Maryland Attorney General Opinion 95 OAG 110

110 [95 Op. Att’y

ELECTION LAW

C A M PA IG N F INANCE – I N -K IN D C O N TR IBU TI O N –
C ONSTITUTIONAL L AW – F REEDOM OF S PEECH

May 24, 2010

Ms. Linda H. Lamone, Administrator
Maryland State Board of Elections

You have requested legal advice regarding a letter submitted
to the State Board of Elections (“SBE”) by the Maryland Democratic
Party alleging that former Governor Robert Ehrlich and WBAL
Radio have violated Maryland’s campaign finance law. In essence,
the letter asserts that, because the former Governor acts as host or
co-host of a show on WBAL Radio, the station has made an illegal
in-kind contribution to his gubernatorial campaign. The legal issue
concerns the circumstances under which the broadcast of political
discussion or commentary by a candidate or prospective candidate
would amount to an in-kind contribution by the broadcaster.

In general, state efforts to regulate media appearances by a
candidate, potential candidate, or others through a state’s campaign
finance laws raise significant First Amendment concerns. This is
true even where the person appearing has some practical control
over the content of the broadcast, including as host. Significantly,
research by our Office has revealed no recent instances, under either
federal law or the laws of other states, where in-kind contribution
limits have been successfully applied in the way urged by the
complaint. To the contrary, courts have routinely disapproved
efforts to closely regulate the content of print or broadcast media
featuring political discussion. The role of the candidate or potential
candidate in that discussion does not fundamentally change that
analysis. Our Office therefore advises that, consistent with its past
practice with respect to media coverage of a candidate or potential
candidate, SBE should decline to treat the radio broadcasts
complained of as an illegal contribution to the Ehrlich campaign.

Several objective, content-neutral factors may be of special
relevance. First, if the radio show at issue significantly pre-dates the
current campaign season, it is unlikely that a court would find the
station created the program as a vehicle to promote an actual or
prospective candidacy. Second, a live call-in show featuring
Gen. 110] 111

political discussion that is similar in format to other broadcasts
regularly aired by the station would tend to negate an inference that
the show was created especially for a campaign purpose. Third, if
the program appears to be part of the station’s ordinary broadcasting
business, sponsored by paid commercial advertisements, that, too,
makes it unlikely the program would be deemed a contribution to a
particular campaign. In such circumstances, it would not appear that
a station has donated to a campaign free air-time for which it would
ordinarily charge a fee. Cf. Letter from Assistant Attorney General
Kathryn M. Rowe to Delegate George W. Owings, III (August 25,
1994) (concluding that political use of a public access channel is not
an in-kind contribution, in part because the cable franchisee does not
charge for time). Therefore, regardless of any reason a candidate or
potential candidate might have for hosting this type of show, from
the station’s perspective, the show would not amount to an unpaid
“infomercial.”

Unquestionably, Maryland has a strong interest in preventing
the evasion of its campaign finance limits through indirect means.
This includes, of course, misconduct by media companies. But the
First Amendment demands a lighter touch in this area, due to the
media’s role in providing a forum for public debate. This calls for
a regulatory approach narrowly tailored to prevent the threatened
harm, while avoiding unnecessary burdens on political speech. In
our view, applying in-kind contribution limits to the type of activity
at issue here would not be sufficiently tailored to the problem to
justify its likely impact on political speech. Accordingly, SBE
should treat a broadcast hosted by a candidate or potential candidate
no differently than it does other appearances or commentary by
political figures in the print or broadcast media.

Greater scrutiny may be appropriate during the period
immediately preceding the election, when both the temptation to
abuse and the potential for harm are at their greatest. See e.g.,
Citizens United v. Federal Election Comm’n, 130 S.Ct. 876, 895
(2010) (“It is well known that the public begins to concentrate on
elections only in the weeks immediately before they are held.”).
Other regulations, such as the Federal Communication
Commission’s (“FCC”) “equal time” rule, are specifically targeted
at such pre-election campaign activity. In any event, because we
112 [95 Op. Att’y

understand that this latter issue is not immediately of concern, it is
not addressed in this advice letter.1

