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ON RULES OF PRACTICE AND PROCEDURE

Minutes of a meeting of the Rules Committee virtually held

via Zoom for Government on Friday, January 8, 2021.

Members present:

Hon. Alan M. Wilner, Chair

H. Kenneth Armstrong, Esq.

Hon. Vicki Ballou-Watts

Julia Doyle Bernhardt, Esq.

Hon. Pamila J. Brown

Hon. Yvette M. Bryant

Sen. Robert G. Cassilly

Hon. John P. Davey

Mary Anne Day, Esq.

Del. Kathleen Dumais

Alvin I. Frederick, Esq.

Pamela Q. Harris, State Court

Administrator

Irwin R. Kramer, Esq.

Victor H. Laws, III, Esq.

Dawne D. Lindsey, Clerk

Bruce L. Marcus, Esq.

Donna Ellen McBride, Esq.

Stephen S. McCloskey, Esq.

Hon. Douglas R. M. Nazarian

Hon. Paula A. Price

Scott D. Shellenberger, Esq.

Gregory K. Wells, Esq.

Hon. Dorothy J. Wilson

Thurman W. Zollicoffer, Esq.

In attendance:

Sandra F. Haines, Esq., Reporter

Colby L. Schmidt, Esq., Deputy Reporter

Heather Cobun, Esq., Assistant Reporter

Charlita Ablakwa

Tanya Bernstein, Esq., Director, Commission on Judicial

Disabilities

William Beveridge, Jr., Esq., The Law Offices of Peter T.

Nicholl

Brandy R. Cannon, Esq., U.S. Dept. of Veterans Affairs

Cori Coates, JIS, Business Systems Analyst

Thomas Dolina, Esq., Bodie, Dolina, Hobbs, Friddell & Grenzer,

P.C.

Joseph Dudek, Esq., Office of the Attorney General

Allen R. Dyer, Esq.

Debra Gardner, Esq., Public Justice Center

Nancy Harris, JIS, Sr. Technical Business Analyst

Raymond Hein, Esq., Deputy Bar Counsel, Attorney Grievance

Commission

Jeffrey J. Hines, Esq., Goodell, DeVries, Leech & Dann, LLP

Kendra Randall Jolivet, Esq., Executive Secretary, Commission on

Judicial Disabilities

Jose Jay Knight, Esq., Court of Special Appeals ADR Programs

Linda Lamone, Esq., Maryland State Board of Elections

Lydia Lawless, Esq., Bar Counsel, Attorney Grievance Commission

Marianne J. Lee, Esq., Executive Secretary, Attorney Grievance

Commission

Michele McDonald, Esq., Office of the Attorney General, Courts &

Judicial Affairs

Hon. John P. Morrissey, Chief Judge, District Court of Maryland

Scott E. Nevin, Esq.

Sarah Parks, Esq.

Hon. Michael Reed

Mr. Jason E. Rheinstein

Erin A. Risch, Esq., Deputy Bar Counsel, Attorney Grievance

Commission

Paul Sandler, Esq.

Thomas Stahl, Esq., Spencer & Stahl, P.C.

Scott Stevens, Esq.

Gillian Tonkin, Esq., Staff Attorney, District Court of Maryland

Mr. Andrew Ucheomumu

Mark H. Weisner, Esq., Office of the Attorney General

Michael Winkelman, Esq., McCarthy, Winkelman & Mester LLP

Brian L. Zavin, Esq., Office of the Public Defender

The Chair convened the meeting.

Agenda Item 1. Consideration of a proposed revision of Rule 5702 (Testimony by Experts) and conforming amendment to: Rule 5901 (Requirement of Authentication or Identification)

_______________________________________________________________

Mr. Armstrong presented proposed Rule 5-702, Testimony by

Experts, and proposed amendments to Rule 5-901, Requirement of

Authentication or Identification, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 5 – EVIDENCE

CHAPTER 700 – OPINIONS AND EXPERT TESTIMONY

DELETE current Rule 5-702 and ADD new Rule 5-702,

as follows:

RULE 5-702.

(a)

TESTIMONY BY EXPERTS

Generally

A witness who is qualified as an expert by

knowledge, skill, experience, training, or education

may testify in the form of an opinion or otherwise if:

(1) the expert’s scientific, technical, or other

specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in

issue;

(2) the testimony is based on sufficient facts or

data;

(3) the testimony is the product of reliable

principles and methods; and

(4) the expert has reliably applied the principles

and methods to the facts of the case.

(b)

Factors to Consider

In applying the standards set forth in section

(a), the court shall consider relevant factors for

determining the reliability of the expected testimony.

These factors are flexible and may include but are not

limited to:

(1) whether a theory or technique can be and has

been tested;

(2) whether a theory or technique has been

subjected to peer review and publication;

(3) whether a particular scientific technique has

a known or potential rate of error;

(4) the existence and maintenance of standards and

controls;

(5) whether a theory or technique is generally

accepted;

(6) whether experts are proposing to testify about

matters growing naturally and directly out of research

they have conducted independent of litigation, or

whether they have developed their opinions expressly

for the purpose of testifying;

(7) whether the expert has unjustifiably

extrapolated from an accepted premise to an unfounded

conclusion;

(8) whether the expert has adequately accounted

for obvious alternative explanations;

(9) whether the expert is being as careful as the

expert would be in the expert’s regular professional

work outside the expert’s paid litigation consulting;

and

(10) whether the field of expertise claimed by the

expert is known to reach reliable results for the type

of opinion the expert would give.

Cross reference:

___ (2020).

See Rochkind v. Stevenson, ___ Md.

Source: This Rule is new. It is derived from the

2020 version of Fed. R. Evid. 702 and Rochkind v.

Stevenson, ___ Md. ___ (2020).

Rule 5-702 was accompanied by the following

Reporter’s note.

The Evidence Subcommittee recommends that current

Rule 5-702 be deleted and replaced by proposed revised

Rule 5-702, which codifies the holding in Rochkind v.

Stevenson, ___ Md. ___ (2020). In that case, the

Court of Appeals adopted the Daubert reliability

factors for expert testimony (Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993)) and

rejected the previous Frye-Reed standard (Frye v.

United States, 293 U.S. 1003 (D.C. Cir. 1923) and Reed

v. State, 282 Md. 374 (1978)).

Section (a) is derived from Fed. R. Evid. 702,

which states the general principle that a witness

qualified as an expert by knowledge, skill,

experience, training, or education may testify if

certain conditions are met.

Section (b) lists the non-exhaustive factors for

the court to consider, if relevant, in determining the

reliability of testimony under section (a).

Subsections (b)(1) through (5) are derived from the

Daubert opinion, which emphasized that the factors

were neither exclusive nor dispositive. Subsections

(b)(6) through (10) are additional factors developed

by courts that the Court of Appeals found persuasive

in interpreting the admissibility Rule.

MARYLAND RULES OF PROCEDURE

TITLE 5 – EVIDENCE

CHAPTER 900 – AUTHENTICATION AND IDENTIFICATION

AMEND Rule 5-901 by updating a Committee note

following subsection (b)(9), as follows:

Rule 5-901. REQUIREMENT OF AUTHENTICATION OR

IDENTIFICATION

. . .

(b)

Illustrations

. . .

(9) Process or System

Evidence describing a process or system used

to produce the proffered exhibit or testimony and

showing that the process or system produces an

accurate result.

Committee note: This Rule is not intended to indicate

the type of evidence that may be required to establish

that a system or process produces an accurate result.

See, e.g., Rule 5-702 and its Committee note.

. . .

Rule 5-901 was accompanied by the following

Reporter’s note.

The proposed amendment to Rule 5-901 updates a

Committee note following subsection (b)(9) in light of

proposed amendments to Rule 5-702.

Mr. Armstrong explained that proposed Rule 5-702

incorporates the Court of Appeals’ decision in Stanley Rochkind

v. Starlena Stevenson, No. 47, Sept. Term 2019 (opinion on Aug.

28, 2020), which adopted the Daubert factors (Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)) for determining

the admissibility of expert testimony.

He explained that the

Evidence Subcommittee approved the draft which is before the

Committee.

Section (a) reorganizes the existing Rule into a

slightly different order and adds new subsections (a)(3) and

(4), which are drawn from Fed. R. of Evid. 702.

He said that

the Subcommittee’s goal was to adopt a Rule as close to Fed. R.

of Evid. 702 as possible to allow for consistent case law among

federal courts and other states which have adopted the federal

rule.

