By: Heather Rawlyk, Staff Writer for The Capital
Capital Gazette Communications
Published 12/30/11

Three former Annapolis Area Christian School employees have filed a lawsuit in county Circuit Court against the private school and its superintendent, alleging sex discrimination and retaliation.

According to the lawsuit filed Tuesday, Sharon Finecey, the school’s former director of human resources, Lynne George, former assistant to the dean of students, and Anthony Masevice, former director of finance, were exposed to an intimidating, hostile and offensive work atmosphere following the hiring of school Superintendent George J. Lawrence Jr. in 2009.

The lawsuit says school board members were made aware of multiple reports of harassment by Lawrence made by various faculty members, but swept the allegations under the rug to “protect the school’s image.” All three say Lawrence’s actions and the board’s inaction ultimately forced them to resign from their positions.

“As detailed in the lawsuit and as confirmed by the … (Equal Employment Opportunity Commission), the school had knowledge of the inappropriate conduct and yet allowed it to be repeated time and time again,” said their attorney, Joyce Smithey.

She said the parties to the lawsuit are still trying to calculate their losses to arrive at a dollar amount they will seek.

The school’s attorney, Zachary Erwin, declined comment.

Efforts to locate Lawrence for comment were unsuccessful. The school is not in session over the Christmas holidays.

‘Red Flags’

The lawsuit says red flags were raised about Lawrence when he was interviewed by Finecey in June 2009 for the position of superintendent of the school at 716 Bestgate Road in Annapolis. During the interview, Lawrence said he was fired from his previous school, but repeatedly claimed not to know why. According to the lawsuit, Finecey, of Stevensville, was also concerned that, during the interview, Lawrence said he mentored fathers at his prior school about the temptations of sleeping with their daughters. The lawsuit says Lawrence explained that daughters mature into beautiful women while “wives were at home looking not so good.”

Masevice, who now lives in Ohio, also interviewed Lawrence and repeatedly asked why he was fired from his last school. But Lawrence said he didn’t know.

Finecey met with a member of the executive board and executive search committee to discuss his concerns. Masevice also told that board member about the red flags. But, the lawsuit says, that board member said his mind was made up and Lawrence was hired.

After he was hired, the lawsuit says, Lawrence refused to sign a copy of the employee handbook, which included policies against sexual harassment. It says Lawrence told Finecey to “get rid of this (the handbook).”

Stories Related

In the months that followed, multiple faculty members reported “inappropriate and disgusting sexual things” said by Lawrence, according to the lawsuit.

The lawsuit says Lawrence repeatedly told a story about a young girl at his prior school’s homecoming and how he could see through her white dress in the rain. He also allegedly talked to staff about being nude on a beach in South America and taking nude showers with strangers on the trip.

The harassment got so bad, the lawsuit says, that Finecey contacted a human resources expert to seek guidance in handling the many complaints.

In fall 2009, Finecey met with board members and presented the multiple written complaints. In a staff meeting soon after, employees discussed the comments Lawrence allegedly made. Many women cried, saying they were embarrassed, uncomfortable and stunned by Lawrence’s conduct, according to the lawsuit. They all submitted their own complaints within days.

When asked about his behavior, Lawrence told board members he’s “just a storyteller.” He was asked to cease the stories, the lawsuit says.

Retaliation Alleged

In December 2009, it was recommended that Lawrence be fired. The lawsuit says the board member, who hired Lawrence despite others’ concerns, was irate at the recommendation. It says the board member demanded Finecey be terminated for having the nerve to want an investigation.

A month later, the board said it supported Lawrence.

In February 2010, George, of Queenstown, noticed that her 12-year-old son, who attended Annapolis Area Christian School, was afraid to go to school, the lawsuit says. The boy told his mother that Lawrence had pulled him out of class and scared and intimidated him, asking if he was George’s son.

A child psychologist advised George pull her son from the school. The child’s pediatrician also said he was counseling a couple of parents from Annapolis Area Christian School regarding issues with Lawrence, the lawsuit says.

George notified a board member. She later got a call from Finecey saying Lawrence told her, “Lynne (George) will find out this summer when she does not receive a paycheck,” the lawsuit says.

The lawsuit says Lawrence’s remarks continued, with him asking employees to get “cute high school girls” to participate in a fundraiser to make more money.

The lawsuit says the continuing behavior was brought to the attention of the school board, but members ignored it.

Opting to Resign

By summer 2010, Finecey resigned due to ongoing retaliation. The lawsuit says she was being prevented from performing her job, that Lawrence prevented her from scheduling an important meeting, prevented her from giving sexual harassment training and prohibited her from handing out employee handbooks.

According to the lawsuit, she suffered extreme stress, she got rashes and her hair began to fall out. A doctor later determined that this was stress-related.

