensation benefits should be governed by Virginia law and that the Virginia Workers’ Compensation Commission should have exclusive jurisdiction to resolve such claims.

In January 2005, Tupa complained of mild lower back pain, and he was examined by Dr. Thomas Schuler of the Virginia Spine Institute. Dr. Schuler determined that Tupa suffered from “significant underlying spondylosis and stenosis,” a condition which the doctor did not believe would effect Tupa’s ability to play during the 2005-2006 football season.

In August 2005, at FedEx Field, during his pre-game warm-up for a pre-season game, Tupa landed awkwardly after a punt and felt a sharp pain in his lower back. An MRI disclosed significant progression of the disc degeneration that had progressed significantly from a year ago with much more collapse. Dr. Schuler concluded that Tupa had significant discogenic pain and was a good candidate for surgery. The doctor also determined that Tupa was not able to continue playing professional football.

Despite medication and physical therapy, Tupa’s condition did not improve. In January 2006, Dr. Schuler concluded that Tupa’s condition would not improve further without major spinal surgery, and that even if Tupa did have surgery it would be unlikely that he would ever be able to play professional football. Tupa decided to forego surgery.

In October 2006, Tupa sought an independent medical evaluation from Dr. Michael Franchetti. Dr. Franchetti concluded that Tupa’s injury was a career-ending injury. However, another doctor concluded that Tupa’s career would merely be shortened and he disagreed with the other doctors’ assessments that the injury was caused by Tupa’s football activities. Rather, he concluded that the August 2005 injury was an ongoing degenerative spine condition which was aggravated by years of punting.

Tupa filed a claim for workers’ compensation benefits with the Maryland Workers’ Compensation Commission in March 2007. The Commission decided it could properly exercise jurisdiction over Tupa’s claim, that Tupa had sustained an accidental injury arising “out of and in the course of [his] employment,” and that Tupa’s disability was causally related to his accidental injury. Tupa was awarded temporary partial disability benefits.

On review in the circuit court, a jury decided that Tupa had sustained an accidental injury in August 2005 and that his disability was causally connected to that injury. The circuit court determined, as a matter of law, that the Commission was entitled to exercise jurisdiction over Tupa’s workers’ compensation claim. The Court of Special Appeals affirmed.

Pro-Football appealed to the Court of Appeals, which affirmed.

LAW: Under §9-104(a) of the Maryland Workers’ Compensation Act, an agreement exempting “the employer from a duty of the…employer under the” Act is “void.” LE §9-104(a)(i). Furthermore, an agreement waiving “a right of the covered employee…under the” Act is “void.” LE §9-104(a)(ii).

Section 9-104(a) plainly precludes an agreement which exempts an employer from the duty of paying workers’ compensation benefits which are otherwise due under the Maryland statute. The section also precludes an agreement which waives the right of an employee to receive workers’ compensation benefits which are otherwise due under the Maryland statute.

A holding that forum selection clauses constitute an exception to §9-104 would contravene basic principles concerning the interpretation of statutes. A “‘plainly worded statute must be construed without forced or subtle interpretations designed to…limit the scope of its operation.’“ Harris v. Board of Education, 375 Md. 21, 31 (2003) (quoting Caffrey v. Dept. of Liquor Control for Montgomery County, 370 Md. 272, 292 (2002)). Inserting into §9-104 an exception for forum selection clauses “‘would be to re-draft the statute under the guise of construction,’“ Montrose Christian School v. Walsh, 363 Md. 565, 595 (2001) (quoting Davis v. State, 294 Md. 370, 378 (1982)).

In Kacur v. Employers Mut. Cas. Co., 253 Md. 500, 509 (1969), the Court of Appeals held that a forum selection clause in the employment contract was ineffective in a workers’ compensation case. “‘Express agreement between employer and employee that the statute of a named state shall apply is ineffective either to enlarge the applicability of that state’s statute or to diminish the applicability of the statutes of other states. [T]he rule in workmen’s compensation is dictated by the overriding consideration that compensation is not a private matter to be arranged between two parties. This is most obvious when such an agreement purports to destroy jurisdiction where it otherwise exists; practically every statute has emphatic prohibitions against cutting down rights or benefits by contract. The only exception occurs under several statutes which explicitly permit the parties to agree that the local statute shall not apply to out-of-state injuries.’“ Id. (quoting 3 Larson, Workmen’s Compensation Law, §87.71 at 395 (1968 Supp.)). See also McElroy v. Pohopek, 375 Md. 574, 578 n.2 (2003).

