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M A I N E S TAT E B A R A S S O C I AT I O NMAINE BARJOURNALTH E Q UARTERLY PU BLI CATI O N O F TH E MAI N E STATE BAR ASSO CIATI O NVisit www.mainebar.orgVolume 34, Number 3, Summer 2019
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MAINE BARJOURNALTH E Q UARTERLY PU BLI CATI O N O F TH E MAI N E STATE BAR ASSO CIATI O NVisit www.mainebar.orgVolume 34, Number 3, Summer 2019CommentaryP R E S I D E NT'S PA G E Eric N. Columber96F R O M TH E E X E C UTI V E D I R E CTO R Angela P. Armstrong98FeaturesPA G E 117Mr. Joad and the Repossessed Car James A. McKenna101Remarks by Amy Sneirson at the Greater Bangor NAACP Celebration of MartinLuther King Jr. Day117E-Filing: It’s a Big Deal Laura M. O’Hanlon127Law Day 2019 Contest Winners133Five Ways Attorneys Try To Reduce Stress That Actually Increase Stress Amy Wood141DepartmentsJ E ST I S F O R A L L Arnie Glick145B EYO N D TH E L AW: N ATH A N I E L D. H U S S EY Daniel J. Murphy146150153A C C E S S TO J U STI C E Diana SculleyS U P R E M E Q U OTE S Evan J. RothATTO R N EY W E L L N E S S William C. NugentR E S I P S A L O Q U ITU R Nancy A. WandererI N TH E A LTE R N ATI V E Jonathan MerminCALENDARA D V E RTI S E R’S I N D E XC L A S S I F I E D A D V E RTI S I N GON THE COVER:Image: iStock154157161163164164CITATION NOTE: According to Uniform Maine Citations (2010 ed.), [a]rticles in the Maine Bar Journal should be cited as follows:Paul McDonald & Daniel J. Murphy, Recovery of Lost Profits Damages: All is not Lost, 24 Me. Bar J. 152 (2009).”
P R E S I D E NT'S PA G E:Friends: Let's Take Mindful Pride in our WorkBy Eric N. Columber“[It] deserves commendations; and that it is an art, and an art worthy the knowledge and practice of a wise man.”-The Compleat Angler, Izaak Walton (1653)Walton could have been writing not about fly fishing in England,but our profession. As practitioners, we provide many worthyservices every day that require both knowledge and subtle art,typically without fanfare. All of us are to be commended for thework we do to help our clients, even if quietly.We should take mindful pride in our work, and commendourselves and each other. Tell an opposing counsel what skilledwork they did. Remind your clients how important they are. Taketime to reflect on your own good work.These are but some of the things I took away from our fantastic Annual Bar Conference in Bar Harbor last month. I alsoreceived great professional education in many areas, more coolsocks and a lobster cookout, heard a great band, reconnected withold friends, made new friends, and had an overall blast in BarHarbor.Many thanks to all our national and Maine-based presenters,our attendees and guests, and everyone who helped make thisbig event possible. The MSBA staff—especially Angela, Heather,Kathryn, Karen, Rachel, and Valerie—worked behind the scenesto make it worthwhile. Please thank them in person the next timeyou see them. Hopefully you’ll also give them a “Matt Ward-approved” high five to make them smile.Nearly 200 attorneys, judges, and guests attended this soldout event. I hope everyone feels the same as I do about its success.(The MSBA did what it could to hold the rain off, but we can’tcontrol everything.) If you have comments about this year’sAnnual Bar Conference that you haven’t already shared, pleasecontact me or reach out to Bar Headquarters. Your input helpstremendously, and you will be heard.At the Conference, one attorney told me she was taking anafternoon off to go biking with her sister. Another told me shecame in late to hike a mountain with her dog. Yet another toldme he is going boating for three days with his family. Somebodyis rebuilding an old motorcycle. Someone else told me about hisnew band. And all are great attorneys. We all deserve these typesof pursuits. The Annual Bar Conference helped me realize thatwe can balance office and court and personal life. What a greatrealization!This year, the Maine legal world has been exceptionallybusy. The court system is going online with our input, our CLErequirements have changed, and the MSBA monitored andparticipated in a record amount of legislation. All of our clientscontinue to require such worthy work in our practices, too.The MSBA’s work continues and, as we approach the end ofsummer, 2020 is already in our sights.Till the next one –
Chartered in 18912019 Patrons of the BarThe Corporate Patron program connects our members with organizations that provide ancillary goodsor services to Maine attorneys. Their financial support helps the MSBA keep its costs low, so you savemoney on meetings, events, and membership dues.Platinum PatronsAllen/Freeman/McDonnell Agency offers a variety of insuranceplans, including professional liability insurance.ALPS is the MSBA’s affiliated professional liability insurer.Cross Employee Benefits offers a wide range of insuranceprograms, including life, medical, dental, disability, and long-termcare, as well as flexible benefits services.A N A F F I N I PAY S OLU T IONLawPay enables attorneys to accept credit card a securely andcorrectly. LawPay meets the requirements for ABA trust accountguidelines as well as the Attorney’s Professional Code ofConduct.Gold PatronsDow Wealth Management is dedicated to improving clients’financial lives and making their futures more secure.Silver PatronsMaine Lawyer Services works with Maine attorneys on litigationand practice-related issues, including mediation, arbitration, caseevaluation, discovery planning, and trial strategy.updated 8/1/2019