Similar retaliatory conduct began toward Masevice and George, according to the lawsuit.

Thinking his 30 years in the finance industry would be tarnished by a termination if he stayed, Masevice resigned in March. The lawsuit said he suffered extreme stress, insomnia, fatigue, anxiety, anger, depression and migraines from the experience.

George said she feared for her safety at work and resigned in April. The lawsuit says she suffers headaches, sleeping difficulty, high blood pressure and anxiety.

—

Capital Gazette Communications

Joyce Smithey quoted in the Capital on 12-30-11 about Christian School Superintendent sued.

“As detailed in the lawsuit and as confirmed by the … (Equal Employment Opportunity Commission), the school had knowledge of the inappropriate conduct and yet allowed it to be repeated time and time again,”

Read Article

The following bills have been
introduced in the 2012 Maryland General
Assembly, and have a primary focus on procurement. These
bills have varying chances at passage and subsequent signing into law
by the Governor. If you have any questions about the impact of these
bills upon your business, please contact us at your earliest
convenience.

HB217/SB315
– Council for the Procurement of Health, Educational, and
Social Services

House: Health and Government Operations (Heard: February
2, 2012, 1:00 p.m.)

Senate: Education
Health and Environmental Affairs (Hearing: February 23, 2012,
1:30 p.m.)

Synopsis: Establishing the
Council for the Procurement of Health, Educational, and Social
Services; providing for the composition, chair, and staffing of the
Council; requiring the Council to advise the Board of Public Works on
the Task Force Report to the Governor and the General Assembly on
Procurement of Health, Education and Social Services by State
Agencies and make specified recommendations for the procurement
process for health, educational, and social services; etc.

HB425/SB551
– Procurement – Required Disclosure – Conflict Minerals
Originated in the Democratic Republic of the Congo

House: Health
and Government Operations (Heard: February 15, 2012, 1:00
p.m.)

Senate: Education
Health and Environmental Affairs (Hearing: February 23, 2012,
1:30 p.m.)

Synopsis: Prohibiting a unit of
State government from procuring supplies or services from persons
that fail to disclose in a specified manner as required by federal
law specified information relating to conflict minerals that
originated in the Democratic Republic of the Congo or its neighboring
countries; defining terms; requiring a unit of State government to
provide notice of the prohibition in any solicitation for supplies or
services; etc.

HB440/SB235
– Procurement – Investment Activities in Iran

House: Health
and Government Operations (Heard: February 16, 2012, 1:00
p.m.)

Senate: Education
Health and Environmental Affairs (Heard: February 16, 2012,
1:00 p.m.)

Synopsis: Requiring the Board
of Public Works, on or before January 1, 2013, to use credible and
publicly available information to create a list of persons that
engage in investment activities in Iran; requiring the Board to
update the list every 90 days; requiring the Board, before adding a
person to the list, to provide the person with written notice that
meets specified requirements; prohibiting the Board from adding a
person to the list under specified circumstances; etc.

HB576/SB358
– Public-Private Partnerships

House:
Environmental Matters & Appropriations (Hearing:
February 24, 2012, 1:00 p.m.)

Senate: Budget
and Taxation (Hearing: March 7, 2012, 1:00 p.m.)

Synopsis: Establishing the
policy of the State on public-private partnerships; altering
provisions of law relating to public-private partnerships;
authorizing a reporting agency to establish a public-private
partnership and execute a partnership agreement in connection with
specified functions, services, or assets; requiring a reporting
agency to adopt regulations and establish processes for the
development, screening, solicitation, evaluation, award, and delivery
of public- private partnerships; etc.

HB865/SB659
– State Procurement – Disclosure of the Relocation of Jobs
to a Foreign Country

House: Health
and Government Operations (Hearing: February 29, 2012, 1:00
p.m.)

Senate: Education
Health and Environmental Affairs (Hearing: February 23, 2012,
1:30 p.m.)

Synopsis: Requiring a
prospective bidder or offeror to disclose specified information to
the Department of General Services concerning plans to relocate jobs
to a foreign country when submitting a bid or an offer to a unit of
State government; requiring a contractor to notify the Department of
specified job relocations within a specified time period; prohibiting
a specified contractor from receiving specified incentives and
benefits from the State under specified circumstances; etc.

HB1192 – Prevailing Wages – Debarment or
Suspension Process and Penalty

House: Economic
Matters (Hearing: March 21, 2012, 1:00 p.m.)

Synopsis: Requiring a
contractor or subcontractor to be suspended or debarred if the
contractor or subcontractor willfully violates specified requirements
concerning prevailing wage rates; specifying the time period for the
debarment or suspension; providing that a contractor or subcontractor
who unintentionally violates specified requirements concerning
prevailing wage rates is allowed the opportunity to remedy the
violation; authorizing the Attorney General to seek a penalty from
contractors or subcontractors; etc.

