Author: JGL Law

The controversy over what Wal-Mart employees are required to wear to work drew comments from JGL’s Brian Markovitz recently. The Forbes article titled How Walmart’s ‘Dress Code’ Costs Employees, reported on the new Wal-Mart clothing mandate that requires employees to dress in specific colors and types of clothing. Responding to the distinction between a “dress code” and a “uniform, Markovitz clarified the legal implications in Wal-Mart’s language use. 

Citing the U.S. Department of Labor, Markovitz explains how the financial burden of the new clothing mandate lies with the employee rather than the employer. Since the clothing requirements fall in line with a dress code rather than a uniform, employees are expected to cover the cost of the apparel.

As a principal at Joseph Greenwald & Laake, Brian Markovitz focuses on Labor and Employment, Civil Litigation and the firm’s Whistleblower group.

The divorce rate in America is on the rise again now that the economy and housing market is recovering. With as many as 50% of first marriages ending in divorce, you probably know someone who has gone through a divorce.

Here are five things even your closest friends probably won’t share with you about preparing for life after divorce:

1. It will be hard not to bad-mouth your spouse to the kids:  But you should try really, really hard not to do it.  Despite the headache and heartache your spouse has caused you, your kids still love and need both of their parents.  Bad-mouthing your spouse may end up alienating your kids from you, and you certainly don’t want that.  Make a conscious effort to put up a united front and make sure your kids know it’s ok for them to love you both.

2. Not seeing your kids every day will be a HUGE adjustment:  Getting used to a time-sharing schedule is a huge adjustment for everyone.  You, your spouse, and your kids are all used to seeing each other each day and the first time you have to go to bed in an empty house will feel awful but you will get used to it.  With time everyone will get used to the “new normal.”

3. It will get better:  When you are in the thick of a divorce, your emotions may be all over the place.  You will have anxiety about court proceedings, money, what others will say, how to make your kids happy, and more.  You may feel like you just can’t keep going but you can and you will.  Healing takes time so be patient and trust that you can get through it.

4. You may lose friends:  It is very difficult for mutual friends to deal with your divorce and some will feel they have to choose a side.  You and your spouse may both be surprised to see who aligns with whom.  It’s ok. You can’t dwell on it.  Focus on keeping people close to you who can support you when you need them, regardless of your divorce.

5. You will date again.  In the beginning you may feel like you will never find anyone else and the thought of meeting someone and going out on a date may be unthinkable.  But eventually, you will not feel so weird about dating and you will actually be open to it and you will have fun.  When the timing is right, let it happen naturally and don’t force it.

The world of divorce can be a difficult one to navigate, but keeping these five things in mind can certainly make the process easier.

One of the most explosive issues in sports right now is the NFL’s discipline of its players.  Discipline has been inconsistent, the NFL is accused of seriously mishandling cases, and there is public outcry about some players’ conduct.  The two-game suspension, and subsequent indefinite suspension, of former Ravens’ running back Ray Rice is reflective of many of the broken parts of this process.

Although the process may be broken in many respects, and despite Rice’s reprehensible conduct, he still has rights.  The commissioner of the NFL has twice suspended Rice for the same conduct.  This is impermissible under governing NFL rules and the labor law principles of “industrial due process” and “industrial double jeopardy.”

The Domestic Violence, Arrest, and Release of the Video.

On February 15, 2014, Ray Rice and his then-fiancée were arrested for domestic violence at the Revel Casino in Atlantic City.[1]  The police report indicated that Mr. Rice committed an assault by attempting to cause her bodily injury – “specifically by striking her with his hand, rendering her unconscious, at the Revel Casino.”[2]  TMZ obtained what is the now notorious video footage of Rice dragging his unconscious fiancée out of the elevator in which the attack occurred.[3]  Rice met with NFL Commissioner Roger Goodell on June 16, 2014 and, on July 24, 2014, Goodell announced that Rice would be disciplined with a two-game suspension without pay, including a fine for one game check from last season.  Rice’s total discipline for the domestic violence incident was a two game suspension and loss of $529,411.24.[4]

Criticism of the Discipline and Release of the Second Video.

