Licensing Process Servers Click HERE to Bring Up Full Post

The Crab has a bit of a libertarian streak and is reluctant to support any licensing system until proven otherwise. The conduct of some process servers, however, is a scandal that puts avoidable delays into the court system.

Any adult not a party to a case can serve process on anyone in that case under the Maryland Rules. The standards for serving process - a fundamental element of criminal and civil due process - are extremely low. One can be on probation or parole for check kiting and execute an affidavit of service of process. One can be a convicted felon, forger or perjurer - and serve process, with the Court of Appeals none the wiser.

I have seen process affidavits where the affiant swore under penalty of perjury that he served a defendant at a building that the Maryland Stadium Authority had bulldozed a decade before, on a date when the defendant was in Alabama fishing, replete with hotel bill, rental car license and Alabama fishing license.

If notaries need a government commission and a code of conduct because the public needs to be certain of their honesty, character and reliability, so do process servers for the same reason. The same standards should apply; perhaps notaries could be authorized to serve process automatically.

Servers with a high degree of unreliability could have their permits pulled, and the server's license number and date of expiration of license would appear on each affidavit. By enforcing this rule, courts could eliminate the basis for many Motions to Vacate while shorting the "shelf life" of many cases with improved quality.

Proposed Rules of Professional Conduct Click HERE to Bring Up Full Post

Last year, a committee headed by the Honorable Lawrence Rodowsky studied and made recommended changes to the Maryland Lawyers' Rules of Professional Conduct. On January 10, 2005, the Court of Appeals will hear comments from interested members of the Bar on these proposed Rule changes. An excellent overview of the proposed changes is available in the December 15, 2004 Bar Bulletin.

Several proposed changes are worthy of note.

Proposed Rule 5.5 will allow greater access to out-of-state attorneys to come into Maryland to handle work in Maryland if that lawyer "reasonably expects to be authorized" to handle the ultimate litigation here or out of state. In practice, this may provide more comfort to large-firm practitioners to follow their cases or clients into Maryland if they can expect that the local Maryland partner will help them get cleared pro hac vice. The rule also allows services to be provided in Maryland when the services "reasonably relate" to that lawyer's practice in her own jurisdiction, including without limitation meeting with clients, interviewing witnesses and reviewing documents here. While the Crab's "boots-have-grown-roots-in-the-Free-State" practice will not be affected very much by this Rule, it seems most welcome.

Proposed Rule 1.15 would authorize a current unethical practice - the common practice of putting flat fees directly into an operating account. Most criminal practitioners put flat fee retainers into operating funds, and the Crab suspects that bankruptcy attorneys do likewise. In the District of Columbia, flat fees can be put into operating accounts directly with client consent, and the Committee has recommended a similar rule for Maryland. To the Crab, this seems like the practice of building a college campus, seeing where student walk and then putting in the sidewalks over those dirt paths: reasonable and prudent.

Proposed Rule 8.4(e) will generate some heat. It will bar conduct that manifests bias or prejudice on the basis of race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status in a "professional setting" when the conduct is "prejudicial to the administration of justice." This rule could become the subject of considerable abuse.

You do not have to be Archie Bunker to believe that the factors identified in the Proposed Rule may influence jury psychology; is it misconduct to advise clients of the results of jury consultants on such matters? Does "conduct" include the act of filing a motion to change venue in a contested case to get a more sympathetic jury pool? How about cross-examination of a witness about such subjects themselves; does the very act of asking about bias or prejudice "manifest" prejudice? Given some of the case law on what constitutes "conduct prejudicial to the administration of justice," including failure to file an income tax return on time, one wonders how far this Proposed Rule may creep outside of courtroom practice. Does an off-color joke at a Bar Association fundraiser constitute "bias"? How about noting publicly that most shoplifters are women or that most armed robbers are men?