HB1196 – Participation in Procurement -
Conflict of Interest – Exemption

House: Health
and Government Operations (Hearing: February 29, 2012, 1:00
p.m.)

Synopsis: Authorizing units of
State government to solicit written comments relating to
specifications for State procurement of health, human, social, or
educational services before issuing requests for proposals;
authorizing a person that submits written comments relating to a
procurement to submit a proposal for the procurement under specified
circumstances; etc.

HB1205 – Procurement – Service Contracts
- Delineation of Costs by Categories

House: Health
and Government Operations (Hearing: March 7, 2012, 1:00 p.m.)

Synopsis: Requiring the Board
of Public Works, in consultation with the Department of General
Services, to adopt regulations to require that a bidder or offeror
responding to a solicitation for a service contract delineate its
costs by specified categories; repealing an exception; etc.

HB1286 – Procurement – Noncompetitive
Negotiation – Repeal of Limitations

House: House
Rules and Executive Nominations (First
Reading – No Hearing Scheduled)

Synopsis: Expanding the
authorized use of noncompetitive negotiation by specifically
including the procurement of health services, repealing the
limitation on the types of individuals receiving specified services,
and repealing a requirement for approval by the Department of Budget
and Management before noncompetitive negotiation for a specified
class of procurement may be used; etc.

SB432 – Procurement – Maryland Buy
American Steel and Manufactured Goods Act

Senate: Education
Health and Environmental Affairs (Hearing: February 23, 2012,
1:30 p.m.)

Synopsis: Altering the Maryland
Buy American Steel Act to include American manufactured goods;
requiring a public body to require contractors and subcontractors use
or supply only American manufactured goods for procurements, as
specified; defining a term; providing for the application of the Act;
requiring a public body to give a specified notice; requiring the
Board of Public Works to adopt specified regulations regarding the
granting of a preference for the use of American manufactured goods;
etc.

SB913 – State Procurement – Rejection of
Bids and Proposals – Businesses Located Outside the State

Senate: Education
Health and Environmental Affairs (First
Reading – No Hearing Scheduled)

Synopsis: Requiring a unit of
State government, under specified circumstances, to reject a bid or
proposal if the bidder or offeror is located outside the State or if
the goods or services required to be provided under the contract
would be provided by a subcontractor located outside the State; and
applying the Act to procurements that would otherwise be excluded
from the State procurement law under a specified provision of law.

Published: December 19th, 2011

The Timonium contractor that sued the Baltimore City school board for reverse discrimination after an unsuccessful bid to build the new Waverly Elementary School has dropped the lawsuit and says it will be awarded the project.

CAM Construction Co. Inc. sued the Baltimore City Board of School Commissioners in August after it lost a $25 million school construction project despite being the low bidder. The case was dropped in September, with the right to reopen it, pending a settlement. That settlement fell through and the parties were scheduled to have a hearing last Friday.

In court documents, CAM Construction and counsel for the school board now say a final settlement has been reached and ask that the case be dropped completely.

The terms of the agreement were not released, but CAM Construction said it was awarded the contract to build the new school under the terms of its original bid.

“There was some extensive negotiations going on between September and now,” said Charles S. Fax, an attorney with Rifkin, Livingston, Levitan & Silver LLC, who represented CAM. “And, the contract has, or will be awarded to CAM.”

In an emailed statement, a spokeswoman for the Baltimore City Public School System said there are still details that must be worked out concerning a final agreement. Calls to counsel for the Board of School Commissioners were not returned.

CAM Construction filed the lawsuit in U.S. District Court in Baltimore on Aug. 24, claiming reverse discrimination in the board’s decision to go with another contractor. CAM Construction bid $25.49 million on the project, $285,000 lower than the next highest bidder. The company claimed it was passed over because it had not met the goal levels for including minority business enterprises, or MBE.

In its lawsuit, CAM Construction said it had not reached the 37 percent MBE involvement goal when bids were due in June and had requested a waiver until the goal could be met. The school board declined to grant a waiver and awarded the contract to the second highest bidder, Baltimore-based Roy Kirby & Sons Inc., which had met the MBE involvement goal.

Roy Kirby & Sons had petitioned for leave to intervene in the CAM lawsuit. U.S. District Judge Richard D. Bennett never ruled on the motion and the company’s appeal to the 4th U.S. Circuit Court of Appeals was subsequently dropped.

Steven A. Thomas with Thomas & Libowitz P.A. in Baltimore, who represented Roy Kirby & Sons, said the company had no plans right now to appeal the decision. He said the terms of the agreement were confidential but the company felt it was best for the school, the students and the community to let the project move forward.