F R O M TH E E X E C UTI V E D I R E CTO R:You Need To Know: Maine Bar Rule 5By Angela P. ArmstrongBar Association staff have been fielding many questions aboutthe recent amendments to Maine Bar Rule (MBR) 5 related tothe minimum continuing legal education (CLE) requirements.Even if you’ve reviewed these changes—or especially if you havenot—I encourage you to read on. Think of this as the highlightreel all the stuff you need to know in order to remain in goodstanding with the Board of Overseers of the Bar (Board).First and foremost, every active-licensed attorney in Mainemust now earn a minimum of 12 CLE credit hours per calendaryear, rather than the 11 hours required prior to Jan. 1, 2019.Of these 12 hours, at least seven hours must be live credits andno more than five may be earned in a self-study environment.(MBR 5(c)(1))The additional 12th CLE credit requires attorneys to “earn atleast one in-person credit hour in the recognition and avoidanceof harassment and discriminatory communication or conduct”as it relates to the practice of law. So, not only is this a livecredit requirement, but you must actually obtain it in person(i.e., you must be in the room where the program is beingheld). You can’t earn this credit through a live webcast or webinar. “Qualifying topics include harassment or discriminatorycommunication or conduct on the basis of race, sex, religion,national origin, ethnicity, disability, age, sexual orientation, orgender identity.” The new H&D (harassment and discrimination) credit is separate from and in addition to the ethics andprofessionalism credit. (MBR 5(c)(3))As in the past, one of the 12 hours must be in ethics andprofessionalism. The primary change to this requirement thatyou need to know is that the ethics credit now must be live.You can no longer meet the ethics requirement with a self-studyprogram. This credit, however, does not carry the in-personrequirement. (MBR 5(c)(2))Another important change is that the 12 credit hours must becompleted in each calendar year. In order to be compliant fora calendar year, you must be able to demonstrate to the Boardthat you completed all 12 hours by Jan. 1 of the following year.If you are found to be noncompliant on Jan. 1, you will beentitled to a grace period until the last business day of Februaryto make up any missing CLE requirements. You may still carryover up to 10 credit hours for the following year, but the liveethics credit and the in-person H&D credit must be completedeach calendar year. (MBR 5(e)(3); 5(l)(1); 5(f )(7))A significant change for the MSBA with respect to thedelivery of live programs is the new live requirement for videoreplays. The MSBA has always held video replays throughoutthe year and across the state to provide you with opportunitiesfor live credit hours. MBR 5(h)(1)(A)(iv) has been amended tostate that video replays will satisfy the live credit requirementonly if there is a qualified moderator present in the replay roomwho can answer questions and facilitate discussion; otherwise, itwill be considered self-study credit. The presence of MSBA staffto confirm your presence at a video replay no longer qualifiesthat program for live credits. We are working to engage qualified moderators at our video replays, but this is a significantchange for us. If you have an interest in serving as a moderatorin exchange for live credit hours, please contact me or CLEDirector Linda Morin-Pasco.Some other important changes to note:1. Programs must last a minimum of 30 minutes to beconsidered accredited. (MBR 5(g)(1)(F))2. Meetings of MSBA sections or committees that areprimarily general business meetings or work sessions arenot eligible for CLE credit. (MBR 5(g)(2)(A))
Finally, in order to transition from the previous reporting system to the new reporting system, attorneys will report all 2018 and 2019 credits on January 1, 2020.The 2018 reporting period requires a minimum of 11 credit hours, including oneethics credit. The 2019 reporting period requires a minimum of 12 credit hours,including one live ethics credit and one in-person H&D credit. If you are in needof CLE credit, please call the MSBA CLE department at 207-622-7554 or visitwww.mainebar.org/page/CLE. As a reminder, certificates of attendance for any MSBA-sponsored CLE are posted to your online profile at www.mainebar.org within30 days of the program. If you don’t know how to access your profile, please contactBar Headquarters.This is just an overview of some of the important amendments to Maine BarRule 5. I strongly suggest that you visit www.mebaroverseers.org/regulation/barrules.html?id 638733 to read the Rule in its entirety. There are other changes thatyou may find important. If you have any questions about the amendments, pleasecontact the Board at CLE@mebaroverseers.org or 207-623-1121. Although theMSBA stands ready to assist you in meeting your CLE requirements, the Board’sCLE staff is best qualified to answer questions you may have regarding the newCLE reporting requirements.As always, you can contact me by phone at (207) 622-7523 or by email(aweston@mainebar.org) if you have any questions about MSBA CLE opportunities, or with any ideas or concerns about the Maine State Bar Association. Thankyou!ANGELA P. ARMSTRONG is the Maine State BarAssociation’s executive director. She can be reached ataarmstrong@mainebar.org.
