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NOTICE OF PROPOSED RULES CHANGES

The Rules Committee has submitted its One Hundred NinetyFirst Report to the Court of Appeals, transmitting thereby the

proposed deletion of current Title 18, Chapter 400 and Rules 4215 and 16-806; proposed adoption of new Title 12, Chapter 800

(Action to Quiet Title) and new Title 18, Chapter 400 (Judicial

Disabilities and Discipline) and new Rules 2-413.1, 2-422.1, 2510.1, 4-215, 4-215.1, 4-601.1, 16-506, 16-804, and 16-806; and

proposed amendments to Title 15, Chapter 1300 (Structured

Settlement Transfers) and Rules 1-101, 1-325, 1-325.1, 2-131, 2402, 2-422, 2-510, 2-551, 3-131, 3-306, 3-308, 3-509, 3-701, 4202, 4-212, 4-213, 4-213.1, 4-214, 4-216.1, 4-242, 4-347, 4-601,

5-609, 5-803, 5-902, 6-122, 6-125, 6-210, 6-302, 6-317, 6-416,

6-431, 6-432, 6-452, 7-202, 8-121, 8-122, 8-402, 8-412, 8-504,

14-216, 14-504, 15-205, 16-105, 16-207, 16-501, 16-906, 18-601,

19-301.2, 19-304.4, and 19-307.4.

The Committee’s One Hundred Ninety-First Report and the

proposed Rules changes are set forth below.

Interested persons are asked to consider the Committee’s

Report and proposed Rules changes and to forward on or before

November 14, 2016 any written comments they may wish to make to:

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Sandra F. Haines, Esq.

Reporter, Rules Committee

2011-D Commerce Park Drive

Annapolis, Maryland 21401

Bessie M. Decker

Clerk

Court of Appeals of Maryland

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October 13, 2016

The Honorable Mary Ellen Barbera,

Chief Judge

The Honorable Clayton Greene, Jr.

The Honorable Sally D. Adkins

The Honorable Robert N. McDonald,

The Honorable Shirley M. Watts

The Honorable Michele D. Hotten

The Honorable Joseph M. Getty,

Judges

The Court of Appeals of Maryland

Robert C. Murphy Courts of Appeal Building

Annapolis, Maryland 21401

Your Honors:

The Rules Committee submits this, its One Hundred NinetyFirst Report, and recommends that the Court adopt the new Rules

and amendments to existing Rules set forth in this Report. The

Report comprises 16 categories of proposals, some of which are

carry-overs from earlier submissions.

CATEGORY 1

Category 1 consists of the latest revisions to the proposed

Rules governing the Commission on Judicial Disabilities and the

resolution of complaints made against judges (Title 18, Chapter

400, consisting of Rules 18-401 through 18-417). Revisions to

the judicial discipline Rules were initially included in Part II

of the Committee’s 178th Report, submitted to the Court in June

2013. A hearing was held on that Part in October 2013, but no

final action was taken at that time, as the plan was to deal

with all three Parts of the 178th Report together, and Part III

had not yet been completed.

Due to intervening matters of greater urgency, Part III,

dealing with attorneys, could not be completed until March 2016,

at which time it, along with updating Supplements to Parts I and

II, were submitted. During the interim, the Committee

considered a number of additional changes to the judicial

discipline Rules recommended by the Chair of the Judicial

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Disabilities Commission and Investigative Counsel, some of which

were included in the Supplement to Part II.

Following the submission of that Supplement, but prior to

the Court’s hearing on it, concerns regarding some of those

changes were expressed to the Committee by some former members

of the Commission and the Inquiry Board. At the Committee’s

request, the Court deferred action on those Rules in order to

give the Committee an opportunity to discuss the concerns with

those who had expressed them and with the current Chairs of the

Commission and Inquiry Board and Investigative Counsel. With

that exception, and a few others, the Court approved the balance

of the 178th Report (Part III and the Supplements to Parts I and

II), to take effect July 1, 2016. That decision left the

current judicial discipline Rules –- renumbered Title 18,

Chapter 400 -- intact for the time being.

Further discussions occurred and, as a result, compromises

were reached. There now appears to be agreement among those

parties and the Rules Committee. The proposed Rules in Category

1 reflect those agreements. For the convenience of the Court

and, as was done in the initial submission of Part II in 2013

and in the Supplement to that Part, Title 18, Chapter 400 is

submitted in two formats – a “clean” version showing how the

Rules will read if adopted, and, as APPENDIX A to this Report, a

“marked” version showing, through underlining and strikeouts,

the changes made to the current Rules.

As noted in the Supplement to Part II, most of the changes

involve a reorganization and updating of the Rules, making some

administrative changes, and clarifying some provisions. There

are, however, a few more substantive changes to which the

Court’s attention is drawn.

First, although the Maryland Constitution establishes the

name of the Commission as the Commission on Judicial

Disabilities (Art. IV, §§4A and 4B), it recognizes that the

Commission’s authority extends not just to disabilities on the

part of judges but to sanctionable conduct as well, and, in

fact, the great majority of complaints dealt with by the

Commission and by the Court have involved allegations of

sanctionable conduct rather than disability, although

occasionally there is some overlap. The distinction is an

important one, both in terms of accurately defining the role of

the Commission, the Inquiry Board, and the Court in dealing with

complaints against judges and in assuring that dispositions

recommended or imposed fairly match the circumstances.

In that regard, the Committee proposes to caption the Title

18, Chapter 400 Rules “Judicial Disabilities and Discipline,”

but to give greater recognition to the Constitutionally

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permissible disposition of mandatory retirement. Mandatory

retirement which is not regarded as discipline, may be

appropriate when the conduct that brought the judge before the

Commission was truly the product of a disability, as defined in

Rule 18-401 (h), rather than inexcusable misconduct, for which a

reprimand, conditional diversion (currently referred to as

deferred discipline) censure, suspension, or removal from office

may be appropriate. See proposed Rules 18-405, 18-407, 18-412,

and 18-414.

Second, the current Rules permit a judge to reject an offer

of dismissal with a warning or a private reprimand, and several

judges have done that, either in the honest belief that they

have done nothing wrong or fearful of the consequences of

receiving a “warning” or a reprimand, should that ever become

public. That leaves the Commission with the choice of either

dismissing the complaint outright or proceeding with the filing

of formal charges, neither of which it believes is the most

appropriate disposition.

The Rules Committee does not propose to alter the right of

the judge to reject such an offer but recommends two changes

that may help remove an impediment to making those two

dispositions more acceptable. Although other States permit

their counterpart agency to couple a dismissal with a letter of

some kind, some use a description other than “warning,” which

has a negative and confrontational connotation. The Committee

proposes substituting “letter of cautionary advice,” coupled

with a Committee note to Rule 18-408 -- the dismissal Rule -explaining the remedial purpose of the attachment, in order to

soften its image but still send the desired message.

The Committee also proposes, in Rule 18-406, dealing with

proceedings before the Inquiry Board, to permit the Board, with

the consent of the judge, to convene a peer review panel

consisting of two judges of the same level of court as the judge

to meet privately with the judge, offer their neutral

evaluation, and suggest options for the judge to consider. This

panel would not be part of the formal disciplinary process; it

would not act as a mediator or make any findings, and its

meeting with the judge would be confidential. The judge may

freely reject any suggestions his or her colleagues may offer.

A somewhat similar process seems to have worked well in attorney

grievance cases.

Third, under the current Rule, all recommendations of

Investigative Counsel, including outright dismissal of the

complaint without a warning, go to the Inquiry Board for its

review and then to the Commission, which has final authority

over the dismissal. In the last two fiscal years (FY 2015 and

2016), Investigative Counsel recommended that 186 complaints be

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dismissed without a warning, all of which were approved by the

Board and ultimately by the Commission.

The Committee recommends that recommendations by

Investigative Counsel of outright dismissal of the complaint be

sent directly to the Commission, to avoid the double proceeding.

The Chairs of the Commission and the Inquiry Board, as well as

Investigative Counsel concur in this recommendation.

The Rules Committee does not view this recommendation as

detracting from the important role played by the Inquiry Board

in shielding the Commission, which ultimately may have to “try

the case,” from undue involvement in the investigation phase.

It is unlikely that the judge will ever object to a

recommendation of outright dismissal, and, if the Commission

were to have any qualm about approving such a recommendation, it

would have the authority to refer the matter to the Inquiry

Board for consideration. Under this proposal, recommended

dismissals accompanied by a letter of cautionary advice would

continue to be referred to the Inquiry Board, because (1) the

judge may wish to reject that proposed disposition and thereby

create a contested issue, and (2) the Board’s views on the

content of the proposed letter would be useful.

Fourth, current Rule 18-406 (c) [former Rule 16-807 (c)]

permits the Commission, with the consent of the judge, to enter

into what the Rule refers to as a “deferred discipline

agreement.” That is probably a misnomer, as the hope and

expectation is that there will be no discipline. It is akin to

the “conditional diversion agreement” provided for in the

attorney grievance Rules, and the Committee believes that is a

more accurate description of what is intended. The Committee

proposes using that term.

Fifth, another new addition is Rule 18-416, to fill a gap

in the current Rules. On several occasions, the Court has

suspended a judge for a set period of time and simultaneously

suspended execution of part of that suspension, subject to

compliance with certain conditions. It is a form of probation,

although that term has not been used. There is no current Rule

on that, which leaves open the question of who is to monitor

compliance with the conditions set by the Court, how any noncompliance would be reported to the Court, and what would happen

then. Rule 18-416 places that option into the Rules and, unless

the Court orders otherwise, directs that the Commission monitor

compliance and report any material failure of compliance on the

part of the judge but permits the Commission to delegate the

basic monitoring to Investigative Counsel. Upon a report from

Investigative Counsel of a material violation by the judge, the

Commission would schedule a hearing and report its findings to

the Court. The judge would have the right to file a response.

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The Court would hold a hearing and take whatever action it deems

appropriate.

Finally, the Committee proposes in Rule 18-417, dealing

with the confidentiality of proceedings before Investigative

Counsel, the Inquiry Board, and the Commission, that, at the

request of the Chief Judge of the Court of Appeals, the

Commission disclose to the Chief Judge (1) whether a complaint

is pending against the judge who is the subject of the request,

and (2) the disposition of each complaint that had been filed

against that judge within the preceding five years. The Rule

would permit the Chief Judge to share that information with the

members of the Court. The Court, or the Chief Judge, may need

this information in determining whether to approve a retired

(senior) judge for recall, in deciding whether to designate the

judge as an administrative judge, cross-designate the judge to

sit on another court, or to appoint the judge to a committee.

CATEGORY 2

Category 2 consists of amendments to Rules 1-325 and 1325.1

Rule 1-325 (Waiver of Costs – Generally) currently applies

only to original civil actions in a circuit court or the

District Court. At the request of the Director of the Access to

Justice Department of the Administrative Office of the Courts

(AOC), the Committee proposes an addition that would expand the

scope of the Rule to include requests for relief that are civil

in nature but are filed in a criminal action, such as petitions

for expungement and requests to shield all or part of a criminal

record. A housekeeping amendment also is proposed to subsection

(f)(2)(A) of the Rule. A clarifying amendment is proposed to

Rule 1-325.1, dealing with the waiver of prepaid appellate

costs.

CATEGORY 3

Category 3 comprises proposed additions or changes to Rules

in Title 2 (Civil Procedure – Circuit Court) and Rules 3-131, 4214, and 19-304.4.

First: An amendment is proposed to Rule 2-131 (and to Rule

3-131) to require that the entry of an attorney’s appearance be

in writing. That is required in criminal cases (Rule 4-214

(a)), and the Committee believes it should be required in civil

cases as well. Appearances entered orally in open court may be

difficult for clerks or other parties to locate when needed to

serve subsequent papers. There is a simple form available

online and in the clerks’ offices for the entry of an

appearance. As a housekeeping amendment, the Committee

recommends substituting “notice of appearance” for the current

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“request for the entry of appearance.” Although the court may

strike an attorney’s appearance in certain circumstances, the

attorney normally does not need the court’s permission to enter

one. Conforming amendments are proposed for Rule 4-214.

Second: The Committee was advised that disagreements have

arisen regarding who may attend a deposition in a civil matter.

Proposed new Rule 2-413.1 addresses that issue. Subject to an

agreement among the parties or a court order, it states who may

attend.

Third: New Rules 2-422.1 and 2-510.1 and amendments to

Rules 2-422 and 2-510 are proposed, in part to implement the

enactment, in 2008, of the Maryland Uniform Interstate

Depositions and Discovery Act (Code, Courts Article, §§9-401

through 9-407). A copy of that statute is attached as APPENDIX

B to this Report. It was not immediately clear, when the

statute was enacted, what, if any, Rules changes might be

needed, but a number of issues have arisen that make some

changes desirable.

The Uniform Act, which has been adopted in at least 28

States, enables a party to an action in another State that has

enacted the Uniform Act to obtain a subpoena from a Maryland

court requiring a Maryland resident, including a nonparty to the

foreign action, to attend a deposition, produce documents, and

permit the inspection of property, including real property, in

the possession or control of the Maryland resident. The

proposed Rules changes have two principal objectives -- to

conform as much as possible the procedures set forth in the

statute with procedures applicable in cases pending in Maryland

courts, and, with respect to discovery from nonparties, to give

litigants in Maryland actions rights equivalent to those

afforded by the General Assembly to litigants in foreign

actions.

Current Rule 2-422 permits a party to serve a request on

another party (1) to produce documents and electronically stored

information for inspection, copying, and testing, and (2) to

permit entry upon designated land or other property in the

possession or under the control of the other party for the

purposes set forth in the Rule. In Webb v. Joyce, 108 Md. App.

512 (1996), the Court of Special Appeals held that Rule 2-422

does not permit a party to inspect property in the possession or

control of a nonparty. Following that decision, the Rules

Committee, in its 147th Report, proposed a new Rule that would

have provided that authority, but, by Order of this Court dated

June 6, 2000, that proposal was rejected.

Two relevant things have occurred since then. In Stokes v.

835 N. Washington Street, LLC, 141 Md. App. 214 (2001), the

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Court of Special Appeals held that, notwithstanding the limited

scope of Rule 2-422, the circuit courts have the inherent

equitable power to permit inspection of a nonparty’s property

through the device of a “bill of discovery,” a holding that was

confirmed in Johnson v. Franklin, 223 Md. App. 273 (2015).

Although, being equitable in nature, that form of relief is not

assured, the Johnson Court concluded that bills of discovery are

“favored in equity” and that they “should be granted unless

there is some well founded objection against the exercise of the

court’s discretion.” Id., at 287.

Equally to the point, the Uniform Act expressly permits a

party to a foreign action to obtain a Maryland subpoena to

inspect the property of a nonparty in Maryland, and the

Committee believes, as a matter of fairness, that parties to a

Maryland action should have the same right, without having to

resort to an equitable bill of discovery. To achieve that

objective, the Committee proposes a new Rule 2-422.1 to deal

both with subpoenas requested under the Uniform Act and

subpoenas to obtain entry on property of a nonparty and to make

conforming amendments to Rule 2-422.

The Uniform Act affects as well Rule 2-510, dealing more

directly with subpoenas. That Rule applies to subpoenas for

attendance both at depositions and at court proceedings but

focuses on actions pending in Maryland circuit courts. The

Uniform Act applies only to subpoenas for depositions, but it

contains requirements and limitations not entirely relevant to

subpoenas requested or issued in Maryland cases. For

convenience and clarity, the Committee proposes to deal with

subpoenas under the Uniform Act or to inspect property of a

nonparty in a new Rule 2-510.1 and, in that regard, make only

conforming amendments to Rule 2-510.

Fourth: Apart from the changes prompted by the Uniform

Act, the Committee believes there is a need to address a very

different problem that also involves Rules 2-510 and 2-510.1, of

what should occur when a party, in response to a discovery

request, inadvertently discloses information that is subject to

a claim of privilege or protection for other reasons. This is

not a new problem but one that has become exacerbated by

discovery requests for electronically stored information that

can involve hundreds or thousands of documents which, due to

time constraints on responding, need to be located and reviewed

fairly quickly. It has an impact as well on Rule 19-304.4

(formerly Maryland Lawyers’ Rule of Professional Conduct (MLRPC)

4.4) (Respect for Rights of Third Persons) and Rule 2-402 (Scope

of Discovery).

As indicated in the Reporter’s note to Rule 19-304.4, in

2007, the Maryland State Bar Association Committee on Ethics

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concluded that, under MLRPC 4.4, there was no ethical obligation

on the part of a receiving attorney to notify the sending

attorney that there may have been an inadvertent transmittal of

privileged material or to refrain from examining that material.

