Greenbelt, MD (March 18, 2014) – Joseph, Greenwald & Laake, P.A. is pleased to congratulate attorneys, Jay P. Holland, Walter E. Laake, Jr., Timothy F. Maloney, Brian J. Markovitz on being recognized as 2014 “Local Litigation Stars” for Plaintiffs law by the rankings guide, Benchmark Litigation. This is the second year in a row that all five have received the “Local Litigation Star” acknowledgment.

Benchmark Litigation also ranked Joseph, Greenwald & Laake, P.A. “Recommended” for Plaintiffs law in the practice areas False Claims Act (Whistleblower), General Commercial and Personal Injury.

“The firm is thrilled to have this group of attorneys recognized for the second year in a row,” said Burt M. Kahn, the firm’s managing president. “We are honored to have this high-profile recognition of our hard work and successes on behalf of our plaintiff-litigation clients.”

Holland is a principal and chair of the firm’s Labor & Employment and Whistleblower practices. He has broad experience in Whistleblower cases, commercial law and other civil matters. He also counsels clients in individual and class action cases involving gender and race discrimination and sexual harassment, violations of the wage and hour laws, and wrongful termination. Additionally, he co-chairs the Employment Law Section of the Prince George’s County Bar Association and is active in the Employment Law sections of the Maryland State Bar Association and American Bar Association.

Laake is a principal and a founding member of the firm and served as managing partner for more than 25 years. His litigation practice focuses on the legal matters pertaining to accidents, personal injury, traumatic brain injury, medical malpractice, premises liability, product liability and professional negligence. Laake has practiced law for more than 30 years and has helped more than 1,000 clients with all types of personal injury claims.

Maloney is a principal in the firm’s Civil Litigation Group. His practice focuses on criminal and civil issues in judicial matters as well as administrative proceedings. He has represented clients in a wide variety of complex actions, including civil rights, employment discrimination, Whistleblower cases and high-stakes business litigation. Maloney is a fellow of the American College of Trial Lawyers. In 2011, the Maryland Association for Justice named Maloney a “Trial Lawyer of the Year.” He serves on the Rules Committee of the Court of Appeals and the Maryland Appellate Nominating Commission.

Markovitz is a principal in the firm’s Civil Litigation Group and focuses his practice on civil litigation, employment, labor and Whistleblower cases throughout the country. He has presented oral arguments before the Maryland Court of Appeals and Maryland Court of Special Appeals, in the United States Fourth Circuit, in the District of Columbia and several other states, and administrative agencies. Additionally, Markovitz has arbitrated labor cases and has been before the District of Columbia Public Employees Relations Board.

Rockville, MD—David  Bulitt says that any spouse considering divorce needs to be very careful about whom they pick as their attorney.

“This is not like hiring an electrician or a plumber,” Bulitt explained in a recent laws.com interview.  “This is someone who you have to be comfortable talking to, listening to and trusting their judgment.  You have to be willing and able to work with this person through one of the toughest times in your life. Who’s going to be in the captain’s chair?  You wouldn’t hire Joe Smith because he is a friend or was in a magazine. Hire him because you trust his judgment”

(More on  News at LAWS.com)

Bulitt says that he originally went into family law because he wanted to be a trial lawyer, and at the time when he went into practice, divorce cases went to court almost all the time.  “Now I don’t try nearly as many cases, due to alternative forms of conflict resolution,” he says.

This switch to alternative dispute resolution has led to fewer trials, but is often better for divorcing couples, according to Bulitt.  “I used to revel in going to trial, but now people who don’t want their names in the newspaper and don’t want reporters rummaging through their lives come to me,” he says.  “I do the best I can to move them through as painlessly as possible, so that their private lives don’t become public.”

For Bulitt, this philosophy has led to a number of awards and accolades.  For more than a decade, he is included as one of the top divorce lawyers in the Washington DC area by Washingtonian Magazine, Best Lawyers in America and other publications. He is also recognized as one of the best in his field by Super Lawyers.

