Author: JGL Law

The Holidays can be a stressful time for intact families; adding separation and/or divorce into the mix can feel like you’re jumping out of the frying pan and into the fire. Your children may be especially sensitive during this time, especially if the separation is recent or this is their first Holiday without the other parent. Managing both their and your expectations can help reduce the negative effects of divorce on children, avoid crushed feelings and dampened holidays. Below are several tips for making the Holidays a success when coping with divorce or separation:

     1.    Know Your Holiday Schedule:  If you have an existing custody order, refer to it early and often. You should be familiar with which parent has each Holiday, the days/times of the Holiday, who is responsible for transportation, and when the regular access schedule resumes. You do not want to find yourself planning an out-of-town Thanksgiving trip only to discover the day before that it is actually the other parent’s Holiday.

If there is not an existing custody order, try to reach out to the other parent (through counsel, if appropriate) and get an agreement in place. Make sure that it is in writing! Try to create a Holiday schedule early in the separation process so that you are not forced to make last minute decisions or plans.

If working out a schedule is impossible, you can seek relief from the Court and request that the Court set a Holiday schedule on an emergency basis. It’s important to remember, however, that you may not like what the Court decides if the Court even entertains such a request as an emergency.

      2.    Plan Ahead: If possible, plan your Holiday travel and activities ahead of time and keep the other parent in the loop. If you and the other parent are splitting a Holiday, e.g. you have Christmas Eve through 9:00 a.m. on Christmas morning and the other parent has Christmas morning through New Year’s Day, make sure that your plans do not interfere with the other parent’s time.

It’s also important to keep your kids in the loop. For example, if the children are transitioning to the other parent’s home at noon on Christmas Day, let them know. Kids need to feel that they have some control over the process too. Also, they will want to pack their favorite toys, clothes, and activities to bring with them. Both you and they will be happier (and avoid emotional meltdowns) if you are not scrambling at the last minute to get the backpack ready to go to Mom’s or Dad’s.

     3.     Keep Transitions as Smooth as Possible: This is part and parcel of keeping the other parent in the loop. If you are traveling from Philadelphia back to the DC area on Sunday, will you be able to transition the children at the same time and place or will you need the other parent to meet you half-way or at another location?

It may be tempting, but do not use the transitions as a chance to engage in an argument with the other parent. If this is impossible, ask a third party to be there with you (someone who won’t add heat to the flame!). Remember, this is about your kids and not about your ex.

     4.     Don’t “Out-Do”: Do not try to “out-do” the other parent and buy the children expensive gifts or trips. The children will see through it and you will just create bad feelings between you and the other parent.

If you feel like the other parent is trying to “one-up” you, don’t let it get to you and remember: the kids are just happy to be with you, especially right now when they want parent/family time.

     5.    No Bad-Mouthing!: Seriously, just don’t. Nothing good will come of commenting to the children about the quality of the other parent’s presents, whether they were late picking the children up, or anything else. Your kids will hear what you’re saying and it will either cause animosity between the kids and the other parent or the kids and you. In addition, if the other parent gets wind of it, they may use your behavior against you in a custody proceeding. Save the griping for when you are alone with your friends.

     6.     Create New Holiday Traditions: So you used to spend every Holiday with your ex’s parents? Well it’s time to jump start some new family traditions. This will help keep both you and the children from focusing on the past and will create some awesome memories. There’s plenty to do from starting Elf on the Shelf , participate in Cranksgiving;  a bike scavenger hunt to purchase food for shelters, volunteer internationally, or just spending a cozy night on the couch sipping eggnog. Think outside the box and have a great time!

     7.     Remember The Holidays Are Really About Family: The time that you spend with your children and other family members is the most important. Don’t let your separation or divorce impinge on an otherwise happy and joyful time.

On BluPrint’s Radio – Business Talk Show, Jay Holland addressed key changes in the Family Medical Leave Act (FMLA). The Blog Talk Radio show focuses on new developments to the FMLA and how proposed regulatory changes related to same-sex marriage will impact employees and employers. 