At the time, MLRPC 4.4 did not conflict with the Maryland

discovery Rules, although it did conflict with 2006 changes to

the Federal Rules of Civil Procedure and with the Ethics 2000

Amendments to ABA Model Rule 4.4 (b). In 2008, that conflict

was resolved when the Court, as part of its approval of the

Committee’s 158th Report, amended Rule 2-402 to require the

receiving party, upon notice from the sending party that

information produced in discovery is subject to a claim of

privilege or protection, either to return, sequester, or destroy

the information or file a motion under seal to determine the

validity of the claim. See Rule 2-402 (e).

With that change, Rule 19-304.4 -- an ethical Rule -- needs

to be brought into alignment with Rule 2-402. In drafting the

necessary changes, the Committee has endeavored to clarify the

proper procedure to be followed, both in Rule 2-402 and in Rules

2-510, 2-510.1, and 19-304.4. There is, at the outset, a

reciprocal obligation. The sending party who subsequently

realizes that information that is subject to protection was

inadvertently sent must notify the receiving party of that claim

and the basis for it. That is in current Rules 2-402 (e) and 2510 (k)(2). Added to both of those Rules and to Rule 19-304.4

is the duty of a party who receives information that the party

knows or should know was inadvertently sent to notify the

sending party. Either party may file a motion under seal to

determine the validity of a claim of protection, and, if such a

motion is filed, the parties must preserve the item until the

claim is resolved. The proposed changes to Rule 19-304.4 will

conform that Rule to ABA Model Rule 4.4.

Finally: The Committee proposes to amend Rule 2-551 (In

Banc Review), to bring that Rule closer in alignment with Rules

8-202 (c) and 8-602 (d) when a notice for in banc review is

filed, and another party thereafter files a timely motion

pursuant to Rule 2-532, 2-533, or 2-534. The notice will not

deprive the court of jurisdiction to resolve the motion and will

be treated as filed on the same day as, but after withdrawal or

entry of an order disposing of the motion for post-trial relief.

CATEGORY 4

Category 4 consists of amendments to Rules 3-306, 3-308, 3509, 3-701, and 5-902, all intended to implement Chapter 579 of

the Laws of 2016, dealing with assigned consumer debt collection

actions in the District Court.

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CATEGORY 5

Category 5 consists of revisions and amendments to several

Rules of criminal procedure.

Rules 4-215 and 4-215.1

The major item in Category 5 is the splitting and rewriting

of Rule 4-215, dealing with the defendant’s waiver of the right

to an attorney. That Rule probably has produced more appellate

litigation than any other Rule of criminal procedure; in one

publisher’s print edition of the Maryland Rules, there are 15

pages of small-print, single-spaced annotations following the

Rule. With the assistance of the Attorney General’s Office, the

Office of the Public Defender, State’s Attorneys, private

defense attorneys, and judges, the Rules Committee has attempted

to make the requirements and the procedure more clear, in part

by (1) splitting the Rule into two –- Rule 4-215 for the

District Court and Rule 4-215.1 for the circuit courts; (2)

taking greater account of the how criminal cases progress

chronologically; and (3) taking account as well of applicable

case law and the coming ability of District Court commissioners

to electronically record initial appearance and preliminary

hearing proceedings.

Although this makes the combined text of the two Rules

longer than the current Rule, hopefully it will shrink the

number of additional annotations. The principal changes are as

follows:

First: Under the current Rule, if a defendant appears in

court without an attorney and indicates a desire to waive the

right to one, the court may not accept the waiver until after an

examination of the defendant to determine that the waiver is a

knowing and voluntary one. The Rule permits that examination to

be conducted by the court, by the State’s Attorney, or in part

by both. The Committee believes that the examination should be

conducted solely by the court, whose responsibility it is to

make the required findings. Recommended forms for such an

inquiry are available to judges. A comparable provision is

proposed for Rule 4-215.1.

Second: One of the duties of the court at the first

appearance of the defendant without an attorney is to advise the

defendant “of the importance of having an attorney.” The

content of that advice, which may be the most critical piece of

advice given to the defendant, has been left largely to case

law. The Committee proposes adding a Committee note, based on

that case law, elaborating on what should be told to the

defendant, so the defendant has a clearer and more complete

understanding of how an attorney can help in his or her case and

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to avoid a later appellate finding that a waiver was invalid

because an important element of the advice was omitted. The

Committee also recommends that a similar statement be added to

the charging document. The intent is not to add any new items

of advice not already required by the decisions of this Court

but just to alert the judges to what is required. A comparable

provision is proposed for Rule 4-215.1.

Third: Rule 4-215 permits a District Court judge, in

determining whether a defendant has waived the right to an

attorney by inaction, to rely on the fact that the defendant was

advised of the right to an attorney by a District Court

commissioner at an initial appearance or a preliminary hearing

pursuant to Rule 4-213 or 4-216. At present, the principal

evidence that such advice was given is the certification of the

commissioner and a signed acknowledgment by the defendant.

Pursuant to a proposed amendment to Rule 16-501 and

proposed new Rule 16-506, described in Category 13, District

Court commissioners will soon be electronically recording

initial appearance and preliminary inquiry proceedings. The

Committee is recommending a Committee note to new Rule 4-215

(e)(1) permitting a District Court judge to listen to and rely

on that recording in determining whether there has been a waiver

by inaction if there is any genuine dispute about what occurred

at the proceeding before the commissioner. Because a circuit

court judge may not rely on advice given by a District Court

commissioner, no comparable provision is included in Rule 4215.1.

Fourth: In light of Dykes v. State, 444 Md. 642 (2015) and

State v. Westray, 444 Md. 672 (2015), the Committee proposes to

elaborate some on what must occur when a defendant moves to

discharge his or her current attorney, and the court finds that

the discharge is meritorious. If the discharged attorney had

been assigned by the Office of the Public Defender (OPD), the

defendant remains indigent, and OPD declines to appoint a

replacement, the court must appoint an attorney for the

defendant at the cost of the State, unless the defendant validly

waives the right to an attorney. If the discharged attorney had

not been assigned by OPD, and the defendant remains indigent,

the court must inform the defendant of the need to contact OPD

immediately. Comparable provisions are proposed for Rule 4215.1.

Fifth: Current Rule 4-215 permits a circuit court judge,

in determining a waiver by inaction, to rely on advice of the

right to an attorney given to the defendant by a District Court

judge upon the defendant’s demand for a jury trial. The

Committee does not propose to change that but proposes (1) in

Rule 4-215 (f) that the District Court judge be required to

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certify in a document that such advice was given and that the

clerk docket that certification and include it in the record

transmitted to the circuit court, and (2) in Rule 4-215.1 (e)(3)

to make clear that a circuit court judge may not find the

defendant’s appearance without an attorney to be without merit

absent a finding that the defendant had a reasonable opportunity

after the demand for jury trial was made to obtain an attorney.

A Committee note is added noting that, in counties where the

circuit court attempts to set a jury trial very quickly, the

court must take into account whether the defendant actually had

a reasonable opportunity to obtain an attorney.

In this Report, Rules 4-215 and 4-215.1 are presented as

“new” Rules; however, for the convenience of the Court, “marked”

versions showing, through underlining and strikeouts, how each

Rule differs from current Rule 4-215 are attached as APPENDIX C.

Conforming amendments are proposed to Rules 4-212, 4-216.1,

4-347, 15-205, and 16-207 and are included in amendments to Rule

4-214 (Category 3) and Rule 4-213 (below).

Other Title 4 Rules

Rule 4-202 (Charging Document – Content) is amended to add

a requirement that the notice of right to attorney contain a

statement that an attorney can be helpful in explaining any

potential collateral consequences of a conviction, including

immigration consequences.

Rule 4-213 (Initial Appearance of Defendant) is amended to

require the judicial officer to inform the defendant of possible

enhanced penalties.

Rule 4-213.1 (c) (Appointment, Appearance, or Waiver of

Attorney at Initial Appearance) is amended to require the

judicial officer to advise the defendant of the importance of

having an attorney at the initial appearance.

Rule 4-242 (Pleas) is amended to require that the defendant

be advised of possible immigration consequences of a conviction

when entering a plea of not guilty on an agreed statement of

facts or on stipulated evidence and to add a cross reference to

Padilla v. Kentucky, 559 U.S. 356 (2010) and State v. Prado, 448

Md. 664 (2016)

Rule 4-601 (Search Warrants) is amended in two respects.

First, the requirement that, if the return of an executed

warrant is delivered to the judge electronically, the officer

deliver the original return, warrant, and inventory to the judge

the next day is deleted. The purpose of allowing electronic

transmission is to avoid the officer having to appear

personally. Second, the current requirement that an executed

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warrant, the return, and other papers be filed with the clerk of

the county from which the property was seized is changed to

require that those papers be filed with the clerk of the county

from which the warrant was issued. That appears to be the

current practice.

A new Rule 4-601.1 is proposed to permit applications for

and orders authorizing the installation and use of pen registers

and trap and trace devices to be transmitted electronically.

The installation of those devices is provided for in Code,

Courts Article, §§10-4B-01 through 10-4B-05. Although the

statute requires applications to be in writing, it does not

specify whether they, and approving orders, may be transmitted

electronically, as applications for search warrants may be, and

it appears that there is some disagreement whether electronic

transmissions are allowed. The Committee is of the view that,

if applications and warrants may be transmitted electronically,

these applications and orders should be as well. The text of

the Rule is patterned after comparable language in Rule 4-601,

dealing with search warrants.

CATEGORY 6

Category 6 consists of amendments to Rules 5-609 and 5-803.

The amendment to Rule 5-609 (Impeachment by Evidence of

Conviction of Crime) conforms the Rule to Chapter 531, Laws of

2016, which repealed the prohibition against testimony by a

convicted perjurer but permits evidence of a perjury conviction

to be admitted for the purpose of impeachment regardless of the

date of the conviction.

The amendment to Rule 5-803 (Hearsay Exceptions:

Unavailability of Declarant Not Required) takes account of the

recently inaugurated use of body cameras by law enforcement

officers. See Code, Courts Article, §10-402 and Code, Public

Safety Article, §3-511. Under the public record exception to

the hearsay Rule embodied in Rule 5-803 (b)(8)(A)(ii), a record

made by a public agency setting forth matters observed pursuant

to a duty imposed by law as to which there was a duty to report

is not generally excluded as hearsay. Subsection (b)(8)(C) of

the Rule, however, provides that a record of matters observed by

a law enforcement person is not admissible under that paragraph

when offered against an accused in a criminal action.

Concern was expressed by the Chair of the State Commission

Regarding the Implementation and Use of Body Cameras by Law

Enforcement Officers that subsection (b)(8)(C), which was

intended to remove police narrative reports from the hearsay

exception, might be held to apply as well to recordings made by

body cameras which, if made in conformance with the policies

established pursuant to law by the Maryland Police Training

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Commission, will be more reliable and trustworthy. The proposed

amendment adds a new subsection (b)(8)(D) to provide that an

electronic recording of a matter by a body camera worn by a law

enforcement person or by another type of recording device

employed by a law enforcement agency may be admitted when

offered against an accused if (i) it is properly authenticated,

(ii) it was made contemporaneously with the matter recorded, and

(iii) circumstances do not indicate a lack of trustworthiness.

CATEGORY 7

Category 7 consists of amendments to Rule 7-202, dealing

with the methods of securing judicial review of administrative

agency decisions. In 2015, the Court approved amendments to

that Rule permitting the Workers’ Compensation Commission to

send notices of petitions for judicial review electronically to

those parties who have consented to that form of notice. The

State Department of Environment asked that the Rule permit it to

do the same, noting that, in many of their administrative cases,

there were scores of parties. With the approval of the Attorney

General’s Office, the Committee recommends that all agencies be

permitted to use that form of transmission to those parties who

have consented to receive notices in that manner. This is not

stated as a duty, but only as an option.

CATEGORY 8

Category 8 consists of amendments to Rules 8-121, 8-122, 8402, 8-412, and 8-504. The amendments to Rules 8-121 and 8-122

are intended to protect the privacy of children who get caught

up in appellate proceedings by requiring that they and their

parents be identified in court papers by their initials rather

than their names. This is largely being done already.

Under current Rule 8-402, corporations must enter an

appearance by an attorney; other persons -- LLCs, other kinds of

associations or entities -- may proceed as self-represented.

That differs from the Rules applicable to the trial courts

(Rules 2-131 and 3-131). Under those Rules, the right to

proceed without an attorney is limited to individuals, i.e.,

human beings. The proposed amendment conforms the appellate

Rule to the trial court Rules; only individuals will be allowed

to proceed as self-represented in the appellate courts.

The amendment to Rule 8-412 is a clarifying one. The

amendment to Rule 8-504 will require that, unless otherwise

ordered by the Court, an appendix in an appeal in a juvenile or

termination of parental rights case be filed as a separate

document under seal. The intent is to eliminate the need for

wholesale redactions of identifying information.

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CATEGORY 9

Category 9 consists of amendments to Rules 6-122, 6-125, 6210, 6-302, 6-317, 6-416, 6-431, 6-432, and 6-452. With one

exception, the amendments are largely clarifying ones. The

exception deals with the manner in which certain notices may be

sent by registers of wills. Some of the current Rules require

that notices be sent by certified mail. A group of registers

reported that certified mail is expensive and that in many

cases, the return receipt either is not returned or is returned

marked “unclaimed,” requiring the registers to then send a

second notice by first class mail. They requested that the

Rules allow notices to be sent by first class mail in the first

instance, which they regarded as more likely to be received.

The Probate/Fiduciary Subcommittee regarded that request as

reasonable, but the full Committee felt differently. The

Committee believed that the first notice, to interested persons,

should be sent both by certified and first class mail because

that notice is what informs interested persons of the opening of

the estate and the possibility that they may have an interest in

it. The Committee agreed that subsequent notices could be sent

by first class mail. Amendments to Rules 6-210, 6-302, 6-317,

6-432, and 6-452 reflect the Committee’s view.

CATEGORY 10

Category 10 consists of a new Chapter 800 to Title 12

(Rules 12-801 through 12-811), dealing with actions to quiet

title to property, and a conforming amendment to Rule 1-101.

Such actions have been authorized for many years by Code, Real

Property Article, §14-108, but no Rules were adopted to set

forth the procedures for prosecuting them, and the Maryland Land

Title Association reported that inconsistent procedures were

being used in the various counties. The Legislature responded

by enacting Chapter 396, Laws of 2016 (Code, Real Property

Article, §§14-601 through 14-621). The new statute sets forth

uniform requirements and procedures for such actions, but the

Committee is of the view that a set of Rules to implement the

statute would be useful. A copy of the 2016 statute is attached

as APPENDIX D.

CATEGORY 11

Category 11 consists of amendments to Rules 14-216 (b) and

14-504.

Rule 14-216 (b) deals with deficiency judgments following a

foreclosure sale. It permits a secured party to move for such a

judgment at any time within three years after final ratification

of the auditor’s report and permits service of the motion

pursuant to Rule 1-321. Rule 1-321 allows service by mailing

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the motion to the address most recently stated in a pleading or

paper filed by the party to be served, which often is the

property that was in foreclosure. If the motion is filed any

appreciable time after ratification of the auditor’s report,

however, the party to be served is not likely to still be at

that property and therefore not likely to get the notice. The

Committee recommends that service be in accordance with Rule 2121 (personal service). This may be the first notice to the

borrower/former homeowner that a money judgment is being sought.

Rule 14-504 (Notice to Persons Not Named as Defendants)

provides for notice to homeowners’ associations if any part of

the property is owned by the association. The proposed

amendment applies that requirement to condominium associations

as well, to the extent they own any of the property.

CATEGORY 12

Category 12 consists of amendments to some of the

structured settlement transfer Rules in Title 15, Chapter 1300

of the Maryland Rules. Those Rules were adopted last December

in the wake of serious concerns about the manner in which

petitions for court approval of transfers of structured

settlement benefits were being handled by some factoring

companies and by some judges. It was anticipated when the Rules

were being drafted and when they were presented to the Court

that legislation in the 2016 session was likely, but it was

critical to have the Rules in place as soon as possible.

Legislation sponsored by the Attorney General was enacted in the

2016 session (Chapter 722, Laws of 2016), some provisions of

which require amendments to some of the Rules.

CATEGORY 13

Category 13 consists of additions to four Rules in Title

16. As noted in the discussion of Category 5, it is anticipated

that, by the end of this year, District Court commissioners will

have available in their offices equipment that will allow them

to electronically record proceedings. In part because of

penumbral aspects of making such recordings -- what is to be

recorded, control over the recordings, redactions, access, etc.

-- which are covered in the Rules dealing with electronic

recordings of court proceedings, it became important to have

Rules dealing with these recordings as well. That is provided

for in amendments to Rule 16-501 and new Rule 16-506.