When it comes to one of the latest trends in divorce law today—collaborative divorce—Bulitt says that he’s something of a skeptic.  “I took the course and am certified. Personally though,  – and some of my friends who do it aren’t going to like this,” he explains, “but I can do the same work in the same way but without all the ropes and chains of a “collaborative divorce”.  If you know how to settle a case, you don’t need the whole collaborative framework to get it done. I find that a collaborative divorce is often more costly than a more traditional model.  In fact, some of the clients who have paid me the most were those whose collaborative divorce failed and their lawyer referred them to me to litigate the case.” 

In the collaborative process, the couple has to agree not to go to court.  “If the process falls apart, the lawyer leaves, and you have to get a new lawyer,” Bullitt says, which makes collaborative law a costly option for anyone who suspects that their disputes may need to be resolved through trial.

While divorce trials still happen, Bullitt says that they’re much less common, thanks to new approaches to settling divorce cases.  “There are now a lot of structures in place that try to get people to settle before getting to a judge.  You find a lot more of these instances in family cases where there are individuals with high net worth,” he says.  “Folks who have worked hard for their money tend to be more pragmatic.  They can understand the risks of letting a judge make decisions about their marriage, and these folks see utility in deciding their own destiny.”

Due to changes in family laws, Bulitt says that couples with custody disputes in Maryland today can expect their case to take less time than it may have in the past.  “The time it takes to litigate a custody case has shortened over the years.  It could take two years to litigate back in the day—now we have a general timeline here in Maryland that the entire case has to be done by the time a year has passed.”

15 JGL Lawyers Named As Tops In Their Fields

An unprecedented fifteen firm lawyers were recently honored as “Super Lawyers” or “Rising Stars” in the legal community.

Super Lawyers identifies itself as a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.

Congratulations to the following firm lawyers who were listed as “Super Lawyers” or “Rising Stars”:

David M. Bulitt – Family Law, Business Litigation and Personal Injury

Jeffrey N. Greenblatt – Family Law

Andrew E. Greenwald – Personal Injury Plaintiff: Medical Malpractice, Personal Injury  

Darin L. Rumer – Family Law

Reza Golesorkhi – Family Law

Bethany Flanders – Real Estate, Estate Planning & Probate

Matthew M. Bryant – General Litigation, Appellate

Walter E. Laake, Jr. – Personal Injury Plaintiff: General, Personal Injury Plaintiff: Medical Malpractice, Personal Injury Plaintiff: Products

Burt M. Kahn – Personal Injury Plaintiff: Medical Malpractice, Personal Injury Plaintiff: General

Steven M. Pavsner – Personal Injury Plaintiff: Medical Malpractice, Business Litigation, Professional Liability: Plaintiff

Timothy F. Maloney – General Litigation, Criminal Defense: White Collar, Personal Injury Plaintiff: General

Steven B. Vinick – Personal Injury Plaintiff: General, Personal Injury Plaintiff: Medical Malpractice, Criminal Defense

Veronica B. Nannis – General Litigation, Civil Rights/First Amendment, Health Care

Cary J. Hansel – Civil Rights, First Amendment, General Litigation, Appellate

Case of the trespassing toddler heads to trial

Top court sends pool-fence case back for trial

By: Steve Lash Daily Record Legal Affairs Writer

WASHINGTON (April 28, 2014) – Thirteen attorneys from Joseph, Greenwald & Laake have been chosen as Washington, DC, “Super Lawyers” and “Rising Stars” for 2014 by Super Lawyers magazine.