As principal at Joseph Greenwald & Laake, Holland is an esteemed Labor & Employment litigator known for taking on difficult cases and achieving exceptional results. He often speaks on employment law and frequently provides insight to the media.

The BluPrint Radio show, “Defining Spouse Under the FMLA,” aired live on Tuesday, November 17, 2014 at 7:00 p.m. 

On Thursday, November 20^th, Jay Holland and Brian Markovitz will speak at the annual Maryland Chamber’s Labor and Employment Conference.

Attendees will learn more about the latest regulatory changes impacting Maryland businesses and preview the potential issues up for debate in the 2015 General Assembly session. 

Holland’s session, Regulating Employer Hiring Decisions will focus on the trends attacking employers hiring policies. In a concurrent session, Emerging Legal Landscape of Discrimination, Markovitz will explore the new Maryland law prohibiting gender identity discrimination and steps to comply with the law.

The conference will take place at the Westin Annapolis Hotel, starting at 8:30 a.m. and wrapping up at 4:30 p.m. For the full agenda, visit the Maryland Chamber of Commerce site here. Registration fees are $125 for members and $200 for nonmembers. Attendees can register online or by contacting Kristen Solis at (410) 269-0642 or ksolis@mdchamber.org.

Have you received a subpoena from an administrative agency that is seeking documents or an interview with you? What next?

A subpoena is simply an order from a court or government agency. This post deals with subpoenas issued by government or administrative agencies. Most licensed professionals (think doctors, psychologists, dentists, and social workers) are regulated by agencies with subpoena powers. Typically, a subpoena seeks to compel a person’s attendance at a hearing or produce documents that a government agency is seeking as part of an investigation. A subpoena may seek privileged information or testimony potentially implicating the Fifth Amendment right against self incrimination.

If you receive a subpoena from a government agency, do not ignore it. There is a misperception that licensed professionals can ignore the administrative subpoena if it seeks privileged or confidential documents. This is not correct.

Maryland law is clear: If you are served with an administrative subpoena, you must respond by producing the requested information or challenge the subpoena in court by filing a timely motion to quash or request a protective order.

There is great risk if you fail to respond or challenge the subpoena in court. Individuals who refuse to respond risk being professionally disciplined with obstructing or failing to cooperate with an investigation, which can have serious consequences for a professional’s license. For example, in Md. State Bd. of Physicians v. Eist, 417 Md. 545 (2011), the Board of Physicians issued a subpoena to a psychiatrist for privileged records related to his treatment of a patient. Even though the patient refused to consent to the disclosure of the privileged records, the Board charged and ultimately found that the psychiatrist failed “to cooperate with a lawful investigation conducted by the Board.” Id. at 552. Most regulated professions have similar requirements.

The psychiatrist eventually turned the records over and the Board dismissed the underlying complaint, but pursued the disciplinary charge related to obstructing the Board’s investigation. In determining that the Board of Physicians correctly found that the psychiatrist failed to cooperate with an investigation, the Court of Appeals explained that “when the Board is investigating a complaint against a health care provider and subpoenas certain medical records in his or her possession, the health care provider is required to provide the medical records to the Board regardless of the patient’s authorization.” Id. at 564. The Court of Appeals’ decision illustrates the broad authority licensing agencies possess. See Dr. K. v. State Bd. of Physician Quality Assurance, 98 Md. App. 103, 120 (1993) (“To give a patient, in effect, a veto over the Board’s power to regulate licensed physicians would be to eviscerate the Board’s ability to protect the larger public interest.”).

If you receive an administrative subpoena, it is imperative to comply with the subpoena or challenge the subpoena in court. Do not ignore it.

On November 4, 2014, DC residents voted to legalize marijuana. DC had already decriminalized marijuana in July of this year. Soon, however, a person 21 years or older in DC will be able to:

• possess up to two ounces of marijuana for personal use;
• grow no more than six cannabis plants with 3 or fewer being mature, flowering plants, within the person’s principal residence;
• transfer without payment (but not sell) up to one ounce of marijuana to another person 21 years of age or older; and
• use or sell drug paraphernalia for the use, growing, or processing of marijuana or cannabis.