The discipline Goodell imposed on Rice was widely criticized as being too lenient.  A Time magazine article referred to the criticism of Goodell as “intense.”[5]  An ESPN SportsNation poll indicated that 65% of respondents believed that Ray Rice’s suspension was too lenient, 30% believed it was appropriate, and 5% believed it was too harsh.[6]  Well-known sports and political commentator Keith Olbermann sharply decried “sports sexism” as being the reason the NFL suspended Rice for a mere two games.[7]  A group of three U.S. Senators wrote a letter to Goodell and the Ravens demanding a tougher penalty and accusing them of having “a disturbingly lenient, even cavalier attitude towards violence against women.”[8]  Goodell, however, defended his punishment, pointing towards Rice’s lack of prior offenses and strong background in the community.[9]

Although the light suspension was criticized, a suspension of that length was not unprecedented.  At least one journalist pointed out that “if Goodell had suspended Rice for eight games or the entire season, it would be difficult to see that punishment sticking.”[10]  “Rice would have undoubtedly appealed a harsher suspension because no first-time offender of domestic violence has ever received such a punishment. He could cite two former Ravens, Fabian Washington and Cary Williams, who were suspended a combined three games after being charged with domestic violence. Rice could point to the discipline handed out to wide receiver Brandon Marshall in 2008, when the Denver Broncos wide receiver was suspended only three games (later reduced to one) after multiple domestic disputes.”[11]

Then everything changed.  On September 8, 2014 TMZ published the video of Ray Rice violently punching his then-fiancée, rendering her unconscious.[12]  After that video was released, some NFL players reacted swiftly and were critical of the league and Rice.[13]  The Ravens terminated Rice’s contract that same day.[14]  Also, Goodell handed out a new punishment to Rice, increasing the discipline from a two-game suspension to an indefinite suspension, the NFL stating it was based on “new evidence.”[15]

The Appeal.

The National Football League Players Association (“NFLPA”) appealed the indefinite suspension the evening of September 16, 2014.[16]  The NFLPA released a statement stating that “’[u]nder governing labor law…an employee cannot be punished twice for the same action when all of the relevant facts were available to the employer at the time of the first punishment.’”[17]  The NFLPA is correct and this principle is an ironclad argument here.

The NFL Constitution affords the commissioner broad disciplinary authority over players, including for “conduct detrimental to the welfare of the League or professional football.”  NFL Constitution, Article VIII, § 8.13(A).  Article 46, § 1 of the Collective Bargaining Agreement also makes clear that the commissioner may issue fines or suspensions for conduct on the playing field or “conduct detrimental to the integrity of, or public confidence in, the game of professional football.”  The CBA does contain a “one penalty” provision but that provision only forbids double punishment by the league and the team. Art. 46, § 4.  It is silent as to a double penalty by the commissioner alone.[18]

Some have suggested that Rice may, perhaps, be punished twice by the NFL because there is no explicit prohibition against double jeopardy.[19]  Others have suggested that Rice is not entitled to due process because the NFL is not a government entity.[20]  At least one commentator has correctly stated that the “the NFL Constitution should be read only to allow penalties to be lessened in severity, not increased” – but for the wrong reasons.[21]

Neither the NFL Constitution nor the CBA contain an explicit provision either permitting or prohibiting an increase in discipline.This is a somewhat surprising instance of either poor drafting or intentional vagueness.[22]The NFL Constitution discusses altering imposed discipline as follows, “The Commissioner shall have authority to change, reduce, modify, remit, or suspend any fine, suspension, or other discipline imposed by the Commissioner and not requiring approval of the member clubs.” NFL Constitution, Article VIII, § 8.13(E).

As can be seen, there is express authority to reduce imposed discipline but there is no explicit authority to increase discipline.  In contrast, the argument that the commissioner has the power to increase imposed discipline relies on considerably vaguer terms: “change” and “modify.”[23]  As a matter of simple intuition and reasonableness, the NFL clearly knew how to be specific in drafting its constitution, stating that the commissioner may “reduce” discipline.  If it wanted to reserve the authority to increase discipline, it very well could have, and should have, specifically stated that the commissioner retains the authority to “increase” discipline as well.  It did not.  For these reasons alone common sense dictates that the commissioner has no such authority.

This is also supported by basic principles of textual interpretation.  It is an old, and rather intuitive, maxim that surrounding words explain or amplify those it surrounds.  This concept was expressed in the legal maxim noscitur a sociis: “it is known from its associates,” or “associated words bear on another’s meaning.”  Reading Law: The Interpretation of Legal Texts 195 (Scalia & Garner 2012).  Supreme Court Justice Antonin Scalia and Bryan Garner explain that “[w]hen several nouns or verbs or adjectives or adverbs – any words – are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar.  The canon especially holds that ‘words grouped in a list should be given related meanings.’”  Id.