“It was in everyone’s best interest to either rebid the project or come to an agreement with all the parties,” Thomas said. “Otherwise, it would have added another 24 months or so to the project.”

http://thedailyrecord.com/2011/12/19/parties-settling-school-bid-litigation/

Maryland Daily Record

http://thedailyrecord.com

Reprinted with permission of The Daily Record Co. ©2012

A Baltimore City Circuit Court judge Friday dismissed a $100 million countersuit filed by the state Department of General Services against a group of plaintiffs suing to halt the mega State Center development based on charges that the state violated its own procurement laws in hiring the developer.

Judge Althea M. Handy ruled two days after heated arguments.

“The court order [Friday] dismissing the state’s counterclaim is entirely consistent with the First Amendment right to petition government without fear or threat of retribution,” said Alan M. Rifkin, attorney for the plaintiffs

Michael Gaines, assistant secretary for real estate for the Department of General Services, did not respond to a request to comment.

“Given the late release of today’s ruling, we will be discussing our next steps in the coming days,” said Alan Brody, spokesman for the attorney general’s office.

Rifkin argued Wednesday the state’s lawsuit was “basically as unconstitutional as any action the state can take” because it sought to silence those seeking to derail the State Center project and would have limited the ability of citizens to challenge the actions of the government.

“Plaintiffs and people in the future may believe the awesome power of the government may be turned on them as it has been turned on my clients,” he said, arguing the motion to dismiss the countersuit.

Lawyers for the state claimed the opponents of State Center were not protected by the First Amendment because they had fired the first salvo in the legal battle with a “sham” lawsuit.

“Just as you can’t yell fire in a crowded theater, you can’t come into a courtroom and yell ‘ultra vires state action’ to stop development,” said Campbell Killefer, deputy chief of the attorney general’s civil litigation division, using the Latin for “beyond powers.”

Although eventually unsuccessful, the state’s countersuit did succeed in peeling two plaintiffs off the legal challenge against State Center.

St. Paul Plaza Tower LLC — the owner of the building that houses the attorney general’s offices — and 301 Charles Street LLC dropped out in exchange for the state freeing them from the countersuit.

Campbell offered the same deal to others in the case on Wednesday, a move Rifkin criticized as a “hammer” to spook the rest of the plaintiffs.

“What it says is ‘We have the power in our hands,’” he said, lifting a clenched fist over his head. “’We have the hammer and we’re ready to throw it down on you unless you get out, and get out now.’”

The State Center project is a proposed $1.5 billion redevelopment that is expected to take up to 15 years to build out. It will replace the existing state office buildings along Martin Luther King Boulevard and add a complex of other office and retail space as well as new housing.

The business owners represented by Rifkin say they worry the 1.5-million-square-foot State Center development on West Preston Street would strip the downtown of its government worker base, furthering weakening the corporate office market and the restaurants, bars and other businesses that depend on it.

There is a nearly 25 percent vacancy rate in commercial and office space, about 2 million square feet, current data reveals.

State agencies lease about 700,000 square feet in center city.

Peter G. Angelos, owner of the Baltimore Orioles and a property owner in the central business district, is paying for much of the lawsuit, although he is not a plaintiff.

The plaintiffs include restaurant owners in Little Italy and about a dozen property owners.

They argue the state did not follow Maryland procurement rules in choosing a developer because the state did not issuing a request for proposals, or RFP.

Ekistics LLC is the master developer on the State Center project. Caroline Moore, CEO of Ekistics, also did not respond to a request to comment on Judge Handy’s ruling.

Daily Record Business Writer Nicholas Sohr contributed to this article.

http://thedailyrecord.com/2011/12/16/judge-dismisses-state-center-countersuit/

Maryland Daily Record

http://thedailyrecord.com

Reprinted with permission of The Daily Record Co. ©2012

ESI is “Electronically Stored Information” and this book provides clear, practical guidance to litigators on the areas of pre-litigation management, preservation, collection, processing, review, production, and use of ESI in deposition and at trial. Lawyers who need to act as “translators” between clients, information technology experts, and the courts will find this volume very useful. It even has analysis on unique issues involving privilege, privilege logs and the law governing Federal Rule of Evidence 502. It helps litigators learn new vocabulary and techniques,  master and apply important legal principles, for preserving, collecting, processing, reviewing, producing, and using ESI in litigation.  It discusses triggering the litigation hold, implementing it, as well as limiting its scope using proportionality analysis. It also includes a discussion of technical issues for non-technical readers.  The book is designed for attorneys, legal assistants, information technology professionals, and business executives.