Dubbed “Initiative 71” on the ballot, the measure passed with the approval of an overwhelming majority of DC voters:

Source: https://www.dcboee.org/election_info/election_results/2014/November-4-General-Election

Despite the wide approval of Initiative 71 by residents, the future of marijuana legalization in DC is still uncertain. Congress has 60 working days to override the will of the voters and veto the initiative. With the passage of this bill, and assuming Congress takes no action to stop it, DC joins several other states that have decriminalized small amounts of marijuana.

In this tight job market, many students over the last decade have turned to unpaid internships to get their feet in the business door and gain some real-world job experience for their light resumes. Some even solicit employers to try to convince them to take on unpaid interns at their companies. At first blush, it seems like a fine concept: the student gets job experience and makes networking connections while the employer enjoys some free labor. In a down economy with lean company budgets and fierce job competition, this is a win-win situation. Right?

Not so, according to the courts and the Department of Labor.

Most of the time, employees cannot agree to forego receiving the minimum wage as compensation for work performed. Scores of interns are now suing and winning back pay for “unpaid” internships and many of these lawsuits reach back as far as six years in the past.   

Mushrooming in 2013, groups of former unpaid interns banded together to sue former employers for failing to pay minimum wages during their supposedly unpaid internships. Among the headline grabbers were lawsuits against such giants as Condé Nast, Atlantic Recording, Fox Searchlight, NBC Universal, Viacom, Sony, Donna Karan, and Charlie Rose, just to name a few.

The latest big company to settle an unpaid intern lawsuit is NBC, which, according to a court filing it made on October 22, has settled a purported class action brought by unpaid interns who worked for Saturday Night Live.[i] If the settlement gets approved by the Court,—as Court approval for FLSA settlements is sometimes required—NBC will pay $6.4 million to thousands of former unpaid interns, estimated at about $500 per intern.

How can an intern who reaped the benefit of working for a universally-known TV show with a 40-year history like SNL sue for back pay for an UNPAID internship? It all has to do with the Fair Labor Standards Act (“FLSA”) and state equivalents, which require employers to pay minimum wages to “employees” no matter what the employees agree to. These laws were enacted to protect unwitting employees from being taken advantage of in the often-unequal playing field of the employer-employee relationship. However, for decades, these workers were not classified by employers as “employees” but instead as non-employee unpaid interns given their student status or in-training status. But, groups of interns are now crying “foul!” and courts are disagreeing with the long-held employer classification. Repeatedly, big employers are shelling out millions of dollars to settle these lawsuits, like the one this month for the SNL interns.

The FLSA defines the term “employ” very broadly as “to suffer or permit to work.”[ii] Most internships you might think of would be classified as “employment” under the judicial interpretations that have been issued recently in cases like that in New York against Fox Searchlight. In the Fox Searchlight case—one of the few employers that has decided to litigate the issue instead of settling out of court—the unpaid and underpaid interns from mega movies Black Swan and 500 Days of Summer sued for back pay.[iii] In June of 2013, the District Court for the Southern District of New York sided with the interns by ruling that they were in fact “employees” entitled to protection and payment under the federal and state wage payment laws. This ruling is now on appeal awaiting decision from the Second Circuit Court of Appeals in what is sure to be a much-discussed and potentially far-reaching opinion when it comes out.

What is a concerned employer to do? Aside from consulting an employment attorney about your specific situation and your state’s employment laws, employers can start with the Department of Labor’s website and its helpful fact sheets. The DOL fact sheet on unpaid internships lays out a six-part test[iv] for determining whether an internship meets the exclusion for minimum wage payment.

The crux of the DOL test is that the internship must truly be for training and educational purposes. Stated another way, if the internship is for the benefit of the intern, and the employer derives no immediate benefit from it, the internship probably qualifies for the exclusion.

