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.”

EMPLOYMENT LAW LEGISLATIVE UPDATE

Maryland passed the Job Applicant Fairness Act in the 2011 Session, a law of particular importance to Maryland employers. The impact of the new law will depend upon an employer’s particular policies and practices. The new law restricts the use of credit reports and credit history information by covered employers unless certain specified conditions are satisfied. The Act generally prohibits covered employers from using an applicant’s or employee’s credit report or credit history when denying employment to an applicant, discharging an employee, or determining compensation or the terms, conditions, or privileges of employment. However, the employer may request or use the restricted information if the covered employer has a “bona fide purpose” that is “substantially job-related” for using the information, and discloses that purpose in writing to the applicant or employee.

If you would like assistance in updating your policies and procedures to meet the new legal requirements, or if you are interested in training your management and human resources professionals on the new law, please contact Joyce Smithey at (410) 269-5066.

photo by J.M. Giordano

In the spring of 1984, Baltimore Circuit Court Judge Edgar Silver got a call from Clarence M. Mitchell Jr., iconic chief lobbyist for the NAACP. Could we talk some time today? Mitchell asked.

They met almost furtively on the street near the courthouse and Mitchell’s office in the Tremont Hotel. Mitchell wanted to discuss a matter of importance to Baltimore’s black community—a political matter, not something a judge should be involved with. Bishop Robinson, a black Baltimore cop, was in the running for police commissioner, the top job on the city force, and trying to get the attention of Mayor William Donald Schaefer. Could the judge help?

Silver said he thought the mayor was committed to the incumbent, Frank Battaglia. But Mitchell kept at him: He’d been told, he said, that the judge was close to Irvin Kovens, Mayor Schaefer’s chief fundraiser and political godfather.

Silver knew the growing black electorate of Baltimore had to be served. The kind of patronage consideration Mitchell was seeking was overdue. Silver said he would do what he could.

Several months later, the judge sat in an auditorium full of dignitaries waiting for Robinson’s investiture when someone beckoned him to the stage. Robinson, a tall and unsmiling man of military bearing, wanted Judge Silver to swear him in.

All but unknown outside political circles, Edgar Silver was for decades the “man to see” in Maryland politics. Using only his engaging personality and a well-tended constellation of friends, the low-profile jurist exerted a comparatively benign influence in patronage matters, rivaling that of the city’s rough-hewn political bosses. He was a put-together man, someone who could get the important parties moving together in the same direction.

Silver is now 85, but people within the political world of Maryland still call him by his first name, Edgar, or simply by his title. “You’ve got your Judge Smith or your Judge Murphy,” Kevin O’Keeffe, a lawyer who worked as a lobbyist for the city, tells me. “But there’s only one ‘The Judge.’”

Silver’s father was a tailor who immigrated from Austria; his Polish-born mother worked rolling cigars. He grew up poor. And political. Politics offered something he wanted: stature, the thrill of doing something important for people who might face the kind of need his family faced, and, perhaps, a taste of the power he saw around him.

He was raised in a mini Democratic clubhouse in the neighborhood around Auchentoroly Terrace near Druid Hill Park (7th precinct, 13th ward, 4th councilmanic district). He loved the subtle, inside game; the wink and the nod; the blue smoke and mirrors. It was to become his life. “It’s a great business,” he used to tell people of politics. “And you don’t have to have an inventory.”

Silver went through the political chairs, winning a seat in the House of Delegates in 1954 by defeating a score of others, including a youthful William Donald Schaefer. Soon after that election, Silver went to Kovens, who had been saying he needed a gentile to run in the southern part of the increasingly Jewish 5th councilmanic district in Northwest Baltimore. Take a look at this guy Schaefer, Silver told the usually scowling, cigar-smoking Kovens. Schaefer was clean-cut guy, a lawyer, an Army veteran—just what Kovens had been looking for. Kovens told Silver to send him around. Thus began a storied political career and the renaissance of a city.

Silver is a slight balding man, possessed of a mirthful smile suggesting an element of irony, or a recollection of how connections—his—made things happen. His circle of friends included luminaries from various power centers in the city: Peter Angelos, principal owner of the Orioles; Senate President Mike Miller; Cardinal William Keeler, now retired; and generations of political leaders. In the words of one of his admirers, Silver had a gift for “creating atmospheres”—putting the right man or woman together with a job or judgeship or issue.

The judge got a special thrill out of convincing a powerful leader that something that leader didn’t like had to happen anyway. For example: A four-term mayor, Schaefer never wanted to leave City Hall. But Kovens wanted him to run for governor in 1986—he didn’t think the cerebral Ben Cardin (now a U.S. Senator) could beat Maryland’s charismatic attorney general, Steve Sachs, another Democrat.