The second matter dealt with in this Category is a revision

of proposed Rule 16-804, dealing with conflicting assignments

undertaken by attorneys. The initial version of that Rule,

which largely was a mere codification of an Administrative Order

of the Chief Judge that had been in existence for 40 years, was

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presented to the Court in the Supplement to Part I of the

Committee’s 178th Report and was considered by the Court last

May. Although there had been no reported problems with the

Administrative Order, and no comments had been received about

the proposed codification of that Order, 14 attorneys appeared

at the Court hearing in opposition to it.

It may well be that the quiescence over the 40-year period

is attributable to the fact that few attorneys or judges were

aware of the Administrative Order, and, indeed, transparency was

the main reason the Committee chose to recommend that it be

codified in a Rule. Given the belated opposition, which caught

the Committee, and likely the Court, by surprise, the Court

remanded the matter to the Committee for further consideration.

The Committee met with some of the attorneys who had

appeared at the hearing, as well as others, and concluded that

there was a better, more practical way to deal with the issue.

The contested part of the proposed Rule was substantially

redrafted and with the support of the attorneys who had worked

with the Committee on the revisions, was approved by the full

Committee. It does not absolutely preclude attorneys from

accepting conflicting assignments, as the Administrative Order

did, but it does place reasonable requirements on them when they

do so -- requirements that, for the most part, they have anyway

under the Rules of Professional Conduct.

The fourth Rule amended in this Category is Rule 16-906.

The only change is the addition of a cross-reference to a new

statute governing the confidentiality of court records

pertaining to a citation issued for the use or possession of

less than 10 grams of marijuana. The Rules Committee currently

has under review all of the Rules relating to access to court

records.

CATEGORY 14

Category 14 consists of a revision of Rule 16-806 (Judicial

Personnel Policies and Procedures) and amendments to Rules 16105 (Circuit Court – County Administrative Judge) and 18-601

(Judicial Leave).

Rule 16-806

Apart from judges, there are five basic categories of

judicial personnel: (1) employees in the AOC, (2) District Court

employees, (3) circuit court clerks, (4) employees in agencies

such as the Board of Law Examiners, the Attorney Grievance

Commission, the Judicial Disabilities Commission, and the Client

Protection Fund, and (5) circuit court employees, such as

judges’ secretaries, law clerks, magistrates, jury

commissioners, and others who may be paid by the county but are

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essentially at-will employees who serve at the pleasure of a

judge or the court. There are personnel plans or policies and

procedures in existence that cover the first four categories –

policies governing hiring, classification, promotion,

discipline, grievance procedures.

With respect to the fifth category, because those employees

are largely at-will, the full range of those personnel policies

do not apply, but those employees are subject to and do enjoy

the protection of Federal and State equal employment

opportunity, anti-discrimination, anti-harassment, and antinepotism laws. What has been missing is clear notice (1) that

they are subject to those supervening laws, (2) of the rights

and responsibilities of both the employees and their supervisors

with regard to those laws, and (3) of how to report and redress

alleged violations.

Proposed revised Rule 16-806 is intended to fill that gap.

It directs the State Court Administrator to develop, for

consideration and approval by the Chief Judge of the Court of

Appeals, policies and procedures dealing with those matters for

all judicial employees and more general policies and procedures

for the first four categories. It directs the county

administrative judges to develop, for consideration and approval

by the Chief Judge of the Court of Appeals, more general

policies for the Category 5 employees of their respective

courts, so long as those policies are consistent with the equal

employment opportunity, anti-discrimination, anti-harassment,

and anti-nepotism policies developed by the State Court

Administrator as approved by the Chief Judge. Because those

employees are at-will, any more general policies necessarily

will be more limited than those applicable to the other

categories.

Proposed amendments to Rule 16-105 conform it to revised

Rule 16-806.

Rule 18-601

A proposed updating of the current Rule on judicial

absences was presented to the Court in the Supplement to Part II

of the Committee’s 178th Report, but the Court deferred action on

that proposal and, subject to further consideration, kept in

place, but renumbered, the then-current Rule. After further

discussions with the State Court Administrator and the Chief

Judge, the Committee has revised slightly the Rule proposed in

the Supplement. It keeps in the Rule the current entitlements

of judges to not more than 27 days of annual leave, six days of

personal leave, unlimited sick leave for the judge’s illness,

and additional leave for illnesses or disabilities of members of

the judge’s family, subject to verifications, limitations, and

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conditions contained in a Policy on Judicial Absences developed

by the State Court Administrator and approved by the Court of

Appeals. Under the current Rule, policies of that kind are

contained in an Administrative Order of the Chief Judge.

CATEGORY 15

Category 15 consists of a new Comment 12 to Rule 19-301.2,

to address an attorney’s ethical obligation for advising clients

with respect to conducting medical marijuana activities.

Section (d) of the Rule prohibits an attorney from

counseling or assisting a client in engaging in conduct that the

attorney knows is criminal or fraudulent but allows the attorney

to discuss the legal consequences of any proposed course of

conduct with a client. The issue arises from the fact that,

although Maryland law, with limitations and conditions, permits

the production, distribution, and use of marijuana for medical

purposes (see Code, Health-General Article, Title 13, Subtitle

33), Federal law continues to make that activity criminal (see

21 U.S.C. §§801-904).

The proposed Comment notes the conflict and, in conformance

with an Opinion of the Maryland State Bar Association’s Ethics

Committee, states that an attorney may counsel a client about

compliance with the State’s medical marijuana law without

violating the Rule and may provide legal services in connection

with business activities permitted by State statute, provided

the attorney also advises the client about the legal

consequences, under other applicable law, of the client’s

proposed course of conduct.

CATEGORY 16

Category 16 consists of an amendment to Rule 19-307.4 (a)

deleting the prohibition against an attorney holding “himself or

herself out publicly as a specialist.”

This issue, of whether, to what extent, and under what

conditions attorneys may hold themselves out as “specialists” or

as having been certified as a “specialist” has been the subject

of considerable discussion, both nationally and in Maryland, for

40 years. A proposal to amend what then was Rule 7.4 of the

Attorneys’ Rules of Professional Conduct (current Rule 19-307.4)

was presented to the Court in May 2015 in the 187th Report of the

Rules Committee (Category 6).

It was pointed out in that Report that, prior to 1977, most

States, including Maryland, severely limited attorneys from

advertising their services, but that, in Bates v. State Bar of

Arizona, 433 U.S. 350 (1977), the Supreme Court held that

advertising by attorneys was a form of commercial speech

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protected by the First Amendment and that, although the States

could preclude advertising that was, in fact, false or

misleading, they could not place an absolute restriction on it

on the ground that it may be potentially misleading. Following

that decision, the American Bar Association and State regulatory

agencies began searching for the kinds of regulations that could

pass muster under Bates.

In October 1977, the Rules Committee submitted its 61st

Report, in which, as part of general Rules regarding

advertising, it recommended that attorneys be permitted to

advertise that they specialized in a particular field if they

had been certified as a specialist in that field by the State

authority having jurisdiction over attorney advertising but not

otherwise. That appeared to be where the ABA and several other

States were heading. The Court rejected that recommendation,

however, in favor of the flat prohibition. Until the filing of

the 187th Report, the Court had not had occasion to reconsider

that decision. 1

As noted in the 187th Report, the legal landscape regarding

that issue has changed since 1977. In Peel v. Attorney

Registration and Disciplinary Commission of Illinois, 496 U.S.

91 (1990), the Supreme Court held that an attorney’s reference

in his letterhead to his certification as a civil trial

specialist by the National Board of Trial Advocacy, being true,

verifiable, and not misleading, was protected by the First

Amendment and that an Illinois Rule prohibiting such a statement

was invalid. The Court concluded that the State’s concern over

the possibility that such a statement may be deceptive was not

sufficient to rebut the Constitutional presumption favoring

disclosure over concealment. See also Hayes v. New York Atty.

Griev. Comm., 672 F.3d 158 (2d. Cir. 2012) and Searcy v. The

Florida Bar, 140 F. Supp. 3d 1290 (N.D. Fla. 2015). When faced

with challenges to restrictions on attorney advertising, the

courts have been applying the four-part test set forth in

Central Hudson Gas & Electric Corp. v. Public Service

Commission, 447 U.S. 557 (1980), the essence of which is that

“commercial speech that is not false, deceptive, or misleading

In 2004, a committee appointed by the Court to review

modifications that had been adopted to the ABA Model Rules

considered whether the prohibition in the Maryland Rule 7.4

should be deleted. A motion to delete the prohibition was made

but rejected. The issue was not raised in the committee’s

report to the Court. More recently, in a Concurring Opinion in

Attorney Grievance v. Zhang, 440 Md. 128, 180, n.1 (2014), two

members of the Court noted that the Maryland version of Rule 7.4

conflicted with the ABA Model Rule and recommended that

consideration be given to a conforming amendment.

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can be restricted, but only if the State shows that the

restriction directly and materially advances a substantial state

interest in a manner no more extensive than necessary to serve

that interest.” Id. at 566.

In its 187th Report, the Committee noted that Maryland was

then one of only two States that still outright prohibited

attorneys from advertising themselves as specialists or as

certified specialists and expressed concern about the validity

of that prohibition. With the concurrence of the Maryland State

Bar Association, it recommended that the Court create a Judicial

Commission to recommend areas of specialty that should be

recognized and to accredit certifying agencies in those

specialties, which was the approach many of the States had

adopted. The problem was that such a Commission would require

at least two judicial employees, and there was no funding for

those positions. The Court therefore deferred action on the

recommendation. The Judiciary did not receive such funding in

the succeeding legislative session and, in light of other, more

important Judiciary initiatives, it was not likely that such

funding would be forthcoming.

In the meanwhile, the Committee became aware of a broader

effort by the Association of Professional Responsibility

Lawyers, a national organization of attorneys whose practices

are devoted primarily to matters involving professional

responsibility/legal ethics, to revamp the advertising and

solicitation Rules that exist in the various States in favor of

a more uniform national approach that takes account of

advertising formats and technologies that did not exist 40 years

ago. That organization has been working with committees of the

ABA and has presented its proposals to the ABA. A

representative met with the Rules Committee recently for a

general discussion of what the organization is proposing.

The Committee concluded that it was premature, at least

until there was some response from the ABA, to consider those

broader proposals but referred the matter to its Attorneys and

Judges Subcommittee. The Committee remains concerned, however,

about the Constitutional validity of the existing Maryland

prohibition and concluded that dealing with that should not

await consideration of any broader rewriting of the advertising

Rules. Repealing that one provision would not remove all

constraints on attorneys advertising themselves as specialists.

All advertising by attorneys is subject to Rule 19-307.1, which

precludes attorneys from making a false or misleading

communication about the attorney or the attorney’s services and,

in relevant part, declares a communication to be false or

misleading if it “contains a material misrepresentation of fact

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or law, or omits a fact necessary to make the statement

considered as a whole not materially misleading.”

For the further guidance of the Court and the public,

following each proposed new Rule and amendment to an existing

Rule is a Reporter’s note describing in further detail the

reasons for the proposals. We caution that the Reporter’s notes

are not part of the Rules, have not been debated or approved by

the Committee, and are not to be regarded as any kind of

official comment or interpretation. They are included solely to

assist the Court in understanding some of the reasons for the

proposed changes.

Respectfully submitted,

Alan M. Wilner,

Chair

AMW:cdc

cc: Bessie M. Decker, Clerk

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Table of Contents

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

TABLE OF CONTENTS

Rule 18-401.

COMMISSION ON JUDICIAL DISABILITIES - DEFINITIONS

(a) Address of Record

(b) Board

(d) Commission

(e) Commission Record

(f) Complainant

(g) Complaint

(h) Disability

(i) Judge

(j) Sanctionable Conduct

Rule 18-402.

COMMISSION

(a) Chair and Vice Chair

(b) Recusal

(d) Investigative Counsel; Assistants

(1) Appointment; Compensation

(2) Duties

(3) Additional Attorneys and Staff

(e) Quorum

(f) General Powers of Commission

(g) Record

(h) Annual Report

(i) Request for Home Address

Rule 18-403.

JUDICIAL INQUIRY BOARD

(a) Creation and Composition

(b) Compensation

(d) Removal or Replacement

(e) Quorum

(f) Record

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Table of Contents

Rule 18-404.

COUNSEL

COMPLAINTS; INITIAL REVIEW BY INVESTIGATIVE

(a) Procedure on Receipt of Complaint

(1) Referral to Investigative Counsel

(2) Complaint that Fails to Allege Disability or

Sanctionable Conduct

(3) Allegation of Disability or Sanctionable

Conduct not Under Oath or Supported by Affidavit

(4) Failure to File Complaint Under Oath or Supported

by Affidavit

(b) Opening File on Receipt of Complaint

Rule 18-405.

INVESTIGATION BY INVESTIGATIVE COUNSEL

(a) Conduct of Investigation

(1) Duty to Conduct; Notice to Board and Commission

(2) Subpoena

(3) Grant of Immunity

(4) Notice to Judge

(5) Opportunity of Judge to Respond

(6) Time for Completion

(b) Report and Recommendation by Investigative Counsel

(1) Duty to Make

(2) Contents

(3) Recipient of Report

Rule 18-406.

PROCEEDINGS BEFORE BOARD; REVIEW BY COMMISSION

(a) Review of Investigative Counsel’s Report

(b) Informal Meeting with Judge; Peer Review

(1) Generally

(2) Peer Review

(d) Board’s Report to Commission

(1) Contents

(2) Condition and Limitation

(3) Time for Submission of Report

(A) Generally

(B) Extension

(4) Copy to Investigative Counsel and Judge

(e) Filing of Response

(f) Action by Commission on Board Report and Recommendation

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Table of Contents

(1) Review

(2) Appearance by Judge

(3) Disposition

Rule 18-407.

FURTHER INVESTIGATION

(a) Notice to Judge of Investigation

(b) Subpoenas

(1) Issuance

(2) Notice of Judge

(3) Motion for Protective Order

(4) Failure to Comply

(5) Confidentiality

(A) Subpoena

(B) Court Files and Records

(d) Report and Recommendation

(1) Duty to Make

(2) Contents

Rule 18-408.

DISMISSAL OF COMPLAINT

(a) Without Letter of Cautionary Advice

(b) With Letter of Cautionary Advice

(1) When Appropriate

(2) Notice to Judge

(3) Objection by Judge

(4) Confidentiality of Content of Letter of Cautionary

Advice

(5) Not a Form of Discipline

Rule 18-409.

CONDITIONAL DIVERSION AGREEMENT

(a) When Appropriate

(b) Compliance

(d) Confidentiality

(e) Termination of Proceedings

Rule 18-410.

PRIVATE REPRIMAND

(a) When Appropriate

(b) Form of Discipline

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Table of Contents

(1) Generally

(2) Notice to Complainant

Rule 18-411.

PUBLIC REPRIMAND

(a) When Appropriate

(b) Consent of Judge

(d) Form of Discipline

Rule 18-412.

RETIREMENT

(a) When Appropriate

(b) Effect

Rule 18-413.

FILING OF CHARGES; PROCEEDINGS BEFORE COMMISSION

(a) Filing of Charges

(1) Direction of Commission

(2) Content of Charges

(b) Service; Notice

(d) Notice of Hearing

(e) Extension of Time

(f) Procedural Rights of Judge

(g) Exchange of Information

(1) Generally

(2) List of Witnesses; Documents

(3) Scope of Discovery

(4) Mental or Physical Examination

(h) Amendments

(i) Hearing on Charges

(j) Commission Findings and Action

(1) Finding of Disability

(2) Finding of Sanctionable Conduct

(3) Finding of No Disability or Sanctionable Conduct

(k) Duties of Commission on Referral to Court of Appeals

Rule 18-414.

CONSENT TO DISPOSITION

(a) Generally

(b) Form of Consent

(1) Generally

(2) If Charges Filed

(3) If Charges Not Yet Filed

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Table of Contents

Rule 18-415.

PROCEEDINGS IN COURT OF APPEALS

(a) Expedited Consideration

(b) Exceptions

(d) Hearing

(e) Disposition

(f) Decision

Rule 18-416.

EXECUTION OF DISCIPLINE

(a) Authority

(b) Monitoring Compliance

Rule 18-417.

CONFIDENTIALITY

(a) Generally

(1) Address of Record

(2) Complaints; Investigations; Disposition Without

Charges

(3) Upon Resignation, Voluntary Retirement, Filing of

Response, or Expiration of the Time for Filing a

Response

(4) Work Product, Proceedings, and Deliberations

(5) Proceedings in the Court of Appeals

(b) Permitted Release of Information by Commission

(1) Written Waiver

(2) Explanatory Statement

(3) To Chief Judge of Court of Appeals

(4) Information Involving Criminal Activity

(5) Nominations; Appointments; Approvals

(A) Permitted Disclosures

(B) Restrictions

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Rule 18-401

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-401.