Numerous cases in other states have also refused to give effect to forum selection clauses in workers’ compensation cases. See, e.g., Swenson v. Nickaboine, 793 N.W.2d 738, 743 (Minn. 2011); Gotkin v. Weinberg, 66 A.2d 438, 439 (1949).

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: In Rowe v. Baltimore Colts, 53 Md. App. 526 (1983), a professional football player was injured while practicing in a “scrimmage,” and sought workers’ compensation benefits. The Court of Special Appeals held that the player had not suffered an “accidental injury” within the meaning of the definition codified as LE §9-101(b)(1). Id. at 535.

“The key to the application of the term ‘accidental injury,’ is whether the occurrence was an unusual or unexpected happening in the course of employment. [A] professional football player is engaged in an occupation in which physical contact with others is not only expected, commonplace, and usual, but is a requirement.” Id.

In Harris, 375 Md. 21, the Court of Appeals explicitly rejected the principle used in Rowe that an “accidental injury” must arise from an unusual or unexpected occurrence. In Harris, a cafeteria worker was engaged in her usual work day activity of laundering the linens at the end of the day. She dragged a forty-five pound box of laundry soap outside, and when she subsequently bent down, her back “cracked.” During judicial review of the Workers’ Compensation Commission’s order granting Harris compensation, the jury determined that Harris’ injury was not “accidental” because it did not result from an unusual work activity.

The Court of Appeals determined that “[t]he line of cases…requiring that an accidental personal injury arise out of ‘unusual activity’ for there to be coverage obviously adds a requirement not contained in the statutory language.” Id. at 30. The Court held that “what must be unexpected, unintended, or unusual is the resulting injury and not the activity out of which the injury arises.” Harris, 375 Md. at 36. See Victory Sparkler Co. v. Francks, 147 Md. 368 (1925).

Tupa was warming up for a game when he landed awkwardly and thereafter sought immediate medical treatment. Ample evidence was presented to show that Tupa suffered a compensable accidental injury during the course of his employment.

PRACTICE TIPS: The application of California workers’ compensation law where the employment contract provided that Alaska Workers’ Compensation law should apply violated neither the Full Faith and Credit Clause nor the Due Process Clause of the Fourteenth Amendment. Alaska Packers Assn. v. Comm’n, 294 U.S. 532 (1935).

Workers’ Compensation

Tort immunity and indemnity

BOTTOM LINE: CJ §5-518 contains an indemnification provision, rather than an immunity provision, that allows an injured party to sue a county board of education employee who caused the injury, joining the board as a defendant; any damages awarded may be executed and levied against the county board only and not from the negligent employee.

CASE: Board of Education of Prince George’s County v. Marks-Sloan, No. 117, September Term, 2011 (filed Aug. 21, 2012) (Judges Bell, Harrell, Battaglia, GREENE, Adkins, Barbera & McDonald). RecordFax No. 12-0821-21, 48 pages.

FACTS: Stephanie Marks-Sloan, while acting in the course and scope of her employment with the Board of Education of Prince George’s County (the Board), was driving a motorcycle on the access road from a school bus lot. At the same time, Norman Iglehart, also acting in the course and scope of his employment with the Board, was operating a school bus and traveling in the opposite direction on the access road. Due to Iglehart’s negligent operation of the bus, Marks-Sloan was forced off the road and suffered injuries.

Marks-Sloan filed a claim with the Workers’ Compensation Commission for injuries she sustained as a result of the incident. The Commission awarded Marks-Sloan compensation for medical expenses, temporary total disability, and attorney’s fees. At the time of the incident, the Board was a self-insured employer, and it began paying compensation to Marks-Sloan in accordance with the Commission’s award.

In October 2009, Marks-Sloan filed a complaint in the circuit court, naming Iglehart, the Board, and Prince George’s County as defendants. Ultimately, the parties stipulated to the dismissal of the County as a party to the suit.