Silver is a slight balding man, possessed of a mirthful smile suggesting an element of irony, or a recollection of how connections—his—made things happen. His circle of friends included luminaries from various power centers in the city: Peter Angelos, principal owner of the Orioles; Senate President Mike Miller; Cardinal William Keeler, now retired; and generations of political leaders. In the words of one of his admirers, Silver had a gift for “creating atmospheres”—putting the right man or woman together with a job or judgeship or issue.

The judge got a special thrill out of convincing a powerful leader that something that leader didn’t like had to happen anyway. For example: A four-term mayor, Schaefer never wanted to leave City Hall. But Kovens wanted him to run for governor in 1986—he didn’t think the cerebral Ben Cardin (now a U.S. Senator) could beat Maryland’s charismatic attorney general, Steve Sachs, another Democrat.

Sachs, as U.S. Attorney, had made life miserable for some of Kovens’ friends. Still, Schaefer hesitated.

Enter Silver, a judge by then. He made all the arguments. But Schaefer demurred. Finally, Silver said: OK, don’t run. I’m sure you’ll have a great time as mayor with Steve Sachs as governor.

Schaefer spun around. What?

He knew, as Silver did, that political life was changing for him. There was a new rising star in city politics: Baltimore City State’s Attorney Kurt Schmoke. Schaefer had done well against black candidates before, but Schmoke—bright, Ivy League-educated, and well organized—was probably an irresistible force. Schaefer relented and agreed to enter the governor’s race.

A few months later, Maryland voters validated Silver’s gubernatorial choice. Baltimore got its first elected black mayor. The Judge had helped both men.

There were those judges—among them Silver’s superiors in the state’s court system—who looked askance at all these political activities. Silver was not a by-the-book sort of guy, but he’s famous for lecturing young lawyers on their responsibility to the law. “Be a lawyer first,” he tells them. Translation: Whatever else you’re doing, stay focused on the law.

At the same time, he thought that if sketchy people were in the way of a solution to some problem, he would deal with them. “He just thought it was better to be an insider than someone who was outside waving his fist,” Schmoke says today.

Judge John Glynn, a former people’s advocate at the Public Service Commission and now a circuit court judge, says he was attracted by Silver’s pragmatism. “I noticed that he was a guy who sought solutions that everyone could live with,” Glynn says. “It wasn’t just process with him. Edgar could work out almost anything. He was very good at it.”

Congressman Elijah Cummings says Silver was like a father to him: The judge helped Cummings perfect his lawyering skills and served as a sounding board when he thought of running for Congress. “We spent hours talking about it,” Cummings says. “He thought I should run. He knew people I did not know. It was very significant for me as an African American.”

These days, Silver doesn’t get to Annapolis as much as he used to. Maybe he’d make it for the final night this year, he tells me, but maybe not. Which does not mean he’s out of the game. He goes to his office in Towson every day, making and fielding calls until mid-afternoon, when he’s off to a physical therapy session. He had a pretty severe health challenge last year, but he’s back at the old stand.

Silver tells me about a young African American woman lawyer who wants to be a judge. He’s helping her, of course. He’s sure she has the right stuff.

“I told her ‘You’re the Michelle of Maryland,’” he says, referring to the new First Lady. Based on his track record, expect this candidate to have “your honor” added to her name in short order.

—C. Fraser Smith

Published with permission by The Urbanite Magazine. The full article can be found here .

Legislative Turnover This Election Year

It’s election year in Maryland. Each of the State’s Constitutional Officers and each member of the Maryland General Assembly must face a primary election in September and a general election in November. With the passing of last night’s 9:00 p.m. candidacy filing deadline, the fields are set.

Many Marylanders are focusing on the gubernatorial rematch of former Governor Robert Ehrlich (Republican) against incumbent Governor Martin O’Malley (Democrat). The other constitutional officers, Comptroller Peter Franchot and Attorney General Doug Gansler (uncontested), will likely be easily reelected.

In the General Assembly, the story is turnover. Over 10% of the 141 members of the House of Delegates will not seek reelection either due to retirement or because they are seeking a different office – many more face difficult reelection challengers. Over 25% of the 47 members of the State Senate are either retiring or facing potentially serious election challenges.