But of course, some states have more stringent labor laws than the federal FLSA and some state laws also have different timing cut-offs for these lawsuits. The reason almost all of the touted unpaid intern class actions have been coming out of New York State is because that state allows these cases to reach back six years from the date of suit, while the federal statute only allows plaintiffs to go back three years. That is one of the reasons the SNL class includes more than 8,000 interns reaching back to 2007. (Deadline.com obtained a copy of the SNL settlement memorandum and posted it here.) 

Employers should beware of these unpaid internships. Even those with the best of intentions can run afoul of the wage and payment laws. Always consult with an employment attorney in your state before hiring unpaid or underpaid interns. Also, be sure to check back here for updates on the cases discussed, including the pending appeal against Fox Searchlight.

In medical malpractice suits filed in Maryland, conducting a thorough expert deposition is extremely important to obtaining a successful result at trial. The following are a few important things a plaintiff’s attorneys must do in preparation for, and during the course of, an expert deposition:

1. In advance of an expert deposition, the plaintiff’s attorney must obtain as much information about the expert as possible. For example, where he/she went to medical school, where he/she attended for his/her residency, his/her Fellowship, what hospitals he/she has privileges with, what Board Certifications he/she has, etc. Do not assume anything, especially that the expert passed Board Certifications on the first attempt.

2. Obtain a list of medical publications that the expert has authored.

3. Perform a Jury Verdict Search. It will list the names of the trials that the expert has testified in. Contact the attorneys who have questioned this expert in the past at depositions and at trial. You will be amazed at the wealth of information that they can provide you.

4. The most important tip is to ask many questions regarding his familiarity with certain records. Many experts do not review the medical records as intensely as the attorney preparing them. Before questioning the expert, obtain a list of the medical records and deposition transcripts that he has received, and have those documents marked in as an exhibit or exhibits.

5. Before you depose an expert, you must have a road map and a detailed outline. You need to have your exhibits pre-marked or at least in order. It will be crucial to your examination when you depose the expert.

6. Ask the expert if he/she has ever previously worked with the law firm or client that he/she is proposing testimony for. The information you find out may surprise you and may create a conflict. At the very least, you may impeach his credibility at trial by getting an admission that he has testified for that same law firm multiple times. If the expert has testified multiple times for the law firm, find out the names of the cases, the case numbers, and the venues of each case.

7. You need to extensively research medical treatises, journals, and articles in the area of medicine the expert is testifying on. For example, if you depose an expert in cardiothoracic surgery who performs Left Ventricular Assisted Devices (LVADs) surgery, you better know everything about the procedure itself and the medical articles and journals that are relevant to the subject.

8. Make sure you know the deposition testimony for all party and non-party experts who have previously testified. Your preparation may affect the expert’s opinions, may make him/her change direction on a particular opinion, or at the very least make him/her very uncomfortable. Trust me, the expert in most instances will not be as prepared as you are. They will most likely only put a few hours into reading the medical records and deposition transcripts. They will not put the time that you will put into them.

9. Make sure when you depose the expert you have an easy transcript to read. You will be using that deposition transcript ultimately at trial as a means to impeach the witness. Having sound and easily readable questions that will elicit short and understandable answers will make it easy for the jury to listen to you when you cross examine that expert at trial.

10. Make sure you are well rested for the deposition. You will need all of your focus and concentration during the deposition. You will need to listen to the expert very carefully, especially regarding the testimony that he is offering for the defendant.

Last month, the Maryland Court of Appeals formally recognized the testamentary exception to the attorney-client privilege. In Zook v. Pesce, 438 Md. 232 (2014), the high court reaffirmed a ninety-five-year old exception to the attorney-client privilege.

In 1919, the Maryland Court of Appeals in Benzinger v. Hemler, 134 Md. 581 (1919), found that an attorney who drafted the will of a decedent must testify as to “the transactions, circumstances, and instructions given” by the decedent regarding the preparation of the will including any communications between the decedent and the attorney. The Benzinger Court did not formally name this rule as the testamentary exception to the attorney-client privilege, but this short-hand terminology has been the generally accepted label ever since.