A recent case, Attorney Grievance Commission v. Link, 380 Md. 405 (2004), shows how far "manifestation of bias" may go. In that case, the attorney visited the MVA to collect driving records for a auto tort case. When the clerk did not cooperate, the attorney addressed the clerk rudely with the epithet "Sparky." The clerk was African-American, the attorney Caucasian. The AGC prosecuted this case under the theory that the rude treatment constituted conduct prejudicial to justice or committed with the purpose of causing undue embarrassment to a third party. The Court dismissed the disciplinary action - a rarity at the Court of Appeals level - but the majority opinion and the concurrences made it clear that the Court is concerned about the image of the court system as whole in its interpretation of "conduct prejudicial." Rather than paraphrasing that case, I would encourage the reader to peruse the actual opinion and imagine how politically incorrect banter may come under the review of the Court of Appeals in the future.

The Mallet - Chipotle Click HERE to Bring Up Full Post

The Crab goes to Hyattsville for business reasonably often. Chipotle is worth an early departure for an afternoon docket or a slow return back in the morning.

Named for a wonderfully smoky Mexican pepper, Chipotle is a chain but doesn't really feel like one. The decor is low-key, with simple lettering on a simple menu and metal-topped tables for easy cleaning and a sharp look. The basic choices are two types of burritos, a burrito in a bowl or tacos, replete with veggie or meat filings, guacamole and other filings. Chipotle sells tortilla chips literally in a brown paper bag as a cheap but tasty side item. Chipotle appears to be applying for a liquor license; while the Crab is personally opposed to drinking on the job, particularly 35 miles from his desk, it may be fine in the future for a cheap but surprisingly tasteful and tasty evening out. The food is absolutely delicious, and most of the staff appears and sounds as if drawn from that area's large and diverse Hispanic community. Service is fast and professional, good for an attorney facing the billable hour. Highly recommended.

5506 Cherrywood Lane (at Route 193 near Berwyn Heights), 20770
301-982-6722

Gay marriage - some thoughts Click HERE to Bring Up Full Post

The Crab hesitates to enter this topic because the topic is guaranteed to generate more heat than light. Rather than a single essay, The Crab notes the following.

1. While marriage has existed in virtually every society, it has never included same sex spouses. Most societies have given special legal significance to marriage in terms of property rights, inheritance, etc. These societies have varied dramatically in many details about marriage (dissolubility, remarriage, equality of wives and husbands, number of wives, particulars of inheritance laws, etc.) but no society has ever conferred marital duties and privileges to same sex couples until the last 30 years. If the Crab is wrong on this point, please correct me.

2. In western civilization, marriage has traditionally existed as a means of fulfilling marriage-specific religious obligations and to maintain the structure of a multi-generational family order. Traditional religion opposes same-sex sexual unions, often in severe language, and same-sex couples are incapable of producing children without some extensive help from non-spouses and the opposite sex, unlike female-male couples who can often procreate without intervention and even by "oopsie!"

3. Until recently, just making sure that the next generation made it to adulthood in an agricultural society took an unbelievable amount of energy and work. Now America's biggest medical and social problems stem largely from affluence; teenagers were once farmers in their own right, and in some parts of rural America still are. Now they are the mall-raiding, junk-food eating horde looking to be entertained. Gay marriage as an institution cuts into the replacement birth rate. Today, 2.1 children per straight couple can reproduce the society; aging, liberal Western Europe averages about 1.5 and the U.S. is a bit higher. When infant mortality, farm accidents, pneumonia and gangrene posed serious threats to reproduction, marriage, child-rearing and child care were the major institutions of life.

4. Some aspects of "gay culture" do not necessarily lend themselves to traditional concepts of marriage. The concept of flamboyant camp in gay culture (and elsewhere) has worried gay activists advocating on behalf of gay marriage. Among uptight straights (your author being the honorary mayor of "uptight straight"), marriage is deadly serious business; even for us non-religious heretics, it is about the holiest thing out there. "Camping up" a straight wedding is virtually unthinkable for many straights, and probably for many gays as well. Marriage is often seen as the beginning of seriousness, the end of youthful foolishness for men and for women as well. Put another way, most men and women see marriage as being about duty, stability, structure and sacred oaths, not about rights or celebration, sure as hell not about "camp."
For those who think the Crab has been unfair to gay culture, The Crab will on behalf of straight men "wear" the shame of every pathetic straight man who has ever worn a lounge-lizard leisure suit, bought a "Girls Gone Wild" video or gotten drunk and head-butted a lamppost in front of his fraternity. Straight culture is often hideous as well, maybe more so.