I

Background

A. First Amendment Standards

A major purpose of the First Amendment is “to protect the free
discussion of governmental affairs ... includ[ing] discussions of
candidates.” Buckley v. Valeo, 424 U.S. 1, 14 (1976). The First
Amendment guarantee “‘has its fullest and most urgent application’
to speech uttered during a campaign for political office.” Eu v. San
Francisco County Democratic Central Comm., 489 U.S. 214, 223
(1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272
(1971)). More recently, the Supreme Court has warned against laws
that, either through imprecision or complexity, impose impermissible
burdens or uncertainties on speakers “discussing the most salient
political issues of our day.” Citizens United, 130 S.Ct. at 888.
“Because First Amendment freedoms need breathing space to
survive, government may regulate in the area only with narrow
specificity.” NAACP v. Button, 371 U.S. 415, 433 (1963).

This need for specificity means that not all campaign-related
speech may be regulated. Only campaign speech that can be
identified as “express advocacy or its functional equivalent” meets
a sufficiently definite standard that it may be subject to some
government imposed limits. Federal Election Comm’n v. Wisconsin
Right to Life, 551 U.S. 449, 469-70 (2007) (“WRTL”).2 Therefore,
in the case of a radio broadcast involving a candidate or potential
candidate, the question whether the appearance is subject to
regulation, including as an in-kind contribution, arises only to the

1
According to public statements by the Ehrlich campaign and
WBAL station management, the program will not be aired after the former
Governor files a certificate of candidacy on or before the July 6, 2010
deadline. From that date, the FCC’s “equal time” rule would apply to any
“use” of the station by a filed candidate. See 47 U.S.C. §315(a); 47 CFR
§73.1940 et seq.
2
The “functional equivalent” of express advocacy is a political
message that is “susceptible of no reasonable interpretation other than as
an appeal to vote for or against a specific candidate.” WRTL, 551 U.S. at
469-70.
Gen. 110] 113

extent the broadcast involves express advocacy or its equivalent. If
it does not, no further analysis is needed; the First Amendment
precludes regulation of the appearance through campaign finance
laws. If the broadcast does involve express advocacy or its
equivalent, the issue becomes whether the purported restriction may
be constitutionally applied. See, e.g., Citizens United, 130 S. Ct. at
898 (“Laws that burden political speech are subject to strict scrutiny,
which requires the Government to prove that the restriction furthers
a compelling interest and is narrowly tailored to achieve that
interest.”)(citation and internal quotations omitted).

States have a strong interest in enacting laws to preserve the
integrity and fairness of the electoral process. Federal Election
Comm’n v. National Right to Work Comm., 459 U.S. 197, 208
(1982). This includes measures relating to campaign finance.
Buckley, 424 U.S. at 26-29; see also Nixon v. Shrink Missouri PAC,
528 U.S. 377, 389 (2000). Limits on campaign contributions –
which generally have their most direct impact on the First
Amendment right of free association, see Buckley, 415 U.S. at 25 –
are subject to a somewhat less rigorous standard of review than are
more direct restrictions on speech. In analyzing laws that limit
campaign contributions, courts will uphold the restriction if it
promotes a “sufficiently important” government interest and is
“closely drawn” to avoid unnecessary abridgment of the right to free
association. Id. Under either standard, however, the test to be
applied is a demanding one.

With regard to dollar limits on the value of contributions, the
Supreme Court has recognized two “sufficiently important” state
interests: an “anti-corruption” interest and an “anti-circumvention
interest.” The first embraces not only express or implied quid pro
quo arrangements, but also the threat of undue influence by large
donors over elected officials, or the appearance of it, which
undermines public confidence in the integrity and fairness of the
electoral system. Buckley, 424 U.S. at 26-29; see also Shrink
Missouri PAC, 528 U.S. at 389 (“In speaking of improper influence
and opportunities for abuse ... we recognized a concern not confined
to bribery of public officials, but extending to the broader threat
from politicians too compliant with the wishes of large
contributors.”). The second interest is furthered by measures
designed to prevent evasion or circumvention of legitimate campaign
finance restrictions, so that individuals or organizations may not
undermine valid contribution limits indirectly. See Buckley, 414
U.S. at 46-47. In-kind contribution limits promote both of these
interests.
114 [95 Op. Att’y