On May 16, 2014, the Court of Appeals revisited this issue in Zook. When Eugene D. Zook passed away in 2008, he left behind three adult children, Dennis Zook, Susan Pesce, and Mary Zook. Before his death, the decedent had retained the services of attorney Thomas P. Downs, to assist him with the preparation of his estate plan. In 2007 Mr. Zook executed the Eugene D. Zook Living Trust. Subsequently, in 2008, Mr. Zook decided to modify the terms of his living trust and executed an amended trust agreement. After Mr. Zook’s death, his family soon discovered that, while his estate was to be divided equally between his three children, one child, Mary Zook, the plaintiff, was to receive her share over a ten-year period, while the rest would receive their inheritance immediately.

Ms. Zook sued in an attempt to have the trust agreement declared void. In her complaint, Ms. Zook argued, among other things, that her father was not competent when he executed the amended trust agreement in 2008 and therefore the new trust agreement did not reflect his actual intent. In an attempt to prove her case, she demanded that she be allowed access to the prior trust agreements. Her request was denied by the trial court, arguing that she was not entitled to the prior trust agreement as it was protected from disclosure by the attorney-client privilege, a privilege that generally survives the death of the client.

The Court of Appeals in its decision, discusses the origins and necessity of the attorney-client privilege. The Court goes so far as to quote a U.S. Supreme Court case explaining the importance of upholding the privilege even after the death of the client in question:

Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client’s lifetime.

Swidler & Berlin v. United States, 524 U.S. 399, 407, 118 S. Ct. 2081, 2086 (1998).

The Court of Appeals then discusses a number of exceptions to the rule, including the testamentary exception. The Court further acknowledges that the trial court even allowed the attorney who prepared the trust agreements to testify as to communications he had with the decedent regarding the preparation of the trust agreements, as well as the attorney’s perception of the decedent’s mental and physical condition at the time of execution of his estate planning documents.

So what about the trust agreement? Does the exception also apply to testamentary documents prepared by counsel and executed by the decedent but not in force when the decedent dies? The Court of Appeals found that such documents are subject to the exception and that Ms. Zook had a right under that exception to access the prior trust agreement. Unfortunately for Ms. Zook, the Count of Appeals also found that even though the trial court should not have denied her access to the prior trust agreement, admission of the document at trial would not have caused the trial court to alter its ultimate ruling.

In order to obtain appropriate and effective counsel, clients must be open and honest with their estate planning attorney. They must do so, however, with the knowledge that some or all of these private communications may become public if post mortem questions arise as to their actual intentions. The lesson here is that while the attorney-client privilege in Maryland is alive and well, there are pitfalls for the unwary and that ambiguous estate planning documents are more likely to lead to such exposure.

As a medical malpractice lawyer for the past 40 years, I’ve noticed a pattern in my cases: if my clients had followed some or all of the steps listed below, they could have avoided being the subject of medical malpractice. While not a cure-all, following these steps could not only result in preventing medical negligence/malpractice, but also receiving better medical care. If, however, you or your loved one has suffered rom what you believe to be medical negligence, contact an experienced medical malpractice attorney immediately.

1. Obtain a Copy of your Medical Records

A principal error that occurs over and over again giving rise to medical negligence claims is a failure to communicate. The failure can be between patient and physician or between one physician and another. The best method for avoiding these types of mistakes is to obtain and read your own medical records.

Under the HIPAA Privacy Rule, patients have a right to receive and review their own medical records and health information held by doctors, hospitals, and other healthcare providers. Despite the availability, many patients never do. In the past, when most doctors and hospitals had a paper-based system, it was time consuming and expensive to get copies of your medical records. And if you did get them, it would result in a large amount of paper. Modern medicine makes it easier to obtain records, and the law now requires healthcare providers to switch to EHR (electronic health records). The Centers for Medicare and Medicaid Services (CMS) offer a Medicare and Medicaid EHR program that provides incentive payments to eligible professionals and hospitals as they adopt and meaningfully use EHR technology. Also, there are Government Penalties for eligible providers who fail to adopt and demonstrate meaningful use of EHR technology by 2015, such as having their Medicare reimbursements reduced. As a result, it is now possible in many cases to subscribe to your physician’s, laboratory’s, or hospital’s “health portal.” Using that “portal” enables you to open your electronic medical records and download them to your computer.