In the towns, on the edges of towns, in fields, in vacant lots,the used-car yards, the wreckers’ yards, garages with blazonedsigns— Used Cars, Good Used Cars. Cheap transportation, threetrailers.’27 Ford, clean. Checked cars, guaranteed cars. Freeradio. Car with 100 gallons of gas free. Come in and look.Used Cars. No overhead.-John Steinbeck, The Grapes of Wrath (1939)
M A I N E B A R J O U R N A L VO LU M E 3 4 , S U M M E R 2019 101Mr. Joad and the Repossessed CarBy James A. McKenna1Selling Used Cars to the Low-Income BuyerMaine has traveled far since the Great Depression and thetactics of the used car dealer described in John Steinbeck’sThe Grapes of Wrath. In the 1930s buying a car was largely aquestion of caveat emptor (buyer beware).2 As discussed below,Maine has now enacted a variety of consumer protections tohelp purchasers of used cars. Often these statutes also include aright to reasonable attorney fees.But these consumer rights are little known and are notalways used by buyers who have low incomes. Why? Perhapsbecause when you are poor and transportation is a necessity,price is not always the most important consideration. Nor isthe car’s condition. Nor is its repair history. What is importantis whether the dealer will even agree to sell to you. And thatoften means whether the dealer will provide3 or arrangefinancing.So when the low-income shopper finally finds an affordableused car it may be old, high mileage and, understandably, soonto be needing repairs. Of course, after making car paymentsthe buyer will typically have little money left to make repairs.Forced to choose, the car owner will then pay for repairs evenif it means missing a car payment.4This leads all too often to the finance company’srepossession of the car and selling it at a dealers’ wholesaleauction. The selling price will typically be much less than theconsumer still owes on the car. All too soon the consumerwill be served with a District Court collection action for theunpaid balance. A default judgment often follows.5Using the FTC Holder Rule to Defend a Used CarRepossessionThis article will describe the many statutory protectionsused car buyers possess in Maine and how they can be usedin defending a finance company’s repossession and debtcollection action. Most importantly, due to the FederalTrade Commission’s (FTC) Holder Rule,6 a consumer canraise against the finance company any violations of Maine orfederal law committed by the used car dealer when it sold thecar.7 Otherwise, the finance company could in effect run a“laundry” for “fly-by-night” retailers.8This article does not mean to unfairly target used car dealers.Maine used car dealers strive to honorably provide lowincome buyers the reliable cars they most certainly need. Thesedealers provide a valuable service, especially in rural Mainewhere job and home can be far apart. Nonetheless, buyinga used car will sometimes result in unfair sales. It is one ofthe few transactions today in which the buyer and seller stillnegotiate price. The low-income buyer is often desperate. Anda desperate buyer is a poor negotiator.Further, the steps to a final deal are complicated and notalways transparent. Add to this a buyer’s desperation and itis almost inevitable that the negotiated price will not be asfavorable as the price you or I might pay.9 Thus, when a poorperson buys a used car the invisible hand of the free marketcan sometimes be a fist and not a handshake; and the pricepaid can be a painful blow.Mr. Joad Purchases a Used Car and then DefaultsHow do you buy a car? What does it cost? Watch the children,now. I wonder how much for this one? We’ll ask. It don’t costmoney to ask. We can ask, can’t we? Can’t pay a nickel overseventy-five, or there won’t be enough to get to California.-John Steinbeck, The Grapes of Wrath (1939)Imagine today’s low-income buyer searching for a larger,more reliable car which can hold his growing family and whichhe’ll use to travel to his job. Happiness for him is simple: a carthat works and that he can finance. We’ll call him Mr. Joad,after the dispossessed family desperate to leave the joblessOklahoma dust bowl and travel to fertile California in JohnSteinbeck’s 1939 Great Depression novel, The Grapes of Wrath.Mr. Joad’s current car is an old Ford Focus that has troublein the snow. He has searched for a reliable car that can fit his
