As MSBA continues to advocate on behalf of the profession, we provide you with timely updates today regarding our partnership with the Governor’s Office of Legal Counsel.
MSBA Question Set 2 for Governor’s Office of Legal Counsel: posed 4/3/2020
MSBA Question 1 – Essential Businesses and Employees
Can OLC provide any guidance to help the legal community determine the scope of the OLC’s March 23, 2020 Interpretive Guidance COVID19-04 https://governor.maryland.gov/wp-content/uploads/2020/03/OLC-Interpretive-Guidance-COVID19-04.pdf identifying “private persons and entities” that support the judicial process system? Sec. (2)(j).
a. Does this include support staff and paralegals?
b. Does this include process servers?
c. Does this include non-lawyer experts needed to prepare for or complete discovery in accordance with scheduling orders?
Question 1 – OLC Guidance
Does the interaction need to take place in-person? That is the initial question that needs to be asked. Finding ways to contact support staff, paralegals, and experts who can assist without in-person contact should be employed. Ease should not be the determining factor when deciding how to best utilize support staff and experts.
Process servers provide a unique and problematic issues as they are traveling from person to person and require face to face contact with individuals. There are alternatives to in-person service. Attorneys may need to seek court approval to implement alternate service as an initial form of service. This is likely a better matter to raise with the judiciary because this is an admissibility issue for the courts. (MSBA has posed this issue to the Judiciary this week)
Evaluating these questions is cases specific. If there are court proceedings scheduled such that legal work is required including mediation, legal work can commence. In such situations, practitioners should follow Maryland Department of Health recommendations. If matters can be postponed or rescheduled, that may be the better option than having in-person interaction during the pandemic risking all parties involved.
MSBA Question 2 – Scope of Legal Practice
a. Can OLC provide guidance to practitioners regarding the scope of their legal work under the March 30 Executive Order https://governor.maryland.gov/wp-content/uploads/2020/03/Gatherings-FOURTH-AMENDED-3.30.20.pdf ? Can practitioners take in-person depositions if the parties cannot agree to conduct proceedings remotely, or are they required to wait until the emergency under the Executive Order is lifted? In-person depositions would require a server to serve a subpoena, a court reporter and third party to appear, and both parties and their lawyers.
b. Can you clarify whether private mediation (non-Court ordered) by an attorney, and conducted in a private law office, is an essential legal service under the Executive Order?
Question 2 – OLC Guidance
Evaluating these questions is cases specific. If there are court proceedings scheduled such that legal work is required including court-ordered mediation, legal work can commence. In such situations, practitioners should follow Maryland Department of Health recommendations. If matters can be postponed or rescheduled, that may be the best interest rather than having in-person interaction during the pandemic risking all parties involved.
MSBA Question 3 – Construction Activity
OLC’s March 23, 2020 Interpretive Guidance COVID19-04 https://governor.maryland.gov/wp-content/uploads/2020/03/OLC-Interpretive-Guidance-COVID19-04.pdf lists commercial and residential construction companies as businesses that may remain open. Sec. (2)(b)(vi). Does this include all home improvement contractors (i.e. remodeling, etc.), carpet/flooring installation, and residential landscape/hardscape installation?
Question 3 – OLC Guidance
The intent of the Order is that essential businesses continue to operate. At this time, CISA dictates that residential construction and supporting services are critical infrastructure. The Order does not deviate from this definition. If construction is related to increasing housing supply then it would be critical pursuant to the Department of Homeland Security’s) CISA requirements. If it is not related to reducing the nation’s housing shortage it is not.
MSBA Question 4 – Church Employees
Are church employees permitted to go to the church?
Question 4 – OLC Guidance
Review Interpretive Guidance COVID19-09: https://governor.maryland.gov/wp-content/uploads/2020/04/OLC-Interpretive-Guidance-COVID19-09.pdf
MSBA Question 5 – Restaurant Operation
Are restaurants that are solely drive-through only permitted to remain open under the March 30 Executive Order?
Question 5 – OLC Guidance
Restaurants and bars are not classified as non-essential. They are permitted to provide services as outlined in the March 30 Order in Section V.b. and Interpretive Guidance COVID19-08
https://governor.maryland.gov/wp-content/uploads/2020/03/OLC-Interpretive-Guidance-COVID19-08.pdf
MSBA Question 6 – Travel Under the March 30 Executive Order
Practitioners and parents have expressed concern about the impact of the March 30 Executive Order on child custody and visitation orders.
a. While the Executive Order permits travel required by court order, and OLC’s March 30, 2020 Guidance COVID19-08 https://governor.maryland.gov/wp-content/uploads/2020/03/OLC-Interpretive-Guidance-COVID19-08.pdf does not require self-quarantine if a person has minimal contact in Maryland, we have received concerns for parties with more complex custody orders. Sec. (II)(b)(vi). For example, if one of the parties resides outside of Maryland and transports a child into Maryland for visitation, will the child have to self-quarantine for 14 days in Maryland? How will this impact the non-Maryland parents’ ability to have access again if the exchanges are scheduled to occur more frequently than every 14 days?
b. Parents who meet in third party supervised visitation centers or other public locations for access due to safety concerns have asked how they should proceed under the current Executive Order. Some public locations that were previously used for visitation, such as libraries and shopping centers, are now closed. What options do these individuals have for visitation given the stay-at-home order? Parties are concerned that if they are unable to transport a child for access during the emergency, they may be held in contempt of the custody order.