Mr. Armstrong continued that the Subcommittee considered

whether the additional factors listed in the Rochkind decision,

which are from the federal rules committee note, should be

included in the body of the Maryland Rule or in a Committee

note.

The vote at the Subcommittee level was to put the factors

in the Rule.

He also noted that section (b) initially read, “In

applying the standards set forth in section (a), the Court shall

consider relevant factors for determining the reliability of the

expected testimony.”

It was suggested to the Subcommittee that

it would be more appropriate to include the additional sentence

now in the proposed draft, which explains that the additional

factors are flexible and “include but are not limited” to the

enumerated list.

Mr. Armstrong added that Mr. Winkleman raised

the issue of whether the first sentence of section (b) should

read the court “shall consider,” “should consider,” or “may

consider” the additional factors in applying section (a).

Mr.

Wells suggested that section (b) read: “The relevant factors for

determining the reliability of the expected testimony are

flexible and may include but are not limited to.”

Mr. Wells

moved to amend section (b) using his suggested language.

The

motion was seconded and approved by majority vote.

Mr. Winkleman said that he wrote a letter to the Committee

on behalf of the Maryland Association of Justice and a second

letter from himself as an individual and asked that those

comments be treated as separate from each other.

He explained

that Mr. Wells’ amendment addresses the issue of “shall” vs.

“may” but he does not believe it is appropriate to adopt Fed. R.

of Evid. 702.

He said that the Court did not adopt the federal

rule but rather held that Maryland Rule 5-702 should be

interpreted using the factors the majority set forth in the

opinion.

The Chair pointed out that in Rochkind the Court was

issuing a judicial opinion, which does not preclude the Rules

Committee from recommending to the Court the adoption of the

federal rule, which the judges can do in their rulemaking

capacity.

The Chair called for a motion.

No motion was made.

Mr. Winkleman also asked the Committee to consider the

concerns raised by the dissenting judges in Rochkind regarding

the potential impact of the decision on minority and underserved

communities.

Judge Nazarian said that he sits on a Judiciary

subcommittee currently reviewing the Maryland Rules for access

to justice issues and has thought about how to address Mr.

Winkleman’s point.

He suggested adding a general Committee note

to draw attention to the concern now, which could be amended

later as part of a broader proposal that the Judiciary

subcommittee may make in the future.

Judge Nazarian moved to

add a Committee note and Del. Dumais seconded.

Judge Nazarian

proposed: “In applying the factors set forth in this subsection,

courts also should consider the potential impact of these

factors on people of color and members of underserved or other

disadvantaged communities.”

The Committee approved the

amendment by majority vote.

There being no motion to further amend or reject the

proposed Rule, it was approved as amended.

Mr. Armstrong explained that a conforming amendment to Rule

5-901 alters a Committee note.

A motion to adopt the conforming

amendment was made and seconded.

The Committee approved the

amendment by majority vote.

There being no motion to further amend or reject the

proposed Rule, it was approved as amended.

Agenda Item 2. Consideration of a proposed revision of Rule 5902 (Self-Authentication) and conforming amendment to: Rule 5803 (Hearsay Exceptions: Unavailability of Declarant not

Required)

_______________________________________________________________

Mr. Armstrong presented proposed Rule 5-902, SelfAuthentication, and Rule 5-803, Hearsay Exceptions:

Unavailability of Declarant not Required, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 5 – EVIDENCE

CHAPTER 900 – AUTHENTICATION AND IDENTIFICATION

DELETE current Rule 5-902 and ADD new Rule 5-902,

as follows:

Rule 5-902.

SELF-AUTHENTICATION

Subject to the conditions in this Rule, the

following items of evidence are self-authenticating,

and, except as required by statute or this Rule,

require no testimony or other extrinsic evidence of

authenticity in order to be admitted:

(1) Domestic Public Documents Under Seal

A document bearing a seal purporting to be

that of the United States, or of any state, district,

commonwealth, territory, or insular possession

thereof, or the Panama Canal Zone, or the trust

territory of the Pacific Islands, or of a political

subdivision, department, officer, or agency thereof,

and a signature purporting to be an attestation or

execution.

(2) Domestic Public Documents Not Under Seal

A document purporting to bear the signature in

the official capacity of an officer or employee of any

entity included in paragraph (1) of this Rule, having

no seal, if a public officer having a seal and having

official duties in the district or political

subdivision of the officer or employee certifies under

seal that the signer has the official capacity and

that the signature is genuine.

(3) Foreign Public Documents

A document that purports to be signed or

attested by a person who is authorized by a foreign

country’s law to do so. The document must be

accompanied by a final certification that certifies

the genuineness of the signature and official position

of the signer or attester – or of any foreign official

whose certificate of genuineness relates to the

signature or attestation or is in a chain of

certificates of genuineness relating to the signature

or attestation. The certification may be made by a

secretary of a United States embassy or legation; by a

consul general, vice consul, or consular agent of the

United States; or by a diplomatic or consular official

of the foreign country assigned or accredited to the

United States. If all parties have been given a

reasonable opportunity to investigate the document’s

authenticity and accuracy, the court may, for good

cause, either:

(A) order that it be treated as presumptively

authentic without final certification; or

(B) allow it to be evidenced by an attested

summary with or without final certification.

(4) Certified Copies of Public Records

A copy of an official record or report or

entry therein, or of a document authorized by law to

be recorded or filed and actually recorded or filed in

a public office, including data compilations,

certified as correct by the custodian or other person

authorized to make the certification, by certificate

complying with this Rule or complying with any

applicable statute or these rules.

(5) Official Publications

Books, pamphlets, or other publications

purporting to be issued or authorized by a public

agency.

(6) Newspapers and Periodicals

Printed materials purporting to be newspapers

or periodicals.

(7) Trade Inscriptions and the Like

Inscriptions, signs, tags, or labels

purporting to have been affixed in the course of

business and indicating ownership, control, or origin.

(8) Acknowledged Documents

Documents accompanied by a certificate of

acknowledgment executed in the manner provided by law

by a notary public or other officer authorized by law

to take acknowledgments.

(9) Commercial Paper and Related Documents

To the extent provided by applicable

commercial law, commercial paper, signatures thereon,

and related documents.

Cross reference: See, e.g., Code, Commercial Law

Article, §§ 1-202, 3-308, and 3-505.

(10) Presumptions Under Statutes or Treaties

Any signature, document, or other matter

declared by applicable statute or treaty to be

presumptively genuine or authentic.

(11) Items as to Which Required Objections Not

Made

Unless justice otherwise requires, any item

as to which, by statute, rule, or court order, a

written objection as to authenticity is required to be

made before trial, and an objection was not made in

conformance with the statute, rule, or order.

(12) Certified Records of Regularly Conducted

Activity

The original or a copy of a record of a

regularly conducted activity that meets the

requirements of Rule 5-803 (b)(6)[(A)-(C)] and has

been certified in a Certification of Custodian of

Records or Other Qualified Individual Form

substantially in compliance with such a form approved

by the State Court Administrator and posted on the

Judiciary website, provided that, before the trial or

hearing in which the record will be offered into

evidence, the proponent (A) gives an adverse party

reasonable written notice of the intent to offer the

record and (B) makes the record and certification

available for inspection so that the adverse party has

a fair opportunity to challenge them on the ground

that the sources of information or the method or

circumstances of preparation indicate lack of

trustworthiness.

Committee note: An objection to self-authentication

under paragraph (12) of this Rule made in advance of

trial does not constitute a waiver of any other ground

that may be asserted as to admissibility at trial.

In a consumer debt collection action not resolved

by judgment on affidavit, Code, Courts Article, § 51203 (b)(2) requires that a debt buyer or a collector

acting on behalf of a debt buyer introduce specified

documents “in accordance with the Rules of Evidence

applicable to actions that are not small claims

actions brought under § 4-405 of this Article.”

Consequently, if the debt buyer or collector intends

to offer business records into evidence in a small

claim action without in-court testimony of a witness,

the debt buyer must provide notice to the opposing

party in conformance with Rule 5-902 (12).

(13) Certified Records Generated by an Electronic

Process or System

A record generated by an electronic process

or system that produces an accurate result, as shown

by a certification of a qualified person that complies

with the certification and notification requirements

of paragraph (12) of this Rule.