B. Federal Media Exception

Federal law provides a useful example of how First
Amendment values may be accommodated in campaign finance
regulation. The Federal Election Campaign Act (“FECA”), 2 U.S.C.
§431, et seq., was amended shortly after its enactment to provide a
specific statutory exception for most media appearances by a
candidate. See 2 U.S.C. §431(9)(B)(i). When it added the media
exception in 1974, Congress indicated that it was intended to make
clear that campaign finance regulation would not “limit or burden in
any way the First Amendment freedoms of the press and of
association. Thus the exclusion assures the unfettered right of the ...
media to cover and comment on political campaigns.” H. Rep. No.
93-943, 93d Congs., 2d Sess. at 4 (1974); see also First National
Bank of Boston v. Bellotti, 435 U.S. 765, 781 (1978) (discussing
rationale for media exception). This special protection of press
freedoms is justified not because of any special privilege the press
enjoys, but because press entities serve a critical role in our society
as a forum for public debate.3

Under regulations adopted pursuant to FECA, contributions
and expenditures are defined so as to exclude “any cost incurred in
covering or carrying a news story, commentary, or editorial by any

3
The Supreme Court has explained:
The press cases emphasize the special and
constitutionally recognized role of that institution
in informing and educating the public, offering
criticism, and providing a forum for discussion
and debate. Mills v. Alabama, 384 U.S., at 219, 86
S.Ct., at 1437; see Saxbe v. Washington Post Co.,
417 U.S. 843, 863-864, 94 S.Ct. 2811, 2821-2822,
41 L.Ed.2d 514 (1974) (Powell, J., dissenting).
But the press does not have a monopoly on either
the First Amendment or the ability to enlighten.
Cf. Buckley v. Valeo, 424 U.S., at 51 n. 56, 96
S.Ct., at 650; Red Lion Broadcasting Co. v. FCC,
395 U.S. 367, 389-390, 89 S.Ct. 1794, 1806-1807,
23 L.Ed.2d 371 (1969); New York Times Co. v.
Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 718, 11
L.Ed.2d 686 (1964); Associated Press v. United
States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89
L.Ed. 2013 (1945).
Bellotti, 435 U.S. at 781-82 (footnotes omitted).
Gen. 110] 115

broadcasting station ..., Web site, newspaper, magazine, or other
periodical publication ...” except when the facility is “owned or
controlled by any political party, political committee, or candidate
....” See 11 CFR §§100.73(contributions), 100.132 (expenditures).
For media facilities owned by a party, candidate, or political
committee, federal law exempts only news stories that meet other
criteria to ensure fairness.4 However, fairness, balance, or lack of
bias are not requirements for media outlets not owned or controlled
by a party, candidate, or political committee. Id.

Courts interpreting this provision have set forth a two-part
analysis. Federal Election Comm’n v. Phillips Publishing, Inc., 517
F.Supp. 1308, 1312-13 (D.D.C. 1981) (citing Reader’s Digest Ass’n
v. Federal Election Comm’n, 509 F.Supp. 1210 (S.D.N.Y. 1981).

Under the Reader’s Digest procedure, the
initial inquiry is limited to whether the press
entity is owned or controlled by any political
party or candidate and whether the press entity
was acting as a press entity with respect to the
conduct in question. ... If the press entity is not
owned or controlled by a political party or
candidate and it is acting as a press entity, the
FEC lacks subject matter jurisdiction and is
barred from investigating the subject matter of
the complaint.

Phillips Publishing, 517 F.Supp. at 1313 (citations omitted). In
other words, provided an independent press entity acts “as a press
entity,” the content of any political message it disseminates is largely

4
For a candidate-owned facility, only a news story:
(a) That represents a bona fide
news account communicated in a
publication of general circulation or on a
licensed broadcasting facility; and
(b) That is part of a general pattern
of campaign-related news accounts that
give reasonably equal coverage to all
opposing candidates in the circulation or
listening area, is not a contribution.
11 CFR §100.73(a)(b).
116 [95 Op. Att’y

irrelevant for federal campaign finance purposes. A number of
states have adopted similar explicit media exceptions as part of their
campaign finance laws to accommodate First Amendment values.