The book can be ordered through its publisher, the American Bar Association, at the following website:

Managing E-Discovery and ESI: From Pre-Litigation Through Trial

Alan Rifkin grew up in Maryland and graduated from the University of Maryland School of Law in 1982. He spent two years with Semmes, Bowen & Semmes, two years as counsel to the state Senate president, two years as counsel to the governor, and one year at Patton Boggs & Blow before starting his own law firm, Rifkin Livingston Levitan & Silver, in 1989. He spoke with us in late August.

How long have you been outside counsel to the Orioles?

Since 1995.

With a last name like “Rifkin,” which is so close to “Ripken,” have there been any misunderstandings?

[Laughs] I have the good fortune of serving on Cal Ripken’s board of trustees for his foundation and we chuckle about that periodically. There have been times when I’ve called the foundation offices and immediately get through to whomever I’m calling because they think I’m him.

As O’s outside counsel, what do you spend the most time on?

Business operational legal matters and league governance issues. Most sports franchises are pretty substantial business operations.

Example?

Several years ago, Major League Baseball made the decision to relocate the Montreal Expos to Washington, D.C. That decision had substantial and direct implications upon the Baltimore Orioles. For many years, Washington, and the Washington suburbs, were, and are, part of the club’s territory, where tickets were sold and sponsorships were sold, and television markets and radio markets were tended to. So the decision to relocate that franchise had an immediate effect on the club and its operating revenues and opportunities.

How to address it? And how to find that fair balance and resolution that protected and preserved the existing franchise but still allowed for growth and opportunity for the new franchise? The net result of that very intricate series of negotiations with the league, and the Nationals, was the formation of the Mid-Atlantic Sports Network, where the Orioles were, and are, the substantial majority owner- although the Nationals’ interest does increase somewhat over time.

It seems the Orioles got a great deal.

Well, it seems that way, but bear in mind that starting a regional sports network is a daunting task. It took [Orioles owner] Peter Angelos’ vision and fortitude and an enormous amount of work by a number of talented people: seeking and obtaining carriage in dozens upon dozens of cable and satellite networks; going one by one to make sure the product was put on the cable channels throughout that enormous geographic area; and fighting those who had previously held those rights. The club had to weather several lawsuits from cable companies that were disappointed they didn’t have the rights to the Orioles and the Nationals, as they had expected they would get. There were a series of matters that went all the way up to the Federal Communications Commission and broke new ground.

Angelos is a lawyer. Is it easier to represent a lawyer than a civilian, or are they always mucking things up?
I don’t want to make those kind of blanket determinations but I can say this: Peter Angelos is a brilliant attorney. Always has been. I’ve often said that representing Peter Angelos and the Orioles is a little like batting third in a lineup that includes Babe Ruth. It’s nice to have Babe Ruth behind you.

I’m not an Orioles fan but I still have to ask: What happened to them?

My work is on the business side of the sports franchise not on the sports side, so I refrain from giving opinions that are no more than that of a fan. But I think that any fan would recognize that sports are cyclical and all franchises go through certain cycles. The good news is they’ve got a wealth of very talented young players and they’re exciting to watch.

Have you represented other sports franchises?

I was heavily involved in the Washington Redskins’ efforts to relocate the franchise to Maryland during the mid-‘90s. The firm has done work for the Redskins ever since.

How long have you been representing the Maryland Jockey Club?

That’s even longer. Since the latter part of the 1980s.

How did that come about?

I had the good fortune of serving as counsel to Gov. William Donald Schaefer during his first several years in office – at a time when issues related to the Preakness and other racing matters were being heavily debated – and I got to know a gentleman by the name of Frank DeFrancis, who was the then-owner of the Maryland Jockey Club, and had been an international lawyer of great acclaim. A very talented man. Extraordinary vision as to the future of racing.

When I left the governor’s office to go into private practice, one of the first calls I received – if not the first call – was from Frank DeFrancis. He asked me to meet him at 6 o’clock in the morning on the backstretch of the Laurel [Park] race course. When I got there at 6 o’clock in the morning, dressed up in a suit and tie, he sort of chuckled to himself because he was there in work clothes, as anyone would be in the backstretch of a racetrack. And he sat down with me and said, “Before I hire you, which I hope to do, you need to understand this industry. And the place you need to start is right here, where folks are waking up at the crack of dawn to walk horses, train them, and get ready for the day. And if you can understand the backstretch, then one day you’ll understand how this industry operates, and one of these days I’ll let you represent me.”

And for the better part of a year it was a tutelage under the wing of the great Frank DeFrancis. I’m forever thankful.

This seems like a good lead-into the referendum on slots in Anne Arundel County. How did you get involved in that?