For example, Delegate Todd Schuler of Baltimore County will seek election as a councilman opting not to return to Annapolis. Similarly, Delegate Craig Rice of Montgomery County is running for an open county council seat, Delegate Gerron Levi of Prince George’s will seek election as county executive, and Delegate Herman Taylor of Montgomery County is running for Congress. Other delegates are making State Senate runs, including Delegates James Mathias of the Eastern Shore, Victor Ramirez and Joanne Benson of Prince George’s County, Chris Shank of Washington County, J.B., Jennings of Baltimore and Harford and Saqib Ali and Roger Manno of Montgomery County.

Senators Larry Haines of Carroll County, Lowell Stoltzfus of the Eastern Shore, and Andrew Harris of Baltimore County will not return to the State Senate; Senator Harris is running for Congress and Senators Haines and Stoltzfus are retiring. Also retiring are Delegates Tanya Shewell of Carroll County, Carolyn Krysiak of Baltimore City, Murray Levy of Charles County, Sue Hecht and Joseph Bartlett of Frederick County, Henry Heller and William Bronrott of Montgomery County. Delegate Page Elmore of the Eastern Shore departs with honor after valiantly fighting cancer.

We will continue to watch the races. Please do not hesitate to call us if you think we can be of assistance.

The Honorable Ann Marie Doory has been appointed to the Maryland State Board of Contract Appeals. MORE>

Procurement-Related Bills signed by the Governor: Selected legislation relating to procurement passed during the 2010 legislative Session, and signed by the Governor into law. Please note the varying effective dates.

General Obligation Bonds for Capital Projects – Required Reports MORE>

Procurement – Minority Business Enterprises – Certification Process MORE>

State Procurement – Minority Business Enterprises – Electronic Certification Process MORE>

Procurement – Small Business Reserve Program – Sunset Extension MORE>

Procurement – Veteran-Owned Business Enterprise Participation MORE>

Public-Private Partnerships – Oversight MORE>

Task Force on the Minority Business Enterprise Program and Equity Investment Capital MORE>

Procurement – Minority Business Enterprises – Review of Application for Certification and Notice to Applicant MORE>

Green Maryland Act of 2010 MORE>

Procurement – Multi-Year Contracts for Renewable Energy – Termination Clauses MORE>

Procurement – Minority Business Enterprise Program – Report MORE>

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Sovereign Immunity Does Not Insulate School Board for Legal Responsibility On Contract Claims. School Boards cannot hide behind sovereign immunity. MORE>

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Governor Appoints New Member to the Maryland State Board of Contract Appeals (MSBCA).

The Honorable Ann Marie Doory has been appointed to the Maryland State Board of Contract Appeals. She will fill the seat left by Michael Burns, whose term expired. The Board consists of three members, appointed by the Governor to five-year terms with Senate advice and consent. The Governor also names the chair.

Delegate Doory has been a member of the Maryland House of Delegates since 1987. She is the Vice Chair of the Ways and Means Committee and prior to that she was Vice Chair of the Judiciary Committee and the Economic Matters Committee. She is also a member of the Rules and Executive Nominations Committee and a member of the Spending Affordability Committee. Delegate Doory also is a member of the National Conference of State Legislatures (law and criminal justice committee), the Advisory Committee for the University of Baltimore School of Law, and various other civic associations. She attended St. Mary’s Academy in Leonardtown, and received her Bachelor of Arts in Political Science from Towson University in 1976. She received her J.D. from the University of Baltimore School of Law in 1979. She is a resident of Baltimore City.

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Recent Procurement-Related Bills Signed By The Governor:

Below is a list of selected legislation relating to procurement passed during the 2010 legislative Session, and signed by the Governor into law. Please note the varying effective dates.

HB 209 (Chapter 398) General Obligation Bonds for Capital Projects – Required Reports

This bill requires any hospital or institution of higher learning (1) not already subject to the State’s Minority Business Enterprise (MBE) program’s reporting requirement and (2) that receives at least $500,000 for a capital project from the sale of State general obligation (GO) bonds to submit a report to the Governor’s Office of Minority Affairs (GOMA) by December 31 of each year that such GO bond funds are received and the following year. The report must detail the extent to which the recipient has used, or will use, any part of the State funds it receives for a capital project for contracts with MBE firms or for MBE outreach efforts. By July 1 of each year, GOMA must report to specified committees of the General Assembly on the information contained in those reports.

This bill takes effect October 1, 2010 and will remain effective for 3 years – terminating September 30, 2013.

HB 250 (Chapter 230)/SB 130 (Chapter 229) Procurement – Minority Business Enterprises – Certification Process

This bill requires that regulations governing the State’s Minority Business Enterprise (MBE) program include provisions that promote and facilitate certification of MBEs certified by the U.S. Small Business Administration (SBA) or a county that uses a certification process that is substantially similar to the process used by the Maryland Department of Transportation (MDOT). The Board of Public Works (BPW) must report annually on the number and identity of MBEs certified through that process.