The following attorneys were selected in their respective practice areas this year:

Washington, DC Super Lawyers 2014

• Andrew Greenwald: Personal Injury – Medical Malpractice Plaintiff
• Walter Laake, Jr: Personal Injury – General Plaintiff
• Burt Kahn: Personal Injury – Medical Malpractice Plaintiff
• Steve Pavsner: Personal Injury – Medical Malpractice Plaintiff
• Timothy Maloney: General Litigation
• David Bulitt:  Family Law

Washington, DC Rising Stars 2014

• Veronica Nannis: Civil Litigation Plaintiff
• Matt Bryant: General Litigation

Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The publication names exceptional attorneys annually in all 50 states and Washington, DC, using a rigorous selection process that begins with peer nomination. Once attorneys have been nominated, they are evaluated on 12 indicators of peer recognition and professional achievement through a third-party researcher.

You’re not planning board, P.G. council told

Court of Special Appeals says authority to reverse zoning rulings is limited

The Prince George’s County Council has limited authority to overturn zoning decisions of the county planning board, a Maryland appeals court held this week — to the delight of a developer whose plan to build a shopping center in Adelphi won board approval but was rejected by the council.

In a 3-0 decision, the Court of Special Appeals said council members may not overturn a planning board decision because they disagree with it. The council may reject the board’s decision only if it was “arbitrary, capricious, discriminatory or illegal,” the intermediate court said, citing state and county law.

The court’s decision, unless appealed, clears the way for Wilmington, N.C.-based Zimmer Development Co. to begin building retail shops on a 4.14-acre property along Powder Mill Road near Riggs Road.

The council will meet next week to decide whether to seek review of the decision by Maryland’s top court, the Court of Appeals, said Rajesh A. Kumar, principal attorney for the District Council, the name given to the County Council when it sits to review planning board actions.

“The District Council will take this matter up promptly next week to discuss their appellate options because of the public policy implications of the Court of Special Appeals’ decision, including divesting the District Council of original jurisdiction in zoning matters,” Kumar said Thursday.

Zimmer Development’s attorney, Timothy F. Maloney, said the decision “fundamentally changes the way all zoning cases are held in Prince George’s County.”

The ruling “really protects the integrity of the planning board’s decisions and insulates them from political influence through the District Council,” added Maloney, of Joseph, Greenwald & Laake P.A. in Greenbelt.

The planning board consists of five members, including a chairperson, nominated by the county executive and confirmed by the council to four-year terms.

The Court of Special Appeals’ decision Wednesday addressed the scope of the Maryland Regional District Act, which created the county’s planning board, and of the Prince George’s County Code, which empowers the council to affirm, reverse or modify the board’s decisions.

The court said the act and code give the council the “appellate authority” to overturn the board’s decisions. The council has no authority to examine a developer’s plan anew, the court added in upholding a circuit court judge’s decision.

“Indeed, if the District Council were vested with de novo review, the planning board’s legal responsibility to engage in fact finding would be rendered meaningless,” Judge Stuart R. Berger wrote for the Court of Special Appeals. “The planning board’s thorough evidentiary processes could be simply discarded in favor of the review by the District Council, which neither conducts its own evidentiary hearing nor develops its own record.”

The Prince George’s County Planning Board initially approved Zimmer Development’s design plan in summer 2011, according to Berger’s opinion.

GREENBELT, Md. (June 18, 2014) – Joseph, Greenwald & Laake, P.A. is pleased to announce that founding firm member Walter E. Laake, Jr. has received the James H. Taylor Award from the Prince George’s County Bar Association (PGCBA) for his outstanding contributions to the bar and the community.

Laake, who currently serves as Of Counsel to the firm, was honored at the PGCBA’s June 10 Annual Meeting.

“Throughout his career, Walter has set a high standard of excellence through his talent and reputation as one of the region’s leading personal injury lawyers and as an ambassador for the local bar community,” said Burt M. Kahn, the firm’s president. “We congratulate Walter on this recognition and express our gratitude for his ongoing contributions to the firm.”

The PGCBA award is named after Judge Taylor, who was appointed to the bench of the Seventh Judicial Circuit of Maryland in November 1969 and served for 18 years, mainly handling family and juvenile cases. Judge Taylor was the first African-American circuit court judge in Prince George’s County.