5. The foregoing notwithstanding, The Crab has gone on record in favor of legalizing gay marriage, over eighteen months ago in another weblog and stands by his comments. Churches, synagogues, social clubs and George W. Bush are free not to associate with or recognize such marriage couples, just as some observant Catholics do not recognize divorce and remarriage. But a gay couple should not be treated any worse than a childless or elderly straight couple. Marriage is not only for children, but for mutual support and (gulp!) love. Whether this should come about by judicial creativity or by tempered, cool-headed act of the legislature (if that exists in modern America) is another matter.

6. The Maryland Court of Appeals will eventually hear an appeal concerning Maryland's ban on same-sex marriage. Maryland's Declaration of Rights, art. XXXXVI, states flatly that "Equality of rights under the law shall not be abridged or denied because of sex." If a husband is a different thing from a wife (most husbands and wives would agree), then one's right to take a husband, a wife or neither should not be abridged or denied because of one's own sex any more than any other right. Separate but equal does not apply here. Maryland holds both women's or men's sexes against them when it denies them the right to take a wife or a husband, respectively. I have not read the ACLU's briefs on this subject and do not even know the caption of the relevant case as it works its way up the Annapolis beanstalk. If you have followed this case, please contact me.

The Mallet - Kabob Hut Click HERE to Bring Up Full Post

The Crab does not get to Towson for legal business all that often. When he does, he enjoys dropping by the Kabob Hut.

There are a number of excellent kabob places in Baltimore County, but this one is the Crab's favorite and is also closest to both Towson courts. The decor is very simple; walking in, one thinks of a New York pizza carry out. But the food is delicious, addictive. Kabob is served differently in different regions of the eastern Mediterranean and surrounding regions; Kabob Hut serves a light and flavorful Persian kabob with rice, traditional vegetables and mast-i-khiar, a yogurt sauce somewhat reminiscent of Greek tzatziki sauce but spicier with mint. The kabob platters come with delicious flatbread cooked on site. A lunch platter with beverage will run about 10 dollars but worth every penny. Service is businesslike but courteous.

13 West Pennsylvania Avenue, 21204
410-821-8005

Sin City Click HERE to Bring Up Full Post

It takes a particularly Teutonic sort of gloom, I suspect, to write a philosophical column 30 feet from the slot machines of a major Las Vegas casino. A similar sort of gloom overtook Martin Luther’s soul and constipated intestines in an outhouse five centuries ago, yielding us the Protestant Reformation and untold theological, cultural and historic mischief. His example serves as a cautionary tale against brooding too much. Nonetheless, I will proceed to sin boldly, in Luther’s words.

During the past four days, I have gotten a number of blunt messages from Las Vegas. Some were simple, such as the one regarding my mediocre blackjack skills. Another was to my body, reminding me that I come from a low-lying drained swamp filled with mosquitoes that bans most public smoking, not an laissez-faire desert a half mile above sea level. More complex, however, was one about the importance of place to me.

Notwithstanding my love of the Internet and my obsession with world news, I remain an extremely provincial person. My gut-level definition of "terra cognita" really does not extend more than about 35 miles from Reisterstown, Maryland. I have lived in New Jersey, been to New York many times, enjoyed a visit to Philadelphia and know Washington, DC fairly well. My wife’s roots are in Colorado and Oklahoma, and we have family in Las Vegas (hence the trip.) But Maryland is my place, period.

We Americans are more mobile than almost any other people on Earth. Many aspects of our culture are uniform nationwide. Getting an American to move from, say, Kansas City to Indianapolis for work is not that hard. Getting a German to move from Hamburg to Munich or a Frenchman to move from Brittany to Provence is a much harder sell, due to intense regional cultural and even language issues. It is sometimes easy to forget that we are a diverse nation, although it probably got a bit easier to recall that fact after this most recent presidential election.

Americans like me are rare. Most Americans probably do not have the sense of being a "son of the soil" of a particular region as I do about Maryland. Very few Marylanders have that sense, I suspect; we do not have a strong identity as Marylanders, but mostly as Baltimorons, Shoresmen, etc.