Applying this longstanding principle to the NFL Constitution, Article VII, Section 8.13(E) provides that the Commissioner may “change, reduce, modify, remit, or suspend” any discipline.  Three of those options, “reduce,”[24] “remit,”[25] and “suspend,”[26] all afford the commissioner the power to alter the discipline imposed upon the disciplined player without an increase to the previously-imposed discipline.  To “change”[27] or “modify”[28] are vaguer terms which require context to bring them to life.  Here, given that the power to “change” or “modify” the discipline is in the context of reducing, remitting, or suspending disciplinary action, changing or modifying the discipline should be similarly construed.  In fact, this is further supported by the use of the term “modify.”  The Oxford Dictionary’s top definition for “modify” is to “[m]ake partial or minor changes to (something), typically so as to improve it or to make it less extreme.”  Black’s Law Dictionary’s secondary definition of modify likewise states that it is “[a] qualification or limitation of something.”[29]

Therefore, common sense and basic principles of textual construction make clear that the commissioner has no power to increase discipline after final discipline is imposed.

Finally, to the extent there could be any doubt as to the impermissibility of punishing Rice twice for the same offense, established principles of labor law preclude it.  There is an established family of concepts referred to as “industrial due process.”[30]  These concepts are “implicit in the labor contract.”[31]  Importantly, “industrial double jeopardy enshrines the idea that an employee should not be penalized twice for the same infraction.”  Zayas v. Bacardi Corp., 524 F.3d 65, 69 (1st Cir. 2008) (emphasis added).[32]  Commissioner Goodell initially suspended Ray Rice two games for domestic violence on July 24, 2014.[33]  On September 8, 2014 the commissioner suspended Rice for the same offense and same conduct.  The only change was TMZ’s apparent purchase and release of the video showing the conduct that the NFL already knew occurred and major public backlash.  This is prohibited under the doctrine of industrial double jeopardy.

It is clear that the NFL’s second suspension of Ray Rice finds no support in the NFL Constitution or the CBA.  Further, the second suspension violates fundamental principles of industrial due process.

In the wake of ever-increasing pressure on the NFL to improve its policing of the Personal Conduct Policy,[34] the NFL’s mishandling of the Ray Rice investigation,[35] the September 17 arrest of a player for aggravated assault,[36] and teams explicitly or implicitly admitting to issuing insufficient or improper discipline,[37] it is clear that the NFL needs to overhaul its policies and policing of its players.  Violating a player’s industrial due process rights is not a good start to fixing an obviously broken system.  For the sake of its players, their families, the fans, league sponsors, and the league itself, the NFL and NFLPA need to overhaul this process – and soon.

*    *    *

As senior counsel in Joseph, Greenwald & Laake’s Civil Litigation practice group, Levi Zaslow focuses his practice on employment law, commercial and business litigation, government litigation, and appellate law. A skilled and experienced litigator, Levi enjoys the variety of work his fast-paced litigation practice provides—from drafting motions and conducting legal research, to taking depositions and performing at trial.

Jay Holland was recently quoted in an ERE.net article entitled Would the EEOC Like the Words You Use?

Commenting on the use of linguistic analysis in employment discrimination cases, Holland explains that in our digitized world, this form of analysis may have value in EEOC-type cases. Even though linguistic analysis has not yet been used in employment discrimination cases, future application is highly probable. 

Holland heads up Joseph Greenwald & Laake’s Labor & Employment practice and can be reached at jholland@jgllaw.com.

Earlier this year, Tamara O’Connell on the JGL Blog discussed whether social media evidence is admissible at trial. Today, we consider a related issue: the discoverability of social media evidence in a personal injury claim.

Since the explosion of social media usage, numerous personal injury cases have been sunk by ill-advised social media posts. Instinctively, this makes sense. For example, if your client is claiming that he or she can no longer do a certain activity as a result of the accident at issue and there is evidence in a social media post of your client doing that same activity post-accident, then it stands to reason that the social media post would be discoverable (and likely admissible at trial). In today’s on-line world, there can be little doubt that claims representatives and opposing attorneys use information publically available over the Internet in order to assess your client, your client’s claims, and to look for potential impeachment evidence.   

However, what happens once a personal injury claim goes into litigation? Does opposing counsel have the right to propound a discovery request seeking unfettered access to all of your client’s private social media accounts in the hope of finding a nugget of potential impeachment evidence?

While there is no Maryland personal injury case directly on point, and while this is an evolving area of law, courts in several jurisdictions have found that the scope of social media discovery is not unlimited. The United States District Court for the Eastern District of Michigan has summarized the generally prevailing view on the discoverability of social media evidence as follows:

[M]aterial posted on a “private” Facebook page, that is accessible to a selected group of recipients, but not available for viewing the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with [Fed. R. Civ. P. 26(b)] there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in plaintiff’s Facebook account[i][ii].

