Posted on November 25, 2019 in Family Law

A Custody Evaluator is appointed by a Court pursuant to Maryland Rule 9-205.3.  Pursuant to the Maryland Rule there are mandatory elements of a Custody Evaluation as set forth in 9-205.3(f)(1) and optional elements as set forth in 9-205.3(f)(2).  Mandatory elements, subject to any protective order of the court, a custody evaluation shall include: (A) a review of the relevant court records pertaining to the litigation; (B) an interview with each party; (C) an interview of the child, unless the custody evaluator determines and explains that by reason of age, disability, or lack of maturity, the child lacks capacity to be interviewed; (D) a review of any relevant educational, medical, and legal records pertaining to the child; (E) if feasible, observations of the child with each party, whenever possible in that party’s household; (F) factual findings about the needs of the child and the capacity of each party to meet the child’s needs; and (G) a custody and visitation recommendation based upon an analysis of the facts found or, if such a recommendation cannot be made, an explanation of why. Optional elements include, subject to subsection (f)(3) of this Rule, at the discretion of the custody evaluator, a custody evaluation also may include: (A) contact with collateral sources of information; (B) a review of additional records; (C) employment verification; (D) an interview with any other individual residing in the household; (E) a mental health evaluation; (F) consultation with other experts to develop information that is beyond the scope of the evaluator’s practice or area of expertise; and (G) an investigation into any other relevant information about the child’s needs. Maryland Rule 9-205.3(f)(1)(G) specifically provides the custody evaluator is to provide "a custody and visitation recommendation based upon an analysis of the facts found or, if such a recommendations cannot be made, an explanation of why".

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 Posted on November 22, 2019 in Divorce

The U.S. Code of Federal Regulations, Part 838.103 provides “Self-only annuity means the recurring unreduced payments under CSRS or FERS to a retiree with no survivor annuity payable to anyone. Self-only annuity also includes the recurring unreduced phased retirement annuity payments under CSRS or FERS to a phased retiree before any other deduction. Unless the court order expressly provides otherwise, self-only annuity also includes any lump-sum payments made to the retiree under 5 U.S.C. 8343a or 8420a.” While the Gross annuity “means the amount of monthly annuity payable to a retiree or phased retiree after reducing the self-only annuity to provide survivor annuity benefits, if any, but before any other deduction. Unless the court order expressly provides otherwise, gross annuity also includes any lump-sum payments made to the retiree under 5 U.S.C. 8343a or 8420a”.  The Office of Personnel Management (OPM) will apply the martial share formula to the gross annuity UNLESS the Order states otherwise, see U.S. Code of Federal Regulations, Part 838.306 (b) which states “the standard types of annuity to which OPM can apply the formula, percentage, or fraction are phased retirement annuity of a phased retiree, or net annuity, gross annuity, or self-only annuity of a retiree. Unless the court order otherwise directs, OPM will apply to gross annuity the formula, percentage, or fraction directed at annuity payable to either a retiree or a phased retiree.”  Gross Annuity is the default.

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 Posted on September 23, 2019 in Appeals - State & Federal

On August 28, 2019, in a landmark decision, the Court of Appeals abrogated the long standing rule that a defendant could not be convicted based solely on the testimony of the defendant’s accomplices. (State v. Jones, No. 52, September Term, 2018). Jones was charged with the murder of Mr. Sandeep Bhulari. The investigation led to six suspects. Fingerprints discovered at the crime scene implicated four of the suspects. Jones was implicated solely by the accounts of three of the suspects. The trial, those three suspects testified pursuant to plea agreements. In addition to their testimony, the State presented testimony from detectives and forensic experts and offered physical evidence. None of the physical evidence directly implicated Jones. Jones was convicted of conspiracy to commit armed carjacking. Jones appealed.

The Court of Special Appeals held that the accomplices’ testimony was not independently corroborated by other evidence and that the accomplice corroboration rule had been violated. However, the panel of the Court of Special Appeals suggested that the Court of Appeals reconsider the accomplice corroboration rule.

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 Posted on June 14, 2018 in Business Counseling, Litigation & Transactions

Marketing entrepreneurs’ greatest strengths are their creativity and vision. It is this vision that drives many to take the leap to start their own agency/consultancy or join a start-up venture to market an exciting new product. Unfortunately, most marketers are not well-versed in the intricate legal issues involved with starting a business. This can lead to a variety of problems, especially as the venture begins to become successful.  A common misconception is that good legal advice is often too expensive for the early stages of a business venture. This is not the case – provided the right counsel is selected. To ensure the success of any new venture, marketers should take steps to avoid the following common pitfalls:

1. Delaying discussion of legal issues until past the start-up phase. It’s all too common (and tempting) to ignore legal issues involved with starting a business. The instinct is to wait until your company receives additional funding or has a problem to hire an attorney. But having legal counsel during the start-up is essential to preventing large and costly problems that could ultimately derail your business.

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 Posted on May 01, 2018 in Business Counseling, Litigation & Transactions

In the midst of the Great Depression, Congress enacted two laws to shore up practices that were considered to have led in part to the Market Crash of 1929: the Securities Act of 1933 ("1933 Act"), which governs initial securities offerings; and the Securities and Exchange Act of 1934 ("1934 Act"), which governs all subsequent trading. The 1933 Act permits both state and federal courts to hear claims brought under that Act, and bars defendants from removing such claims to federal court. The 1934 Act, however, grants federal court exclusive jurisdiction to hear claims brought under that Act.