Laake has more than four decades of experience as a personal injury lawyer, obtaining millions of dollars in verdicts and settlements for injured clients during his career. Among his recent victories, Laake obtained a $1 million recovery on behalf of a disabled father of four in a medical malpractice action, and a $4.5 million settlement with a Washington, DC hospital for the family of an infant who suffered brain injury due to a doctor’s negligence. In the 1970s, Laake litigated the first case in Maryland that applied strict liability to a product liability case.

Laake is a past president of the Maryland Association for Justice (formerly the Maryland Trial Lawyers Association) and the PGCBA.

Image source: http://eventityinc.com/blog/wp-content/uploads/2012/08/nov05-Sleeping-Beauty-prenup350.png

Introducing a prenuptial agreement shortly after getting engaged is not the most romantic way to celebrate the forthcoming union, but there are ways to make it easier for your future spouse to put up with your request, as well as ensure it is not later invalidated or nullified. A court can invalidate a prenuptial agreement if it finds that there was, among other things, fraud, duress, coercion, mistake, undue influence or unconscionability in the terms or circumstances surrounding the prenuptial, Cannon v. Cannon, 384 Md. 537, 573, 865 A.2d 563, 566 (2005), so make sure to be mindful of these things:

1. Full and honest disclosure of assets

Think you can get away with not telling your beloved about your government retirement fund and still have your prenuptial agreement enforced? You may have to think again. Not providing a “frank, full, and truthful disclosure” of all assets could lead a court to possibly find fraud in the prenuptial agreement and invalidate it on that ground because the concealment gives rise to the implication of fraud. Levy v. Sherman, 185 Md. 63, 73-74, 43 A.2d 25, 29-30 (1945). The general purpose behind requiring comprehensive disclosure is so the party who is agreeing to waive their rights or claims knows what they are giving up. Cannon, 384 Md. at 574. This relates to the next point about fairness.

2. Fair and equitable terms

Remember to be fair with your prenuptial proposal – try not to draw up terms that put your new partner in a position where they are left out in the cold with not even two sticks to rub together to keep him or herself warm should the marriage not stand the test of time. Courts have voided agreements that were “unjust or inequitable” when the agreements were completely lacking any reasonable consideration. For example, in one instance the wife signed a separation agreement that relinquished her rights to property that totaled more than $700,000 for only $10,000, and where between $200,000 and $250,000 worth of property was relinquished for $4,300. Bell v. Bell, 38 Md. App. 10, 15, 379 A.2d 419, 422 (1977) (citing Cronin v. Hebditch, 195 Md. 607, 74 A.2d 50 (1950); Eaton v. Eaton, 34 Md. App. 157, 366 A.2d 121 (1976)). Overall lesson: don’t give your loved one a really lousy deal.

3. Chance for negotiation

Try to avoid a “my way or the highway” mentality when it comes to presenting a prenuptial agreement to your future spouse. A court will look more favorably upon an agreement in which there was a chance for the other party to negotiate the terms for the prenuptial. In regard to showing undue influence or duress upon a party, evidence of negotiation between the parties may be an indicator of a valid contract between equals, while a lack of negotiation may show undue influence.  Cannon, 384 Md. at 572, 865 A.2d at 583-84. A chance for negotiation helps to show that the other party was not deprived of his or her free will in signing the agreement, so be open to conversation about your requests.

4. Opportunity to obtain independent legal advice

Similar to why it is best to provide a chance for negotiation of the agreement to show that it was entered into freely, voluntarily, and knowingly, it further helps to allow an opportunity for your partner to obtain independent legal advice about the proposed terms of the prenuptial. Asset distribution can get very complicated and the help of an attorney may be needed for your love to truly understand what he or she would be agreeing to.

