The MSBA continues its strong partnership with the Governor’s Office and our advocacy on behalf of the legal profession. We have presented nearly 50 questions to the Office of Legal Counsel regarding the Governor’s Orders during the COVID emergency and shared responses with our members. Below are additional questions and responses from their Office, with important clarifications regarding essential travel, court witnesses, and travel related to custody and visitation
MSBA Question Set 3 for Office of Legal Counsel
MSBA Question 1
Essential Businesses and Client Meetings – Clarification
Since attorneys are “essential businesses” pursuant to OLC’s Interpretive Guidance, can clients then legally visit their attorney’s office as an “essential activity” under the March 30 Executive Order (Sec. (II)(b)), or under any other authority? Other states, such as Virginia, have provided clear guidance that clients may leave their residences for the purposes of obtaining legal services.
There is no documentation needed to justify any of the aforementioned travel, but they fall within an essential activity. Travel to attorney offices should be limited as must as possible. There are many electronic options currently available that allow clients and attorneys to communicate without in-person meetings. The general advice that I provided that traveling to the essential business is permitted is too broad. Such travel would need to be an essential activity as listed in the March 30, 2020, Executive Order, Section II. b. This also applies to pro-se litigants and real estate customers. The basis for leaving one’s house must be related to an essential activity as defined in the Order. Subpoenaed witnesses could travel because the Order specifically allows for travel pursuant to a court order.
MSBA Question 2
What if any guidance can OLC provide regarding documentation that attorneys can or should provide to their clients to substantiate this “essential activity” (for example, an email or letter that gives the office address, purpose of travel, date and time of appointment)? Practitioners in estates work are particularly concerned about clients working quickly to execute end-of-life documents.
Attorneys are free to provide documentation if they wish, but there is no such requirement in any Executive Order.
MSBA Question 3
Self-Represented Litigants in Court
Most Maryland courts are closed to the public, yet some cases continue to be heard on an emergency basis. Filings in cases and filing deadlines largely remain in-tact. A high percentage of litigants in Maryland courts are self-represented. Self-represented litigants do not have an attorney and conduct the work on their court case on their own. Is a self-represented litigant’s activity (including seeking out internet, computing, printing, scanning, mailing and other services) in addition to travel to file documents or attend court hearings considered “essential activity?”
Self-represented: See Answer to question 1. This will depend on where they are, what they are doing, and what they communicate to an officer. Libraries are closed, but if they are traveling to a non-profit, just like any other essential business, there is no requirement that you have paperwork with you.
MSBA Question 4
What documentation should self-represented litigants provide to substantiate their “essential activity?”
There is no requirement for a self-represented litigant to have paperwork.
MSBA Question 5
If there are witnesses that need to travel to attend a self-represented litigants hearing, would their activity be considered essential and what documentation do they need to provide to substantiate their involvement in a court-related matter?
If they are needed for a hearing as a witness, they should obtain a subpoena. If they do not have a subpoena, they should explain their role as a witness to the law enforcement officer.
MSBA Question 6
Travel Under the March 30 Executive Order – Family Law Matters
Practitioners and parents continue to express concern about the impact of the March 30 Executive Order on child custody and visitation issues.
- Are parents and children who do not have a court order for custody and visitation, but rather an informal agreement regarding parenting time, permitted to travel under the March 30 Executive Order to facilitate visitation?
- 1) Is this authority in Sec. (II)(b)(iii)? (and, so appropriate to read (II)(b)(iii) as: “Caring for a family member…in another household or location”? or 2) Is the appropriate reading “Caring for a family member…in another household or location…for essential health and safety activities, and to obtain necessary supplies and services”?
This issue is covered by Governor’s Office of Legal Counsel Interpretive Guidance #10 https://governor.maryland.gov/wp-content/uploads/2020/04/OLC-Interpretive-Guidance-COVID19-10.pdf : “Custody and Visitation Arrangements. Regarding divorced and separated parents who share custody of, or have visitation rights with respect to children, the Order does not prohibit those parents from leaving their Homes, as necessary to facilitate visitation or exchange of custody. The foregoing sentence applies to all custody and visitation arrangements, including arrangements established solely by agreement of the parents, and arrangements established by court order.”
MSBA Question 7
If a current court order provides an access schedule, are parties required to follow the order, given the March 30 Stay-at-Home Executive Order?
See Section II. b.vi of the Governor’s March 30th Stay-at-Home Executive Order https://governor.maryland.gov/wp-content/uploads/2020/03/Gatherings-FOURTH-AMENDED-3.30.20.pdf . The Executive Order does not limit travel required by Court Orders, and persons subject to Court order should seek a judicial decision before operating outside the terms of a Court Order.
MSBA Question 8
The Governor’s April 3 Executive Order regarding foreclosures states:
“No Initiation of Residential Foreclosures: The Commissioner is hereby ordered to suspend the operation of the Commissioner’s Notice of Intent to Foreclose Electronic System, and to discontinue acceptance of Notices of Intent to Foreclose until the state of emergency is terminated and the catastrophic health emergency is rescinded.” April 3 Order, Sec. (IV). Does this include tax sale foreclosures? Does this include commercial foreclosures?
Currently, the April 3, 2020 Executive Order addresses residential foreclosures under Title 7. Title 14, Tax-Property Article, governs Tax sales. The Commissioner’s Notice of Intent to Foreclosure is pursuant to the Real Property Article Title 7.
MSBA Question 9
Local Government Action
Does OLC anticipate issuing either an Executive Order, or some other form of guidance on COVID-19 related ordinances crafted by local governments that may deviate from Emergency Executive Orders issued by the Governor?
Local governments created under the Maryland Constitution have their own laws and regulations, although they should not conflict with the State laws. If there is an issue with a local government’s law or order, this should be addressed to the local jurisdiction if there is a conflict. As stated in the Executive Orders, they only impact county laws or regulations where there is a conflict or inconsistency.
MSBA Question 10
Does guidance on the March 30 Executive Order designate commercial and residential real estate services as essential, thereby permitting agents to show properties during the COVID-19 emergency?
Real estate activity is not required to cease operations under the March 30, 2020 Executive Order. Thus, one may look to CISA guidelines related to real estate for guidance. CISA lists real estate as a critical infrastructure.
As always, we encourage members who have questions concerning any of Governor Hogan’s Executive Orders, or any of the associated Interpretive Guidance memoranda, to please forward your questions to firstname.lastname@example.org.