COMMISSION OF JUDICIAL DISABILITIES - DEFINITIONS

The following definitions apply in this Chapter except as

otherwise expressly provided or as necessary implication

requires:

(a)

Address of Record

"Address of record" means a judge's current home address

or another address designated in writing by the judge.

Cross reference: See Rule 18-417 (a)(1) concerning

confidentiality of a judge's home address.

(b)

Board

"Board" means the Judicial Inquiry Board appointed

pursuant to Rule 18-403.

(c)

Charges

"Charges" means the charges filed with the Commission by

Investigative Counsel pursuant to Rule 18-413.

(d)

Commission

"Commission" means the Commission on Judicial

Disabilities created by Art. IV, §4A of the Maryland

Constitution.

(e)

Commission Record

"Commission record" means all documents pertaining to the

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Rule 18-401

judge who is the subject of charges that are filed with the

Commission or made available to any member of the Commission and

the record of all proceedings conducted by the Commission with

respect to that judge.

Cross reference:

(f)

See Rule 18-402 (g).

Complainant

"Complainant" means a person who has filed a complaint,

and in Rule 18-404 (a), “complainant” also includes a person who

has filed a written allegation of misconduct by or disability of

a judge that is not under oath or supported by an affidavit.

(g)

Complaint

“Complaint” means a written communication under oath or

supported by an affidavit alleging that a judge has a disability

or has committed sanctionable conduct.

(h)

Disability

"Disability" means a mental or physical disability that

seriously interferes with the performance of a judge's duties

and is, or is likely to become, permanent.

(i)

Judge

"Judge" means (1) a judge of the Court of Appeals, the

Court of Special Appeals, a circuit court, the District Court,

or an orphans' court, and (2) a retired judge during any period

that the retired judge has been approved for recall.

Cross reference:

Article, §1-302.

See Md. Const., Art. 4, §3A and Code, Courts

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Rule 18-401

(j) Sanctionable Conduct

(1) "Sanctionable conduct" means misconduct while in office,

the persistent failure by a judge to perform the duties of the

judge's office, or conduct prejudicial to the proper

administration of justice.

A judge's violation of any of the

provisions of the Maryland Code of Judicial Conduct promulgated

by Title 18, Chapter 100 may constitute sanctionable conduct.

(2) Unless the conduct is occasioned by fraud or corrupt

motive or raises a substantial question as to the judge's

fitness for office, "sanctionable conduct" does not include:

(A) making an erroneous finding of fact, reaching an

incorrect legal conclusion, or misapplying the law; or

(B) failure to decide matters in a timely fashion unless

such failure is habitual.

Committee note: Sanctionable conduct does not include a judge's

simply making wrong decisions - even very wrong decisions - in

particular cases.

Cross reference: Md. Const., Art. IV, §4B (b)(1). For powers

of the Commission in regard to any investigation or proceeding

under §4B of Article IV of the Constitution, see Code, Courts

Article, §§13-401 through 13-403.

Source:

This Rule is derived from former Rule 16-803 (2016).

REPORTER’S NOTE

Proposed Rule 18-401 is derived from former Rule 16-803.

In section (a), the addition of the words “in writing”

requires any designation of an “address of record” other than

the judge’s home address to be written.

An addition to section (e) fills a gap and clarifies that

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Rule 18-401

the “Commission record” includes not only documents but also the

record of proceedings conducted by the Commission pertaining to

the judge who is the subject of the proceedings.

The definition of “formal complaint” is deleted, and the

requirements that allegations be in writing and under oath are

transferred to the definition of “complaint.” The definition of

“complainant” is revised to conform to these changes.

Stylistic changes also are made.

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Rule 18-402

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-402.

(a)

COMMISSION

Chair and Vice Chair

The judicial member from the Court of Special Appeals

shall serve as Chair of the Commission.

The Commission shall

select another of its judicial members to serve as Vice Chair.

The Vice Chair shall perform the duties of the Chair whenever

the Chair is disqualified or otherwise unable to act.

(b)

Recusal

A member of the Commission shall not participate as a

member in any proceeding in which (1) the member is a

complainant, (2) the member's disability or sanctionable conduct

is in issue, (3) the member's impartiality reasonably might be

questioned, (4) the member has personal knowledge of disputed

material evidentiary facts involved in the proceeding, or (5)

the recusal of a judicial member otherwise would be required by

the Maryland Code of Judicial Conduct.

Cross reference: See Md. Const., Article IV, §4B (a), providing

that the Governor shall appoint a substitute member of the

Commission for the purpose of a proceeding against a member of

the Commission.

The Commission may select an attorney as Executive

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Rule 18-402

Secretary.

The Executive Secretary shall serve at the pleasure

of the Commission, advise and assist the Commission, have other

administrative powers and duties assigned by the Commission, and

receive the compensation set forth in the budget of the

Commission.

(d) Investigative Counsel; Assistants

(1) Appointment; Compensation

The Commission shall appoint an attorney as Investigative

Counsel.

Before appointing Investigative Counsel, the

Commission shall notify bar associations and the general public

of the vacancy and shall consider any recommendations that are

timely submitted.

Investigative Counsel shall serve at the

pleasure of the Commission and shall receive the compensation

set forth in the budget of the Commission.

(2) Duties

Investigative Counsel shall have the powers and duties

set forth in the Rules in this Chapter and shall report and make

recommendations to the Commission as required under these Rules

or directed by the Commission.

(3) Additional Attorneys and Staff

As the need arises and to the extent funds are available

in the Commission's budget, the Commission may appoint

additional attorneys or other persons to assist Investigative

Counsel. Investigative Counsel shall keep an accurate record of

the time and expenses of additional persons employed and ensure

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Rule 18-402

that the cost does not exceed the amount allocated by the

Commission.

(e) Quorum

The presence of a majority of the members of the

Commission constitutes a quorum for the transaction of business,

provided that at least one judge, one attorney, and one public

member are present.

At a hearing on charges held pursuant to

Rule 18-413 (i), a Commission member is present only if the

member is physically present.

Under all other circumstances, a

member may be physically present or present by telephone, video,

or other electronic conferencing.

Other than adjournment of a

meeting for lack of a quorum, no action may be taken by the

Commission without the concurrence of a majority of members of

the Commission.

(f) General Powers of Commission

In accordance with Maryland Constitution, Article IV, §4B

and Code, Courts Article, §13-401 through 13-403, and in

addition to any other powers provided in the Rules in this

Chapter, the Commission may:

(1) administer oaths and affirmations;

(2) issue subpoenas and compel the attendance of witnesses

and the production of evidence;

(3) require persons to testify and produce evidence by

granting them immunity from prosecution or from penalty or

forfeiture; and

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Rule 18-402

(4) in case of contumacy by any person or refusal to obey a

subpoena issued by the Commission, invoke the aid of the circuit

court for the county where the person resides or carries on a

business.

(g) Record

The Commission shall keep a record of all documents filed

with the Commission and all proceedings conducted by the

Commission concerning a judge, subject to a retention schedule

determined by the Commission.

(h) Annual Report

Not later than September 1 of each year, the Commission

shall submit an annual report to the Court of Appeals regarding

its operations.

The Report shall include statistical data with

respect to complaints received and processed, but shall not

include material declared confidential under Rule 18-417.

(i) Request for Home Address

Upon request by the Commission or the Chair of the

Commission, the Administrative Office of the Courts shall supply

to the Commission the current home address of each judge.

Cross reference:

Source:

See Rules 18-401 (a) and 18-417 (a).

This Rule is derived from former Rule 16-804 (2016).

REPORTER’S NOTE

Proposed Rule 18-402 is derived from former Rule 16-804.

Section (a) is revised to specify that the judicial member

from the Court of Special Appeals serves as Chair of the

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Rule 18-402

Commission, and the Commission selects another of its judicial

members to serve as Vice Chair.

Section (f) is new. It lists the general powers of the

Commission, in accordance with Article IV, §4B of the Maryland

Constitution and Code, Courts Article, §§13-401 through 403.

In section (g), retention of records is made subject to a

retention schedule determined by the Commission.

Stylistic and clarifying changes also are made.

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Rule 18-403

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-403.

(a)

JUDICIAL INQUIRY BOARD

Creation and Composition

The Commission shall appoint a Judicial Inquiry Board

consisting of two judges, two attorneys, and three public

members who are not attorneys or judges.

No member of the

Commission may serve on the Board.

(b)

Compensation

A member of the Board may not receive compensation for

serving in that capacity but is entitled to reimbursement for

expenses reasonably incurred in the performance of official

duties in accordance with standard State travel regulations.

(c)

Chair and Vice Chair

The Chair of the Commission shall designate a judicial

member of the Board to serve as Chair of the Board and the other

judicial member to serve as Vice Chair.

The Vice Chair shall

perform the duties of the Chair whenever the Chair is

disqualified or otherwise unable to act.

(d)

Removal or Replacement

The Commission by majority vote may remove or replace

members of the Board at any time.

(e)

Quorum

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Rule 18-403

The presence of a majority of the members of the Board

constitutes a quorum for the transaction of business, so long as

at least one judge, one attorney, and one public member are

present.

A member of the Board may be physically present or

present by telephone, video, or other electronic conferencing.

Other than adjournment of a meeting for lack of a quorum, no

action may be taken by the Board without the concurrence of a

majority of members of the Board.

(f)

Record

The Board shall keep a record of all documents filed with

the Board and all proceedings conducted by the Board concerning

a judge.

The Executive Secretary of the Commission shall attend

the Board meetings and keep a record of those meetings in the

form that the Commission requires, subject to the retention

schedule established by the Commission.

Source:

This Rule is derived from former Rule 16-804.1 (2016).

REPORTER’S NOTE

Proposed Rule 18-403 is derived from former Rule 16-804.1.

Added to section (c) is a provision requiring the Chair of

the Commission to designate as Vice Chair of the Inquiry Board

the judicial member of the Board who was not designated to serve

as Chair.

Provisions pertaining to record keeping and retention of

records are added to section (f).

Stylistic changes also are made.

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Rule 18-404

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-404.

COMPLAINTS; INITIAL REVIEW BY INVESTIGATIVE

COUNSEL

(a) Procedure on Receipt of Complaint

(1) Referral to Investigative Counsel

The Commission shall refer all complaints and other

written allegations of misconduct or disability against a judge

to Investigative Counsel.

(2) Complaint that Fails to Allege Disability or

Sanctionable Conduct

If Investigative Counsel concludes that a complaint

fails to allege facts that, if true, would constitute a

disability or sanctionable conduct, Investigative Counsel shall

(A) dismiss the complaint, and (B) notify the complainant and

the Commission, in writing, that the complaint was filed and

dismissed and the reasons for the dismissal.

Committee note: Subsection (a)(2) of this Rule does not

preclude Investigative Counsel from communicating with the

complainant or making an inquiry under section (c) of this Rule

in order to clarify general or ambiguous allegations that may

suggest a disability or sanctionable conduct. Outright

dismissal is warranted when the complaint, on its face,

complains only of conduct that clearly does not constitute a

disability or sanctionable conduct.

(3) Allegation of Disability or Sanctionable Conduct not

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Rule 18-404

Under Oath or Supported by Affidavit

Except as provided by section (c) of this Rule, the

Commission may not act upon an allegation of misconduct or

disability unless it is a complaint.

If a written allegation

alleges facts indicating that a judge may have a disability or

may have committed sanctionable conduct but is not under oath or

supported by an affidavit, Investigative Counsel, if possible,

shall (A) inform the complainant that the Commission acts only

upon complaints under oath or supported by an affidavit, (B)

provide the complainant with an appropriate form of affidavit,

and (C) inform the complainant that unless a complaint under

oath or supported by an affidavit is filed within 30 days after

the date of the notice, the matter may be dismissed.

(4) Failure to File Complaint Under Oath or Supported by

Affidavit

If, after Investigative Counsel has given the notice

provided for in subsection (a)(3) of this Rule or has been

unable to do so, the complainant fails to file a timely

complaint under oath or supported by an affidavit, Investigative

Counsel may dismiss the matter and notify the complainant and

the Commission, in writing, that a written allegation of

misconduct or disability was filed and dismissed and the reasons

for the dismissal.

Committee note: In contrast to dismissal of a complaint under

Rule 18-405, which requires action by the Commission,

Investigative Counsel may dismiss an allegation of disability or

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Rule 18-404

sanctionable conduct under this Rule when, for the reasons

noted, the allegation fails to constitute a complaint. Subject

to section (c) of this Rule, if there is no cognizable

complaint, there is no basis for conducting an investigation.

(b) Opening File on Receipt of Complaint

Investigative Counsel shall open a numbered file on each

properly filed complaint and promptly in writing (1) acknowledge

receipt of the complaint and (2) explain to the complainant the

procedure for investigating and processing the complaint.

Upon receiving information from any source indicating that

a judge may have a disability or may have committed sanctionable

conduct, Investigative Counsel may open a file and make an

inquiry.

An inquiry may include obtaining additional

information from a complainant and any potential witnesses,

reviewing public records, obtaining transcripts of court

proceedings, and communicating informally with the judge.

Following the inquiry, Investigative Counsel shall (1) close the

file and dismiss any complaint in conformity with subsection

(a)(2) of this Rule or (2) proceed as if a complaint had been

properly filed and undertake an investigation in accordance with

Rule 18-405.

Source: This Rule is derived from former Rule 16-805 (a)

through (d)(2016).

REPORTER’S NOTE

Proposed Rule 18-404 is derived from sections (a) through

(d) of former Rule 16-805.

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Rule 18-404

Stylistic changes are made, and two Committee notes are

added.

The term “preliminary investigation” is eliminated.

Procedures that had been part of a “preliminary investigation”

process are now included in Rule 18-405, Investigation by

Investigative Counsel.

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Rule 18-405

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-405.

INVESTIGATION BY INVESTIGATIVE COUNSEL

(a) Conduct of Investigation

(1) Duty to Conduct; Notice to Board and Commission

If a complaint is not dismissed in accordance with Rule

18-404, Investigative Counsel shall conduct an investigation to

determine whether there are reasonable grounds to believe that

the judge may have a disability or may have committed

sanctionable conduct.

Investigative Counsel shall promptly

inform the Board and the Commission that the investigation is

being undertaken.

(2) Subpoena

Upon application by Investigative Counsel and for good

cause, the Chair of the Commission may authorize the issuance of

a subpoena to compel the person to whom it is directed to

attend, give testimony, and produce designated documents or

other tangible things at a time and place specified in the

subpoena.

Cross reference: See Code, Courts Article, §§13-401 - 403.

(3) Grant of Immunity

Upon application by Investigative Counsel and for good

cause, the Commission may grant immunity to any person from

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Rule 18-405

prosecution, or from any penalty or forfeiture, for or on

account of any transaction, matter, or thing concerning which

that person testifies or produces evidence, documentary or

otherwise.

Cross reference: See Md. Constitution, Art. IV §4B (a)(1)(ii)

and Code, Courts Article, §13-403.

Committee note: The need for a grant of immunity in order to

compel the production of evidence may arise at any stage.

Placing a reference to it here is not intended to preclude an

application to the Commission in a later proceeding.

(4) Notice to Judge

(A) Except as provided in subsection (a)(4)(C) of this

Rule, before the conclusion of the investigation, Investigative

Counsel shall notify the judge, in writing, that (i)

Investigative Counsel has undertaken an investigation into

whether the judge has a disability or has committed sanctionable

conduct; (ii) whether the investigation was undertaken on

Investigative Counsel’s initiative or on a complaint; (iii) if

the investigation was undertaken on a complaint, the name of the

person who filed the complaint and the contents of the

complaint; (iv) the nature of the alleged disability or

sanctionable conduct under investigation; and (v) the judge’s

rights under subsection (a)(5) of this Rule.

(B) The notice shall be given by first class mail or by

certified mail requesting “Restricted Delivery – show to whom,

date, address of delivery” and shall be addressed to the judge

at the judge’s address of record.

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Rule 18-405

Investigative Counsel determines, prior to the conclusion of the

investigation, that the recommendation of Investigative Counsel

will be dismissal of the complaint without a letter of

cautionary advice, or (ii) as to other recommended dispositions,

the Commission or Board, for good cause, directs a temporary

delay of providing notice and includes in its directive a

mechanism for providing the judge reasonable opportunity to

present information to the Board.

(5) Opportunity of Judge to Respond

Upon the issuance of notice pursuant to subsection

(a)(4) of this Rule, Investigative Counsel shall afford the

judge a reasonable opportunity which, unless the Commission

orders otherwise, shall be no less than 30 days, to present such

information as the judge chooses.