5. No pressure, no manipulation, no tricks

Basically, this means anything along the lines of not waiting until the day of the wedding to spring a pre-nuptial agreement on your fiancée at the last minute. A court may set aside an agreement if it finds that it was unconscionable at the time the agreement was made. Martin v Farber, 68 Md. App. 137, 144, 510 A.2d 608, 611 (1986). When determining whether the agreement is unconscionable, the court is barred from examining the fairness of the agreement at the time of enforcement, and can only look at the conditions that were occurring at the time the agreement was made. Id. So even if the agreement has fair terms, a court could still invalidate it if your better half was under duress or there was trickery or manipulation at the time the agreement was signed. Also, try not to take your soon-to-be for a surprise or approach them in an infirmed condition – Sleeping Beauty above is in no condition to thoughtfully sign a prenuptial agreement!

Following these tips should help make it easier for your husband or bride-to-be to put up with your prenuptial request and potentially uphold the agreement if worse comes to worse, but it is always best to consult an attorney for specific help in your own situation, as every situation is different.

 

Even estate planning seems to go through stages and fads with discussion of new techniques making the cocktail party circuit and the “free” lunch seminars for discussion.  One popular topic these days is the use of Revocable Living Trusts.  Before you consider rushing in to visit your estate planner to “get one of these” you might want to understand the basics of it and see why it is not a “one size fits all” tool for everyone.

What A Revocable Living Trust IS:

• The Trust is your alter ego. At any time, you can easily add, remove, buy or sell Trust property at any time. Further, the Trust is “revocable” — you can change or end the Trust at any time.

• A Revocable Living Trust allows you to avoid probate (and the Courts) during periods of disability and upon death. Probate is avoided because a revocable trust is a separate legal entity, although you, as the creator of the trust, retain control over the assets of the trust during your lifetime and while you are able.

• Assets titled in the name of the Trust are transferable at all times, and probate is avoided. Thus, the management and administration of the Trust’s assets is not disrupted by the deceased’s death or disability.

• In order to create and effectuate a Revocable Living Trust, not only must the trust documents be executed but your property must be transferred to your trust.  This extremely important step is the one that fails to get completed – thereby defeating the purpose of the Trust altogether.

 What A Revocable Living Trust Is NOT:

• A Revocable Living Trust does not avoid estate taxes. Specific provisions must be included in a Revocable Living Trust (or in a Will) to reduce estate taxes.

• A Revocable Living Trust is not a substitute for a Will. You still need a Will. This type of Will is called a Pour-over Will and is used to make tax elections, appoint a Personal Representative, appoint a guardian for your minor children, and transfer assets you forget to title in the name of your Revocable Living Trust to your Trust.

There are plenty of good reasons to use a revocable living trust:

• avoid or minimize the costs of Probate and tying up assets during Probate;

• to possibly avoid will contests and keep the disposition of your assets private since your will becomes a matter of public record when filed for the opening of Probate which your trust is generally not;
• provide for immediate management of your financial affairs by a fiduciary selected by you in the event of your disability.  If something happens to you, your successor Trustee steps in “your shoes” and continues managing the Trust as long as necessary. If you and your spouse are Co-Trustees, or if your spouse is successor Trustee, either can act or instantly take control if the other becomes disabled or dies.

However, everybody does not need a Revocable Living Trust– some people do not feel comfortable with the concept of a trust, and no one should do anything that will make them lose sleep at night. Second, some people have a small enough (or simple enough) estate that probate may not concern them or their heirs.

Generally speaking, the Revocable Living Trust is an estate planning tool which should be considered only after careful discussion with your attorney about whether it is appropriate for you.

The next time someone tells you “you gotta get one” ask them why they needed one and whether they actually deeded their house over to the Trust and changed all of the names and signatures on their bank accounts. Don’t be surprised if they can’t give you a good answer!

Eight years ago, Maryland’s Reasonable Accommodations for Pregnant Workers Act (“RAPWA”) [1], which went into effect on October 1, 2013, did not exist, and the United Parcel Service (“UPS”) denied a pregnant Maryland employee’s request to lift no more than 20 pounds at work on the written advisement of her doctor.