C. Maryland Campaign Finance Law

Regulation of Contributions and Expenditures

The Maryland Campaign Finance Law regulates contributions
and expenditures in connection with State elections. See Annotated
Code of Maryland, Election Law Article, §13-101 et seq. Under that
law, all campaign finance activity must be conducted through a
“campaign finance entity.” EL §13-202(a). In addition, the
establishment of a campaign finance entity is made an express
prerequisite to the filing of a certificate of candidacy for State office.
EL §13-202(b).

Once established, the campaign finance entity is to file regular
reports with SBE of all contributions received and expenditures
made. See EL §13-304. SBE publishes a Summary Guide to assist
candidates, contributors, officers of campaign finance entities, and
others in complying with these requirements. EL §13-103.
Campaign finance obligations are continuing in nature. So long as
an individual maintains a campaign finance entity registered with
SBE, the campaign remains subject to the Title 13's bookkeeping
requirements, periodic reporting duties, and contribution limits. See,
e.g., EL §13-312; see also EL §13-305 (treasurer may file affidavit
in lieu of report in certain circumstances). Winding down or
terminating a campaign finance entity requires compliance with
several provisions of the Election Law Article, including those
relating to disposition of remaining campaign funds and the filing of
a final report. EL §§13-247, 13-310, 13-311.

Contribution Limits and In-kind Contributions

The Campaign Finance Law generally imposes limits on a
donor’s political contributions based on a four-year election cycle.
See EL §1-101(w) (defining “election cycle”). In general, during
any election cycle, the statute caps a donor’s contributions to any one
candidate at $4,000, and at $10,000 to all campaign finance entities
in the aggregate. EL §13-226. The State election law defines a
“contribution” as “the gift or transfer, or promise of gift or transfer,
of money or other thing of value to a campaign finance entity to
promote or assist in the promotion of the success or defeat of a
candidate, political party, or question.” EL §1-101(o)(1) (emphasis
Gen. 110] 117

added). When a contribution is made in a form other than a direct
gift of money to the campaign treasurer, it is considered an in-kind
contribution.

The Summary Guide provides, in relevant part, the following
explanation of an in-kind contribution:

An in-kind contribution includes any
thing of value (except money). For example:
a person can contribute bumper stickers to a
candidate’s committee. The amount of the
contribution equals the fair market value of
the bumper stickers. An in-kind contribution
counts towards the donor’s contribution limits.

Summary Guide – Maryland Candidacy & Campaign Finance Laws
(revised July, 2006) at 27. In addition to giving a thing of value
directly to a campaign, there are two other generic situations in
which an in-kind contribution occurs: if a payment is made to a third
party to defray a charge incurred by the campaign (see, e.g., EL §13-
602(a)(4)(i)), or if spending in support of a candidate is done in
“coordination” with the campaign. Compare EL §1-101(bb)
(defining an “independent expenditure,” which is not treated as an
in-kind contribution). The complaint letter appears to suggest that
the broadcast of a talk show hosted by a candidate might be viewed
as either a donation of free air-time or as an expenditure by the
station made in coordination with the campaign.

II

Analysis

In contrast to federal law and the campaign finance laws of
some other states, Maryland statutes do not expressly except from
the definition of a “contribution” the imputed cost or fair market
value of media coverage of a campaign. See EL §13-101(l)
(defining “contribution”). Even so, it has been SBE’s longstanding
administrative practice not to regard traditional media coverage of
candidates as in-kind contributions. This policy has been followed
without regard to the political content, if any, of the candidate’s
message. SBE’s past practice is thus entirely appropriate in light of
the First Amendment concerns outlined above. Intrusive inquiry into
the content of a candidate’s speech inevitably has a chilling effect on
free expression. Faced with a possible campaign violation, some
118 [95 Op. Att’y

candidates would doubtless censor their remarks, inhibiting the
quantity and quality of public discourse.

On the other hand, the First Amendment does not exempt
media outlets from all campaign finance regulation. Unrestricted
campaign finance activity could result in the exact type of harm that
contribution limits were intended to prevent.5 Certainly, the
possibility exists that elected officials could become too reliant upon
or indebted to a media company in the same way this could occur
with other private interests. See, e.g., Citizens United, 130 S.Ct. at
905 (expressing concerns about unequal treatment of corporations
under federal media exception). This concern is legitimate.6
However, it seems plain that mechanical application of the in-kind
rule to prevent possible misconduct by broadcasters would not be
sufficiently “tailored” to the problem to meet the First Amendment
standard.