(6) Time for Completion

Investigative Counsel shall complete an investigation

within 90 days after the investigation is commenced.

Upon

application by Investigative Counsel within the 90-day period

and for good cause, the Chair of the Commission may extend the

time for completing the investigation for a reasonable period.

The Chair shall notify the Board of any extension granted.

For

failure to comply with the time requirements of this section,

the Commission may dismiss any complaint and terminate the

investigation.

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Rule 18-405

(b) Report and Recommendation by Investigative Counsel

(1) Duty to Make

Upon completion of an investigation, Investigative

Counsel shall make a report of the results of the investigation

in the form that the Commission requires.

(2) Contents

Investigative Counsel shall include in the report or

attach to it any response or other information provided by the

judge pursuant to subsection (a)(5) of this Rule.

The report

shall include a statement that the investigation indicates

probable sanctionable conduct, probable disability, both, or

neither, together with one of the following recommendations, as

appropriate:

(A) dismissal of any complaint, without a letter of

cautionary advice;

(B) dismissal of any complaint, with a letter of

cautionary advice;

(D) a private reprimand;

(E) a public reprimand;

(F) the filing of charges; or

(G) retirement of the judge based upon a finding of

disability.

(3) Recipient of Report

(A) If the recommendation is dismissal of the complaint

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Rule 18-405

without a letter of cautionary advice, the report and

recommendation shall be made to the Commission.

Upon receipt of

the recommendation, the Commission shall proceed in accordance

with Rule 18-408 (a)(2).

(B) Otherwise, the report and recommendation shall be made

to the Board.

Committee note: A complaint may be dismissed outright and

without a letter of cautionary advice for various reasons, at

different stages, and by different entities. Investigative

Counsel may dismiss a claim on his or her own initiative,

without opening a file, pursuant to Rule 18-404 (a). In that

instance, no notice need be given to the judge unless the judge

has requested notice. If Investigative Counsel opens a file

pursuant to Rule 18-404 (b) and performs an investigation under

this Rule, Investigative Counsel may recommend dismissal without

a letter of cautionary advice because, as a factual matter,

there is insufficient evidence of a disability or sanctionable

conduct. In that situation, if the Commission adopts the

recommendation, there is no need for notice to the judge unless

the judge has requested such notice. If the matter proceeds to

the Board, the judge must receive notice, even if the ultimate

decision is to dismiss the complaint.

Commission, Investigative Counsel shall keep a record of the

investigation.

Source: This Rule is in part derived from former Rule 16-805 (e)

and (f) (2016) and is in part new.

REPORTER’S NOTE

Proposed Rule 18-405 revises and expands upon provisions

contained in former Rule 16-805 (e) and (f).

Provisions pertaining to the issuance of subpoenas and the

grant of immunity by the Commission are included as new

subsections (a)(2) and (3), followed by cross references to the

statutory and Constitutional authorities for those provisions.

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Rule 18-405

Subsection (a)(4)(C)(ii) contains a new provision that,

under certain circumstances, permits a temporary delay of

providing a required notice to the judge who is the subject of

an investigation.

Subsections (a)(4),(5), and (6) contain provisions

pertaining to notifying the judge of the investigation, allowing

the judge an opportunity to present information to the Board,

and the timing of the completion of the investigation.

Section (b) expands upon the contents of the report and

recommendation that Investigation Counsel is required to prepare

at the conclusion of an investigation. If the recommendation is

dismissal without letter of cautionary advice, new subsection

(b)(3) requires that the report and recommendation be made

directly to the Commission, rather than to the Board. All other

reports by Investigative Counsel at this juncture are made to

the Board.

A record-keeping and retention provision is added at the

end of the Rule.

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Rule 18-406

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-406.

PROCEEDINGS BEFORE BOARD; REVIEW BY COMMISSION

(a) Review of Investigative Counsel’s Report

The Board shall review the reports and recommendations

made to the Board by Investigative Counsel.

(b) Informal Meeting with Judge; Peer Review

(1) Generally

The Board may meet informally with the judge.

(2) Peer Review

(A) As part of or in furtherance of that meeting, the

Chair of the Board, with the consent of the judge, may convene a

peer review panel consisting of not more than two judges on the

same level of court upon which the judge sits to confer with the

judge about the complaint and suggest options for the judge to

consider.

The judges may be incumbent judges or retired judges

eligible for recall to that level of court.

(B) The discussion may occur in person or by telephone or

other electronic conferencing but shall remain informal and

confidential.

The peer review panel (i) shall have no authority

to make any findings or recommendations, other than to the

judge; (ii) shall make no report to Investigative Counsel, the

Board, or the Commission; and (iii) may not testify regarding

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Rule 18-406

the conference with the judge before the Commission or in any

court proceeding.

Committee note: The peer review panel is not intended as either

an arbitrator or a mediator but, as judicial colleagues, simply

to provide an honest and neutral appraisal for the judge to

consider.

(c)

Further Investigation

The Board may direct Investigative Counsel to make a

further investigation pursuant to Rule 18-407.

(d) Board’s Report to Commission

(1) Contents

After considering Investigative Counsel’s report and

recommendation, the Board shall submit a report to the

Commission.

The Board shall include in its report the

recommendation made to the Board by Investigative Counsel.

Subject to subsection (d)(2) of this Rule, the report shall

include one of the following recommendations:

(A) dismissal of any complaint, without a letter of

cautionary advice pursuant to Rule 18-408 (a), and termination

of any investigation;

(B) dismissal of any complaint, with a letter of

cautionary advice pursuant to Rules 18-408 (b) and 18-414;

18-409 and 18-414;

(D) a private reprimand pursuant to Rules 18-410 and 18414;

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Rule 18-406

(E) a public reprimand pursuant to Rules 18-411 and 18414;

(F) retirement of the judge pursuant to Rules 18-412 and

18-414;or

(G) upon a determination of probable cause that the judge

has a disability or has committed sanctionable conduct, the

filing of charges pursuant to Rule 18-413.

(2) Condition and Limitation

(A) The Board may not recommend (i) a dismissal with a

letter of cautionary advice if the judge has objected to that

disposition pursuant to Rule 18-408 (b), or (ii) a conditional

diversion agreement, a private reprimand, a public reprimand, or

retirement unless the judge has consented in writing to that

remedy pursuant to the applicable Rules in this Chapter.

Committee note: A public reprimand or recommendation of

retirement, without the consent of the judge, may be issued by

the Commission only after the filing of charges and a hearing

before the Commission.

(B) The information transmitted by the Board to the

Commission shall be limited to a proffer of evidence that the

Board has determined would likely be admitted at a plenary

hearing before the Commission.

The Chair of the Board may

consult with the Chair of the Commission in determining the

information to be transmitted to the Commission.

(3) Time for Submission of Report

(A) Generally

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Rule 18-406

Unless the time is extended by the Chair of the

Commission, the Board shall transmit the report within 45 days

after the date the Board received Investigative Counsel’s report

and recommendation.

(B) Extension

Upon a written request by the Chair of the Board, the

Chair of the Commission may grant a reasonable extension of time

for transmission of the report.

If the Board fails to issue its report within the time

allowed, the Chair of the Commission and Investigative Counsel

shall conform the report and recommendation of Investigative

Counsel to the requirements of subsections (f)(1) and (2) of

this Rule and refer the matter to the Commission, which may

proceed, using the report and recommendation of Investigative

Counsel.

(4) Copy to Investigative Counsel and Judge

Upon receiving the report and recommendation, the

Commission promptly shall transmit a copy of it to Investigative

Counsel and, except for a recommendation of dismissal without a

letter of cautionary advice, to the judge.

(e) Filing of Response

Investigative Counsel and, except for a recommendation of

dismissal without a letter of cautionary advice, the judge may

file with the Commission a written response to the Board’s

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Rule 18-406

report and recommendation.

Unless the Chair of the Commission,

Investigative Counsel, and the judge agree to an extension, any

response shall be filed within 15 days after the date the

Commission transmitted copies of the report and recommendation

to Investigative Counsel and the judge.

(f) Action by Commission on Board Report and Recommendation

(1) Review

The Commission shall review the report and

recommendation and any timely filed responses.

(2) Appearance by Judge

Upon written request by the judge, with a copy to

Investigative Counsel, the Commission may permit the judge to

appear before the Commission on reasonable terms and conditions

established by the Commission.

(3) Disposition

Upon its review of the report and recommendation and any

timely filed responses and consideration of any evidence or

statement by the judge pursuant to subsection (f)(2) of this

Rule, the Commission shall:

(A) direct Investigative Counsel to conduct a further

investigation pursuant to Rule 18-407;

(B) remand the matter to the Board for further

consideration and direct the Board to file a supplemental report

within a specified period of time;

Rule 18-406

409, 18-410, 18-411, or 18-412;

(D) enter an appropriate disposition to which the

judge has filed a written consent in accordance with the Rules

in this Chapter, including a disposition under Rule 18-414

(a)(5); or

(E) direct Investigative Counsel to file charges

pursuant to Rule 18-413.

Source: This Rule is derived in part from former Rule 16-805

(h) through (l) (2016) and is in part new.

REPORTER’S NOTE

Proposed Rule 18-406 is derived in part from former Rule

16-805 (h) through (l) and is in part new. Most of the changes

are clarifying or stylistic.

A new substantive feature is included as subsection (b)(2),

Peer Review. Subsection (b)(2) permits the Chair of the Board,

with the consent of the judge, to convene a peer review panel of

not more than two other judges to meet with the judge informally

for the purpose of providing an honest and neutral appraisal for

the judge to consider. Peer review proceedings are

confidential, and the panel members may not be called to testify

regarding the meeting in any Commission or court proceeding.

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Rule 18-407

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-407.

FURTHER INVESTIGATION

(a) Notice to Judge of Investigation

Upon a directive for a further investigation by the Board

pursuant to Rule 18-406 (c) or by the Commission pursuant to

Rule 18-405 (b)(3)(A) or 18-406 (f)(3), Investigative Counsel

promptly shall (A) provide the notice and opportunity to respond

required by Rule 18-405 (a)(4) and (5) if such notice and

opportunity have not already been provided, and (B) notify the

judge at the judge’s address of record that the Board or

Commission has directed a further investigation.

(b) Subpoenas

(1) Issuance

Upon application by Investigative Counsel and for good

cause, the Chair of the Commission may authorize the issuance of

a subpoena to compel the person to whom it is directed to

attend, give testimony, and produce designated documents or

other tangible things at a time and place specified in the

subpoena.

(2) Notice to Judge

Promptly after service of the subpoena and in addition

to any other notice required by law, Investigative Counsel shall

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Rule 18-407

provide to the judge notice of the service of the subpoena.

The

notice to the judge shall be sent by first class mail to the

judge’s address of record or, if previously authorized by the

judge, by any other reasonable method.

(3) Motion for Protective Order

The judge, a person named in the subpoena, or a person

named or depicted in an item specified in the subpoena may file

a motion for a protective order pursuant to Rule 2-510 (e).

The

motion shall be filed in the circuit court for the county in

which the subpoena was served or, if the judge under

investigation serves on that court, another circuit court

designated by the Commission.

The court may enter any order

permitted by Rule 2-510 (e).

(4) Failure to Comply

Upon a failure to comply with a subpoena issued pursuant

to this Rule, the court, on motion of Investigative Counsel, may

compel compliance with the subpoena as provided in Rule 18-402

(f).

(5) Confidentiality

(A) Subpoena

To the extent practicable, a subpoena shall not

divulge the name of the judge under investigation.

(B) Court Files and Records

Files and records of the court pertaining to any

motion filed with respect to a subpoena shall be sealed and

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Rule 18-407

shall be open to inspection only upon order of the Court of

Appeals.

Hearings before the circuit court on any motion filed

with respect to a subpoena shall be on the record and shall be

conducted out of the presence of all individuals except those

whose presence is necessary.

Cross reference: See Code, Courts Article, §§13-401 - 403.

Investigative Counsel shall complete a further

investigation within the time specified by the Board or

Commission.

Upon application by Investigative Counsel made

within that period and served by first class mail upon the judge

or the judge’s attorney of record, the Chair of the Commission,

for good cause, may extend the time for completing the further

investigation for a specified reasonable time.

The Commission

may dismiss the complaint and terminate the investigation for

failure to complete the investigation within the time allowed.

(d) Report and Recommendation

(1) Duty to Make

Within the time allowed for completing the further

investigation, Investigative Counsel shall make a report of the

results of the investigation to the Board or Commission,

whichever authorized the further investigation, in the form the

Commission requires.

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Rule 18-407

(2) Contents

Unless the material already has been provided to the

recipient of the report, Investigative Counsel shall include in

the report or attach to it any response or other information

provided by the judge pursuant to section (a) of this Rule or

Rule 18-405 (a)(5).

The report shall include a statement that

the investigation indicates probable sanctionable conduct,

probable disability, both, or neither, together with one of the

following recommendations:

(A) dismissal of any complaint, without a letter of

cautionary advice;

(B) dismissal of any complaint, with a letter of

cautionary advice;

(D) a private reprimand;

(E) a public reprimand;

(F) the filing of charges; or

(G) retirement of the judge based upon a finding of

disability.

Source:

This Rule is derived from former Rule 16-806 (2016).

REPORTER’S NOTE

Proposed Rule 18-407 is derived from Rule 16-806, with

clarifying and stylistic changes.

In section (c), a substantive change is made. Instead of a

fixed, sixty-day period, the time for completion of a further

investigation is “within the time specified by the Board or

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Rule 18-407

Commission,” which may be less than or greater than sixty days,

depending on the circumstances. For good cause, an additional

extension for a specified reasonable time may be granted by the

Chair of the Commission.

In section (d), the required contents of Investigative

Counsel’s report and recommendation are spelled out in greater

detail than in the former Rule.

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Rule 18-408

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-408. DISMISSAL OF COMPLAINT

(a) Without Letter of Cautionary Advice

(1) Generally

If, after an investigation by Investigative Counsel, the

Commission concludes that the evidence fails to show that the

judge has a disability or has committed sanctionable conduct, it

shall dismiss the complaint without a letter of cautionary

advice.

Unless the judge has requested in writing notice of any

dismissal, the Commission need not notify the judge of the

dismissal but shall notify the complainant and the Board.

(2) Upon Recommendation Pursuant to Rule 18-405 (b)(3)

If Investigative Counsel has recommended dismissal of

the complaint without a letter of cautionary advice pursuant to

Rule 18-405 (b)(3), the Commission may (A) accept the

recommendation and dismiss the complaint, (B) refer the matter

to the Board for its consideration, or (C) direct Investigative

Counsel to undertake a further investigation pursuant to Rule

18-407.

(b)

With Letter of Cautionary Advice

(1) When Appropriate

If the Commission determines that any sanctionable

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Rule 18-408

conduct that may have been committed by the judge will be

sufficiently addressed by the issuance of a letter of cautionary

advice, the Commission may accompany a dismissal with such a

letter.

Committee note: A letter of cautionary advice may be

appropriate where the conduct was marginally sanctionable or, if

sanctionable, was not particularly serious, was not intended to

be harmful, may have been the product of a momentary lapse in

judgment or the judge being unaware that the conduct was not

appropriate, and does not warrant discipline. The letter is

intended to be remedial in nature, so that the judge will be

careful not to repeat that or similar conduct.

(2) Notice to Judge

Before a dismissal with a letter of cautionary advice is

issued, the Commission shall mail to the judge a notice that

states (i) that the Commission intends to dismiss the complaint

accompanied by a letter of cautionary advice, (ii) the content

of the letter, (iii) whether the complainant is to be notified

that such a letter was issued; (iv) that the judge has the right

to object to the letter by filing a written objection with the

Commission within 30 days after the date of the notice; (v) if a

written objection is not filed within that time, the Commission

may issue the letter as an accompaniment to the dismissal; and

(vi) if a timely objection is filed, the proposed disposition

will be regarded as withdrawn and the matter shall proceed as if

the proposed disposition was never made.

(3) Objection by Judge

The judge may object to the proposed dismissal

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Rule 18-408

accompanied by the letter of cautionary advice by filing a

written objection with the Commission within the 30-day period

stated in the notice.

If a timely objection is not filed, the

Commission may proceed with the proposed disposition upon the

expiration of the time for filing an objection.

If a timely

objection is filed, the Commission shall not proceed with the

proposed disposition, the proceeding shall resume as if no

dismissal with a letter of cautionary advice had been proposed,

and the fact that a dismissal with an accompanying letter of

cautionary advice was proposed and withdrawn may not be admitted

into evidence.

(4) Confidentiality of Content of Letter of Cautionary

Advice

The contents of the letter are private and

confidential, except that the Commission may notify the

complainant that a letter of cautionary advice was given to the

judge.