At least one Pennsylvania trial court has held that the threshold may be met “by showing that publicly accessible information posted on the user’s Facebook[iii] page controvert or challenges the user’s claims or defenses in the pending litigation.”[iv] That said, discovery seeking disclosure of social media evidence should consist of more than a general request for disclosure of the passwords to the claimant’s various social media accounts.[v] Any such request should be objected to and opposed, most likely by way of a motion for protective order. Other information developed in the course of discovery may be used to make the required showing (e.g., deposition testimony indicating that your client posted relevant information to social media).

However, there are several common sense steps that can be taken early on in order to avoid having your client’s personal injury case damaged by social media evidence. From your first contact with a personal injury client, you should urge them, both verbally and in writing, to be extremely judicious in what he or she posts on social media going forward, to elevate the privacy settings on their social media accounts, not to accept “friend requests” from people they do not personally know, to avoid posting photographs and/or video evidence of their activities, and not to comment on the status of their case, the parties, the attorneys, or their state of mind. Simply ceasing all social media activity until the conclusion of the case would be best. However, this advice is not likely to be followed, particularly by younger clients.

Moreover, clients should be counseled that they should not delete any of their accounts and/or delete or alter any of their social media posts in an effort to “clean up” their accounts. As such, clients should consider their past social media postings to be frozen until the end of the case. Failure to preserve relevant social media posts may be considered “spoliation” of evidence, thereby entitling a judge or a jury to infer that any lost and/or destroyed evidence would have been adverse to your client’s case. In most instances, the inference that relevant evidence has been destroyed is more damaging to the case than the actual social media evidence itself.

Further, it should be emphasized that a party’s duty to preserve potentially relevant evidence begins at “the moment [litigation] is reasonably anticipated.”[vi] Parties, and their attorneys, who fail to preserve electronically stored information may subject themselves to potential sanctions[vii]. This too, should be avoided.   

The Sixth Circuit Court of Appeals in Wallace v. FedEx Corp upholds a jury award for the plaintiff and weighs in on the notice requirements of both employees and employers under the FMLA.

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We are pleased to announce that five of our partners are listed in the new edition of The Best Lawyers in America.

Congratulations to:
David Bulitt for his work in Family Law
Stephen A. Friedman for his work in Personal Injury
Jeffery N. Greenblatt for his work in Family Law
Andrew E. Greenwald for his work in both Medical Malpractice and Personal Injury, and
Timothy P. O’Brien for his work in Trusts & Estates.

The Best Lawyers in America selection process involves an exhaustive and rigorous peer-review survey comprising more than 5.5 million confidential evaluations by top attorneys. We are very proud of our attorneys for being recognized by their peers in their respective areas of law.

JGL attorneys, Cary Hansel and Matt Ling stepped up to the ALS Ice Bucket Challenge this week in response to a client nomination. Sporting suits and ties in the office, Hansel and Ling bravely dumped buckets of ice water over their heads, joining the cause to raise awareness and funds for ALS research.

Matt and Cary not only followed through with the Ice Bucket Challenge, they also will be donating a portion of their fees from a recent civil rights case to the ALS Association. For more information on how you can get involved, visit the ALS Association website.

ALS, also known as “Lou Gehrig’s Disease,” is a progressive neurodegenerative disease that affects the nerve cells in the brain and spinal cord. To date, the Ice Bucket Challenge has raised millions of dollars worldwide to help fund research into treatment options and hopefully one day, a cure.

Matt and Cary stand with the rest of the JGL family in support of ALS victims.

Late on Friday, August 22, a Baltimore jury returned a $100,000 verdict against two former Baltimore police officers for beating a 16 year-old boy. Plainclothes officers in an unmarked car encountered the boy walking beside a family member’s home in the Park Heights neighborhood in the early morning hours of July 10, 2010.

The plaintiff’s case was that the Caucasian officers provoked the young African American boy to run by shouting racial epithets and other insults at him. When he ran in fear, two officers chased the child to the rear of his family’s home, where the plaintiff testified that he was savagely beaten, punched, kicked, choked and handcuffed. The boy was slightly built, 5’4” and approximately 120 pounds at the time.

Three independent witnesses testified that they saw the officers beat the minor. After two of the witnesses were seen by officers, the beating victim was handcuffed and transported to a different location approximately 3 blocks away, where he was searched and released without charges.