As an example, because campaign finance obligations exist so
long as a “candidate” maintains a campaign finance entity to
support any current or future campaign – regardless of current
activity or an intention to run – the in-kind rule could in theory be
applied to any past media appearance by the candidate, at any time,
throughout the entire course of the candidate’s State political career.
In addition, the in-kind requirements could be triggered by others as
well, including a spokesperson, strategist, consultant, or any other
person, acting in coordination with the campaign. Thus, a
significant amount of core political speech might be suppressed
solely to guard against a mostly theoretical, or at least rare, threat of
abuse. This is regulation the First Amendment does not allow. See,
e.g., Citizens United, 130 S. Ct. at 891 (First Amendment requires

5
Candidates often promote their candidacies through paid radio
advertisements. If a radio station were to permit a candidate to air a
campaign ad for free when it charged other advertisers, including other
candidates, the free air time would be an in-kind contribution to the
candidate by the radio station. Similarly, if a third party paid for the
candidate’s ad on behalf of the campaign, that, too, would be an in-kind
contribution.
6
Although we recognize the potential for abuse, in the “free media”
context this risk is arguably less as compared to other forms of in-kind
contribution. In the case of a public broadcast, there can be no question
as to the relationship between the candidate and the broadcaster. This
may, in itself, encourage candidates and broadcasters to remain at arms-
length with respect to policy issues affecting the company.
Gen. 110] 119

giving “benefit of any doubt to protecting rather than stifling
speech.”) (quoting WRTL, 551 U.S. at 469 (2007)).

Our Office is not aware of any similar cases in which a federal
or state agency has successfully upheld a finding that media
commentary by a candidate (or those coordinating with the
candidate’s campaign) amounted to an impermissible in-kind
contribution. See, e.g., San Juan County v. No New Gas Tax, 157
P.3d 831 (Wash. S. Ct. 2007) (criticism of gas tax by radio talk show
hosts during regularly scheduled program for which the broadcaster
did not normally require payment was not an in-kind contribution to
political committee seeking to overturn tax by ballot initiative); 2003
Ariz. Op. Atty. Gen. 12, 2003 WL 23966055 (Ariz. A.G.)
(candidate’s media appearance not a contribution under statutory
exception); In re Dornan, MUR 4689, Statement of Reasons
(“SOR”) of Chm’n Wold and Commr’s Elliott, Mason, and
Sandstrom (FEC “Matters Under Review,” Feb. 14, 2000)
(concluding media exception applies to guest host of radio show,
whether before or after becoming a candidate for federal office).7

Nor does the absence of a statutory media exception require a
different outcome. For example, the Arizona Attorney General
noted that that Office had reached the same conclusion before the
exception was added to the Arizona Code. “In 1988, even though
there was not yet a news media exemption in Arizona’s campaign
finance laws, the Arizona Attorney General opined that ‘regulation
of newspaper editorials would clearly run afoul of constitutional
guarantees of freedom of the press...” 2003 Ariz. Op. Atty. Gen. No.
I03-003 at 2 (quoting Arizona Attorney General Opinion No. 188-
020 (1988)).

Thus, even if a state lacks an explicit media exception in its
campaign finance law, one may be implied in construing the law
consistent with constitutional limitations. For example, in Laffey v.
Begin, 137 Fed. Appx. 362 (1 st Cir. 2005), the Rhode Island board
of elections brought an enforcement action against an incumbent
mayor, alleging that he had received an in-kind contribution when a
local radio station allowed him to host a weekly radio show. The
mayor sued, claiming that the board action abridged his First
Amendment rights. Eventually, the board agreed to suspend its

7
FEC Advisory Opinions and enforcement actions (“Matters Under
Review”) are available on-line at the FEC’s website: www.fec.gov (last
visited May 20, 2010).
120 [95 Op. Att’y

enforcement action and the First Circuit remanded the case for an
assessment of how the state election law accommodated the First
Amendment.