Obviously the Maryland Jockey Club’s interests were affected by the potential of a gambling facility less than 10 miles from the racetrack. And we were approached by a group of citizens, who were equally troubled, who believed that the location of the gaming facility was not appropriate to be located at [a] family-friendly mall. They had embarked on a petition drive to place the zoning ordinance to referendum, and were anxious to know whether or not the Jockey Club would participate in that process. The Jockey Club said yes, and did, which resulted ultimately in a sufficient number of petition signatures being collected in record time and generated a lawsuit from the now-disappointed potential casino developer. We defended that lawsuit on several occasions, and we were upheld by the Court of Appeals, who found the petition was legally valid and should be placed on the ballot.

You and I are talking at the end of August. This magazine comes out in January. Any predictions for November?

I try to stay away from things outside of my crystal ball. But I do think this: There is an awful lot of passion on the part of the citizenry of Anne Arundel County, and oftentimes passion and community concerns find their way to be successful on the ballots.

What did your parents do?

My mother is a teacher, and has been for three, four decades. Teaches preschool.

My father was in television. He was an engineer and actually turned the lights on – started – the first television station’s broadcast here in Baltimore. When he retired he went after his true calling: He learned how to be a chef. He’s a great chef.

What drew you to the law?

A lot of folks, who are lawyers of my generation, were just enthralled with Atticus Finch. He just seemed to me the epitome of what is right and gracious in the world. And over the years I’ve come in contact with some extraordinary lawyers and people, who cultivated,  and helped me cultivate, that interest: Al Brault, Arnold Weiner, Peter Angelos, Don DeVries, Russell Smouse – all students of the law, passionate about handling cases and matters in the right way. They are very detailed, hardworking lawyers who don’t leave a stone unturned. But the most important thing is their respect for the law. It means they also respect the institutions and the litigants. You run across too many lawyers who either don’t respect the institutions or the other litigants.

How did you cross paths with these men?

In a variety of ways. When I was counsel to the governor, I sat on the Maryland rules and procedures committee, and Al [Brault] was involved with that. Many years later, Al was gracious enough to serve as an expert in one of my cases. We’ve had cases against one another from time to time. But most importantly, he was involved in our case with a major cable carrier a time when we were trying to get carriage for the Mid-Atlantic Sports Network.

Don DeVries was my mentor when I first came out of law school, at the law firm I was at: Semmes, Bowen & Semmes. Terrific lawyer.

Arnold Weiner, interestingly enough, was a law professor of mine when I was in law school – that’s how I first met him. He was my trial practice professor. He was a very talented and well-respected lawyer then and more so now.

And you graduated from the University of Maryland law school in…?

In ’82. I was in private practice from ’82 through ’84 at Semmes, and in 1984 I was appointed by the great Mickey Steinberg, who was then the president of the Maryland Senate, to the position of counsel and legislative assistant to the Senate president. I had known [Steinberg] for a while, and had actually interned for him many years earlier when he was a senator on the Judicial Proceedings Committee; and when he was appointed Senate president and the appointing arose for a counsel and legislative assistant he asked if I would take that position. I discussed it with my wife. It represented a 50 percent pay cut.

I was wondering about that.

My wife, to her everlasting credit, said to me that it was a once-in-a-lifetime opportunity, and we’ll get by. And we did. It was probably the best decision a young lawyer could make. It was an enormous opportunity. The exposure was almost irreplaceable.

And from that exposure, when Mickey Steinberg was chosen to be the running mate for then-Mayor William Donald Schaefer when Schaefer decided to run for governor, I had the opportunity to meet the soon-to-be governor. When he won the election and needed to appoint a chief counsel and legislative officer, he asked if I would take the position.

Why did Steinberg choose you in ’84?

You know, I never asked Mickey why. I’m almost afraid to ask him. I’m rather glad that I don’t know and delighted that whatever dark moment came upon him to make that decision, he made it.

Any legislation you aided – either with Steinberg or Schaefer – that you think about now?

The first year the governor was in office, we handled the twin stadium bills, the actual funding and authorization for Oriole Park at Camden Yards and the Camden Yards project. It was landmark at the time to consider that a state government would have the vision to create not one, but two stadia – one designated for baseball and one for professional football – in an urban environment, rather than what had been historically done at that time, which was to place sports facilities in suburbia, causing more traffic and congestion and certainly not invigorating and energizing the urban landscape. It came down to a filibuster in the Maryland Senate.

Edward Bennett Williams – I should have put him on that list [of mentors] – was the owner of the Orioles at the time, and had vowed not to get involved in the day-to-day politics of whether or not the state was going to build or fund a new stadium. He didn’t want to come across as [Baltimore Colts owner] Robert Irsay, or anyone like Robert Irsay, who had threatened the city, and then when his threats went unattended to, pulled up stakes and left. [But] the legislature wanted to hear directly from Williams. And in the end, they were not going to hold a hearing on the legislation unless Williams agreed to come and testify. So it looked like it was going to fail.