(14) Certified Data Copied from an Electronic

Device, Storage Medium, or File

Data copied from an electronic device,

storage medium, or file, if authenticated by a process

of digital identification, as shown by a certification

of a qualified person that complies with the

certification and notification requirements of

paragraph (12) of this Rule.

Committee note: Paragraphs 13 and 14 are derived from

Fed. R. Evid. 902 (13) and (14). See Advisory

Committee Notes attached to the Federal provisions for

an explanation of how these provisions are intended to

operate.

Nothing in paragraphs (13) and (14) is intended

to limit a party from establishing authenticity of

electronic evidence on any ground provided in these

Rules, including under Rule 5-901 or through judicial

notice where appropriate.

A certification under paragraphs (13) and (14)

can only establish that the proffered item is

authentic. The opponent remains free to object to

admissibility of the proffered item on other grounds.

Source: This Rule is in part derived from the 2020

version of Fed. R. Evid. 902 and is in part new.

Rule 5-902 was accompanied by the following

Reporter’s note.

The Evidence Subcommittee recommends that current

Rule 5-902 be deleted and replaced by proposed revised

Rule 5-902, which aligns the Maryland Rule with Fed.

R. Evid. 902.

Paragraph (1) is derived from current Rule 5-902

(a)(1).

Paragraph (2) is derived from current Rule 5-902

(a)(2).

Paragraph (3) is derived from Fed. R. Evid.

902(3). Current Rule 5-902 (a)(3) contains a similar

provision.

Paragraph (4) is derived from current Rule 5-902

(a)(4).

Paragraph (5) is derived from current Rule 5-902

(a)(5).

Paragraph (6) is derived from current Rule 5-902

(a)(6).

Paragraph (7) is derived from current Rule 5-902

(a)(7).

Paragraph (8) is derived from current Rule 5-902

(a)(8).

Paragraph (9) is derived from current Rule 5-902

(a)(9).

Paragraph (10) is derived from current Rule 5-902

(a)(10).

Paragraph (11) is derived from current Rule 5-902

(a)(11). There is no counterpart to this paragraph in

the Federal Rules.

Paragraph (12) is derived from Fed. R. Evid. 902

(12) and current Rule 5-902 (b)(1). The current

subsection includes a form certificate. The proposed

new paragraph refers to a form approved by the State

Court Administrator and posted on the Judiciary

website. The current section requires a party

intending to offer the record to provide written

notice to the adverse party at least ten days before

the proceeding. The adverse party has five days from

service of the notice to file a written objection.

The proposed new paragraph incorporates the

“reasonable notice” requirement from the Federal Rule.

The Committee note following paragraph (12) is in the

current Rule.

Paragraph (13) is derived from Fed. R. Evid. 902

(13). The Federal Rule sets forth a procedure to

authenticate certain electronic evidence such as a

registry showing that a certain device was connected

to a computer. Certification must comply with the

certification and notification requirements of new

paragraph (12).

Paragraph (14) is derived from Fed. R. Evid. 902

(14). The Federal Rule allows a party to authenticate

data copied from an electronic device, storage medium,

or file, such as a forensic copy of a hard drive,

through a certification. Certification must comply

with the certification and notification requirements

of new paragraph (12).

A Committee note following paragraphs (13) and

(14) refers to the Advisory Committee notes to the

Federal Rules, which provide detailed information

about the intended applications of the paragraphs.

The Committee note also states that a party may

establish authenticity of electronic evidence through

other means and that a certification of authenticity

is separate from the issue of admissibility.

MARYLAND RULES OF PROCEDURE

TITLE 5 – EVIDENCE

CHAPTER 800 – HEARSAY

AMEND Rule 5-803 by updating a cross reference

following subsection (b)(6), as follows:

Rule 5-803. HEARSAY EXCEPTIONS:

DECLARANT NOT REQUIRED

. . .

UNAVAILABILITY OF

(b)

Other Exceptions

(1) Present Sense Impression

A statement describing or explaining an event

or condition made while the declarant was perceiving

the event or condition, or immediately thereafter.

(2) Excited Utterance

A statement relating to a startling event or

condition made while the declarant was under the

stress of excitement caused by the event or condition.

(3) Then Existing Mental, Emotional, or Physical

Condition

A statement of the declarant's then existing

state of mind, emotion, sensation, or physical

condition (such as intent, plan, motive, design,

mental feeling, pain, and bodily health), offered to

prove the declarant's then existing condition or the

declarant's future action, but not including a

statement of memory or belief to prove the fact

remembered or believed unless it relates to the

execution, revocation, identification, or terms of

declarant's will.

(4) Statements for Purposes of Medical Diagnosis

or Treatment

Statements made for purposes of medical

treatment or medical diagnosis in contemplation of

treatment and describing medical history, or past or

present symptoms, pain, or sensation, or the inception

or general character of the cause or external sources

thereof insofar as reasonably pertinent to treatment

or diagnosis in contemplation of treatment.

(5) Recorded Recollection

See Rule 5-802.1 (e) for recorded

recollection.

(6) Records of Regularly Conducted Business

Activity

A memorandum, report, record, or data

compilation of acts, events, conditions, opinions, or

diagnoses if (A) it was made at or near the time of

the act, event, or condition, or the rendition of the

diagnosis, (B) it was made by a person with knowledge

or from information transmitted by a person with

knowledge, (C) it was made and kept in the course of a

regularly conducted business activity, and (D) the

regular practice of that business was to make and keep

the memorandum, report, record, or data compilation. A

record of this kind may be excluded if the source of

information or the method or circumstances of the

preparation of the record indicate that the

information in the record lacks trustworthiness. In

this paragraph, “business” includes business,

institution, association, profession, occupation, and

calling of every kind, whether or not conducted for

profit.

Cross reference:

Rule 5-902 (b) (12).

Committee note: Public records specifically excluded

from the public records exceptions in subsection

(b)(8) of this Rule may not be admitted pursuant to

this exception.

. . .

Rule 5-803 was accompanied by the following

Reporter’s note.

The proposed amendment to Rule 5-803 updates a

cross reference following subsection (b)(6) in light

of proposed amendments to Rule 5-902.

Mr. Armstrong explained that Rule 5-902 is presented as a

new Rule but in substance contains significant portions of

current Rule 5-902 with two new additions.

The subsections are

changed from letters to numbers and the substantive changes

begin in section (11), which is designed to be a catch-all

requiring compliance with statutes.

Section (12) pertains to

certified records of a regularly conducted activity that are

self-authenticating.

The form certification from current Rule

5-902 (a)(12) is no longer in the Rule but instead will be on

the State Court Administrator website.

Mr. Armstrong expressed

his support for moving the form out of the Rule, which avoids

the necessity of changing the Rule as form certificates

evolve.

He pointed out the bolded section of section (12),

which highlights a potential inconsistency with the

admissibility rules for business records in the hearsay

rule.

Rule 5-803 (b)(6) has four subparts and contains an

admissibility standard at the end of the subsection.

Mr. Armstrong explained that the bolded option limits the

reference to Rule 5-803 (b)(6)(A)-(C).

Mr. Armstrong moved to

adopt the bolded section and limit the reference.

seconded the motion.

Mr. Wells

Mr. Laws pointed out that the

admissibility standard in the subsection follows subsection

(b)(6)(D) and suggested that the Rule refer to Rule 5-803

(b)(6)(A)-(D).

Mr. Armstrong accepted Mr. Laws’ suggestion as

an amendment to his motion.

The motion was seconded and the

Committee approved the amendment by majority vote.

Mr. Armstrong said that section (12) also changes the

timing requirement to a reasonableness standard.

Sections (13)

and (14) are consistent with the procedure in section

(12).

Section (13) applies to records generated by an

electronic process and section (14) applies to records from an

electronic device, storage medium, or file.

The Chair commented

that sections (13) and (14) add types of records which were

added to Fed. R. of Evid. 902 two years ago.

There being no motion to further amend or reject the

proposed Rule, it was approved as amended.

Mr. Armstrong said that a conforming amendment to Rule 5803 alters a cross reference.

A motion to adopt the conforming

amendment was made and seconded.

The Committee approved the

amendment by majority vote.

Agenda Item 3. Consideration of proposed amendments to Rule 16919 (Creation of New Judicial Records)

_______________________________________________________________

The Chair presented Rule 16-919, Creation of New Judicial

Records, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 900 – ACCESS TO JUDICIAL RECORDS

DIVISION 2.