In closing argument, the plaintiff’s counsel, Cary J. Hansel, of the Greenbelt law firm, Joseph, Greenwald & Laake, argued that the minor was moved as part of a cover up so that when supervisors responded to the minor’s new location, there would be no witnesses there to the attack.

The officers, who were with the now-disbanded Violent Crimes Impact Division, used the incident as a pretext to search and interrogate the boy about any crime in the area. He had no such information to provide them and the search turned up no contraband.

The former officers found liable were Kody Taylor and Matthew Sarver. Both left the department after the events underlying the lawsuit. At trial, Taylor took the Fifth Amendment to avoid testifying about the circumstances surrounding his departure from the Baltimore Police Department in the face of an integrity sting. The sting resulted in allegations that Taylor was involved with pocketing money recovered from an undercover officer posing as an arrestee.

Hansel, who is well-known for his police misconduct work, including a 2006 verdict that remains the highest civil rights verdict ever collected in Maryland, had this to say, “The jury restored one brave young man’s dignity while protecting all of our rights. My office will continue this fight until these abuses stop once and for all.”

(Pro Football, Inc. d/b/a/ The Washington Redskins)

DC’s professional football team, the Washington Redskins, has been in the news quite a bit as of late – and most of it has not been good. Earlier this summer, the U.S. Patent and Trademark Office issued a 2-1 ruling in Blackhorse v. Pro-Football, Inc. cancelling the team’s trademarks.

Check out our previous post on this subject: Hail to the ???: The Battle over the Washington Redskins’ Name Heads to Court. That decision has fueled enormous controversy as to whether the team name should be changed. Even now, in Green v. Pro Football. Inc.[1]a federal court has refrained from addressing the team by its official name, and instead refers to it as the “Washington team.”[2]

Now, the Redskins are embroiled in a very different type of litigation in the U.S. District Court in Maryland. At issue in Green v. Pro Football. Inc. is an alleged Redskins’ bounty program. Former New York Giants player, Barrett Green, has alleged that he was injured as a direct result of the Redskins’ bounty program run by former defensive coordinator, Gregg Williams. Bounty programs involve providing players with incentives, in this case financial incentives, to deliberately injure opposing players.[3]

A play-by-play on the facts of the case

Barrett Green played for the New York Giants from 2000-2004. In 2004, Green sustained a knee injury, which was listed on an injury report.[4] Shortly thereafter, the Redskins played against the Giants, and Green sustained a career ending injury when former Redskins player Robert Royal performed an illegal maneuver and “lowered his helmet and at full speed dove into Green’s knees.”[5]

Green maintains that though he initially suspected foul play, he relied on representations made by Royal and others that the incident was unintentional. In 2012, however, the Washington Post published an article on the alleged bounty program.[6] Subsequently, the NFL launched its own investigation, and confirmed that while with the New Orleans Saints, Williams had administered a bounty program.[7]

With this new information, Green filed suit in Prince George’s County against the Redskins and Royal for state law torts he suffered as a result of the bounty program. The suit has since been removed to the U.S. District Court for the District of Maryland. Recently, the defendants filed Motions to Dismiss, or in the Alternative, for Summary Judgment.

 The Court Ruled that the Counts Associated with the Alleged Bounty Program Can Proceed to Trial

In support of their arguments to have the case dismissed, the defendants argued that (1) the claims were barred under the statute of limitations, and (2) a Collective Bargaining Agreement (“CBA”) preempted state law claims pursuant to the Labor Management Relations Act, 29 U.S.C. § 185(a).

In Maryland, generally the statute of limitations bars a claim if it is not brought within three years of the occurrence. The discovery rule, however, is an exception and the statute begins to run once an individual gains knowledge or discovers the basis for a claim. Another exception relates to the fraudulent concealment doctrine.

The Court stated that Green’s claims fell into two categories: those associated with the bounty program and those that were independent of the bounty program. The Court dismissed the claims which were not linked to the bounty program since they were clearly barred by the statute of limitations, and did not meet a qualifying exception. In other words, he should have brought them back when he knew about them and within the three year period to bring a claim in Maryland.

However, the Court ruled that the statute of limitations did not bar Green’s bounty program claims since he did not discover the existence of the alleged bounty program until 2012. Since he could not have filed suit for something he could not have discovered back then, the Court will allow the bounty program claims to remain though they were filed after Maryland’s three-year filing period. The Court was satisfied that Green alleged facts sufficient for a jury to make a determination as to whether or not the defendants fraudulently concealed a bounty program. For example, in 2004, Royal participated in a press conference and stated that the hit was not intentional. In his pleadings, Green alleges this and other misrepresentations prevented Green from learning of the existence of the bounty program until 2012.