Instead, she was given unpaid leave because her pregnant condition did not fall under one of the three categories eligible at the time for accommodations/light duty assignments under UPS’ collective bargaining agreement: (1) those who were injured on the job, (2) those who were eligible for accommodations under the Americans with Disabilities Act (“ADA”), or (3) those who had lost their Department of Transportation certification because of a failed medical exam, a lost driver’s license, or involvement in  a motor vehicle accident.

The issue of pregnancy discrimination has received a lot of attention in recent years. Circuits have been split on the issue [2], Congress passed 2008 amendments to the ADA to require employers to accommodate workers’ temporary disabilities, the Equal Employment Opportunity Commission (“EEOC”) is set to provide guidance about the amendments, and President Barack Obama has recently urged Congress to pass the Pregnant Workers Fairness Act introduced in the Senate last year. Now, even the Supreme Court of the United States has decided to hear the issue of “whether, and in what circumstances, an employer that provides work accommodations to non-pregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.’” [3]

The case coming before the Supreme Court for the October Term is Young v. United Parcel Service, Inc., an appeal from Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013). [4] Peggy Young, a part-time package delivery driver for UPS in Landover, Maryland, became pregnant in 2006 and asked for a light-duty assignment. Her supervisor denied her request, explaining UPS did not offer such accommodations for pregnancy-related limitations, so Young took an extended leave of absence without pay and ultimately lost her medical coverage. Young filed a discrimination claim with the EEOC in 2007 alleging violations of the ADA and the Pregnancy Discrimination Act (“PDA”) and sued UPS in the U.S. District Court for the District of Maryland in 2008.

After losing at the trial level, Young appealed to the U.S. Court of Appeals for the Fourth Circuit in 2013. Young argues that the PDA requires employers to provide pregnant employees the same accommodations as non-pregnant disabled workers who are similar in their ability or inability to work. But, both the district court and the Fourth Circuit found that UPS did not discriminate against Young under the PDA because its policy treats pregnant workers and nonpregnant workers alike in eligibility for accommodations. [5]

In an amicus curiae brief [6], the United States explains that a majority of circuit courts that hear claims similar to Young’s – including the Fourth Circuit – “erred in interpreting Title VII [of the Civil Rights Act of 1964]’s requirement that employers treat employees with pregnancy-related limitations as favorably as nonpregnant employees who are similar in their ability or inability to work.” [7]  However, the Justice Department nevertheless lobbied against the Supreme Court taking the case, stating that although the question presented is “important and recurring,” Supreme Court review is not needed at this time because: 1) Congress’s enactment of the ADA Amendments Act of 2008 “may lead courts to reconsider their approach to evaluating a pregnant employee’s claim that other employees with similar limitations on their ability to work were treated more favorably than she and may diminish the adverse effect of the courts of appeals’ error” and 2) the EEOC is currently considering the adoption of new enforcement guidance on pregnancy discrimination that should clarify the Commission’s interpretation of issues related to pregnancy under the PDA and the ADA. [8]

However, there may be another reason why courts may need to reconsider their stance on this issue: the increasing passage of state and local laws like Maryland’s RAPWA. Twelve states (Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Iowa, Maryland, Minnesota, New Jersey, Texas and West Virginia) and four cities (New York City, Philadelphia, Providence and Central Falls, R.I.) have similar pregnancy anti-discrimination laws and Maryland’s law seems to be directly applicable to this case. [9] Although the law is not retroactive, so it cannot be applied to Young’s case, if these same set of facts arose today, there would be a different outcome under RAPWA. Instead of requiring the comparison of non-pregnant and pregnant workers, Maryland’s RAPWA requires employers to make reasonable accommodations for pregnancy-related disabilities as long as such accommodations do not present an undue hardship to the employer. This provision addresses the language in the PDA requiring employers to treat pregnant workers the same as those “similar in their ability or inability to work,” which some courts have rendered meaningless by interpreting them to mean that accommodations do not need to be provided for pregnant employees that would have been otherwise unavailable for non-pregnant employees with similar disabilities.