LIMITATIONS ON ACCESS

AMEND Rule 16-919, as follows:

Rule 16-919.

(a)

CREATION OF NEW JUDICIAL RECORDS

Scope

This Rule applies to requests for (1) the

creation of a new judicial record from (1) electronic

databases maintained by a judicial agency or special

judicial unit or (2) a reformatting of existing

judicial records in any form.

Cross reference: See Rule 16-918 for electronic

access to existing electronic records.

(b)

Definition

In this Rule, “reformatting” includes indexing,

compilation, programming, or reorganization of

existing judicial records, documents, or information.

(c)

Generally

(1) Except as required by other law, a custodian,

judicial agency, or special judicial unit is not

required to create a new judicial record or reformat

existing judicial records not necessary to be created

or reformatted for judicial functions.

(2) The removal, deletion, or redaction from a

judicial record of information not subject to

inspection under the Rules in this Chapter in order to

make the judicial record subject to inspection does

not create or reformat a new record within the meaning

of this Rule.

(3) If a custodian, judicial agency, or special

judicial unit (A) reformats existing judicial records

or other documents or information to create a new

judicial record, or (B) comes into possession of a new

judicial record created by another from the

reformatting of other judicial records, documents or

information, and there is no basis under the Rules in

this Chapter to deny inspection of that new judicial

record or some part of that judicial record, the new

judicial record or part for which there is no basis to

deny inspection shall be subject to inspection.

(d)

Request

A person who desires to obtain electronic

information judicial records pursuant to section (a)

of this Rule shall submit to the custodian a written

request that describes with particularity the

information that is sought. If there is no known

custodian, the request shall be made to the SCA, who

shall designate a custodian.

(e)

Review and Response

(1) Generally. The custodian shall review the

request, may consult with other employees, legal

counsel, or technical experts, and, within 30 business

days after receipt of the request, shall take one of

the following actions:

(A) Approve the request to the extent that the

information requested is subject to inspection under

the Rules in this Chapter or Title 20 and that will

not directly or indirectly impose significant fiscal

or operational burdens on any court, judicial agency,

or special judicial unit.

(B) Conditionally approve a request to the

extent that the information requested is subject to

inspection under the Rules in this Chapter or Title 20

but will directly or indirectly impose significant and

reasonably calculable fiscal or operational burdens on

a court, judicial agency, or special judicial unit, on

condition of the requester's prepayment in full of all

additional expenses reasonably expected to be incurred

as a result of the approval.

the denial if or to the extent that:

(i) the request seeks inspection of

information from judicial records that is not subject

to inspection under the Rules in this Chapter or Title

20;

(ii) the requester fails or refuses to satisfy

a condition imposed under subsection (e)(1)(B) of this

Rule;

(iii) granting the request would impose

significant and reasonably calculable operational

burdens on a court, judicial agency, or special

judicial unit that cannot be overcome merely by

prepayment of additional expenses under subsection

(e)(1)(B) of this Rule; or any other practicable

condition; or

(iv) the request directly or indirectly

imposes a significant but not reasonably calculable

fiscal or operational burden on any court, judicial

agency, or special judicial unit; or.

(v) the request is a repeated one by the same

or affiliated person for the same records that were

previously provided or that were the subject of a

prior request that was properly denied and there has

been no material change in the basis for the denial.

Cross reference:

Md. 201 (2017).

See Glass v. Anne Arundel Cty., 453

(2) Considerations. In determining whether to

grant or deny the request, the custodian shall

consider the following, to the extent relevant:

(A) whether the data processing system,

operational system, electronic filing system, or

manual or electronic storage and retrieval system used

by or planned for the court, judicial agency, or

special judicial unit that maintains the judicial

records can currently provide the inspection requested

in the manner requested and in conformance with the

Rules in this Chapter, and, if not, any changes or

effort required to enable those systems to provide

that inspection;

(B) whether any changes to the data processing,

operational, electronic filing, or storage or

retrieval systems used by or planned for other courts,

other judicial agencies, or other special judicial

units in the State would be required in order to avoid

undue disparity in the ability of those courts,

agencies, or units to provide equivalent inspection of

judicial records maintained by them;

impact of the request proposed program on the court,

other judicial agency, or special judicial unit or on

the State judicial system as a whole;

(D) whether there is a substantial possibility

that information retrieved through the program may be

used for any fraudulent or other unlawful purpose or

may result in the dissemination of inaccurate or

misleading information concerning judicial records or

individuals who are the subject of judicial records

and, if so, whether there are any safeguards to

prevent misuse of disseminated information and the

dissemination of inaccurate or misleading information;

and

(E) whether (1) the request would be unduly

burdensome for the custodian or judicial agency, (ii)

there is any practicable way to narrow the request to

make it manageable, and (iii) the burden on the

custodian or judicial agency would outweigh the public

interest in the information; and

(E)(F) any other consideration that the

custodian finds relevant.

(3) Before invoking subsection (e)(1)(C)(iii) or

(iv), the custodian shall extend to the person making

the request an opportunity to confer with the

custodian in an attempt to reduce the request to

manageable proportions.

(3)(4) Notice of Denial. If the custodian denies

the request, the custodian shall give written notice

to the requester and summarize the reasons for the

denial. If the denial is on the basis that compliance

with the request would be unduly burdensome, the

notice shall state the relevant facts supporting that

conclusion.

Source: This Rule is derived from former Rule 16-909

(f) (2019).

Rule 16-919 was accompanied by the following

Reporter’s note.

The proposed amendments to Rule 16-919 have been

requested by the State Court Administrator to clarify

and expand upon procedures pertaining to requests for

the creation of a new judicial record or reformatting

of an existing judicial record not necessary to be

created or reformatted for judicial functions.

The Chair said that the proposed amendment to Rule 16-919

was triggered by advice from the Maryland Office of the Attorney

General and the legal department of the Administrative Office of

the Courts.

He explained that the amendment is intended to

clarify the considerations to be applied when a request is made

for the creation of a new judicial record or a reformatting of

existing judicial records that are not required for judicial

purposes.

The AOC has generally granted those requests when

complying will not unduly burden the Judiciary.

He noted that two years ago, a member of the public asked

the AOC to create a new record by reformatting existing records

in a way that would require significant judicial resources.

The

request was denied but there was nothing in the Rule clarifying

that an unduly burdensome request could be denied based on the

resources required.

He said that the proposed amendments also

allow the custodian to deny a repeat request from the same

individual or organization.

Ms. Harris pointed out that page

six contains a numbering error.

By consensus, the Committee

approved the proposed Rule.

Agenda Item 4. Consideration of proposed amendments to: Rule

19-702 (Attorney Grievance Commission), Rule 18-405 (Ex Parte

Communications), Rule 18-409.1 (Subpoenas), Rule 18-411

(Commission on Judicial Disabilities), Rule 18-433 (Discovery),

Rule 18-437 (Proceedings in Court of Special Appeals), Rule 18438 (Suspension of Execution of Discipline), and Rule 19-102

(State Board of Law Examiners).

_______________________________________________________________

Mr. Frederick presented proposed amendments to Rule 19-702,

Attorney Grievance Commission; Rule 18-405, Ex Parte

Communications; Rule 18-409.1, Subpoenas;

Rule 18-411,

Commission on Judicial Disabilities; Rule 18-433, Discovery;

Rule 18-437, Proceedings in Court of Special Appeals; Rule 18438, Suspension of Execution of Discipline; and Rule 19-102,

State Board of Law Examiners, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

AMEND Rule 19-702 by retitling “Executive

Secretary” as “Executive Counsel and Director,” as

follows:

Rule 19-702.

ATTORNEY GRIEVANCE COMMISSION

. . .

(e)

Executive Secretary Counsel and Director

The Commission may select an attorney to serve

as the Executive Secretary Counsel and Director. The

Executive Secretary Counsel and Director shall serve

at the pleasure of the Commission and receive the

compensation set forth in the budget of the

Commission. As directed by the Commission, the

Executive Secretary Counsel and Director shall (1)

receive documents that are filed with the Commission

and maintain the records of the Commission, (2)

prepare the agenda of meetings of the Commission and

before each meeting send to each Commission member a

copy of the agenda and meeting materials, (3) serve as

in-house attorney to the Commission, (4) serve as

liaison to the Chair of the Peer Review Committee, and

(5) have such other administrative powers and duties

assigned by the Commission.