2. Review your Medical Records and Ask Questions

It is critical to review your medical records to ensure that there are no errors. If errors are contained in your records, they are often repeated over and over again as one healthcare provider, relying on a mistake another healthcare provider made, simply repeats the misinformation. While many times the mistakes may be minor, there are instances in which simple errors lead to disastrous consequences.

For example, if you have repeatedly complained of headaches but doctor’s record indicates that you had no complaints, it’s critical to correct the error before it is repeated and potentially causes harm by not getting the tests you need. Another example is if you have no family history of heart disease but the medical record suggests that you do, unless corrected you may wind up getting unnecessary invasive tests that can result in complications simply because your history was incorrect.

In addition to looking for medical errors, it’s important to review your records to see if there is any information you were not aware of. For example, in one case, if the patient had reviewed his own laboratory records, he would have realized early on that his severely elevated white blood cell count should have resulted in a workup for potential blood cancer.  The physician involved never noticed the elevated white count and the patient was equally unaware. In another example, had a patient reviewed her CT scan report, done for the purpose of working up her abdominal pain, she would have discovered that while her abdomen did not show any signs of a problem, her lung did. The radiologist recommended follow-up but the physician never noticed until it was too late.

One does not necessarily need to be a physician to understand medical records. Laboratory results are expressed as normal, high, or low. Simply looking for the highs and lows and questioning the doctor about abnormal results at the next doctor’s visit can avoid many potential medical mistakes. Similarly, while one may not understand all of the medical jargon in a CAT scan report, when it says in plain English that follow-up for an abnormal finding in the lung is recommended, important questions should be asked.

It’s not only important to review your medical records to find mistakes and information you were unaware of, it’s also important from the standpoint of being able to provide new healthcare providers with critical information on a timely basis. Even in this modern age of electronic medical records, there is often considerable delay in getting old information to new healthcare providers.

Additional but equally important measures to avoid becoming a victim of medical negligence include making an outline of the symptoms, issues and questions you wish to discuss with your physician. All too often, patients forget what they needed to communicate. Thus in the stress of a hurried office visit, there may be a failure for critical information to be communicated.

3. Bring a Friend or Family Member Along to Critical Appointments

Along the same lines, it’s often a good idea to bring a family member or close friend to a medical visit. Many times patients are too stressed during a medical visit to effectively comprehend what they were told by the physician or the various options that were laid out. Thus proper decisions cannot be effectively made. Additionally, it may help to have a witness to critical data that should have been conveyed by the physician, but for whatever reason was not conveyed.

4. Take Notes After Doctors’ Visits

Taking notes after a doctor visit is an excellent way to ensure that you understand what was conveyed and what additional steps must be taken to achieve a diagnosis or treatment. By taking notes, you may realize that there are gaps in your knowledge which will then help you to raise additional questions for your healthcare provider at the next visit.

Medical research has shown that patients who are actively engaged in obtaining and reviewing their own health records get higher quality health care, and can avoid potential medical errors.

When asked to provide advice to lawyers who have recently been promoted to partner, JGL’s Jay Holland shared this insight:

“My one tip to junior partners upon making partner is this: Do not forget from where you came. Do not be so enamored with your new status such that you fail to continue to treat those junior and senior to you with respect and consideration. You deserve to feel confident and proud; do not allow that pride to morph into arrogance. Hard work, intelligence and the ability to connect with colleagues and clients are the attributes which surely resulted in your promotion. Continue what you have been doing, do not let up. But sprinkle your promotion with a healthy dose of humility.” 

Several attorneys weighed in with advice in the subscription based Law 360 article, Welcome to the Club: Advice from Old to New Partners.