This bill takes effect October 1, 2010

HB 251 (Chapter 232)/SB 131 (Chapter 231) State Procurement – Minority Business Enterprises – Electronic Certification Process

This bill requires the Board of Public Works to include in regulations governing the State’s Minority Business Enterprise (MBE) program provisions that promote and facilitate the electronic submission of some or all of an application seeking certification as an MBE.

This bill takes effect October 1, 2010

SB 71 (Chapter 22) Procurement – Small Business Reserve Program – Sunset Extension

This departmental bill reauthorizes the Small Business Reserve (SBR) program for six years, until September 30, 2016.

This bill takes effect July 1, 2010

Bills awaiting signature by the Governor:

HB 359/SB 171 Procurement – Veteran-Owned Business Enterprise Participation

These bills establish a procurement preference program in which, beginning July 1, 2012, each State entity tries to award 0.5% of the value of its procurement contracts to businesses owned and operated by service-disabled veterans.

This bill takes effect October 1, 2010

HB 1370/SB 979 Public-Private Partnerships – Oversight

This bill defines a “public-private partnership” (P3) and establishes a framework of P3 reporting requirements and oversight procedures for State entities. The bill establishes a Joint Legislative and Executive Commission on Oversight of Public-Private Partnerships. The Maryland Department of Transportation (MDOT), Department of General Services (DGS), and Department of Legislative Services (DLS) must provide staff support for the commission. The commission must submit a concluding report by December 1, 2011, providing findings and recommendations to the Governor and the General Assembly.

The bill takes effect June 1, 2010, and provisions concerning the commission terminate June 30, 2012.

SB 2/HB 222 Task Force on the Minority Business Enterprise Program and Equity Investment Capital

This bill establishes a Task Force on the Minority Business Enterprise (MBE) Program and Equity Investment Capital, jointly staffed by the Department of General Services (DGS) and the Maryland Department of Transportation (MDOT). The task force must report its recommendations to the Governor and the General Assembly and develop draft legislation by December 1, 2010.

The bill takes effect June 1, 2010, and terminates May 31, 2011

SB 546/HB 923 Procurement – Minority Business Enterprises – Review of Application for Certification and Notice to Applicant

These bills require the Board of Public Works (BPW) to develop regulations requiring that the Maryland Department of Transportation (MDOT) complete its review of an application for minority business enterprise (MBE) certification and notify the applicant within 90 days of receiving a complete application. The regulations must also authorize MDOT to extend only once the notification requirement by not more than 60 days after providing the applicant with a written notice and explanation of the extension.

These bills take effect October 1, 2010

SB 693/HB 1164 Green Maryland Act of 2010

This bill promotes the use of environmentally preferable purchasing throughout State government through a variety of study and reporting requirements and the establishment of the Maryland Green Purchasing Committee. It also increases the percentage of paper bought by the Department of General Services (DGS) that must be recycled from 40% to 90%.

These bills take effect October 1, 2010

SB 791 Procurement – Multi-Year Contracts for Renewable Energy – Termination Clauses

This bill authorizes the Board of Public Works (BPW), on the recommendation of the Secretary of General Services, to waive the requirement for a mandatory termination clause for a multi-year State contract to procure Tier 1 or Tier 2 renewable energy for the State. In determining whether to grant a waiver, BPW must consider the effects of its decision on the ability of the energy vendor to obtain financing for the renewable energy generation project.

This bill takes effect October 1, 2010

SB 849 Procurement – Minority Business Enterprise Program – Report

This bill requires that the minority business enterprise (MBE) directory maintained by the Maryland Department of Transportation (MDOT) provide, for each MBE in the directory, a list of contracts awarded to that MBE and a description of each contract. It also requires that annual reports submitted by each State procurement unit to the Governor’s Office of Minority Affairs (GOMA) include the number and names of certified MBEs that participated as prime contractors or as subcontractors on procurement contracts awarded by the unit.

This bill takes effect October 1, 2010

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Sovereign Immunity Does Not Insulate School Board for Legal Responsibility On Contract Claims.

The Maryland Court of Special Appeals (“COSA”) issued a reported opinion, which affects contractors who do business with school boards in the State of Maryland.

The school board of Worcester County (“Board”) awarded a contract to perform the sitework portion of the construction of a new elementary school in Ocean City. The project was scheduled to be completed in December 2005 but because of delays, the contractor completed the sitework in May 2006.