Most league disputes do not make it into the courts since their CBA requires arbitration. The team argued that this case is no different. However, the Court rejected the defendant’s argument of preemption by a CBA since the case involves claims of intentional torts and not issues that are traditionally covered by a CBA such as labor disputes. “Suggesting that the intended target of the mayhem could in any way be bound by a CBA to yield his right to seek legal redress in the face of such deliberate aggression is not only inadmissible; it is ludicrous.”[8] Lastly, the Court granted Green’s request to amend his complaint to add a claim for civil conspiracy.

As a result of this ruling, the Redskins must now prepare to go to trial in federal court over this issue of the bounty program. There will certainly be more to come.

* * *

[1]Green v. Pro Football, Inc., CIV. PJM 13-1961, 2014 WL 3385927 (D. Md. July 8, 2014).

[2] Green at 1.

[3] Id. at 1.

[4] Id. at 2.

[5] Id.

[6] Mark Maske, Washington Redskins Offered Bounties for Big Hits Under Former Assistant Coach Gregg Williams, Washington Post (Mar. 2, 2012), http://www.washingtonpost.com/sports/redskins/washington-redskins-offered-bounties-for-big-hits-under-former-assistant-coach-gregg-williams/2012/03/02/gIQAH0RlnR_story.html

[7] Mark Maske, NFL Bounty Penalties: Sean Payton, Gregg Williams, Mickey Loomis Suspended, Washington Post (Mar.. 3, 2012), http://www.washingtonpost.com/blogs/football-insider/post/nfl-bounty-penalties-sean-payton-gregg-williams-mickey-loomis-suspended/2012/03/21/gIQAJHd0RS_blog.html

[8] Id. at 20.

According to the National Institute of Mental Health, in 2012 there were 43.7 million (18.6%) adults aged 18 or older in the U.S. with a mental illness[1]. In 2008, 13.4 percent of adults in the United States received treatment for a mental health problem (this includes adults who received care in inpatient or outpatient settings and/or used prescription medication for mental or emotional problems).

Based on the above percentages it is obvious that as attorneys in family law cases we are called upon to work with clients, or to oppose parties, who are currently in treatment, should be in treatment, or have previously been in treatment for mental illness. These are sensitive, private issues, which most individuals do not wish to share with anyone. The confidential nature of such issues has been recognized by the Maryland legislature, which codified a privilege which gives the right to refuse to disclose information regarding the client’s treatment.[3] The patient has the right to prevent his or her therapist from revealing any information as well.

When the privilege was initially enacted, it contained an exception which allowed a trial judge to compel the disclosure of privileged mental health records in a custody proceeding if the judge believed that the disclosure was necessary to determine custody.[4] This exception remained in the statute until it was repealed in 1977. The balance of the privilege statute remained unchanged.[5] The decision to repeal this exception was not taken lightly, and numerous organizations and individuals complained that the exception was not fair. Their argument was that the exception undermined an individual’s ability to speak candidly, or may even cause that individual to terminate therapy because they feared that their discussions with their therapist may be revealed to third parties.[6] If the individuals did not speak candidly or terminated therapy due to this fear, everyone, including the children, would suffer.[7]

As with any privilege, the mental health privilege is not absolute. Parties may waive the privilege by putting their mental health at issue, either as an element of their claim or as a defense. In Laznosky v Laznosky, the Court of Appeals was confronted with the issue of whether a parent (here, the mother) had put her mental health at issue when she sought custody of the children, and the parent makes the necessary claim that she is a fit and proper person to have custody.[8] After reviewing the vast legislative history of the privilege, the original custody exception and the decision to repeal the exception, the Maryland Court of Special Appeals found that one does not automatically put their mental health at issue by requesting custody of their children or making the requisite claim that they are a fit and proper person to have custody – otherwise there would be no privilege at all!

We accordingly hold that, while the mental and physical health of a party is an issue to be considered by the trial court, a person seeking an award of child custody that claims to be a fit parent, does not, without more, waive the confidential psychiatrist/psychologist-patient privilege in respect to her or his past mental health “diagnosis and treatment” communications and records. Fitness of parents is a fundamental and primary element of child custody litigation. It is present even if not stated. It is no more present when it is stated by one party or the other. An assertion that one is fit is merely an assertion that one meets the qualifications to be awarded custody. If it were the law in Maryland that anyone seeking custody of children specifically placed their mental condition in issue, there would be no psychiatrist-patient privilege in custody disputes. The Legislature clearly established a contrary public policy. It chose to preserve the privilege in custody cases.