Maryland is small, mind-numbingly small when you get down to it. Las Vegas is 220 miles from the nearest other major city, Los Angeles, and about 400 miles of wasteland from Nevada’s capital, Carson City. Baltimore is about 400 miles from Ontario, 35 miles from Washington and 24 miles from Annapolis. Being provincial from such a small place probably falls into what Freud called the "narcissism of small differences," but provincial I remain.

Las Vegas is infamous for being "Sin City" due to its explicit economic reliance on gluttony, lust and greed. Whether such "cardinal sins" are sins as such is a theological issue above my constipation level. But it is a bit jarring to walk down the Strip with a baby stroller and see newspaper boxes piled high not with last week’s CityPaper, but with a variety of PennySaver-like publications for "private dancers" who "guarantee satisfaction." There is no "Block"; most of Clark County, Nevada is the "Block", with outright prostitution licensed and regulated in most of the rest of State of Nevada. Likewise, cigarette smoke is almost everywhere - in the airport, on every street, in upscale malls. I suppose that a state that will legalize and tax prostitution can’t realistically ban the after-sex cigarette, but it permeates and penetrates. My wife took a shower after one long walk outside to get the cigarette smoke out of her hair. One can be a philosophical libertarian and yet be taken aback at the exercise of some liberties. Especially if one is a provincial tight-ass.

At first arrival I hated Las Vegas. The lights and noise and excess overwhelmed me; my "soul" sort of "vomited" and my body almost did as well from mild altitude sickness, dehydration and the after-effects of a nasty ear infection from earlier in the week. My appetite was shot dead in the land of the buffet table. My mind returned to the piles of files at my desk, the approaching litigation deadlines and my general dissatisfaction with the game of "gotcha" which litigation requires. As I lay in bed one early afternoon, I recalled excerpts of a book by a Quaker who had given up his driver’s license as a statement against the material world of crowds, money and noise. Crowds, money and noise - the three essential elements of a successful casino. Las Vegas does not exactly reflect Quaker values, I suppose, but in fairness neither do I.

My son Sam liked Las Vegas less than I did, particularly during the four-hour connecting flight from Cleveland into McCarran Airport. Las Vegas was not exactly made with a fellow like me in mind, but organized crime did not build Vegas whatsoever for the stroller and sippy-cup set. Las Vegas attempted a few years ago to make the region more friendly to families, but it did not really work; you cannot have a successful whorehouse and successful preschool in the same storefront, so Las Vegas went back to whorehouse (figuratively.) Sam’s uncle bought him a wonderful Elmo doll, however, and Sam’s attitude improved significantly. Bad luck for Sam and us that he got the mother of all flu attacks from his little cousin; copious liquid diarrhea and fantastic puking were the order of the day on the day-long flight back east.

My attitude eventually improved as well. My wife and I tried to balance the sleeping schedule of "Pooky" to allow us some luxuries, such as a meal in peace. We spent some time with her family at nearby Nellis Air Force Base, where I got a very interesting unofficial tour of the flight lines of one of the largest US air bases. I got to watch the first half of the Ravens-Patriots game at the sports book at Caesar’s Palace, surrounded by a very pro-New England betting crowd (they bet right; New England massively beat the seven point spread and ruined our day.) My wife and I marveled at an eight million dollar necklace at the Forum Shops at Caesar’s Palace. I even got to visit Binion’s Horseshoe downtown where the World Series of Poker takes place.

Provincial people eventually return home because they can’t or won’t really leave. While I did set my watch to local here in Nevada, in my gut I know that "real time" is Eastern Standard Time. Pacific Standard Time is fake, because Baltimore is Real. The people who live and work in Las Vegas, aka "the Valley", have every right to be just as provincial as I, to define their world by the mountains that surround this Valley, to fleece me of my money with my consent and to look forward to my rear-end entering McCarran Airport and leaving their Valley.

There is no "Sin City" in reality; whatever sin there is in Sin City is not really in the City but in the minds of the people who blow through it. In the same way, there is no objective basis for calling one city or another "home" or "real"; it lies in the mind of the people who come to identify with it. In the end, we all fall back to the devil we know.