With the recent passage of Maryland’s RAPWA and pregnancy discrimination being a hot topic in all branches of government, it will be interesting to see how this case with Maryland roots plays out in the Supreme Court. Stay tuned to JGL’s blog for updates on this issue.

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[1] Read JGL’s “Quick Hit” blog post about the enactment of Maryland’s RAPWA here: https://www.jgllaw.com/blog/quick-hit-marylands-reasonable-accommodations-for-pregnant-workers-act/.

[2] A 1996 U.S. Court of Appeals for the Sixth Circuit decision allowed a similar pregnancy discrimination claim to move forward. See Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996)(concluding that, “instead of merely recognizing that discrimination on the basis of pregnancy constitutes unlawful sex discrimination under Title VII,” the PDA “provided additional protection to those ‘women affected by pregnancy, childbirth or related medical conditions’ by expressly requiring that employers provide the same treatment of such individuals as provided to ‘other persons not so affected but similar in their ability or inability to work.’” Id. at 1226 (quoting 42 U.S.C. § 2000e(k)).

[3] http://www.scotusblog.com/case-files/cases/young-v-united-parcel-service/

[4] The Fourth Circuit’s decision in Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013) can be accessed here: http://www.ca4.uscourts.gov/opinions/Published/112078.p.pdf.

[5] See id. at 20.

[6] Read the Department of Justice’s amicus curiae brief here: http://sblog.s3.amazonaws.com/wp-content/uploads/2014/05/12-1226-Young-Invite.pdf.

[7] Id. at 8.

[8] Id.

[9] A Better Balance keeps a list of state and local laws protecting pregnant workers here: http://www.abetterbalance.org/web/ourissues/fairness-for-pregnant-workers/310.

The Duke of She told Confucius: “Among the upright men of my home, if the father steal a sheep his son will bear witness.”

Confucius answered: “Our people’s uprightness is unlike that. The father screens his son, the son screens his father. There is uprightness in this.”[i]

According to Confucius, a son should not be made to testify as to the crimes of his father. Morality considerations aside, the Fourth Circuit disagrees. On June 16, 2014, the federal appellate court in Richmond refused to recognize a parent-child testimonial privilege in Under Seal v. United States, where the government subpoenaed 19-year-old Doe Jr. to testify against his father, Mr. Doe, in a grand jury investigation regarding an unlawful possession of firearms charge against the father.[ii]

On November 20, 2012, officers from Harford County, Maryland responded to a 911 domestic assault complaint by Doe Jr.’s mother (Mrs. Doe). At the time, the Doe house was occupied by 18-year-old Doe Jr., his parents, and his two minor siblings. A search of the residence revealed approximately 40 assorted firearms, “including two assault-style rifles, a WWII-style pistol, a leaded semi-automatic handgun, and an AK-47 assault rifle” as well as “marijuana plants growing in five-gallon buckets and drug paraphernalia” in the basement.[iii]

Mrs. Doe eventually dropped the domestic abuse charges against Mr. Doe, and the government later referred the case to grand jury investigation for a potential charge pursuant to 26 U.S.C. § 5861(d).[iv] Doe Jr. was subpoenaed “to determine the ownership of the illegal guns” found in the home. In his motion to quash, Doe Jr. contended that compelling his testimony to “solidify a criminal case against [his] father” would cause incalculable “damage to the father-son relationship.”[v]

At the district court hearing on the motion to quash, Doe Jr. testified that although his father would not cut him off financially, and “would not hold it against” him for testifying, “he had significant anxiety about testifying against his father and provided doctors’ notes to the that effect.[vi] The government argued that Doe Jr.’s testimony was necessary to “fully explore all the evidence in this case to do a complete and thorough investigation,” because Mrs. Doe had invoked her spousal privilege, and the two minor Doe children would not be called as witnesses.[vii] Ruling from the bench, the district court agreed with Doe Jr. and explained that while the government had an interest in pursuing its investigation; it did not trump the individual privacy interests stemming from Doe Jr.’s relationship with his father.[viii]

The Fourth Circuit reversed on appeal, and in a unanimous opinion, declined to find a parent-child privilege. In support of its conclusion, it observed that in contrast to the “very small handful of federal district courts” that have recognized the privilege, “every federal appellate court that has considered adoption of the parent-child privilege – include our own – has rejected it.”[ix]  In particular, the court discussed two previous Fourth Circuit cases that also declined to adopt a parent-child privilege.