Laznovsky v. Laznovsky, 357 Md. 586, 620-21, 745 A.2d 1054, 1072-73 (2000) (emphasis added).

But the discussion can not end there. While every party who brings a claim for custody may not have to disclose their mental health records, many parties feel forced to do so. If the opposing party has made an issue of the client’s mental health, and it is clear that the client either has or is currently dealing with mental health issues, you (the attorney and client) are immediately put on the defensive. If the client wishes to preserve his or her privacy, and not waive the privilege, the court is left with a negative inference that may legitimize the issues raised by the opposing party, and the client now has a Hobson’s choice.

If the client chooses not to waive the privilege, the client may be disadvantaged because those portions of their mental health records, or their therapist’s testimony, that are favorable and would indicate they are a fit and proper person to have custody will not be presented to the court. This must be weighed against the fact that by waiving the privilege the floodgates are opened, and the client cannot pick and choose which information the therapist has remains shielded by the privilege.

Waiving the privilege will likely lead to the client’s records ending up in the hands of the opposing party, and also before the court. Perhaps the only thing more nerve racking than having your therapist take the witness stand, subject to cross-examination, is having to submit your therapy records to the court and opposing party to pour over. Additionally, if a situation arises where the client’s therapist is unwilling or unable to testify in court, the client will not have the benefit of having a medical professional explain the records to the court, and will run the risk of having the court misinterpret the records. In this case, where the client has waived the privilege, but the author of the records is not testifying, one last ditch effort to protect the client’s privacy is to ask the court to exclude these records as hearsay. While there is a hearsay exception which allows for the introduction of medical records, there is a good case to be made that therapy records lack most of the indicia of reliability in which the exception for medical records is grounded. First, therapy records are generally being offered to “prove the truth of accounts of events and of complicated medical and psychiatric diagnosis. The accuracy of such accounts is affected by bias, judgment, any memory; they are not the routine product of an efficient clerical system. There is here lacking any internal check on the reliability of the records in this respect.”[9] Further, not only the accuracy of records may be compromised, but also therapy records contain diagnosis, which involve conjecture and opinion. The records often contain medical terms, phrases or symbols which a lay person, including the judge, may misinterpret. Additionally, the therapy records almost certainly contain statements from the client, or third party statements relayed to the therapist through the client. These statements are often taken out of context, and recorded based on the therapist’s own impressions or conclusions. Without the ability to cross examine the therapist, the court will never receive an accurate, complete picture of the client’s issue and treatment.

The court in New York Life Ins. Co. v. Taylor ultimately ruled that the records were inadmissible, however, you cannot rely on the same ruling from a Maryland judge presiding over a custody matter who may ultimately find that the court must review the records to determine what is in the best interest of the child.

So where does that leave us?

Instead of waiving the privilege consider an independent psychiatric evaluation of all involved parties. The evaluator will almost certainly require the parties to provide all of their mental health records, and that the parties allow the evaluator to speak with their treating professionals. However, the upside is that allowing one psychiatrist or psychologist to examine all involved parties and relevant collaterals may achieve a more balanced view of the situation. This view is shared by Dr. Jonas R. Rappeport, whose letter is included in the legislative history of Senate Bill 90 which bill excised the exception permitting judges to compel disclosure in custody matters, and which is quoted in Laznovsky, who felt that the court is well served by having the same psychiatrist and psychologist examine all parties in question to custody battles and thereby have an opportunity for a very well balanced view of the situation . . . [W]e feel that we are much more capable of rendering an unbiased, overall view of the situation and presenting recommendations that are truly in the best interest of the child than we might be able to do should we be involved with only one parent whether it be a long term therapeutic relationship or merely an evaluation.[10]

While, engaging a private evaluator, may be the least offensive choice, it comes with a hefty cost. The services of a private custody evaluator can cost anywhere from $5,000.00 to $20,000.00 or more. The reality is that most clients are unable to afford such an expense when already embroiled in costly litigation. Therefore, if the client doesn’t have the funds for a private evaluation, you will find yourself contemplating the choice between waiving the privilege and exposing the client’s innermost personal thoughts, asking the Court to appoint its custody evaluator, or perhaps leaving the trial judge with a less than favorable impression of the client’s mental health.

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Jeff Greenblatt thanks Allison McFadden for her contributions to this blog post.