In 1995, Congress passed the Private Securities Litigation Reform Act ("Reform Act") to curb apparent abuses of plaintiff’s use of the class action vehicle in litigation involving nationally traded securities. The Reform Act included substantive reforms in both state and federal court, and procedural reforms only in federal court. The Reform Act fell prey to the law of unintended consequences, and, following its passage, plaintiffs began circumventing the obstacles imposed by the Reform Act by filing securities class actions in state court. To prevent the run-around of the Reform Act, Congress responded in 1998 with the Securities Litigation Uniform Standards Act of 1998 ("SLUSA"). In relevant part, SLUSA provided an exception to the 1933 Act’s general rule that state and federal courts exercise concurrent jurisdiction over claims brought under that Act. Following the passage of SLUSA, a split developed between state and federal courts as to whether SLUSA deprived state courts of subject matter jurisdiction over cases involving "covered class actions" (actions in which damage are sought on behalf of 50 of more people) asserting only 1933 Act claims.

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 Posted on February 16, 2018 in Criminal Defense

I recently represented a young man in Harford County Circuit Court who was charged with Possession of Child Pornography.  I am former prosecutor and career full time criminal defense attorney practicing exclusively criminal law for 22 years.  I have defended scores of individuals charged with Possession and/or Distribution of Child Pornography and have blogged many times about the increasingly harsh penalties that are being sought by both state and federal prosecutors in these cases.  The granting of probation before judgment in these cases is almost unheard of in recent times.

My client was just 18 years old when he was charged in this case.  He was caught up in the typical investigation that we see in these cases.  Undercover police officers identify a computer that shares child pornography on file sharing programs such as bitTorrent and watch it until a computer with an IP address within their jurisdiction connects to it and downloads Child Pornography.  The police will then subpeona the user data for that IP address and execute a search and seizure warrant looking for the device or devices that were used to download the illegal material.

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 Posted on October 24, 2017 in Estates, Trusts, Probate & Fiduciary Litigation

Ned Parent, a member of Silverman Thompson’s Business Litigation Group, published an article in the September 2017 issue of the Maryland State Bar Association’s “Bar Bulletin” publication.  Mr. Parent’s article discussed the “undue influence” standard used in Caveat proceedings (the formal term used for proceedings challenging the validity of a Will).  Specifically, the article discussed the challenges in successfully proving undue influence in such proceedings, and suggested possible solutions to address those challenges.

Mr. Parent leads STSW’s fiduciary litigation practice, handling disputes related to estates, trusts, and guardianships.  If you have any questions about this article, or would like to discuss a potential matter related to an estates and trusts dispute, Mr. Parent may be reached at nparent@silvermanthompson.com or at 443-909-7500.

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 Posted on October 03, 2017 in Criminal Defense

A few weeks ago I defended Baltimore County Police Officer Christopher Spivey in a use of force assault case.  After listening to 3 days of testimony and evidence, the jury took less than 30 minutes to find him not guilty of all charges.  Then at least six members of the  jury waited around to shake Officer Spivey’s hand and thank him for his 10 years of service to the community as a police officer.

A few days later the Editors of the Sun wrote what I view as an outrageous editorial in which they dismissed the juries’ verdict and all but lamented the fact that there were no demonstrations of social unrest as a result of the acquittal.  Below is a link to the editorial as well as the response that I sent to the paper.  Not surprisingly the editors lacked the journalistic integrity to print my response.

My Response:

The Sun began its editorial on the acquittal in the assault trial of Officer Christopher Spivey with these  two words,   "Thirty Minutes".   The editors were apparently pointing to the jury’s quick acquittal in this case as evidence that they failed to take the allegations in this case seriously.  The editorial went on to essentially tell its readers that these jurors must have made their decision based on something other than the evidence, because they (the editors) have seen the video so they know better than the jury who listened to three days of evidence.

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 Posted on August 30, 2017 in Criminal Defense

Representation in cases involving Possession and Distribution of Child Pornography require expertise that only an Aggressive Criminal Law Specialist can provide.  I am a full time Maryland Criminal Attorney and former Baltimore County Assistant State’s Attorney with more than 20 years of experience.  Throughout my career as a prosecutor and full time criminal defense attorney,  I have handled hundreds of cases involving the Possession and/or Distribution of Child Pornography in Baltimore County and across the State.  Over the last 20 years I am aware of no other criminal attorney in the state who has handled more of these cases than I have along with my partner, Former Assistant United State’s Attorney and Chief of the Sex Offense Unit,  Andrew C. White.   As I have written before on this blog, these cases are prosecuted extremely aggressively and often result in substantial state and federal prison sentences.  This is why is is so imperative to hire attorneys who specialize in these types of cases.

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 Posted on April 21, 2017 in Victim's Rights

Thanks to Delegate C.T. Wilson’s persistent effort, the Maryland General Assembly passed and Governor Larry Hogan signed into law House Bill 642 on April 4, 2017.  The new law provision extends the statute of limitations for victims of sexual abuse to sue offenders and the individuals, organizations and/or government entities who allowed the abuse to occur.

Maryland’s previous statute of limitations provided that child sex abuse victims only had to age 25 to sue (seven years from the date the victim reached the age of majority). The new law extends the statute of limitations to age 38. Although the law is a huge step forward, there are a couple of important things to note.

The Law Requires Gross Negligence to Sue Responsible Third Parties

The law treats claims against perpetrators of abuse differently from claims against organizations who enabled, fostered and/or failed to prevent the abuse—such as churches, schools, daycare centers, camps, pools, etc. Specifically, it provides that victims whose abuse occurred more than seven years after age of majority (mostly 25) can only sue third-parties for actions arising out of the sexual abuse if the victim can show (1) the person or governmental entity owed a duty of care to the victim; (2) the person or governmental entity employed or exercised some degree of responsibility or control over the alleged perpetrator; and (3) there is a finding of gross negligence on the part of the third party.[1] "Gross negligence" is defined as "an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them."[2] The law contains no such limitations for direct lawsuits against perpetrators.

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