(f)

Removal of Commission Members

The Court of Appeals may remove a member of the

Commission at any time.

(g)

Quorum

The presence of seven members of the Commission

constitutes a quorum for the transaction of business.

The concurrence of seven members is required for all

actions taken by the Commission other than adjournment

of a meeting for lack of a quorum.

(h)

Powers and Duties

The Commission has the powers and duties to:

(1) recommend to the Court of Appeals the adoption

of procedural and administrative guidelines and

policies consistent with these Rules;

(2) employ and prescribe the compensation of the

Executive Secretary Counsel and Director;

(3) with the approval of the Court of Appeals,

appoint Bar Counsel;

(4) supervise the activities of Bar Counsel;

(5) authorize Bar Counsel to employ attorneys,

investigators, and staff personnel and to prescribe

their compensation;

(6) appoint special counsel as the need arises;

(7) appoint members of the Peer Review Committee,

designate the Chair and one or more Vice Chairs, and

remove any member for cause;

(8) employ and prescribe the compensation of

personnel to assist the Chair of the Peer Review

Committee;

(9) exercise the authority granted in the Rules in

this Chapter with respect to the approval or

disapproval of (A) the dismissal of a complaint or

Statement of Charges, (B) the termination of a

complaint with or without a warning, (C) a Conditional

Diversion Agreement, (D) a reprimand, or (E) the

filing of a Petition for Disciplinary or Remedial

Action;

(10) grant or deny any requests for extensions of

time permitted under the Rules of this Chapter or

delegate to the Chair of the Commission the authority

to grant or deny such requests;

(11) authorize the issuance of subpoenas in

accordance with these Rules;

(12) perform the duties required by Title 19,

Chapter 400 (Attorney Trust Accounts);

(13) administer the Disciplinary Fund;

(14) submit not later than September 1 of each

year a report to the Court of Appeals accounting for

the Disciplinary Fund, evaluating the effectiveness of

the disciplinary system, and recommending any changes;

and

(15) submit annually to the State Court

Administrator for review and approval by the Court of

Appeals a proposed budget for the disciplinary system.

. . .

Rule 19-702 was accompanied by the following

Reporter’s note.

Proposed amendments to Rule 19-702 reflect the

recommendation to retitle the Executive Secretary

position as “Executive Counsel and Director.”

The Attorneys & Judges Subcommittee was asked to

consider changing the titles for three positions

mentioned in the Maryland Rules: Executive Secretary

(Attorney Grievance Commission), Executive Secretary

(Commission on Judicial Disabilities), and Secretary

(State Board of Law Examiners).

The current Executive Secretary to the Attorney

Grievance Commission initially requested consideration

of a title change due to confusion about her role by

members of the public. The current title can be

perceived as clerical and not reflective of the

administrative and other duties of the position.

The Executive Secretary to the Commission on

Judicial Disabilities and the Secretary to the State

Board of Law Examiners expressed support for amending

their titles to more accurately reflect their roles

and duties within their respective units.

The Subcommittee reviewed the titles of

individuals with comparable positions in other

jurisdictions and consulted with the Office of the

Attorney General so that any title selected would not

appear to conflict with the roles and duties of the

assistant Attorney General assigned to the Judiciary.

Though the Attorney Grievance Commission uses its

own personnel system, the Judiciary Human Resources

Department was consulted to coordinate harmonious use

of titles. Human Resources advised that it has

eliminated the title of “Executive Director” from use

but did not object to “Executive Counsel” or

“Executive Counsel and Director.” The attorney

serving as Executive Secretary to the Commission on

Judicial Disabilities requested that she not have

“director” as part of her title because of the

structure of the unit (Investigative Counsel is

designated as a “director”).

The three titleholders agreed to the following

changes to their titles:

•

“Executive Secretary” (Attorney Grievance

Commission) would become “Executive Counsel and

Director” (affected Rule: 19-702)

•

“Executive Secretary” (Judicial Disabilities)

would become “Executive Counsel” (affected Rules:

18-405, 18-409.1, 18-411, 18-433, 18-437, and 18438)

o “Secretary” (SBLE) would become “Secretary

and Director” (affected Rule: 19-102)

The Subcommittee approved and recommends these

changes.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 18-405 by retitling “Executive

Secretary” as “Executive Counsel,” as follows:

RULE 18-405.

(a)

EX PARTE COMMUNICATION

The Commission and Executive Secretary Counsel

Except as otherwise permitted by the Rules in

this Chapter, directly or by necessary implication,

members of the Commission and the Executive Secretary

Counsel to the Commission shall not engage in ex parte

communications with Investigative Counsel, members of

the Board, a judge against whom a complaint has been

filed, or an attorney for that judge that pertain to

the substance of a complaint against that judge.

(b)

The Board

Except as otherwise permitted by the Rules in

this Chapter, directly or by necessary implication,

members of the Board shall not engage in ex parte

communications with members of the Commission, the

Executive Secretary Counsel to the Commission,

Investigative Counsel, a judge against whom a

complaint has been filed, or an attorney for that

judge that pertain to the substance of a complaint

against that judge.

Committee note: The Rules in this Chapter give the

Executive Secretary Counsel to the Commission and the

Chairs of the Commission and the Board certain

functions that anticipate some ex parte communications

with each other or with Investigative Counsel, the

judge, or the judge's attorney that are necessary for

them to perform their duties. See, for example, Rules

18-409.1 and 18-434, regarding applications for a

subpoena; Rule 18-422 (a)(3), regarding a request for

immunity; Rule 18-422 (a)(6), regarding an extension

of time to complete an investigation; Rule 18-423 (b),

permitting the Board to meet informally with the

judge; and Rule 18-423 (d)(1)(B), allowing

consultation between the Chair of the Commission and

the Chair of the Board regarding the evidence to be

produced before the Commission. The intent of this

Rule is not to preclude those kinds of ex parte

communications or any other ex parte communications

permitted or anticipated by these Rules but only those

that reasonably could leave the impression, intended

or unintended, of an improper attempt to influence the

nature, scope, or conduct of an investigation by

Investigative Counsel, a recommendation by

Investigative Counsel, or a proceeding or decision by

the Commission or the Board. Commission and Board

members should be guided by relevant provisions of

Rule 18-202.9. This Rule also is not intended to

preclude general supervision of Investigative Counsel,

who is appointed by and serves at the pleasure of the

Commission.

Source: This Rule is new and is based in part on ABA

Model Rules for Judicial Disciplinary Enforcement,

Rule 10.

Rule 18-405 was accompanied by the following

Reporter’s note.

Proposed amendments to Rule 18-405 reflect the

recommendation to retitle the Executive Secretary

position as “Executive Counsel.” See the Reporter’s

note to Rule 19-702.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 18-409.1 by retitling “Executive

Secretary” as “Executive Counsel,” as follows:

RULE 18-409.1. SUBPOENAS

. . .

(b)

434

Subpoenas Issued Pursuant to Rule 18-433 or 18-

The Chair of the Commission, on behalf of the

Commission, may authorize the Executive Secretary

Counsel to issue a subpoena to compel the attendance

of witnesses and the production of documents or other

tangible things at a time and place specified in the

subpoena. To the extent otherwise relevant, the

provisions of Rule 2-510 (c), (d), (e), (f), (g), (h),

(i), (j), and (k) shall apply to subpoenas issued

pursuant to this section. References to a court in

those Rules shall mean the Chair of the Commission, on

behalf of the Commission. Promptly after service of a

subpoena on a person other than the subject judge, the

party who requested the issuance of the subpoena shall

serve a copy of it upon the other party electronically

at an address furnished by the other party.

Committee note: The intent of section (b) is that the

Executive Secretary Counsel issues an authorized

subpoena and provides it to the party who requested it

for service.

Source: This Rule is new and is derived, in part,

from Rule 19-712 (2018).

Rule 18-409.1 was accompanied by the following

Reporter’s note.

Proposed amendments to Rule 18-409.1 reflect the

recommendation to retitle the Executive Secretary

position as “Executive Counsel.” See the Reporter’s

note to Rule 19-702.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 2.

STRUCTURE

AMEND Rule 18-411 by retitling “Executive

Secretary” as “Executive Counsel,” as follows:

RULE 18-411.

COMMISSION ON JUDICIAL DISABILITIES

. . .