(5) Not a Form of Discipline

A letter of cautionary advice is not a reprimand and

does not constitute a form of discipline.

Source:

(2016).

This Rule is derived from former Rule 16-807 (a)

REPORTER’S NOTE

Proposed Rule 18-408 is derived from former Rule 16-807

(a).

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Rule 18-408

Revisions to the Rule include changes in terminology. To

better reflect the intent to provide guidance, rather than

impose discipline, the term “warning” is changed to “letter of

cautionary advice.” The judge’s option to “reject” such a

letter is replaced by the option to “object” to it.

Section (a), pertaining to dismissals without a letter of

cautionary advice, is divided into two subsections. Subsection

(a)(1) pertains to a dismissal by the Commission after an

investigation by Investigative Counsel. Subsection (a)(2) sets

out the Commission’s options when, pursuant to Rule 18-405

(b)(3), the Commission receives directly from Investigative

Counsel a recommendation that a complaint be dismissed without a

letter of cautionary advice.

Section (b) contains procedures pertaining to dismissals

with a letter of cautionary advice. With stylistic changes, the

procedures are based upon the procedures in former Rule 16-807

(a)(2). The content of the former Committee note following that

subsection is transferred to the body of the new Rule, as

subsection (b)(5), and a new Committee note is added following

subsection (b)(1), explaining the remedial nature of a letter of

cautionary advice.

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Rule 18-409

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-409.

CONDITIONAL DIVERSION AGREEMENT

(a) When Appropriate

The Commission and the judge may enter into a conditional

diversion agreement if, after an investigation:

(1) the Commission concludes that the alleged sanctionable

conduct was not so serious, offensive, or repeated as to warrant

formal proceedings and that the appropriate disposition is for

the judge to undergo specific treatment, participate in one or

more specified educational programs, issue an apology to the

complainant, or take other specific corrective or remedial

action; and

(2) the judge, in the agreement, (A) agrees to the specified

conditions, (B) waives the right to a hearing before the

Commission and subsequent proceedings before the Court of

Appeals, and (C) agrees that the conditional diversion agreement

may be revoked for noncompliance in accordance with the

provisions of section (b) of this Rule.

(b) Compliance

The Commission shall direct Investigative Counsel to

monitor compliance with the conditions of the agreement and may

direct the judge to document compliance.

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Investigative Counsel

Rule 18-409

shall give written notice to the judge of the nature of any

alleged failure to comply with a condition of the agreement.

after affording the judge at least 15 days to respond to the

notice, the Commission finds that the judge has failed to

satisfy a material condition of the agreement, the Commission

may revoke the agreement and proceed with any other disposition

authorized by these rules.

(c)

Not a Form of Discipline

An agreement under this section does not constitute

discipline or a finding that sanctionable conduct was committed.

(d) Confidentiality

The Commission shall notify the complainant that the

complaint has resulted in an agreement with the judge for

corrective or remedial action.

Except as permitted in Rule 18-

417, the terms of the agreement shall remain confidential and

not be disclosed to the complainant or any other person unless

the judge consents in writing.

(e) Termination of Proceedings

Upon notification by Investigative Counsel that the judge

has satisfied all conditions of the agreement, the Commission

shall terminate the proceedings.

Source:

(2016).

This Rule is derived from former Rule 16-807 (c)

REPORTER’S NOTE

Proposed Rule 18-409 is derived from former Rule 16-807

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Rule 18-409

(c). The term “conditional diversion agreement” is substituted

for the term “deferred discipline agreement,” and other

stylistic changes are made.

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Rule 18-410

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-410.

PRIVATE REPRIMAND

(a) When Appropriate

The Commission may issue a private reprimand to the judge

if, after an investigation:

(1) the Commission concludes that the judge has committed

sanctionable conduct that warrants some form of discipline;

(2) the Commission further concludes that the sanctionable

conduct was not so serious, offensive, or repeated as to warrant

formal proceedings and that a private reprimand is an

appropriate disposition under the circumstances; and

(3) the judge, in writing on a copy of the reprimand

retained by the Commission, (A) waives the right to a hearing

before the Commission and subsequent proceedings before the

Court of Appeals and the right to challenge the findings that

serve as the basis for the private reprimand, (B) consents to

the reprimand, and (C) agrees that the reprimand may be admitted

in any subsequent disciplinary proceeding against the judge to

the extent that it is relevant to the charges at issue or the

sanction to be imposed.

(b) Form of Discipline

A private reprimand constitutes a form of discipline.

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Rule 18-410

(1) Generally

Except as otherwise provided by subsection (b)(2) of

this Rule and Rule 18-417, a private reprimand is confidential

and shall not be disclosed unless the judge consents, in

writing, to the disclosure.

(2) Notice to Complainant

Upon the issuance of a private reprimand, the Commission

shall notify the complainant that such a reprimand was issued

but shall not disclose the text of the reprimand.

Source: This Rule is derived from former Rule 16-807 (b) (2016).

REPORTER’S NOTE

Proposed Rule 18-410 is derived from former Rule 16-807

(b), with clarifying and stylistic changes.

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Rule 18-411

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-411.

PUBLIC REPRIMAND

(a) When Appropriate

The Commission may issue a public reprimand upon a finding

by the Commission that (1) the judge has committed sanctionable

conduct, (2) the conduct, by reason of its nature, repetition,

or effect, is sufficiently serious as to make a private

reprimand or a conditional diversion agreement inappropriate but

not sufficiently serious to warrant the judge being suspended or

removed from office.

(b) Consent of Judge

(1) A public reprimand may be issued with the written

consent of the judge pursuant to subsection (b)(2) of this Rule

or, after the filing of charges and a hearing, without the

judge’s consent.

(2) A consent by the judge shall be in writing and shall

include a waiver of (A) the right to a hearing before the

Commission and subsequent proceedings before the Court of

Appeals, and (B) the right to challenge the findings that serve

as the basis for the public reprimand.

A public reprimand shall be posted on the Judiciary

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Rule 18-411

website and may be otherwise disclosed.

A copy of the public

reprimand shall be sent to the complainant.

(d) Form of Discipline

A public reprimand constitutes a form of discipline.

Source: This Rule is new.

REPORTER’S NOTE

Proposed Rule 18-411 is new. The Rule is based upon the

Constitutional authority of the Commission to issue a reprimand.

See Md. Constitution, Article IV, Section 4B (a)(2). Procedures

pertaining to the Commission’s power to reprimand are set forth

in two Rules -- Rule 18-410, pertaining to private reprimands,

and Rule 18-411, pertaining to public reprimands.

Section (a) of Rule 18-411 describes the findings that the

Commission must make before it issues a public reprimand.

Section (b) requires that, unless the judge consents in

writing to a public reprimand, a public reprimand may be issued

only after the filing of charges and a hearing before the

Commission on those charges. See Rule 18-413.

Section (c) requires that a copy of a public reprimand be

sent to the complainant and posted on the Judiciary website.

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Rule 18-412

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-412.

RETIREMENT

(a) When Appropriate

Retirement of a judge may be an appropriate disposition

upon a determination that (1) the judge suffers from a

disability, as defined in Rule 18-401 (h), and (2) any alleged

conduct that may otherwise be sanctionable conduct was

predominantly the product of that disability and did not involve

misconduct so serious that, if proven, would warrant suspension

or removal of the judge from office.

(b) Effect

(1) Retirement under this Rule is permanent.

A judge who is

retired under this Rule may not be recalled to sit on any court,

but the judge shall lose no other retirement benefit to which he

or she is entitled by law.

(2) Retirement under this Rule does not constitute

discipline.

Cross reference: See Md. Constitution, Art. IV, §4B (a)(2),

authorizing the Commission to recommend to the Court of Appeals

retirement of a judge “in an appropriate case.” See also Rule

19-740 authorizing a comparable disposition for attorneys who

have a disability.

Source:

This Rule is new.

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Rule 18-412

REPORTER’ NOTE

Proposed Rule 18-412 is new. It is based upon the

Constitutional provision that the Commission has the power to

recommend to the Court of Appeals retirement of a judge “in an

appropriate case.” See Md. Constitution, Article IV, Section 4B

(a)(2).

A disposition of retirement under Rule 18-412 requires that

the judge have a disability, as defined in Rule 18-401 (h), and

that other determinations set out in Rule 18-412 (a) are made.

Retirement under Rule 18-412 is permanent, and the judge

may not be recalled to sit on any court. Retirement under the

Rule does not constitute discipline, and the judge does not lose

any retirement benefit to which he or she is entitled by law.

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Rule 18-413

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 - JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-413.

FILING OF CHARGES; PROCEEDINGS BEFORE COMMISSION

(a) Filing of Charges

(1) Direction by Commission

After considering the report and recommendation of the

Board submitted pursuant to Rule 18-406 and any timely filed

response, and upon a finding by the Commission of probable cause

to believe that a judge has a disability or has committed

sanctionable conduct, the Commission may direct Investigative

Counsel to initiate proceedings against the judge by filing with

the Commission charges that the judge has a disability or has

committed sanctionable conduct.

(2) Content of Charges

The charges shall (A) state the nature of the alleged

disability or sanctionable conduct, including each Rule of the

Maryland Code of Judicial Conduct allegedly violated by the

judge, (B) allege the specific facts upon which the charges are

based, and (C) state that the judge has the right to file a

written response to the charges within 30 days after service of

the charges.

(b) Service; Notice

The charges may be served upon the judge by any means

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Rule 18-413

reasonably calculated to give actual notice.

A return of

service of the charges shall be filed with the Commission

pursuant to Rule 2-126.

Upon service, the Commission shall

notify any complainant that charges have been filed against the

judge.

Cross reference:

See Md. Const., Article IV, §4B (a).

Within 30 days after service of the charges, the judge may

file with the Commission an original and 11 copies of a written

response or the judge may file a response electronically in a

format acceptable to the Commission.

(d) Notice of Hearing

Upon the filing of a response or, if no response is filed,

upon expiration of the time for filing one, the Commission shall

notify the judge of the date, time, and place of a hearing.

Unless the judge has agreed to an earlier hearing date, the

hearing shall not be held earlier than 60 days after the notice

was sent.

If the hearing is on a charge of sanctionable

conduct, the Commission also shall notify the complainant and

post a notice on the Judiciary website that is limited to (1)

the name of the judge, (2) the date, time, and place of the

hearing, and (3) the charges that have been filed and any

response from the judge.

Cross reference: See Rule 18-417 (a)(3), concerning the time

for posting on the Judiciary website.

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Rule 18-413

(e) Extension of Time

The Commission may extend the time for filing a response

and for the commencement of a hearing.

(f) Procedural Rights of Judge

The judge has the right to (1) inspect and copy the

Commission Record, (2) receive a prompt hearing on the charges

in accordance with this Rule, (3) be represented by an attorney,

(4) the issuance of subpoenas for the attendance of witnesses

and for the production of documents and other tangible things,

(5) present evidence and argument, and (6) examine and crossexamine witnesses.

(g) Exchange of Information

(1) Generally

Upon request of the judge at any time after service of

charges upon the judge, Investigative Counsel promptly shall (A)

allow the judge to inspect the Commission Record and to copy all

evidence accumulated during the investigation and all statements

as defined in Rule 2-402 (f) and (B) provide to the judge

summaries or reports of all oral statements for which

contemporaneously recorded substantially verbatim recitals do

not exist.

(2) List of Witnesses; Documents

Not later than 30 days before the date set for the

hearing, Investigative Counsel and the judge shall provide each

other with a list of the names, addresses, and telephone numbers

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Rule 18-413

of the witnesses that each intends to call and copies of the

documents that each intends to introduce in evidence at the

hearing.

(3) Scope of Discovery

Discovery is governed by the applicable Rules in Title

2, Chapter 400, except that the Chair of the Commission, rather

than the court, may limit the scope of discovery, enter

protective orders permitted by Rule 2-403, and resolve other

discovery issues.

(4) Mental or Physical Examination

When disability of the judge is an issue, on request of

Investigative Counsel upon a showing of good cause or on the

initiative of the Commission, the Chair of the Commission may

order the judge to submit to a mental or physical examination in

accordance with Rule 2-423.

(h) Amendments

At any time before the hearing, the Commission on request

may allow amendments to the charges or the response. If an

amendment to the charges is made less than 30 days before the

hearing, the judge, upon request, shall be given a reasonable

time to respond to the amendment and to prepare and present any

defense.

(i) Hearing on Charges

The hearing on charges shall be conducted in the following

manner:

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Rule 18-413

(1) Upon application by Investigative Counsel or the judge,

the Commission shall issue subpoenas to compel the attendance of

witnesses and the production of documents or other tangible

things at the hearing.

To the extent otherwise relevant, the

provisions of Rule 2-510 (c), (d), (e), (g), (h), (i), (j), and

(k) shall apply.

(2) The Commission may proceed with the hearing whether or

not the judge has filed a response or appears at the hearing.

(3) Except for good cause shown, a motion for recusal of a

member of the Commission shall be filed at least 30 days before

the hearing.

(4) At the hearing, Investigative Counsel shall present

evidence in support of the charges.

(5) Title 5 of the Maryland Rules shall apply.

(6) The proceeding shall be recorded verbatim, either by

electronic means or stenographically, as directed by the Chair

of the Commission.

Except as provided in section (k) of this

Rule, the Commission is not required to have a transcript

prepared.

The judge, at the judge’s expense, may have the

record of the proceeding transcribed.

(7) with the approval of the Chair of the Commission, the

judge and Investigative Counsel may each submit proposed

findings of fact and conclusions of law within the time period

set by the Chair.

(j) Commission Findings and Action

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Rule 18-413

(1) Finding of Disability

If the Commission finds by clear and convincing evidence

that the judge has a disability, it shall refer the matter to

the Court of Appeals, whether or not the Commission also finds

that the judge committed sanctionable conduct.

(2) Finding of Sanctionable Conduct

If the Commission finds by clear and convincing evidence

that the judge has committed sanctionable conduct but does not

find that the judge has a disability, it shall either issue a

public reprimand to the judge or refer the matter to the Court

of Appeals.

(3) Finding of No Disability or Sanctionable Conduct

If the Commission does not find that the judge has a

disability and does not find that the judge committed

sanctionable conduct, it shall dismiss the charges and terminate

the proceeding.

(k) Duties of Commission on Referral to Court of Appeals

If the Commission refers the case to the Court of Appeals,

the Commission shall:

(1) make written findings of fact and conclusions of law

with respect to the issues of fact and law in the proceeding,

state its recommendations, and enter those findings and

recommendations in the record;

(2) cause a transcript of all proceedings at the hearing to

be prepared and included in the record;

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Rule 18-413

(3) make the transcript available for review by the judge

and the judge's attorney or, at the judge's request, provide a

copy to the judge at the judge's expense;

(4) file with the Court of Appeals the entire hearing

record, which shall be certified by the Chair of the Commission

and shall include the transcript of the proceedings, all

exhibits and other papers filed or marked for identification in

the proceeding, and all dissenting or concurring statements by

Commission members; and

(5) promptly mail to the judge at the judge's address of

record notice of the filing of the record and a copy of the

findings, conclusions, and recommendations and all dissenting or

concurring statements by Commission members.

Source: This Rule is derived from former Rule 16-808 (a)

through (k) (2016).

REPORTER’S NOTE

Proposed Rule 18-413 is derived from sections (a) through

(k) of former Rule 16-808, with clarifying and stylistic

changes.

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Rule 18-414

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-414.

CONSENT TO DISPOSITION

(a) Generally

At any time after completion of an investigation by

Investigative Counsel, a judge may consent to:

(1) dismissal of the complaint accompanied by a letter of

cautionary advice by failing to object pursuant to Rule 18-408

(b);

(2) a conditional diversion agreement pursuant to Rule 18409;

(3) a private reprimand pursuant to Rule 18-410;

(4) a public reprimand;

(5) suspension or removal from judicial office; or

(6) retirement from judicial office pursuant to Rule 18-412.

(b) Form of Consent

(1) Generally

Except for a consent by failure to object to a dismissal

accompanied by a letter of cautionary advice, a consent shall be

in the form of a written agreement between the judge and the

Commission.

(2) If Charges Filed

If the agreement is executed after charges have been

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Rule 18-414

filed, it shall contain:

(A) an admission by the judge to all or part of the

charges;

(B) as to the charges admitted, an admission by the judge

to the truth of all facts constituting the sanctionable conduct

or disability as set forth in the agreement;

remedial action provided for in the agreement;

(D) a consent by the judge to the stated sanction;

(E) a statement that the consent is freely and voluntarily

given; and

(F) a waiver by the judge of the right to further

proceedings before the Commission and subsequent proceedings

before the Court of Appeals.