Three weeks before the end of the legislative season, Gov. Schaefer, at a press conference, announced that Edward Bennet Williams had agreed to testify and promote the stadium. As soon as that press conference was over, I went back into the governor’s office, and I said, “Governor, that’s terrific news. How did you convince Mr. Williams to testify?” And he looked me straight in the eye and said, “He doesn’t know anything about it. Call him.”

(Laughs.)

So I went back into my office and I called Mr. Williams, who, by that point of the year, was in Florida, attending spring training with the club. He was out on the field and unable to take the call. He did call back, several hours later, and to my good fortune I’m not the guy who picked up the phone; my deputy attorney, David Iannucci, was on the unfortunate receiving end of that elongated blast. To this day I’m not sure if David’s ever recovered.

Did being counsel to the Maryland Senate help when you became counsel to the governor – since executive and legislative branches are often at odds?

It was helpful to me. [But] you do pine away for the inside knowledge of the close quarters of the decision-making in the legislative arena when you’re in the executive branch.

Really?

Yes. It’s a very exciting thing to be involved in the actual dynamic of making law. Then again, it was fascinating to see someone like Gov. Schaefer, who is well-regarded and well-known, here and around the country, and watch how his mind worked to invigorate and empower his cabinet to be creative. His cabinet meetings were always a remarkable event. He would say at just about every one of them that we have no time to waste; we need to be creative now. That’s a perspective that most folks never see.

Any thoughts about Gov. Schaefer’s recent controversies?

Well, controversy generally follows creativity in public policy. When you look at things differently and you address them in different ways, you do so with an eye toward changing the perspective that may have been the present understanding.

You’ve been involved in a lot of cases and projects that take years to come to fruition, but you seem to have the temperament for this. Even the way you talk is measured and specific, as if you’re getting ready for a long race.

We have an expression here at the firm, which is well-used: “One of these days, we’re going to do the same thing twice. But this is not that day.”

-Interview conducted and edited by Erik Lundegaard

By Charles S. Fax, Litigation News Associate Editor

Judges often reach differing conclusions in the same case, as attested by the frequency of minority opinions. Still, it can be unsettling to the practitioner when the same facts and legal issues produce opposite results in straightforward cases where the law should be clear. It is even more disturbing when the ruling concerns an attorney’s inadvertent waiver of the attorney-client privilege. Two opinions in neighboring jurisdictions, one by the Maryland Court of Special Appeals and one by the U.S. District Court for the District of Columbia, illustrate this problem and give notice to the bar to tread carefully in an area where judicial opinion is divided, as the consequences of a misstep can be draconian.

In Gallagher, Evelius & Jones, LLP v. Joppa Drive-Thru, Inc., Maryland’s intermediate court of appeals reviewed an order issued by the Circuit Court for Baltimore County granting a motion to compel production of documents by a non-party, a prominent Baltimore law firm, Gallagher, Evelius & Jones. The firm had previously represented the plaintiff in the underlying corporate transaction giving rise to the suit, but was not counsel in the litigation. The defendant issued a subpoena for certain documents in the law firm’s files, contending that they would support defendant’s theory of the case. The law firm objected to portions of the subpoena on the basis of attorney-client privilege. The firm produced non-privileged documents together with a 40-page privilege log listing each document withheld from production and the basis for the withholding. The defendant’s subsequent motion to compel asserted that the law firm’s alleged prior joint representation of both parties to the suit vitiated any claim of privilege.

The circuit court ignored that issue in granting the motion, basing its decision
22 I ABA SECTION OF LITIGATION
on the fact that the law firm’s opposition memorandum was improperly formatted. In its memorandum, the firm generalized about the existence of privilege but did not provide specificity as to the particular rationale for withholding each document. The court viewed the accompanying privilege log, detailed though it may have been, as insufficient to fulfill that function. Rather, the basis for withholding each
document should have been set forth in the opposition, separately aligned with each request and objection so that “the judge hard] only two papers to review,” the motion and the opposition.

The appellate court affirmed the lower court without ruling on the merits of its analysis, holding simply that trial courts have broad discretion in ruling on discovery matters and that absent an abuse of discretion-which did not occur here-the appellate court wouId not consider the matter.
On similar facts, a decidedly different result was reached by U.S. Magistrate Judge John Facciola in Andrea Davis v. Grant Park Nursing Home, decided three days before Gallagher. Defendants asserted attorney-client privilege in response to a document production request and submitted their privilege log as substantiation. Judge Facciola observed that the log was wholly inadequate for its intended purpose, providing “no information whatsoever about the nature of the document(s)” and the circumstances of their creation that would support a claim of privilege. The court noted that case law would support a finding that “the assertion of the privilege in these logs [is] so woefully deficient that I could deem the privilege waived.” Rather than reach that result, however, the court, believing that the deficiencies could be remedied, ordered the defendants to try again, accompanying its directive with detailed instructions on how to prepare a proper index of privileged documents amenable to judicial scrutiny to ascertain whether the privilege applied.

