# STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

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## Record

- **Collection:** Court rules
- **Document type:** Court rule

## Text

STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

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
1

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
(c) Charges
(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
(c) Executive Secretary
(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
(c) Chair and Vice Chair
(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
(c) Inquiry

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
(c) Further Investigation
(d) Board’s Report to Commission
(1) Contents
(2) Condition and Limitation
(3) Time for Submission of Report
(A) Generally
(B) Extension
(C) Failure to File Timely Report
(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
(C) Hearings
(c) Time for Completion of Investigation
(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
(c) Not a Form of Discipline
(d) Confidentiality
(e) Termination of Proceedings

Rule 18-410.

PRIVATE REPRIMAND

(a) When Appropriate
(b) Form of Discipline
(c) Confidentiality; Notice to Complainant
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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
(c) Publication
(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
(c) Response
(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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(c) Submission to Court of Appeals

Rule 18-415.

PROCEEDINGS IN COURT OF APPEALS

(a) Expedited Consideration
(b) Exceptions
(c) Response
(d) Hearing
(e) Disposition
(f) Decision

Rule 18-416.

EXECUTION OF DISCIPLINE

(a) Authority
(b) Monitoring Compliance
(c) Response; Hearing

Rule 18-417.

CONFIDENTIALITY

(a) Generally
(1) Address of Record
(2) Complaints; Investigations; Disposition Without
Charges
(3) Upon Resignation, Voluntary Retirement, Filing of
a
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
(C) Copy to Judge
(c) Statistical Reports

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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.
(c) Executive Secretary
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.
(c) Inquiry
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
(C) Notice shall not be given under this Rule if (i)
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;
(C) a conditional diversion agreement;
(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.
(C) Subject to a retention schedule approved by the
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;
(C) a conditional diversion agreement pursuant to Rules
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.
(C) Failure to File Timely 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;
(C) enter a disposition pursuant to Rule 18-408, 18-54-

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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.
(C) Hearings
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.
(c) Time for Completion of Investigation
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;
(C) a conditional diversion agreement;
(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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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.

If

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
(c) Confidentiality; Notice to Complainant
(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.
(c) Publication
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).

(c) Response
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;
(C) an agreement by the judge to take any corrective or
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A263cca119aa9ad27. Public record. Not legal advice.