(d)

Executive Secretary Counsel

(1) Appointment; Compensation

The Commission may select an attorney as

Executive Secretary Counsel. The Executive Secretary

Counsel shall serve at the pleasure of the Commission

and receive the compensation set forth in the budget

of the Commission.

(2) Duties

The Executive Secretary Counsel shall: (A)

receive documents that are filed with the Commission

and maintain the records of the Commission; (B)

prepare the agenda of meetings of the Commission and

before each meeting send to each Commission member a

copy of the agenda and meeting materials; (C) attend

meetings of the Commission and the Inquiry Board, keep

minutes of those meetings, and retain the minutes,

subject to the retention schedule approved by the

Chief Judge of the Court of Appeals; (D) serve as

attorney to the Commission; (E) serve as liaison to

the Board and to Investigative Counsel; and (F) have

such other administrative powers and duties assigned

by the Commission, other than duties committed to

Investigative Counsel by these Rules.

Committee note: Keeping minutes of Board meetings is

purely a secretarial service. Under Rule 18-407,

proceedings before the Board are confidential, and

those minutes therefore are not to be shared with

members of the Commission.

(3) Assistants and Other Staff

As the need arises and to the extent funds are

available in the Commission's budget, the Commission

may employ additional persons to assist the Executive

Secretary Counsel. The Executive Secretary Counsel

shall keep an accurate record of the time and expenses

of additional persons employed and ensure that the

cost does not exceed the amount allocated by the

Commission.

(e)

Investigative Counsel; Assistants

(1) Appointment; Compensation

Subject to approval by the Court of Appeals,

the Commission shall appoint an attorney with

substantial trial experience and familiarity with

these Rules and the Code of Judicial Conduct 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) Powers and 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 Board and

the Commission as required under these Rules or

directed by the Commission. All reports and

recommendations shall be in writing and maintained as

a record of Investigative Counsel and the recipient.

(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,

other than its Executive Secretary Counsel and any

persons employed pursuant to subsection (d)(3) of this

Rule to assist Investigative Counsel. Investigative

Counsel shall keep an accurate record of the time and

expenses of additional persons employed and ensure

that the cost does not exceed the amount allocated by

the Commission.

. . .

Rule 18-411 was accompanied by the following

Reporter’s note.

Proposed amendments to Rule 18-411 reflect the

recommendation to retitle the Executive Secretary

position as “Executive Counsel.” See the Reporter’s

note to Rule 19-702.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 5.

FILING OF CHARGES; PROCEEDINGS BEFORE COMMISSION

AMEND Rule 18-433 by retitling “Executive

Secretary” as “Executive Counsel,” as follows:

RULE 18-433.

DISCOVERY

. . .

(b)

Open File

Upon request by the judge or the judge's

attorney, at any time after service of charges upon

the judge (1) the Executive Secretary Counsel of the

Commission shall allow the judge or attorney to

inspect and copy the entire Commission record, (2)

Investigative Counsel shall (A) allow the judge or

attorney to inspect and copy all evidence accumulated

during the investigation and all material,

information, and statements as defined in Rule 2-402

(f), (B) provide summaries or reports of all oral

statements for which contemporaneously recorded

substantially verbatim recitals do not exist, and (C)

certify to the judge in writing that, except for

material that constitutes attorney work product or

that is subject to a lawful privilege or protective

order issued by the Commission, the material disclosed

constitutes the complete record of Investigative

Counsel as of the date of inspection.

. . .

Rule 18-433 was accompanied by the following

Reporter’s note.

A proposed amendment to Rule 18-433 reflects the

recommendation to retitle the Executive Secretary

position as “Executive Counsel.” See the Reporter’s

note to Rule 19-702.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 5.

FILING OF CHARGES; PROCEEDINGS BEFORE

COMMISSION

AMEND Rule 18-437 by retitling “Executive

Secretary” as “Executive Counsel,” as follows:

RULE 18-437.

PROCEEDINGS IN COURT OF APPEALS

. . .

(c)

Response

The Commission shall file a response within 15

30 days after service of the exceptions in accordance

with Rule 20-405. The Commission shall be represented

in the Court of Appeals by its Executive Secretary

Counsel or such other attorney as the Commission may

appoint. A copy of the response shall be served on

the judge in accordance with Rules 1-321 and 1-323.

. . .

Rule 18-437 was accompanied by the following

Reporter’s note.

A proposed amendment to Rule 18-437 reflects the

recommendation to retitle the Executive Secretary

position as “Executive Counsel.”

note to Rule 19-702.

See the Reporter’s

The bolded language reflects a proposed amendment

currently pending before the Court of Appeals as a

part of the 206th Report.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 5.

FILING OF CHARGES; PROCEEDINGS BEFORE

COMMISSION

AMEND Rule 18-438 by retitling “Executive

Secretary” as “Executive Counsel,” as follows:

RULE 18-438.

SUSPENSION OF EXECUTION OF DISCIPLINE

. . .

(c)

Response; Hearing

Within fifteen days after the filing of the

Commission's report, the judge may file a response

with the Court. The judge shall serve a copy of any

response on the Commission. The Court shall hold a

hearing on the Commission's report and any timely

response filed by the judge and may take whatever

action it finds appropriate. The Commission may be

represented in the proceeding by its Executive

Secretary Counsel or any other attorney the Commission

may appoint.

. . .

Rule 18-438 was accompanied by the following

Reporter’s note.

A proposed amendment to Rule 18-438 reflects the

recommendation to retitle the Executive Secretary

position as “Executive Counsel.”

note to Rule 19-702.

See the Reporter’s

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 100 – STATE BOARD OF LAW EXAMINERS AND

CHARACTER COMMITTEES

AMEND Rule 19-102 by retitling “secretary” as

“secretary and director” and by making stylistic

changes, as follows:

RULE 19-102.

STATE BOARD OF LAW EXAMINERS

. . .

(e)

Professional Assistants

The Board may appoint the professional

assistants necessary for the proper conduct of its

business. Each professional assistant shall be an

attorney admitted and in good standing to practice law

in Maryland and shall serve at the pleasure of the

Board.

Committee note: Professional assistants primarily

assist grading the bar examination. Section (e) does

not apply to the secretary and director or to

administrative staff.

(f)

Compensation of Board Members and Assistants

The members of the Board and assistants shall

receive the compensation fixed by the Court.

(g) Secretary and Director to the Board

The Court may appoint a an individual to serve

as the secretary and director to the Board., to The

individual shall hold office at the pleasure of the

Court. The secretary and director shall be a member

of a Bar of a state. The secretary and director shall

have the administrative powers and duties prescribed

by the Board and shall serve as the administrative

director of the Office of the State Board of Law

Examiners.

. . .

Rule 19-102 was accompanied by the following

Reporter’s note.

Proposed amendments to Rule 19-102 reflects a

recommendation to retitle the secretary position as

secretary and director. Stylistic changes are made to

clarify that the “secretary and director” is one

individual, rather than two. See the Reporter’s note

to Rule 19-702.

Mr. Frederick explained that several agencies have

individuals titled as “Secretary” or “Executive

Secretary.”

Those individuals requested changes to their titles

to more accurately reflect their roles and avoid confusion from

members of the public.

He said that proposed amendments to Rule

19-702 retitle the Executive Secretary to the Attorney Grievance

Commission as “Executive Counsel and Director.”

Proposed

amendments to Rules 18-405, 18-409.1, 18-411, 18-433, 18-437,

and 18-438 retitle the Executive Secretary to the Commission on

Judicial Disabilities as “Executive Counsel.”

Proposed

amendments to Rule 19-102 change the Secretary to the Board of

Law Examiners as “Secretary and Director.”

There being no motion to amend or reject the proposed

Rules, they were approved as presented.

Agenda Item 5. Consideration of proposed amendments to the

Rules in Title 19, Chapter 700 (Discipline, Inactive Status,

Resignation) and conforming amendments to: Rule 18-428

(Retirement as a Disposition), Rule 19-305.4 (Professional

Independence of an Attorney (5.4)), Rule 19-308.1 (Bar Admission

and Disciplinary Matters (8.1)), Rule 19-308.5 (Disciplinary

Authority; Choice of Law (8.5)), Rule 19-605 (Obligation of

Attorneys), Rule 19-606 (Enforcement of Obligations), Rule 19802 (Registration), and Rule 20-405 (Appellate Review).