Iglehart and the Board filed a motion to dismiss or, in the alternative, motion for summary judgment. The trial judge denied the motion as to Iglehart and granted the motion as to the Board. The trial judge dismissed the Board but required that it remain a party in the case for “purposes of any potential indemnification[.]”

Following a series of motions and responses filed by the parties, the trial judge entered judgment on behalf of Marks-Sloan in the amount of $100,000 against the Board, pursuant to CJ §5-518. The judge later issued an amended order that entered judgment against Iglehart and the Board and also included a stipulation by the parties to dismiss Iglehart as a party to the action. The Court of Special Appeals affirmed the judgment of the trial court.

The Board appealed to the Court of Appeals, which affirmed.

LAW: Under ED §4-105(d) and ED §4-106(a) a county board and a county board employee have the immunity from liability described under CJ §5-518. CJ §5-518, on its face, is ambiguous with regard to whether it provides for indemnification or immunity for county board of education employees. Therefore, the legislative history was examined.

In 1978, the Education Article was created. When originally enacted, ED §4-105 included substantially the same language as the current statute. In 1985, House Bill 940 created ED §4-105.1, which contained provisions regarding protection for county board of education employees. House Bill 940 contained language in the purpose clause indicating the following: “requiring a county board of education to be joined in any tort claim against a county board of education employee; providing that certain issues may be tried separately in certain actions against a county board employee; providing that a county board employee is not liable for damages in certain situations.” The language that appeared in former ED §4-105.1 is the functional equivalent of the portion of current CJ §5-518 addressing protection for county board of education employees.

The intent of the Legislature in enacting ED §4-106 and CJ §5-518 was to offer some protection from tort liability to county board of education employees. When these statutory provisions are read together, in their entirety, taking into consideration legislative history, it becomes clearer that the protection given to county board employees is in the form of indemnification, not complete immunity from liability.

Pursuant to CJ §5-518(c), county boards of education have statutory immunity for damages in excess of $100,000. The similar language and structure of ED §§4-105 and §4-106 lead to the conclusion that the protection given to county board of education employees is also an immunity from damages, which is distinct from the concept of complete immunity from liability.

Section 5-518(e) provides that “[a] county board employee acting within the scope of employment, without malice and gross negligence, is not personally liable for damages resulting from a tortious act or omission[.]”

Section 5-518(h) provides that a judgment against a county board employee shall be levied against the county board only and may not be executed against the employee. Thus, a judgment may be entered against a county board employee, but the collection of that judgment may be against the county board only. That interpretation is consistent with CJ §5-518(e), which indicates that a county board employee is not personally liable for damages in tort.

Furthermore, CJ §5-518(d) requires that a county board of education must be joined as a party to an action against a county board employee who has committed a tortious act or omission within the scope of his or her employment.

It is a logical interpretation of the statutory provisions at issue to conclude that the statute allows a suit in tort to be brought against a county board employee, and if the employee was acting in the scope of his or her employment without malice or gross negligence, the county board must be joined as a party. A judgment may then be entered against both the employee and the county board of education, but the judgment may be levied and executed against the county board of education only.

Under the Maryland Tort Claims Act, SG §12-101 (MTCA), state personnel have complete immunity from liability for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence. SG §12-105

Under the Local Government Tort Claims Act, CJ §5-301 (LGTCA), however, Rios v. Montgomery Cnty., 386 Md. 104, 125 (2005). a person may not execute against an employee on a judgment rendered for tortious acts committed by the employee within the scope of employment with a local government. CJ §5-302(b)(1). However, an employee is liable if the employee acted with actual malice. §5-302(b)(2)(i). The judgment may be executed against the employee and the local government may seek indemnification. §5-302(b)(ii).

Thus, in contrast to the complete immunity from suit given to State personnel under the MTCA, local government employees are granted only an immunity from damages under the LGTCA. Smith v. Danielczyk, 400 Md. 98, 129-30 (2007). A plaintiff who recovers in a suit against a negligent local government employee may collect the amount of any judgment from the local government entity only and not from the employee individually. Id. The statutory language in CJ §5-518 is more analogous to the language governing the protection of local government employees under the LGTCA.