102 M A I N E B A R J O U R N A L VO LU M E 3 4 , S U M M E R 2 019family; but he cannot find one that he can afford. Then Mr.Joad hears a radio ad for a used car dealer named HappinessMotors. The part of the ad that catches his attention is whatseems to be a promise on credit:Even if you have poor credit, even if you have gone throughbankruptcy or repossession, we’ll work with our partner creditproviders to find you the best rates available.Credit is Mr. Joad’s big problem so he drives immediately tothe dealership. As he approaches the dealer’s sales lot he sees alarge billboard that reads:All Our Cars Are Safe and Dependable and All Are Priced at 5,000 or Less.Mr. Joad decides to see what cars the dealer is offering.He finds a 2002 Nissan Pathfinder with 163,183 miles. Itfeatures no purchase price and a barely completed Used CarInformation Act window sticker. The dealer walks up behindhim and says, “How ya doing, brother? Find something youlike? I just purchased this beauty from a good guy I know inthe County. Drove it down last week. Four wheel drive. Runsgood. The state inspection sticker still has six months to run.Five thousand is the price and I’ll find you the lowest creditrates available.”What the dealer failed to disclose was that when driving thePathfinder down from the County he discovered it needed anew clutch. It was so bad that it had to be towed to his garageso his mechanic could patch it up. But he only had the clutchrepaired. He did not replace it.The Pathfinder’s Used Car Information Act window stickeris barely filled out.10 In the spaces where the dealer is requiredto disclose “mechanic defects” and “substantial damage tothe body or engine,” Happiness Motors had written “NoneKnown.” The dealer did mark that the car came with aWarranty of Inspectability, which meant that it met stateinspection standards. In the section where a dealer can give thebuyer an express warranty the dealer had written in large, boldletters: “AS IS.” The dealer also marked the space that warnedthat the car was being sold without the Uniform CommercialCode (UCC) implied warranty of merchantability.11Mr. Joad is concerned about the dealer’s “AS IS” warning.“Look,” he tells the dealer. “I live in Augusta and my job isSkowhegan. If I can’t get to work, I’ll be fired. I need this carto be reliable.”“No problem, brother,” replies the dealer. “This is the caryou want. It’s more reliable than you are. You might misswork because it’s Monday and you drank too much watchingthe Patriots. But you won’t miss work because the Pathfindercouldn’t get you there.”“Well,” Mr. Joad thinks, “he certainly sounds sincere. I’llhave to believe him.” He knows he can barely afford 5,000,so he tries to bargain. But to no avail. To partially pay the 5,000 purchase price, Mr. Joad trades in his Ford Focus for 1,000. (“And that’s doing ya a favor,” says the dealer.) He alsoagrees to make a 1,000 down payment that he has to borrowfrom his wife’s parents.Now Mr. Joad is ready to sign the financing agreement. Notso fast, the dealer says. Mr. Joad’s low income makes him acredit risk. Yes, he can find him a credit provider; but only ifhe purchases from Happiness Motors a Service Contract (anextended warranty) for 1,200. Why? The dealer claims12 thatthe finance company requires the purchase of an extendedwarranty. It wants to be certain that Mr. Joad has money tofix any problems the Pathfinder might develop. Mr. Joadreluctantly agrees.Then, just when he’s about to sign the Buyer’s Order, he seesan additional 300 charge for dealer prep. Thus, even with his 1,000 trade-in and 1,000 down payment, Mr. Joad will stillowe Happiness Motors 4,500. Mr. Joad wonders who willprovide him financing.“No problem,” the dealer assures him. Last Chance FinanceCompany will provide credit for this amount. But becauseMr. Joad’s credit history is so poor the dealer tells him the bestAPR he can arrange with Last Chance Finance is an APR of17.99 percent, which is just below Maine’s 18 percent APRlimit for car financing.13 In fact, this may not be true. Financecompanies, including
Aug 01, 2019 · Allen/Freeman/McDonnell Agency offers a variety of insurance plans, including professional liability insurance. Cross Employee Benefits offers a wide range of insurance programs, including life, medical, dental, disability, and long-term care, as well as flexible benefits services. ALPS is the MSBA’s affiliated professional liability insurer.