In United States v. Jones,[x] the Court held that no privilege existed where testimony would be limited to questions unrelated to his familial association with his parent, because a 29-year-old man was “not an impressionable young child.”[xi] The Court recognized, but did not address the possibility that the privileged may be recognized in cases with “changed factual circumstances” in which other considerations such as the age and emancipation status of the child may come into play.[xii]

In United States v. Dunford,[xiii] the father of two minor daughters was convicted of numerous counts of illegal possession of firearms and ammunition. The Fourth Circuit there refused to recognize the privilege and compelled the daughters to testify at their father’s trial because he had abused them and endangered them with illegal firearms. The court, nevertheless, left room for the possibility of adopting the privileges in certain circumstances where the intangible and tangible benefits of preserving the family unit would outweigh the government’s interest in compelling the child to testify.[xiv] As a corollary, the Court cautioned, “even if such a privileged were to be recognized it would have to be narrowly defined and would have obvious limits, perhaps such as where the family fractures itself or the child waives the privilege or where ongoing criminal activity would be shielded by assertion of the privilege.”[xv]

The Fourth Circuit held that the facts in Under Seal did not warrant application of the privilege because Doe Jr. was an adult college student who had truthfully testified that his father would not “cut him off” financially or “hold it against him” for testifying.[xvi] Furthermore, because Doe Jr. was the only individual in the Doe household who was available to testify, applying the privilege would undermine the U.S. Supreme Court’s admonishment that only limited exceptions should trump “the normally predominant principle of utilizing all rational means for ascertaining the truth.”[xvii] Thus, Doe Jr. did not provide a “strong showing that adoption of the parent-child privilege would promote sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice.”[xviii]

Interestingly, Under Seal does not represent a categorical rejection of the possibility of the parent-child privilege ever being recognized in the jurisdiction. The Court in Jones and Dunford had “declined to recognize a parent-child privilege, but stopped short of issuing a blanket rejection of the privilege.”[xix] The Fourth Circuit, again, in Under Seal left the door slightly cracked to the future possibility that, with the right facts, the privilege might be revived. It concluded that the “strong showing of need” for justifying the creation of a new privilege was simply not met in the circumstances of Doe Jr.’s case. Nevertheless, Under Seal adds to the strong weight of Fourth Circuit case law against the parent-child testimonial privilege, and absent legislation, there is unlikely to be a case in the near future that presents sufficient factual circumstances to warrant its recognition.

*          *          *

[i]Confucius, Analects, available at: http://www.bartleby.com/44/1/13.html.

[ii] Under Seal v. United States, 13-4933, 2014 WL 2699722 (4^th Cir. June 16, 2014).

[iii] Id. at *1.

[iv]26 U.S.C. § 5861 (West) (Providing that it is unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record”).

[v] 2014 WL 2699722, at *1.

[vi] Id. at *2.

[vii] The opinion by the Court merely states that the “government did not intend to call the two minor Doe children as witnesses”, but provides no further explanation for the basis of the Government’s decision not to do so.

[viii] 2014 WL 2699722, at *2.

[ix] Id. at *3.

[x] United States v. Jones, 683 F.2d 817 (4th Cir. 1982).

[xi] Id. at 819.

[xii] Id.

[xiii] United States v. Dunford, 148 F.3d 385 (4th Cir. 1998).

[xiv] Id. at 391.

[xv] Id.

[xvi] 2014 WL 2699722, at *6.

[xvii] Id.

[xviii] Id. at *7.

[xix] Id. at *5.