Therefore, Marks-Sloan was entitled to bring a negligence action against Iglehart and to join the Board as a party, in accordance with CJ §5-518. Pursuant to the statutory indemnification afforded to Iglehart under CJ §5-518, any judgment entered on behalf of Marks-Sloan may be levied and executed against the Board only, and not against Iglehart individually.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: The Workers’ Compensation Act “is a substitute for the employer’s common law liability for negligence, subject to his common law defenses, and creates an absolute, but limited, liability regardless of fault, such liability upon a conforming employer being exclusive.” Flood v. Merchs. Mut. Ins. Co., 230 Md. 373, 377 (1963). See LE §9-509.

When the statutory scheme was originally enacted, it “forced employees to choose between filing suit against a third party tort-feasor and filing a claim under the Act; the employee could do one or the other, but not both.” Podgurski v. OneBeacon Ins. Co., 374 Md. 133, 146 (2003). The Act was subsequently amended to allow injured employees to both claim workers’ compensation under the provisions of the Act and to bring suit against a third party tortfeasor. Id. at 146-47. See also LE §9-901.

“In those situations in which the person injured on the job brings an action against and recovers damages from the third-party tortfeasor, following a workers’ compensation award or payment of compensation, [LE] § 9-902 prevents the person from receiving a windfall recovery from both sources for the same damages.” Parry v. Allstate Ins. Co., 408 Md. 130, 136 (2009). Rather than allowing an injured employee to keep the entire amount of a compensation award and tort damages, the proper “disposition of the matter is to give the employer so much of the negligence recovery as is necessary to reimburse him for his compensation outlay, and give the employee the excess.” Gray v. State Roads Comm’n, 253 Md. 421, 426 (1969).

Employees injured during the course of their employment by a negligent co-employee are entitled to bring suit against that co-employee, pursuant to LE §9-902. Suburban Hosp., Inc. v. Kirson, 362 Md. 140, 177 (2000). “A negligent co-employee is a third party within the meaning of the…Act.” Pressman, Workmen’s Compensation in Maryland §6-2, at 527 (2d ed. 1977).

Marks-Sloan brought a negligence action against Iglehart on the theory that, while both were working in the scope of their employment with the Board, Iglehart acted in a negligent manner that resulted in injury to her. Therefore, Iglehart was a proper defendant in a third party tort suit brought pursuant to LE §9-902.

Having concluded that Iglehart was a proper defendant in the negligence action, the next issue was whether joining the Board as a party in the tort suit and requiring the Board to pay any judgment entered violated the exclusivity rule of the Workers’ Compensation Act.

An employer who is responsible for payment of workers’ compensation, either directly or through an insurance carrier, may enter into an indemnification contract with a third party tortfeasor. Such a contractual obligation does not offend the principles of the exclusivity rule contained in LE §9-509. See State ex rel. State Accident Fund v. N.Y., Phila. & Norfolk R.R. Co., 141 Md. 305, 307 (1922); Balt. Transit Co. v. State ex rel. Schriefer, 183 Md. 674, 678 (1944).

The statutory obligation of county boards of education to indemnify their negligent employees, under CJ §5-518, similarly does not offend the exclusivity rule. The statutory obligation to indemnify provides, in effect, an exception to the exclusivity rule, whereby an injured board of education employee may maintain a tort action against a negligent co-employee, who is entitled to indemnification from tort damages by the county board, the employer.

Thus, it was not improper for Marks-Sloan to initiate a third party tort action against Iglehart, in accordance with LE §9-902, and to join the Board as a party for purposes of indemnification. Furthermore, the Board was entitled to a setoff from the tort judgment entered against it in the amount of workers’ compensation paid or awarded to Marks-Sloan as of the date of the tort judgment. See LE §9-902(e); Great Atl. & Pac. Tea Co. v. Imbraguglio, 346 Md. 573, 589 (1997).

PRACTICE TIPS: For purposes of third party suits brought pursuant to LE §9-902, the applicable statute of limitations for the tort action applies to the injured employee’s suit against the tortfeasor responsible for causing the workplace injury. Thus, while an employer or insurer has the exclusive right to file suit against a third party tortfeasor for two months following a workers’ compensation award, a third party suit brought by an injured employee must, in any event, be filed within the applicable limitations period, which begins to run on the date of accrual. See Turner v. Smalis, Inc., 622 F. Supp. 248, 251 (D. Md. 1985).