The clear teaching of these authorities is that any enforcement
policy that involves close regulation of the content of political
speech can impermissibly threaten the values protected by the First
Amendment. The Constitution is better served by a content-neutral
analysis specifically targeting efforts to evade applicable campaign
finance limits. See, e.g., San Juan County, 157 P.3d at 841
(observing that Washington Code “limits judicial inquiry into the
content of the speech, focusing instead on the content-neutral
question of whether the radio station ordinarily would collect a fee
for the broadcast”); compare EL §13-602(a)(4)(i) (prohibiting
persons from defraying costs of campaign finance entity directly or
indirectly); see also Federal Election Comm’n v. Massachusetts
Citizens for Life, 479 U.S. 238, 250-51 & n.5 (1986) (holding, in
part, that a “Special Edition” newsletter expressly advocating
election of pro-life candidates was not covered by FECA’s media
exception and was not akin to the normal business activity of a press
entity, relying on content-neutral factors).

It is true that in some earlier cases, the FEC sought to put
content restrictions on the on-air statements of candidates. See, e.g.,
FEC Advisory Op. 1977-42 (limiting candidate’s permissible speech
as host of public affairs radio program). But that is clearly no longer
the case, provided the candidate appears on an “independent” media
outlet that is performing its normal press function. See In re
Dornan, MUR 4689, SOR of Com’r Wold et al.; see also FEC
Advisory Op. 2005-19, at 5 (regarding press exemption for non-
candidate despite “lack of objectivity” in coverage). Nor does the
identity of the host change the analysis. Whatever control over
program content a host might exercise, the relevant consideration
under FECA is ownership or control of the station itself. Id. Nor is
there a constitutionally relevant distinction between programs where
a candidate acts as “host,” as compared to those where a candidate
responds to questions from a friendly interviewer or audience of
supporters. For First Amendment purposes, the identity of the
speaker should be irrelevant. Citizens United, 130 S. Ct. at 898
(“Prohibited, too, are restrictions distinguishing among different
speakers, allowing speech by some, but not by others.”).
Gen. 110] 121

To avoid a potential chilling effect on free expression, courts
are likely to give considerable leeway to the editorial or
programming decisions of media companies, including a company’s
choice of host. See, e.g., Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241, 244 (1974) (holding ‘right of reply’ statute to be an
unconstitutional intrusion into the function of editors).8 Therefore,
generally speaking, the use of objective, content-neutral criteria is an
approach better suited to the First Amendment. In this regard, some
factors to consider might include whether the program at issue is
consistent with the station’s usual format, whether it was created
well in advance of the campaign season or to provide a campaign
vehicle for the candidate, and whether the station would ordinarily
have collected a fee for the broadcast. The purpose of these
questions would be to help SBE assess whether otherwise protected
media activity is in reality an effort to promote a particular
candidacy.

III

Conclusion

In light of the more than 35 years’ experience of courts and the
FEC in interpreting a media exception consistent with the First
Amendment, federal law probably offers the most useful guidance
on the issue you have asked about. In line with that guidance, we
would advise that, in considering possible misconduct relating to the
coverage of political discussion by a candidate or potential
candidate, the focus should remain on activity by the media outlet
that appears to be inconsistent with its ordinary press or broadcast
function.

8
As the Supreme Court observed in Miami Herald:
“The choice of material to go into a newspaper, and the
decisions made as to limitations on the size and content of the
paper, and treatment of public issues and public officials –
whether fair or unfair – constitute the exercise of editorial
control and judgment. It has yet to be demonstrated how
governmental regulation of this crucial process can be
exercised consistent with First Amendment guarantees of a
free press as they have evolved to this time.”
418 U.S. at 258 (citations omitted).
122 [95 Op. Att’y

Ordinarily, SBE would not analyze the broadcast of a
candidate’s political remarks as a possible in-kind contribution. The
reason advanced for doing so here appears mainly to derive from the
participation of former Governor Ehrlich as a host or co-host of the
broadcast, and the control over the show’s content that circumstance
implies. But as is explained above, this consideration does not
appear to be decisive, or even greatly relevant, for First Amendment
purposes. Similarly, charges of media bias or a lack of balanced
coverage do not provide grounds for subjecting a particular media
outlet to campaign finance regulation where it would not be
otherwise. Consequently, we see no reason in this situation for SBE
to depart from its usual practice.

Douglas F. Gansler
Attorney General

Jeffrey L. Darsie
Assistant Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

Editor’s Note:

This opinion was originally issued as a letter of advice.