JGL civil rights attorney, Cary Hansel, was recently quoted in The Daily Record. Commenting on the Court of Special Appeals decision that upheld a Baltimore jury’s verdict against two Baltimore police officers, Hansel stated the court’s decision was a “pretty straightforward interpretation” of the Local Government Tort Claims Act (LGTCA).

In May of 2009, three Baltimore police officers picked up then 15-year-old Michael Brian Johnson Jr. near his West Baltimore home. After driving him around in a police van for several hours, they eventually dropped him off miles away from his home without shoes or a cell phone. A Baltimore jury later found the officers had acted with malice. 

By rejecting the appeal attempt to apply the $200,000 cap on damages under LGTCA, the court affirmed the award against the police officers who acted with malice. “The language of the statute is very clear,” said Hansel. “The plain meaning is that [the officer] is fully liable for the full amount and it’s not capped.”

We’ve all seen the shock-value headlines: “Oh My God, Naked Photos of Kate Upton!”[i] “Jennifer Lawrence Speaks For the First Time About Her Stolen Nude Photos”[ii] There is a movie called “Sex Tape,” in which a couple “discover that their most private video is no longer private.”[iii] On a smaller scale, a scorned lover, spouse, girlfriend, or boyfriend may get revenge by sharing intimate images with others by populating them to social media or uploading them to websites where people share such private images. When two people take consensual, intimate photographs, the subject does not expect that the photos will be posted on the Internet for all to see. However, if the relationship sours, the privacy of an unsuspecting victim may be compromised as the photos are posted on Twitter, Facebook, and websites like myex.com, in an attempt to get revenge.   

All too frequently, private photos are leaked on the Internet with malicious intent. This conduct, while offensive, was not defamatory, illegal, or otherwise prohibited. The victim had no recourse. On October 1, 2014, Maryland joined thirteen other states criminalizing publication of these intimate images without permission of the person/people depicted – so-called “revenge porn.” Maryland’s “revenge porn” law is broad and states that:  

A person may not intentionally cause serious emotional distress to another by intentionally placing on the Internet a photograph, film, videotape, recording, or any other reproduction of the image of the other person that reveals the identity of the other person with his or her intimate parts exposed or while engaged in an act of sexual contact:

(1) knowing that the other person did not consent to the placement of the image on the Internet; and

(2) under circumstances in which the other person had a reasonable expectation that the image would be kept private.[iv]

Images created in public or commercial settings are excluded from this law.[v] Publication of prohibited images with the intent to cause serious emotional distress is a misdemeanor subject to a fine of up to $5,000 or incarceration not to exceed 2 years.[vi]

            While a powerful tool that preserves people’s privacy and decency, Maryland’s revenge porn law has several potential hurdles. In his review of the bill, Attorney General Gansler noted a potential First Amendment challenge to its restriction of free speech; however, he concluded that such a challenge was not likely to succeed.[vii] The First Amendment restrictions, he determined, are not impermissibly broad because the law requires that the publication be motivated by an intent to inflict severe harm, and because the restrictions are on purely private matters, not matters of public concern.[viii] Attorney General Gansler notes that, “there is a risk that as applied to virtual representations such as drawings or animation, a court could find the prohibition to be an impermissible restraint on speech.”[ix]

            Enforcement is also problematic. Once leaked in an electronic format, an image can quickly be disseminated across the Internet. After several, or thousands, of forwards, reposts, and shares, it may be impossible, and resource intensive, to identify the original source of the leak.

            Finally, the law does not enable the victim to remove the material from the Internet. Again, the Internet allows infinite re-blogging, re-posting, and re-sharing of an image. Once it has been published, it is impossible to retract. While the original publisher may be punished, the harm to the victim will continue to accrue.

            Maryland’s revenge porn law is not immune from legal challenges and is not without its practical hurdles. However, it provides law enforcement with powerful tools to control the flow of personal, confidential, and intimate images, and provides victims with tools to preserve their dignity.