_______________________________________________________________

Mr. Frederick said that proposed amendments to Title 19,

Chapter 700 were the result of multiple days of meetings by the

Attorneys and Judges Subcommittee and there are a number of

substantive changes, changes that conform the Rules to current

practice, and style changes.

The Rules include forms of non-

discipline and resources for attorneys under disability.

Mr. Frederick presented Rule 19-701, Definitions, for

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-701, as follows:

Rule 19-701.

DEFINITIONS

In this Chapter, the following definitions apply

except as otherwise expressly provided or as necessary

implication requires:

(a)

Address of Record

“Address of Record” means the address

maintained by the attorney with the Attorney

Information System in accordance with Rule 19-802.

(a)(b)

Attorney

“Attorney” means an individual admitted by the

Court of Appeals to practice law in this State. For

purposes of discipline or inactive status, the term

also includes (1) an individual not admitted by the

Court of Appeals but who engages in the practice of

law in this State, holds himself or herself out as

practicing law in this State, or who has the

obligation of supervision or control over another

attorney who engages in the practice of law in this

State, and (2) an individual who is seeking

reinstatement pursuant to Rules 19-751 or 19-752

following the imposition of discipline or inactive

status.

Cross reference: See Rule 19-308.5 (8.5) of the

Maryland Attorneys' Rules of Professional Conduct.

(b)(c)

Circuit

“Circuit” means Appellate Judicial Circuit.

(c)(d)

Client Protection Fund

“Client Protection Fund” means the Client

Protection Fund of the Bar of Maryland created by

Code, Business and Occupations and Professions

Article, § 10-311 and administered pursuant to Rule

19-604.

(d)(e)

Commission

“Commission” means the Attorney Grievance

Commission of Maryland.

(e)(f)

Conditional Diversion Agreement

“Conditional diversion agreement” means the

agreement provided for in Rule 19-716.

(g)

Complainant

“Complainant” means a person who has filed a

written allegation of misconduct or incapacity.

(h)

Disability

“Disability” means a mental or physical

condition that seriously interferes with the

performance of an attorney’s duties, and is, or is

likely to become, permanent.

(i) “Disability inactive status” means a status

determined pursuant to Rule 19-739.

(f)(j)

Disbarment

“Disbarment” means the unconditional

termination of any privilege to practice law in this

State pursuant to Rule 19-742 19-741 and, when applied

to an attorney not admitted by the Court of Appeals to

practice law, means the unconditional exclusion from

the admission to or the exercise of any privilege to

practice law in this State.

(k)

Email Address of Record

“Email Address of Record” means the email

address(es) maintained by the attorney with the

Attorney Information System in accordance with Rule

19-802.

(l)

Impairment; Impaired

“Impairment” or “Impaired” means a mental or

physical disability, including an addiction, that

seriously interferes with the performance of an

attorney’s duties but may be remediable and, if

remedied, is not likely to become permanent.

(g)(m)

Incapacity

“Incapacity” means the inability to render

adequate legal service by reason of mental or physical

illness or infirmity, or addiction to or dependence

upon alcohol or one or more drugs or other intoxicants

a disability or impairment.

(h)(n)

Office for the Practice of Law

“Office for the practice of law” means an

office a location in which an attorney usually devotes

a substantial part of the attorney's time to the

practice of law during ordinary business hours in the

traditional work week.

(i)(o)

Petition for Disciplinary or Remedial Action

“Petition for disciplinary or remedial action”

means the petition filed by Bar Counsel pursuant to

Rule 19-721.

(j)(p)

Professional Misconduct

“Professional misconduct” or “misconduct” has

the meaning set forth in Rule 19-308.4 (8.4) of the

Maryland Attorneys’ Rules of Professional Conduct in

Chapter 300 of this Title. The term includes the

knowing failure to respond to a request for

information authorized by this Chapter without

asserting, in writing, a privilege or other basis for

such failure.

(k)(q)

Reinstatement

“Reinstatement” means the termination of

disbarment, resignation, suspension, inactive status,

or any exclusion to practice law in this State

pursuant to an Order entered under Rule 19-751 or 19752.

(l)(r)

Serious Crime

“Serious crime” means (1) a felony under

Maryland law; (2) a crime committed in another state

or under federal law that would have been a felony

under Maryland law had the crime been committed in

Maryland or in violation of Maryland law, and (3) a

crime under federal law or the law of any state that

is punishable by imprisonment for three years or more,

or (4) any crime, a necessary element of which, as

determined by the statutory or common law definition

of the crime, involves interference with the

administration of justice, false swearing,

misrepresentation, fraud, deceit, bribery, extortion,

misappropriation, theft, or an attempt, conspiracy, or

solicitation of another to commit a serious crime.

(m)(s)

State

“State” means (1) a state, possession,

territory, or commonwealth of the United States or (2)

the District of Columbia.

(n)(t)

Statement of Charges

“Statement of charges” means the document filed

by Bar Counsel pursuant to Rule 19-718.

(o)(u)

Suspension

“Suspension” means the temporary termination of

the privilege to practice law, either for a fixed

period or indefinitely and, when applied to an

attorney not admitted by the Court of Appeals to

practice law, means the temporary or indefinite

exclusion from the admission to or the exercise of any

privilege to practice law in this State.

(p)

Warning

“Warning” means a notice that warns an attorney

about future misconduct.

Source:

(2016).

This Rule is derived from former Rule 16-701

Mr. Frederick explained that the definition of “serious

crime” in section (r) is the most substantive change.

The Chair

observed that a comment received on this Rule expressed concern

that a lawyer held in criminal contempt could be viewed as

having committed a serious crime.

He said that Bar Counsel is

unlikely to pursue disciplinary action in that situation but

agreed that it is theoretically possible.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-702, Attorney Grievance

Commission, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-702, as follows:

Rule 19-702.

(a)

ATTORNEY GRIEVANCE COMMISSION

Creation and Composition

There is an Attorney Grievance Commission which

shall consist of 12 members appointed by the Court of

Appeals. Nine members shall be attorneys and three

members shall not be attorneys.

(b)

Term

Subject to section (f) of this Rule, the term

of each member is three years. The terms of the

members shall be staggered so that the terms of three

attorney members and one non-attorney member expire

each year.

(c)

Compensation

A member of the Commission 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.

(d)

Chair and Vice Chair

The Court of Appeals shall designate one

attorney member as the Chair of the Commission and one

attorney member as the Vice Chair. In the absence or

disability of the Chair or upon an express delegation

of authority by the Chair, the Vice Chair shall have

the authority and perform the duties of the Chair.

(e) [Executive Secretary] or [Executive Counsel and

Director]

The Commission may select an attorney as

[Executive Secretary] or [Executive Counsel and

Director]. The [Executive Secretary] or [Executive

Counsel and Director] shall serve at the pleasure of

the Commission and receive the compensation set forth

in the budget of the Commission. As directed by the

Commission, the [Executive Secretary] or [Executive

Counsel and Director] shall (1) receive documents that

are filed with the Commission and maintain the records

of the Commission, (2) prepare the agenda of meetings

of the Commission and before each meeting send to each

Commission member a copy of the agenda and meeting

materials, (3) serve as in-house attorney to the

Commission, (4) serve as liaison to the Chair of the

Peer Review Committee, and (5) have such other

administrative powers and duties assigned by the

Commission.

(f)

Removal of Commission Members

The Court of Appeals may remove a member of the

Commission at any time.

(g)

Quorum

The presence of seven members of the Commission

constitutes a quorum for the transaction of business.

The concurrence of seven members is required for all

actions taken by the Commission other than adjournment

of a meeting for lack of a quorum.