(3) If Charges Not Yet Filed

If the agreement is executed before charges have been

filed, it shall contain a statement by the Commission of the

charges that would have been filed but for the agreement and the

consents and admissions required in subsection (b)(2) of this

Rule shall relate to that statement.

An agreement requiring the approval of the Court of

Appeals shall be submitted to the Court, which shall either

approve or reject the agreement.

Until approved by the Court of

Appeals, the agreement is confidential and privileged.

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If the

Rule 18-414

Court approves the agreement and imposes the stated sanction,

the agreement shall be made public.

If the Court rejects the

stated sanction, the proceeding shall resume as if no consent

had been given, and all admissions and waivers contained in the

agreement are withdrawn and may not be admitted into evidence.

Source: This Rule is derived in part from former Rule 16-808

(l) (2016) and is in part new.

REPORTER’S NOTE

Proposed Rule 18-414 is derived from former Rule 16-808

(l), with two additions and stylistic changes.

Rule 18-414 applies to consents “at any time after

completion of an investigation by Investigative Counsel,”

whereas the former Rule was limited to consents “after the

filing of charges alleging sanctionable conduct and before a

decision by the Commission.”

Also, subsection (b)(1) of the proposed Rule provides that,

in addition to consent to discipline being in the form of a

written agreement, consent could also take the form of a failure

to object to a dismissal accompanied by a letter of cautionary

advice.

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Rule 18-415

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-415.

(a)

PROCEEDINGS IN COURT OF APPEALS

Expedited Consideration

Upon receiving the hearing record pursuant to Rule 18-413

(k), the Clerk of the Court of Appeals shall docket the case for

expedited consideration.

(b)

Exceptions

The judge may except to the findings, conclusions, or

recommendation of the Commission by filing exceptions with the

Court of Appeals within 30 days after service of the notice of

filing of the record and in accordance with Rule 20-405.

The

exceptions shall set forth with particularity all errors

allegedly committed by the Commission and the disposition

sought.

A copy of the exceptions shall be served on the

Commission in accordance with Rules 1-321 and 1-323.

(c)

Response

The Commission shall file a response within 15 days after

service of the exceptions in accordance with Rule 20-405.

The

Commission shall be represented in the Court of Appeals by its

Executive Secretary or such other attorney as the Commission may

appoint.

A copy of the response shall be served on the judge in

accordance with Rules 1-321 and 1-323.

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Rule 18-415

(d)

Hearing

If exceptions are timely filed, upon the filing of a

response or, if no response is filed, upon the expiration of the

time for filing it, the Court shall set a schedule for filing

memoranda in support of the exceptions and response and a date

for a hearing.

The hearing on exceptions shall be conducted in

accordance with Rule 8-522.

If no exceptions are timely filed

or if the judge files with the Court a written waiver of the

judge's right to a hearing, the Court may decide the matter

without a hearing.

(e)

Disposition

The Court of Appeals may (1) impose the disposition

recommended by the Commission or any other disposition permitted

by law; (2) dismiss the proceeding; or (3) remand for further

proceedings as specified in the order of remand.

Cross reference: For rights and privileges of the judge after

disposition, see Md. Const., Article IV, §4B (b).

(f)

Decision

The decision shall be evidenced by an order of the Court

of Appeals, which shall be certified under the seal of the Court

by the Clerk.

An opinion shall accompany the order or be filed

at a later date.

Unless the case is remanded to the Commission,

the record shall be retained by the Clerk of the Court of

Appeals.

Source:

This Rule is derived from former Rule 16-809 (2016).

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Rule 18-415

REPORTER’S NOTE

Proposed Rule 18-415 is derived from former Rule 16-809,

with stylistic changes. In section (e), the word “disposition”

is substituted for the word “sanction,” to more accurately

reflect the range of options available to the Court, including

the permanent retirement of a judge in accordance with Rule 18412.

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Rule 18-416

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-416.

EXECUTION OF DISCIPLINE

(a) Authority

In imposing discipline upon a judge pursuant to the Rules

in this Chapter, whether pursuant to an agreement between the

judge and the Commission or otherwise, the Court of Appeals, in

its Order, may suspend execution of all or part of the

discipline upon terms it finds appropriate.

(b) Monitoring Compliance

(1) Unless the Court orders otherwise, the Commission shall

monitor compliance with the conditions stated in the order.

The

Commission may direct Investigative Counsel to monitor

compliance on its behalf.

(2) The Commission may direct the judge to provide to

Investigative Counsel such information and documentation and to

authorize other designated persons to provide such information

and documentation to Investigative Counsel as necessary for the

Commission effectively to monitor compliance with the applicable

conditions.

(3) Upon any material failure of the judge to comply with

those requirements or upon receipt of information that the judge

otherwise has failed to comply with a condition imposed by the

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Rule 18-416

Court, Investigative Counsel shall promptly file a report with

the Commission and send written notice to the judge that it has

done so.

The notice shall include a copy of the report and

inform the judge that, within fifteen days from the date of the

notice, the judge may file a written response with the

Commission.

(4) The Commission promptly shall schedule a hearing on the

report and any timely response filed by the judge and shall

report to the Court its findings regarding any material

violation by the judge.

The report shall include any response

filed by the judge.

(5) If a material violation found by the Commission is based

upon conduct by the judge that could justify separate discipline

for that conduct, the Commission may direct Investigative

Counsel to proceed as if a new complaint had been filed and

shall include that in its report to the Court.

Within fifteen days after the filing of the Commission’s

report, the judge may file a response with the Court.

The judge

shall serve a copy of any response on the Commission.

The Court

shall hold a hearing on the Commission’s report and any timely

response filed by the judge and may take whatever action it

finds appropriate.

The Commission may be represented in the

proceeding by its Executive Secretary or any other attorney the

Commission may appoint.

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Rule 18-416

Source:

This Rule is new.

REPORTER’S NOTE

Proposed Rule 18-416 is new. It is added because, on

occasion, whether pursuant to an agreement between the judge and

the Commission or otherwise, the Court of Appeals has imposed

discipline, but suspended execution of all or part of the

discipline, pending compliance by the judge with conditions

imposed by the Court.

The Rule provides that, ordinarily, the Commission or (if

directed by the Commission) Investigative Counsel is responsible

for monitoring the judge’s compliance with the conditions. The

Rule also contains a mechanism to address an alleged material

violation of the conditions and affords the judge due process

rights to refute any such allegation. After a hearing before

the Commission, the Court of Appeals determines whether a

material violation occurred and takes any action the Court finds

appropriate.

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Rule 18-417

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

Rule 18-417.

(a)

CONFIDENTIALITY

Generally

Except as otherwise expressly provided by these rules,

proceedings and information relating to a complaint or charges

shall be either open to the public or confidential and not open

to the public, as follows:

(1) Address of Record

The judge's current home address shall remain

confidential at all stages of proceedings under these rules.

Any other address of record shall be open to the public if the

charges and proceedings are open to the public.

(2) Complaints; Investigations; Disposition Without Charges

Except as otherwise required by Rule 18-408, 18-409, and

18-410, all proceedings under Rules 18-404 through 18-410 shall

be confidential.

(3) Upon Resignation, Voluntary Retirement, Filing of a

Response, or Expiration of the Time for Filing a Response

Charges alleging sanctionable conduct, whether or not

joined with charges of disability, and all subsequent

proceedings before the Commission on those charges shall be open

to the public upon the first to occur of (A) the resignation or

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Rule 18-417

voluntary retirement of the judge, (B) the filing of a response

by the judge to the charges, or (C) expiration of the time for

filing a response.

If the charges allege only that the judge

has a disability, the charges and all proceedings before the

Commission on them shall be confidential.

(4) Work Product, Proceedings, and Deliberations

Except to the extent admitted into evidence before the

Commission, the following matters shall be confidential: (A)

Investigative Counsel's work product; (B) proceedings before the

Board, including any peer review proceeding; (C) deliberations

of the Board and Commission; and (D) records of the Board’s and

Commission's deliberations.

(5) Proceedings in the Court of Appeals

Unless otherwise ordered by the Court of Appeals, the

record of Commission proceedings filed with that Court and any

proceedings before that Court shall be open to the public.

(b)

Permitted Release of Information by Commission

(1) Written Waiver

The Commission may release confidential information upon

a written waiver by the judge.

(2) Explanatory Statement

The Commission may issue a brief explanatory statement

necessary to correct any public misperception about actual or

possible proceedings before the Commission.

(3) To Chief Judge of Court of Appeals

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Rule 18-417

(A) Upon request by the Chief Judge of the Court of

Appeals, the Commission shall disclose to the Chief Judge:

(i) whether a complaint is pending against the judge who

is the subject of the request; and

(ii) the disposition of each complaint that has been

filed against the judge within the preceding five years.

(B) The Chief Judge may disclose this information to the

incumbent judges of the Court of Appeals in connection with the

exercise of any administrative matter over which the Court has

jurisdiction.

Each judge who receives information pursuant to

subsection (b)(3) of this Rule shall maintain the applicable

level of confidentiality of the information otherwise required

by the Rules in this Chapter.

(4) Information Involving Criminal Activity

The Commission may provide to law enforcement and

prosecuting officials information involving criminal activity,

including information requested by subpoena from a grand jury.

(5) Nominations; Appointments; Approvals

(A) Permitted Disclosures

Upon a written application made by a judicial

nominating commission, a Bar Admission authority, the President

of the United States, the Governor of a state, territory,

district, or possession of the United States, or a committee of

the General Assembly of Maryland or of the United States Senate

which asserts that the applicant is considering the nomination,

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Rule 18-417

appointment, confirmation, or approval of a judge or former

judge, the Commission shall disclose to the applicant:

(i) information about any completed proceedings

involving the judge that did not result in dismissal, including

conditional diversion agreements and private reprimands; and

(ii) whether a complaint against the judge is pending.

Committee note: A dismissal with a letter of cautionary advice

does not constitute discipline and is not disclosed under

subsection (b)(5)(A)(i) of this Rule.

(B) Restrictions

Unless the judge waives the restrictions set forth in

this subsection, when the Commission furnishes information to an

applicant under this section, the Commission shall furnish only

one copy of the material, which shall be furnished under seal.

As a condition to receiving the material, the applicant shall

agree that (i) the applicant will not copy the material or

permit it to be copied; (ii) when inspection of the material has

been completed, the applicant shall seal and return the material

to the Commission; and (iii) the applicant will not disclose the

contents of the material or any information contained in it to

anyone other than another member of the applicant.

The Commission shall send the judge a copy of all

documents disclosed under this subsection.

Cross reference: For the powers of the Commission in an

investigation or proceeding under Md. Const., Article IV, §4B,

see Code, Courts Article, §§13-401 through 13-403.

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Rule 18-417

The Commission may include in a publicly available

statistical report the number of complaints received,

investigations undertaken, and dispositions made within each

category of disposition during a fiscal or calendar year,

provided that, if a disposition has not been made public, the

identity of the judge involved is not disclosed or readily

discernible.

Source: This Rule is derived in part from former Rule 16-810

(2016) and is in part new.

REPORTER’S NOTE

Proposed Rule 18-417 is derived from former Rule 16-810,

with several changes.

Subsection (a)(3) is revised to provide that charges of

alleging sanctionable conduct become public upon the first to

occur of the judge’s resignation, the judge’s retirement, the

filing of a response to the charges by the judge, or expiration

of the time for filing a response.

Subsection (a)(4) is rewritten to provide for

confidentiality of all proceedings before the Board, including

peer review proceedings, and for confidentiality of the

deliberations and records of deliberations of the Board and

Commission. Investigative Counsel’s work product is protected,

except to the extent admitted into evidence before the

Commission.

Revised subsection (b)(3) provides that, upon request of

the Chief Judge of the Court of Appeals, the Commission must

disclose to the Chief Judge the existence of any pending

complaint against the judge who is the subject of the request

and the disposition of any complaint that had been filed against

that judge within the preceding five years. The Chief Judge may

disclose the information to the other judges of the Court in

connection with the exercise of the Court’s administrative

duties. Each judge to whom the information is disclosed is

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Rule 18-417

required to maintain the applicable level of confidentiality of

the information otherwise required by the Rules in Title 18,

Chapter 400.

New subsection (b)(4) permits disclosure of information

involving criminal activity to law enforcement and prosecuting

officials, including disclosures to comply with grand jury

subpoenas. Comparable provisions pertaining to disclosure of

information of this nature by the Attorney Grievance Commission

and Bar Counsel are included in recently adopted Rule 19-707

(f)(7) and (f)(8).

New section (c) permits the compilation and public

availability of statistical information, provided that if a

disposition has not been made public, the identity of the judge

involved is not disclosed or readily discernable.

Clarifying and stylistic changes also are made.

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Rule 1-325

MARYLAND RULES OF PROCEDURE

TITLE 1 - GENERAL PROVISIONS

CHAPTER 300 - GENERAL PROVISIONS

AMEND Rule 1-325 to add language to section (a) referring

to requests for relief that are civil in nature filed in a

criminal action, to add language to the Committee note after

section (a), and to correct an internal reference, as follows:

Rule 1-325.

(a)

WAIVER OF COSTS DUE TO INDIGENCE - GENERALLY

Scope

This Rule applies only to (1) original civil actions in a

circuit court or the District Court and (2) requests for relief

that are civil in nature filed in a criminal action.

Committee note: Original civil actions in a circuit court

include actions governed by the Rules in Title 7, Chapter 200,

300, and 400. Requests for relief that are civil in nature

filed in a criminal action include petitions for expungement and

requests to shield all or part of a record.

(b)

Definition

In this Rule, "prepaid costs" means costs that, unless

prepayment is waived pursuant to this Rule, must be paid prior

to the clerk's docketing or accepting for docketing a pleading

or paper or taking other requested action.

Committee note: "Prepaid costs" may include a fee to file an

initial complaint or a motion to reopen a case, a fee for entry

of the appearance of an attorney, and any prepaid compensation,

fee, or expense of a magistrate or examiner. See Rules 1-501,

2-541, 2-542, 2-603, and 9-208.

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Rule 1-325

(c)

No Fee for Filing Request

No filing fee shall be charged for the filing of the

request for waiver of prepaid costs pursuant to section (d) or

(e) of this Rule.

(d)

Waiver of Prepaid Costs by Clerk

On written request, the clerk shall waive the prepayment

of prepaid costs, without the need for a court order, if:

(1) the party is an individual who is represented (A) by an

attorney retained through a pro bono or legal services program

on a list of programs serving low income individuals that is

submitted by the Maryland Legal Services Corporation to the

State Court Administrator and posted on the Judiciary website,

provided that an authorized agent of the program provides the

clerk with a statement that (i) names the program, attorney, and

party; (ii) states that the attorney is associated with the

program and the party meets the financial eligibility criteria

of the Corporation; and (iii) attests that the payment of filing

fees is not subject to Code, Courts Article, §5-1002 (the

Prisoner Litigation Act), or (B) by an attorney provided by the

Maryland Legal Aid Bureau, Inc. or the Office of the Public

Defender, and

(2) except for an attorney employed or appointed by the

Office of the Public Defender in a civil action in which that

Office is required by statute to represent the party, the

attorney certifies that, to the best of the attorney's

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Rule 1-325

knowledge, information, and belief, there is good ground to

support the claim, application, or request for process and it is

not interposed for any improper purpose or delay.

Committee note: The Public Defender represents indigent

individuals in a number of civil actions. See Code, Criminal

Procedure Article, §16-204 (b).

Cross reference: See Rule 1-311 (b) and Rule 3.1 of the

Maryland Lawyers' Rules of Professional Conduct.

(e)

Waiver of Prepaid Costs by Court

(1) Request for Waiver

An individual unable by reason of poverty to pay a

prepaid cost and not subject to a waiver under section (d) of

this Rule may file a request for an order waiving the prepayment

of the prepaid cost. The request shall be accompanied by (A) the

pleading or paper sought to be filed; (B) an affidavit

substantially in the form approved by the State Court

Administrator, posted on the Judiciary website, and available in

the Clerks' offices; and (C) if the individual is represented by

an attorney, the attorney's certification that, to the best of

the attorney's knowledge, information, and belief, there is good

ground to support the claim, application, or request for process

and it is not interposed for any improper purpose or delay.

Cross reference: See Rule 1-311 (b) and Rule 3.1 of the

Maryland Lawyers' Rules of Professional Conduct.

(2) Review by Court; Factors to be Considered

The court shall review the papers presented and may

require the individual to supplement or explain any of the

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Rule 1-325

matters set forth in the papers.

In determining whether to

grant a prepayment waiver, the court shall consider:

(A) whether the individual has a family household income

that qualifies under the client income guidelines for the

Maryland Legal Services Corporation for the current year, which

shall be posted on the Judiciary website; and

(B) any other factor that may be relevant to the

individual's ability to pay the prepaid cost.