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[1] This data was collected defining mental illness asAMI: meaning Any Mental Illness: A mental, behavioral, or emotional disorder (excluding developmental and substance use disorders); Diagnosable currently or within the past year; and, of sufficient duration to meet diagnostic criteria specified in the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).

[3] Md. Code Ann., Cts. & Jud. Proc. § 9-109 .

[4] Laznovsky v. Laznovsky, 357 Md. 586, 594, 745 A.2d 1054, 1058 (2000).

[5] Id., 357 Md. at 595, 745 A.2d at 1059 (2000).

[6] Id., 357 Md. at 596, 745 A.2d at 1059 (2000).

[7] Id., 357 Md. at 599, 745 A.2d at 1061 (2000).

[8] Id., 357 Md. at 592, 745 A.2d at 1057 (2000).

[9] New York Life Ins. Co. v. Taylor, 147 F.2d 297, 300 (DC Cir. 1944).

[10] Laznovsky, 357 Md. at 599, 745 A.2d at 1061 (2000).

(Image from the South Florida Law Blog)

Foreclosure. It was a relatively rare term just a few years ago but as we all know, with the collapse of the economy and the burst of the housing “bubble,” came the increase of foreclosures and bank-owned properties all over the United States.

In 2013, approximately 462,970 homes were repossessed by banks in the United States.  Luckily, the average number of foreclosures has decreased in many states. Unfortunately, Maryland has not fared as well. In 2013, Maryland reported an increase in its foreclosure sales by 117%! This means that defaults, short sales, and foreclosures are still a very real issue for many Marylanders.

However, the bigger question isn’t what happens if you lose your house to foreclosure; it’s what happens after a foreclosure. Many people believe that once their house is sold at a foreclosure sale, then their issues are over.  Sure, their credit is damaged and they might not be able to buy another house for a few years but for the time being, their financial woes related to owning their home are over.  Unfortunately, that isn’t usually the case.

When you purchase a home, you sign a Promissory Note stating to the bank that you promise to pay a certain amount of money.  The Note doesn’t say you promise to pay for as long as you own the home, just that you promise to pay!  More often than not, homes that go into foreclosure are worth less than what is owed on the Note; the common term that is used to describe this scenario is “underwater.”  This means that when the bank attempts to sell the property at a foreclosure sale, it is rare that a third party purchaser will buy the property and the bank oftentimes repossesses the home.  When this happens, there is usually a deficiency.  This occurs when the amount of money owed to the bank is not satisfied by the sale of the home at a foreclosure sale.

For example, Jane Doe owes $200,000.00 on her condo but the appraised value is only about $150,000.00.  At the foreclosure sale, the bank purchases the property for $160,000.00.  This leaves a deficiency of about $40,000.00 and guess who is responsible for the remaining debt?  That’s right, Jane Doe!

After the sale occurs, the Court approves the accounting of the foreclosure sale known as the Auditor’s Report.  Upon final ratification of the Auditor’s Report, the Bank can then petition the Court to issue a Deficiency Judgment.  Once a Judgment is obtained, the Bank can start to liquidate other assets owned by the Debtor (in our example, Jane Doe) and can even garnish her wages in order to satisfy the Judgment.  Even more disturbing is the fact that the Bank does not have to do this immediately after the foreclosure sale is over; it can wait up to three years!  Under §7-105.13 of the Real Property Article of the Maryland Annotated Code, the secured party must request a deficiency judgment within three years after the final ratification of the Auditor’s Report.  This means Jane Doe’s responsibility to pay off the remaining debt continues for many years after the foreclosure sale has occurred.

The Deficiency Judgment is a post-foreclosure remedy that is available not only to mortgage foreclosures but also to foreclosures of other lien instruments as well, including unpaid condominium or homeowner’s association fees.  That’s right; you read that correctly, a condominium or homeowner’s association can foreclose on your home to collect unpaid assessments.  This is true even if the homeowner is up to date on all of his or her mortgage payments.

This post should act as a cautionary tale to borrowers to beware before they sign on that dotted line at the closing table.  Be sure you know what you can truly afford before finalizing the purchase of a home.  If you find yourself in trouble financially, don’t wait until the last minute to notify your bank or condominium/homeowner’s association.  A secured party is more likely to work with a borrower if they are up front and honest about their financial situation early on before late fees and other costs and expenses start to accrue (which is also added to the borrower’s total debt).  Walking away from a home that is underwater isn’t necessarily the best option to get out from under the debt, despite the fact that many people believe it is.  A foreclosure on your home doesn’t just ruin your credit; ultimately, it could affect your financial situation for many years to come.