OLC Guidance – Question 6
Police stations can still be used as a place to execute custody transfers. It may be prudent to have clients call the police station beforehand and inform them they are planning to use the location for such purposes consistent with the Executive Order.
Out of state travel quarantine: See Interpretive Guidance COVID-19-08, Number 2. If possible seek modifications of custody arrangement through court orders for temporary modifications.
MSBA Question 7 – Out of State Travel Quarantine
Will companies based in Maryland, doing business in Maryland and in other jurisdictions, have to self-quarantine employees who go out of state to work a day job?
OLC Guidance – Question 7
Out of state travel quarantine: See Interpretive Guidance COVID-19-08, Number 2. https://governor.maryland.gov/wp-content/uploads/2020/03/OLC-Interpretive-Guidance-COVID19-08.pdf
MSBA Question 8 – Self-Represented Litigants
As court filing deadlines are still in effect, many self-represented litigants must continue to respond to motions and prepare and respond to discovery, even though many lack at home printing and internet services. Civil legal aid organizations have informed us that many self-represented litigants are worried about being stopped by law enforcement while they are out of their home preparing these documents. What should these individuals have for identification if stopped by law enforcement?
OLC Guidance – Question 8
This is a matter that should be discussed with the Judiciary. If there are filing deadlines, parties may want to speak with the Judiciary or file motions to see if there is any documentation they can be provided supporting their essential activity. Otherwise, they should have paperwork from the Judiciary indicating their involvement in a judicial matter.
MSBA Question 9 – Statutes of Limitations
Has the Governor considered tolling any statutes of limitations during the COVID-19 emergency, as other states have already done? Has the Governor discussed this issue with any other entities, such as the Legislature?
OLC Guidance – Question 9
OLC reviewed the issue and suggested consulting the Judiciary; MSBA notes that subsequently on April 3, the Judiciary issued 3 Administrative Orders:
a. The Judiciary issued an Administrative Order on emergency tolling or suspension of statutes of limitations and statutory and rules deadlines related to the initiation of matters and certain statutory and rules deadlines in pending matters.
b. The Judiciary also expanded the statewide suspension of jury trials by Administrative Order.
c. The Judiciary issued an Administrative Order expanding restricted operations due to the COVID-19 emergency to allow remote filings for non-MDEC jurisdictions.
MSBA will update our members as we seek further clarification this week from the Judiciary regarding the tolling and suspension of deadlines as referenced in the new Administrative Orders.
MSBA Questions 10 through 12 – Estates and Trusts Issues, Remote Witnessing Options
10. The demand for Last Wills is increasing, but Maryland does not allow remote execution under MD Code, Estates and Trusts, § 4-102(b). The witnesses must be in the same location as the testator. Our members would like the ability to have remote executions similar to what is now allowable under the emergency for notarization, given health concerns. Has the Governor considered expanding remote options to include remote execution during the emergency, or even beyond the emergency?
11. The current prohibition on remote witnessing of wills was previously proposed to the legislature by the MSBA Estates & Trusts Section (E&T), based on safety concerns of the time, such as undue influence. The prohibition was enacted by the General Assembly based on those concerns at that time. However, in a pandemic environment, including a stay-at-home order, the prohibition on remote witnessing represents an enormous barrier to the execution of documents, such as wills, and advanced medical directives, and revocable trusts. The E&T Section has drafted a proposed solution on remote witnessing that they wish to share through MSBA with the OLC and the Governor’s Legislative Office next week.
12. Is there any initiative to relax the witness requirements for Advance Directives? Currently, a healthcare agent named in the AD cannot be a witness and at least one of the two required witnesses must not know that they would benefit from the declarant’s death. Most available witnesses during the emergency would fall into these categories.
OLC Guidance on Questions 10, 11, and 12
Review Executive Order 02-03-30-04 (Remote Notarization), which concludes that Remote Witnessing for execution of estate planning documents is not authorized by Executive Order. (MSBA is currently reviewing options with the Governor’s OLC for remote witnessing of estate planning documents during the pandemic emergency and will update members as we continue our efforts to resolve this issue.)
MSBA Question 13 – General Inquiry
How has the Governor’s Office been working generally with the other branches? Is there a coordinated effort to set deadlines regarding closures?
OLC Guidance – Question 13
The Governor’s Office has been working with all branches of government at the federal, state, and local levels during this pandemic.
MSBA Question 14 – School Closures
Is the Governor anticipating school closures beyond April 24?
OLC Guidance – Question 14
Please refer to the news page of the Superintendent of Schools for updates in this area http://marylandpublicschools.org/about/Pages/OCP/Newsroom/index.aspx
MSBA is proud to partner with the Governor’s Office of Legal Counsel to obtain answers and clarification for our members and to advocate for the profession. We thank you for reaching out to us and we will keep you informed as we work with the Governor’s Office of Legal Counsel during this emergency.
As always, please reach out to us at feedback@msba.org to let us know what you need and how we can help.