Upon completion of the sitework, disputes arose regarding the amounts owed to the contractor. The contractor filed a suit in Circuit Court seeking $1,157,000. Of that amount, the contractor claimed that the Board owed it $361,000 under the contract and the remaining amounts were for proposed change orders (“PCOs). The contractor also alleged delay damages. The Board initially filed an Answer generally denying the Complaint, but later, after discovery, filed amended answers claiming recoupment and sovereign immunity. In its Amended Answer, the Board alleged that the contract precluded the contractor from claiming delay damages against the Board.

There was a trial on the merits and the parties concluded the trial by explaining their positions on the amounts the Board owed. The contractor alleged it was owed $540,000 under the contract and $795,000 for PCOs — minus a credit of $120,000 for work that was removed. The Board claimed it was entitled to a recoupment of $505,487 for work that the contractor never performed. Further, the Board concluded that the contractor was only entitled to $1,961,913, for agreed upon PCOs.

The Circuit Court judge made a “compromise” decision. The judge entered a judgment of $1,100,000 in favor of the contractor without further explanation. The Board filed an appeal to COSA. On appeal, the Board claimed that the doctrine of sovereign immunity barred it from paying any judgment over $100,000, or the limits of its surety.

The COSA interpreted a “no-damages-for-delay” clause, which provided: “Extension of time shall be Contractor’s sole remedy for delay.” This provision, according to the COSA, precluded delay damages. The contractor contended that the damages it claimed were not delay damages. Instead, they could be attributed to other things, such as changed conditions, differing site conditions, etc. COSA determined that those arguments were factual arguments but that the Circuit Court did not find any facts in this regard. These trial level flaws, in addition to the fact that COSA could not determine what the trial court’s judgment was based on, were reasons to remand the case back to the Circuit Court.

Practice Suggestion: Contractors should be aware of contract provisions that bar delay damages. If damages can be classified another way, contractors should ensure that those arguments are documented in the event of dispute.

New sites will put lawyers closer to county government, judicial centers

Alan Rifkin managing partner of Livingston, Levitan & Silver LLC, announced the firm has opened a new office in Bethesda and is moving its Prince George’s County operations from Greenbelt to the county seat of Upper Marlboro.
The expansion to Montgomery County and specifically the Washington, D.C., metropolitan area has been planned for a long time, said Rifkin.
“We’ve seen our transactional litigation business in the Washington metro region just grow exponentially,” Rifkin said.
That is especially true of the firm’s commercial litigation business, he said.
In addition to Bethesda and Upper Marlboro, the firm has offices in Annapolis and Towson, the county seat of Baltimore County.
The new locations will put the firm closer to government and judicial centers in Montgomery and Prince George’s counties and strengthen a connection between clients in Baltimore and the District that has grown substantially over the years, Rifkin said.
“From our perspective, there are enormous synergies,” he said. “Most of the businesses that we represent have a presence in both the Baltimore and Washington metropolitan areas.”
The firm has practices focusing on administrative matters, business and transactions, commercial litigation, complex civil matters, employment law, government relations, personal injury and medical malpractice, procurement law, state and local government contracting, sports franchise law and real estate and zoning law.
Clients include the Baltimore Orioles, Columbia Country Club, Faison Retail Development, the Mid-Atlantic Sports Network and the Preakness Stakes.
The firm will look to add three to five attorneys in the Bethesda office, which will specialize in real estate zoning and litigation, Rifkin said.
At 7979 Old Georgetown Road, the Bethesda office will be home to 25 employees, including about 12 attorneys. Among them will be firm partner and former state Sen. Laurence Levitan, firm partner and procurement lawyer Scott Livingston, litigation department head M. Celeste Bruce and Charles S. Fax, a litigation lawyer and the author of legal texts and columns for various legal publications.
Levitan, a Democrat, served Montgomery County’s District 15 in the House of Delegates from 1971 to 1974 and in the Senate from 1975 to 1994, including 15 years as chairman of the Senate Budget and Taxation Committee.
Lobbying remains about 20 percent of the firm’s business, Rifkin said.
The firm claimed the top earnings spot among lobbyists during the year-long period from Nov. 1, 2008, to Oct. 31, 2009, reporting $4,148,321 in compensation, according to the State Ethics Commission. Joel D. Rozner and Michael V. Johansen, both veterans of the Rifkin firm, claimed the first and third spots on the list, respectively.
Rozner reported $1,287,174 in earnings; Johansen reported $1,126,002 in earnings. Gary R. Alexander of Alexander & Cleaver ranked second, with $1,146,963 in earnings.
The firm’s lobbying clients include AOL, Children’s National Medical Center, Hertz and Avis car rental companies, the Maryland Jockey Club, the Maryland Automobile Dealers Association and Fed Ex.