(3) Order; Payment of Unwaived Prepaid Costs

If the court finds that the party is unable by reason of

poverty to pay the prepaid cost and that the pleading or paper

sought to be filed does not appear, on its face, to be

frivolous, it shall enter an order waiving prepayment of the

prepaid cost. In its order, the court shall state the basis for

granting or denying the request for waiver.

If the court

denies, in whole or in part, a request for the waiver of its

prepaid costs, it shall permit the party, within 10 days, to pay

the unwaived prepaid cost.

If, within that time, the party pays

the full amount of the unwaived prepaid costs, the pleading or

paper shall be deemed to have been filed on the date the request

for waiver was filed. If the unwaived prepaid costs are not paid

in full within the time allowed, the pleading or paper shall be

deemed to have been withdrawn.

(f)

Award of Costs at Conclusion of Action

(1) Generally

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Rule 1-325

At the conclusion of an action, the court and the clerk

shall allocate and award costs as required or permitted by law.

Cross reference: See Rules 2-603, 3-603, 7-116, and Mattison v.

Gelber, 202 Md. App. 44 (2011).

(2) Waiver

(A) Request

At the conclusion of an action, a party may seek a

final waiver of open costs, including any unpaid appearance fee,

by filing a request for the waiver, together with (i) an

affidavit substantially in the form prescribed by subsection

(e)(1)(A) (e)(1)(B) of this Rule, or (ii) if the party was

granted a waiver of prepayment of prepaid costs by court order

pursuant to section (e) of this Rule and remains unable to pay

the costs, an affidavit that recites the existence of the prior

waiver and the party's continued inability to pay by reason of

poverty.

(B) Determination by Court

In an action under Title 9, Chapter 200 of these Rules

or Title 10 of these Rules, the court shall grant a final waiver

of open costs if the requirements of Rules 2-603 (e) or 10-107

(b), as applicable, are met.

In all other civil matters, the

court may grant a final waiver of open costs if the party

against whom the costs are assessed is unable to pay them by

reason of poverty.

Source:

This Rule is new.

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Rule 1-325

REPORTER’S NOTE

Unless waived, a fee is required to be paid when a petition

for expungement is filed. Ordinarily, no fee is required when

shielding is requested; however, requests to shield filed under

the recently enacted Second Chance Act (Code, Criminal Procedure

Article, §§10-301 through 10-306) do carry a charge.

The Director of the Access to Justice Department of the

Administrative Office of the Courts pointed out that Rule 1-325

is applicable only to civil matters. She noted that although an

expungement is civil in nature, a petition for expungement is

filed in a criminal action. Since there will be a greater

demand for expungements as well as more shielding requests due

to recent changes in the law, the Director asked that language

be added to Rule 1-325 to make it clear that Rule 1-325 applies

to costs for petitions to expunge and for requests to shield all

or part of records.

The Rules Committee considered this matter and recommends

amending Rule 1-325 accordingly.

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Rule 1-325.1

MARYLAND RULES OF PROCEDURE

TITLE 1 - GENERAL PROVISIONS

CHAPTER 300 - GENERAL PROVISIONS

AMEND Rule 1-325.1 to remove language that provides that if

unwaived prepaid costs are not paid in full within the time

allowed the “appeal shall be deemed to have been withdrawn,” and

to add language to require the court to “enter an order striking

the appeal” if unwaived prepaid costs are not paid in full

within the time allowed, as follows:

Rule 1-325.1.

WAIVER OF PREPAID APPELLATE COSTS IN CIVIL

ACTIONS

(a)

Scope

This Rule applies (1) to an appeal from an order or

judgment of the District Court or an orphans' court to a circuit

court in a civil action, and (2) to an appeal as defined in

subsection (b)(1) of this Rule seeking review in the Court of

Special Appeals or the Court of Appeals of an order or judgment

of a lower court in a civil action.

(b)

Definitions

In this Rule, the following definitions apply:

(1) Appeal

"Appeal" means an appeal, an application for leave to

appeal to the Court of Special Appeals, and a petition for

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Rule 1-325.1

certiorari or other extraordinary relief filed in the Court of

Appeals.

(2) Clerk

"Clerk" includes a Register of Wills.

(3) Prepaid Costs

"Prepaid costs" means (A) the fee charged by the clerk

of the lower court for assembling the record, (B) the cost of

preparation of a transcript in the District Court, if a

transcript is necessary to the appeal, and (C) the filing fee

charged by the clerk of the appellate court.

Cross reference: See the schedule of appellate court fees

following Code, Courts Article, §7-102 and the schedule of

circuit court fees following Code, Courts Article, §7-202.

(c)

Waiver

(1) Generally

Waiver of prepaid costs under this Rule shall be

governed generally by section (d) or (e) of Rule 1-325, as

applicable, except that:

(A) the request for waiver of both the lower and appellate

court prepaid costs shall be filed in the lower court with the

notice of appeal;

(B) a request to waive prepayment of the fee for filing a

petition for certiorari or other extraordinary relief in the

Court of Appeals shall be filed in, and determined by, that

Court;

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Rule 1-325.1

shall be determined in the lower court;

(D) waiver of the appellate court filing fee shall be

determined by the appellate court, but the appellate court may

rely on a waiver of the fee for assembling the record ordered by

the lower court;

(E) both fees shall be waived if (i) the appellant

received a waiver of prepaid costs under section (d) of Rule 1325 and will be represented in the appeal by an eligible

attorney under that section, (ii) the attorney certifies that

the appellant remains eligible for representation in accordance

with Rule 1-325 (d), and (iii) except for an attorney employed

or appointed by the Office of the Public Defender in a civil

action in which that Office is required by statute to represent

the party, the attorney further certifies that to the best of

the attorney's knowledge, information, and belief there is good

ground to support the appeal and it is not interposed for any

improper purpose or delay; and

(F) if the appellant received a waiver of prepaid costs

under section (e) of Rule 1-325, the lower court and appellate

court may rely on a supplemental affidavit of the appellant

attesting that the information supplied in the affidavit

provided under Rule 1-325 (e) remains accurate and that there

has been no material change in the appellant's financial

condition or circumstances.

(2) Procedure

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Rule 1-325.1

(A) If an appellant requests the waiver of the prepaid

costs in both the lower and appellate courts, the lower court,

within five days after the filing of the request, shall act on

the request for waiver of its prepaid cost and transmit to the

appellate court the request for waiver of the appellate court

prepaid cost, together with a copy of the request and order

regarding the waiver of the lower court prepaid cost.

(B) The appellate court shall act on the request for the

waiver of its prepaid cost within five business days after

receipt of the request from the lower court.

for the waiver of its prepaid cost, it shall permit the

appellant, within 10 days, to pay the unwaived prepaid cost.

If, within that time, the appellant pays the full amount of the

unwaived prepaid cost, the appeal shall be deemed to have been

filed on the day the request for waiver was filed in the lower

court or, as to a petition for certiorari or other extraordinary

relief, in the Court of Appeals.

If the unwaived prepaid costs

are not paid in full within the time allowed, the appeal shall

be deemed to have been withdrawn court shall enter an order

dismissing the appeal.

Source:

This Rule is new.

REPORTER’S NOTE

The last sentence of current Rule 1-325.1 (c)(2)(C)

provides that if unwaived prepaid appellate costs are not paid

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Rule 1-325.1

in full within the time allowed, “the appeal shall be deemed to

have been withdrawn.” It is proposed that the sentence be

revised to provide that if the unwaived prepaid costs are not

paid, “the court shall enter an order striking the appeal.”

Thus, the consequences of nonpayment would be the judicial act

of dismissing the appeal, instead of a “deemed” withdrawal.

In subsection (c)(1)(A), it is proposed that the word

“prepaid” be substituted for “court” for clarity.

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Rule 2-131

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 100 – COMMENCEMENT OF ACTION AND PROCESS

AMEND Rule 2-131 to delete the option of an oral entry of

appearance and to make a stylistic change, as follows:

Rule 2-131.

APPEARANCE

. . .

(c)

How Entered

Except as otherwise provided in section (b) of this Rule,

an appearance may be entered by filing a pleading or motion, or

by filing a written request for the entry notice of an

appearance, or, if the court permits, by orally requesting the

entry of an appearance in open court.

. . .

REPORTER’S NOTE

Rules 2-131 and 3-131 are proposed to be amended so that

oral entries of appearance no longer are permitted.

Additionally, the terminology, “request for the entry of an

appearance,” is changed to “notice of appearance,” as a matter

of style.

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Rule 3-131

MARYLAND RULES OF PROCEDURE

TITLE 3 - CIVIL PROCEDURE – DISTRICT COURT

CHAPTER 100 - COMMENCEMENT OF ACTION AND PROCESS

AMEND Rule 3-131 to delete the option of an oral entry of

appearance and to make a stylistic change, as follows:

Rule 3-131.

APPEARANCE

. . .

(c)

How Entered

Except as otherwise provided in section (b) of this Rule,

an appearance may be entered by filing a pleading, motion, or

notice of intention to defend or, by filing a written request

for the entry notice of an appearance, or, if the court permits,

by orally requesting the entry of an appearance in open court.

. . .

REPORTER’S NOTE

See the Reporter’s note to Rule 2-131.

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Rule 4-214

MARYLAND RULES OF PROCEDURE

TITLE 4 – CRIMINAL CAUSES

CHAPTER 200 – PRETRIAL PROCEDURES

AMEND Rule 4-214 to specify that an attorney enters an

appearance by filing a written request for the entry of an

appearance or by filing a pleading or motion and to update an

internal Rule reference, as follows:

Rule 4-214.

(a)

DEFENSE COUNSEL

Appearance

Counsel retained or appointed to represent a defendant

shall enter an appearance in writing within five days after

accepting employment, after appointment, or after the filing of

the charging document in court, whichever occurs later.

appearance may be entered by filing a pleading or motion or by

filing a written notice of appearance.

An appearance entered in

the District Court will automatically be entered in the circuit

court when a case is transferred to the circuit court because of

a demand for jury trial.

In any other circumstance, counsel who

intends to continue representation in the circuit court after

appearing in the District Court must re-enter an appearance in

the circuit court.

. . .

(d)

Striking Appearance

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Rule 4-214

A motion to withdraw the appearance of counsel shall be

made in writing or in the presence of the defendant in open

court.

If the motion is in writing, moving counsel shall

certify that a written notice of intention to withdraw

appearance was sent to the defendant at least ten days before

the filing of the motion.

If the defendant is represented by

other counsel or if other counsel enters an appearance on behalf

of the defendant, and if no objection is made within ten days

after the motion is filed, the clerk shall strike the appearance

of moving counsel.

If no other counsel has entered an

appearance for the defendant, leave to withdraw may be granted

only by order of court.

The court may refuse leave to withdraw

an appearance if it would unduly delay the trial of the action,

would be prejudicial to any of the parties, or otherwise would

not be in the interest of justice.

If leave is granted and the

defendant is not represented, a subpoena or other writ shall be

issued and served on the defendant for an appearance before the

court for proceedings pursuant to Rule 4-215 or 4-215.1.

. . .

REPORTER’S NOTE

The Rules Committee received an inquiry as to why there are

differences between the methods of entry of an attorney’s

appearance in criminal cases (Rule 4-214) and the methods of

entry of an attorney’s appearance in civil cases (Rules 2-131

and 3-131).

Rule 4-214 (a) currently requires that an attorney enter an

appearance in writing, but does not specify the form of the

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Rule 4-214

writing. Rules 2-131 (c) and 3-131 (c) permit an appearance to

be entered by filing a pleading, a motion, a written request for

the entry of an appearance, or, in the District Court, a notice

of intention to defend, which, in that Court, is the functional

equivalent of an answer. Currently, Rules 2-131 and 3-131 also

provide that, if the court permits, an appearance may be entered

by orally requesting the entry of an appearance in open court.

The Committee recommends that Rule 4-214 be amended to

permit the entry of an attorney’s appearance “by filing a

pleading or motion or by filing a written request for the entry

of an appearance,” and that oral entries of appearance not be

permitted. The Committee also recommends amendments to Rules 2131 and 3-131 to make the permitted methods of entry of an

attorney’s appearance the same in civil and criminal cases.

In Rule 4-214 (d), a reference to proposed new Rule 4-215.1

is added.

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Rule 2-413.1

MARYLAND RULES OF PROCEDURE

TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT

CHAPTER 400 - DISCOVERY

ADD new Rule 2-413.1, as follows:

Rule 2-413.1.

PERMITTED ATTENDANCE

Unless the parties agree or the court orders otherwise, the

only persons allowed to attend a deposition are:

(a) the officer, or officer’s designee, before whom the

deposition is taken;

(b) an individual acting under the direction and in the

presence of the officer;

(d) if the party is not an individual, one representative of

that party other than the party’s attorney;

(e) the parties’ attorneys;

(f) a non-attorney member of the attorney’s staff needed to

assist in the representation;

(g) the witness;

(h) an attorney for the witness; and

(i) an expert witness expected to testify on the subject

matter of the deposition.

Committee note: This Rule is subject to the requirements of any

protective order entered in the action, the Americans with

Disabilities Act, 42 U.S.C. §§12101, et seq., and other law.

The parties are encouraged to permit the attendance of non-112-

Rule 2-413.1

testifying party representatives, such as insurance claims

adjusters.

Source:

This Rule is new.

REPORTER’S NOTE

Proposed new Rule 2-413.1 answers the question of who may

attend a deposition. The Rule lists the only individuals who

are allowed to attend a deposition, unless the parties agree

otherwise or the court orders otherwise. With respect to

individuals presiding over the deposition, Rule 2-413.1 is in

accord with current Rule 2-415 (a) by providing that the

“officer before whom a deposition is taken” and an individual

“acting under the direction and in the presence of the officer”

have a right to attend the deposition. The other identified

individuals reflect the Committee’s conclusions on which

individuals ordinarily have a right to be in attendance. A

Committee note following the proposed Rule serves as a reminder

that the Rule is subject to the requirements of a protective

order entered in the action, the Americans with Disabilities

Act, 42 U.S.C. §§12101, et seq., and similar statutes. The

Committee note also encourages the parties to permit the

attendance of party representatives who will not be testifying,

such as insurance claims adjusters.

While proposed Rule 2-413.1 clarifies who may attend a

deposition, it also reflects a preference that the parties to

the deposition will come to an agreement in the vast majority of

cases about who may attend, without the need for court

intervention.

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Rule 2-422.1

MARYLAND RULES OF PROCEDURE

TITLE 2 - CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 400 - DISCOVERY

ADD new Rule 2-422.1, as follows:

Rule 2-422.1.

INSPECTION OF PROPERTY - OF NONPARTY OR BY

FOREIGN PARTY – WITHOUT DEPOSITION

(a) Applicability; Use of Subpoena

This Rule applies to the issuance of a subpoena to obtain

entry upon and inspection of designated land or property owned

by or in the possession or control of (1) a nonparty to an

action pending in this State or (2) a person to whom a foreign

subpoena is directed pursuant to Code, Courts Article, Title 9,

Subtitle 4.

A subpoena issued under this Rule may be used only

for that purpose.

This Rule does not apply to the issuance of a

subpoena in conjunction with a deposition.

Committee note: Under subsection (a)(2), a person to whom a

foreign subpoena is directed could be a party or a nonparty to

the foreign action. A party to an action pending in this State

who seeks entry upon land of another party must proceed in

accordance with Rule 2-422.

Cross reference: For a subpoena issued in conjunction with a

deposition, see Rules 2-510 and 2-510.1.

(b) Definitions

(1) Statutory Definitions

The definitions stated in Code, Courts Article, §9-401

apply in this Rule to the extent relevant.

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Rule 2-422.1

(2) Additional Definitions

In this Rule, the following additional definitions

apply:

(A) Domestic Subpoena

“Domestic subpoena” means a subpoena issued by a

circuit court of this State in an action pending in this State.

(B) Inspection

“Inspection” includes inspecting, measuring,

surveying, photographing, testing, and sampling within the scope

of Rule 2-402 (a).

“Nonparty” means any person, other than a party, who

is in possession or control of land or other property and, if

different, the record owner of the land or other property.

(D) Foreign Party

“Foreign party” means the party on whose behalf a

foreign subpoena is issued.

(E) Foreign Attorney

“Foreign attorney” means an attorney licensed to

practice law in a foreign jurisdiction, but not in the State of

Maryland.

(1) Domestic Subpoena

Upon the request of a person entitled to the issuance of

a subpoena under this Rule for discovery in an action pending in

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Rule 2-422.1

this State, the clerk shall issue a completed subpoena, or

provide a blank form of subpoena which shall be filled in and

returned to the clerk to be signed and sealed before service.

On the request of an attorney or other officer of the court

entitled

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