The reasonableness of Judge Facciola’s measured approach seems self-evident in light of the absence of prejudice and the possible serious adverse consequences for counsel found to have improperly waived their client’s privilege. When applied to the Maryland case, a “second bite at the apple” would appear even more judicious given that the offending respondent was not even a party to the suit. Still, on its face, the Maryland case was not wrongly decided, and as there was no appeal to Maryland’s highest appellate tribunal, it stands as good law.

Where does that leave practitioners? They are reminded that very close scrutiny must be given to the forum’s requirements and predilections for formatting an opposition that asserts privilege in response to a motion to compel. What may be tolerated in one forum-in this case, the federal court in the District of Columbia-may create exposure only a few miles up the road, in Maryland. Caveat defensor.

Editor’s Note: This column contains the views ofthe author and not necessarily those of the ABA or Section of Litigation. Litigation News hopes this column will spark interest and debate. We welcome your comments and viewpoints on this issue.

RESOURCES
I Gallagher Evelius & Jones, LLP v. Joppa DriveThru, Inc., 7 A.3d 160 (Md. Ct. Spec. App. 2010).
~ A copy of the decision by the U.S. District Court for the District of Columbia in Andrea Davis v. Grant Park Nursing Home is available at http://apps.americanbar.org/litigation/ litigationnews/civil_procedure/docs/grant_ park.pdf.

On May 6, 2011, the Fourth Circuit federal court ruled in favor of our client in a groundbreaking sexual harassment decision. Lynette Harris, an electrician with the City of Baltimore, sued the city for sexual harassment and discrimination after being subjected to a hostile work environment with sexually explicit pictures and offensive language.  Rifkin, Livingston, Levitan and Silver LLC’s (RLLS) partner, Joyce Smithey, briefed and argued the case, joined by twenty-four amicus supporters, including the American Civil Liberties Union, Anti-Defamation League, National Women’s Law Center, and the National Employment Lawyers’ Association. The Fourth Circuit found that the federal district court erred when it sided with the employer, the City of Baltimore. The Fourth Circuit was persuaded that Ms. Harris presented sufficient evident of sexual harassment.

“Ms. Smithey’s advocacy allowed the Fourth Circuit to understand the sound basis for remand.  We are proud to have played a role in a decision that advances such important personal and civil rights,” said Alan M. Rifkin, the firm’s managing partner.

The case now proceeds to a trial at the U.S. District Court where a jury will be able to decide if the actions of Baltimore City’s employees toward Ms. Harris will result in damages being awarded to her. No schedule has been set for those trial proceedings.

View Court’s full opinion here

Alan Rifkin and Mike Berman address the media after Court of Appeals decision. - Courtesy of the Daily Record

Just hours after hearing our oral arguments in the case of Marylanders to Stop Slots At the at the Mall et al. v. PPE Casino Resorts Maryland et al., the Maryland Court of Appeals issued a ruling supporting the contention of local petition gatherers that the people of Anne Arundel County, Maryland have the right to approve or reject a local zoning ordinance at the general election in November of 2010. The Maryland Court of Appeals is Maryland’s highest court.
In representing the prevailing party in this important election case, one of the most significant in decades, Rifkin, Livingston, Levitan & Silver lawyers Alan M. Rifkin, Michael D. Berman and M. Celeste Bruce successfully contended that the rights of local citizens to petition to referendum local zoning ordinances was not pre-empted – but indeed preserved – by the enactment of a constitutional amendment authorizing slot machines in Maryland.
“We’re pleased and grateful [for] the court’s decision, which correctly enforced the rights that were provided to citizens when they adopted the slots constitutional amendment,” said the firm’s managing partner Alan M. Rifkin. “The right to referendum is perhaps the most basic right in this country. It goes to the very core of our democracy and today it was preserved, protected and ensured by the Court of Appeals.”
Michael D. Berman noted that the right to referendum was a “critical check and balance”.
“Invalidating the people’s right to referendum would only serve to erode confidence in the government,” Berman said.

In a statement issued by Maryland Governor Martin O’Malley, he agreed with the Court’s decision saying “Today, the Maryland Court of Appeals affirmed the right of Anne Arundel County to have their voices heard on whether slots should be located at Arundel Mills Shopping Mall. And, I support that decision”, O’Malley said. “I have always preferred that the slot locations be limited to race tracks, but this is a local zoning issue that should be decided by the people of Anne Arundel County, just as Marylanders overwhelmingly approved the slots referendum in 2008.”