(h)

Powers and Duties

The Commission has the powers and duties to:

(1) recommend to the Court of Appeals the adoption

of procedural and administrative guidelines and

policies consistent with these Rules;

(2) employ and prescribe the compensation of the

[Executive Secretary] or [Executive Counsel and

Director];

(3) with the approval of the Court of Appeals,

appoint Bar Counsel;

(4) supervise the activities of Bar Counsel;

(5) authorize Bar Counsel to employ attorneys,

investigators, and staff personnel and to prescribe

their compensation;

(6) appoint special counsel as the need arises, in

a particular matter, or delegate to the Chair of the

Commission the authority to appoint special counsel;

(7) appoint members of the Peer Review Committee,

designate the Chair and one or more Vice Chairs, and

remove any member for cause at any time;

(8) employ and prescribe the compensation of

personnel to assist the Chair of the Peer Review

Committee;

(9) exercise the authority granted in the Rules in

this Chapter with respect to the approval or

disapproval of (A) the dismissal of a complaint or

Statement of Charges, (B) the termination of a

complaint with or without a warning a letter of

cautionary advice or a letter of admonition, (C) a

Conditional Diversion Agreement, (D) a reprimand, or

(E) the filing of a Petition for Disciplinary or

Remedial Action;

(10) grant or deny any requests for extensions of

time permitted under the Rules of this Chapter or

delegate to the Chair of the Commission the authority

to grant or deny such requests;

(11) authorize the issuance of subpoenas in

accordance with these Rules or delegate to the Chair

of the Commission the authority to grant or deny such

authorizations;

(12) perform the duties required by Title 19,

Chapter 400 (Attorney Trust Accounts);

(13) administer the Disciplinary Fund;

(14) submit not later than September 1 October 15

of each year a report to the Court of Appeals

accounting for the Disciplinary Fund, evaluating the

effectiveness of the disciplinary system, and

recommending any changes; and

(15) submit annually to the State Court

Administrator for review and approval by the Court of

Appeals a proposed budget for the disciplinary system.

(i)

Effect of Chair's Decisions

When a request for action under this Chapter is

subject to the approval of the Chair of the

Commission, the Chair's approval of the request is

final and shall be reported to the Commission. If the

Chair denies the request or refers it to the

Commission for action, the Commission shall act upon

the request at its next meeting.

Source:

(2016).

This Rule is derived from former Rule 16-711

Mr. Frederick said that proposed Rule 19-702 includes the

proposed amendments from Item 4 regarding the title change for

the Executive Secretary.

The Rule also refers to a letter of

cautionary advice or letter of admonition, which is explained

further in other Rules.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-703, Bar Counsel, for

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-703, as follows:

Rule 19-703.

(a)

BAR COUNSEL

Appointment

Subject to approval by the Court of Appeals,

the Commission shall appoint an attorney as Bar

Counsel. Before appointing Bar Counsel, the

Commission shall notify bar associations and the

general public of the vacancy and consider any

recommendations that are timely submitted. Bar

Counsel shall serve at the pleasure of the Commission

and shall receive the compensation set forth in the

budget of the Commission.

(b)

Powers and Duties

Subject to the supervision and approval, if

required, of the Commission, Bar Counsel has the

powers and duties to:

(1) investigate professional misconduct or

incapacity on the part of an attorney;

(2) issue subpoenas as provided by Rule 19-712;

(3) enter into and implement Conditional Diversion

Agreements, issue notices, and administer recommend

warnings letters of cautionary advice or letters of

admonition, and propose reprimands;

(4) file statements of charges, participate in

proceedings before Peer Review Panels, and prosecute

all disciplinary and remedial proceedings;

(5) file and prosecute petitions for disciplinary

and remedial actions in the name of the Commission;

(6) monitor and enforce compliance with all

disciplinary and remedial orders of the Court of

Appeals;

(7) investigate petitions for reinstatement and

applications for resignation from the practice of law

and represent the Commission in those proceedings;

(8) initiate, intervene in, and prosecute actions

to enjoin the unauthorized practice of law;

(9) employ attorneys, investigators, and staff

personnel as authorized by the Commission at the

compensation set forth in the Commission's budget;

(10) discharge any employee;

(11) maintain dockets and records of all papers

filed in disciplinary or remedial proceedings;

(12) make reports to the Commission;

(13) Consult with the State and local bar

associations, public and private support groups, and

other appropriate persons in an effort to identify

programs or services that can (A) serve as a resource

to assist attorneys who may come before Bar Counsel,

the Commission, or the Court of Appeals, and (B) be

considered when recommending or determining an

appropriate disposition of complaints or charges

against those attorneys. Those resources may include

(A) treatment for emotional distress, mental disorders

or disability, or dependence on alcohol, drugs, or

other intoxicants, (B) assistance in law office

management, including mentoring, accounting,

bookkeeping, financial, and other professional

assistance relevant to the handling of client or

third-party funds, calendaring events and time

deadlines, and other professional or business

requirements related to the practice of law, and (C)

monitoring services when required by Bar Counsel, the

Commission, or the Court of Appeals; and

Committee Note: Subsection (b)(13) does not require

Bar Counsel or the Commission to create or fund any of

these programs or services or to require or recommend

their use in any particular case. The Rules Committee

is advised that programs and services of this kind do

exist or can be created. The Committee believes that

identifying those that are reliable and available may

permit a fairer and more effective disposition in

particular cases by Bar Counsel, the Commission, and

the Court of Appeals.

(13)(14) perform other duties prescribed by the

Commission, this Chapter, and the Rules in Title 19,

Chapter 400 (Attorney Trust Accounts).

Source:

(2016).

This Rule is derived from former Rule 16-712

Mr. Frederick explained that proposed Rule 19-703 also

refers to letters of cautionary advice and admonition.

The most

significant change is in subsection (b)(13), which authorizes

Bar Counsel to consult with State and local bar associations and

other appropriate groups to identify programs and services to

assist attorneys.

Mr. Kramer commented that he believes there

are significant problems with the disciplinary process not

addressed by the revisions.

He explained that he is concerned

by Bar Counsel’s exclusive power to determine if an attorney in

crisis is eligible for diversion or intervention.

He suggested

that the Attorney Grievance Commission should determine when

diversion is appropriate.

The Chair suggested that Mr. Kramer’s

comment should be deferred to the Rule on conditional diversion

agreements.

Mr. Kramer said he has no specific objection to

proposed Rule 19-703 but that the Rules overall create a

statutory scheme that gives significant power exclusively to Bar

Counsel.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-704, Peer Review Committee,

for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-704, as follows:

Rule 19-704.

(a)

PEER REVIEW COMMITTEE

Creation

There is a Peer Review Committee, the members

of which are appointed to serve on Peer Review Panels

pursuant to Rule 19-719.

(b)

Composition

The Peer Review Committee consists of the

number of individuals in each circuit that the

Commission determines is necessary to conduct the

volume of peer review proceedings. Of the number of

members determined for each circuit, one-third shall

be residents of that circuit who are not attorneys and

the remainder shall be attorneys who maintain offices

for the practice of law within that circuit.

Attorney Member

The Commission may not appoint as an attorney

member to the Peer Review Committee an individual who:

(1) is not admitted by the Court of Appeals to

practice law in Maryland;

(2) has not actively and lawfully engaged in the

practice of law in Maryland for at least five years;

(3) is a judge of a court of record;

(4) is the subject of a pending statement of

charges docketed complaint or petition for

disciplinary or remedial action; or

(5) was ever disbarred or suspended by the Court

of Appeals or by a disciplinary body or court of the

United States or any state.

(d) Individuals Ineligible for Appointment as a

Non-attorney Member

The Commission may not appoint as a nonattorney member to the Peer Review Committee an

individual who:

(1) has been convicted of a serious crime and the

conviction has not been reversed or vacated; or

(2) is the complainant in a pending matter against

an attorney under the Rules in this Chapter.

(e)

Procedure for Appointment

Before appointing members of the Peer Review

Committee, the Commission shall notify bar

associations and the general public in the appropriate

circuit and consider any applications and

recommendations that are timely submitted. The

Commission shall prepare a brief notice informing

attorneys how they may apply to serve on the Peer

Review Committee and deliver the notice to the

Trustees of the Client Protection Fund of the Bar of

Maryland, who at least once a year shall send a copy

of the notice to each attorney who is required to pay

an annual fee to the Fund post the notice on the

Commission’s website.

(f)

Term

The term of each member is two years. The

Commission may extend the term of any member assigned

to a Peer Review Panel until the completion of a

pending matter. A member may be reappointed by the

Commission.

(g)

Chair and Vice Chair

The Commission shall designate one attorney

member of the Peer Review Committee as Chair and one

or more attorney members as Vice Chairs. In the

absence or disability of the Chair or upon express

delegation of authority by the Chair, the Vice Chair

shall have the authority and perform the duties of the

Chair.

(h)

Compensation

A member of the Peer Review Committee 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.

(i)

Removal

The Commission may remove a member of the Peer

Review Committee for cause at any time.

Source:

(2016).

This Rule is derived from former Rule 16-713

Mr. Frederick said that proposed Rule 19-704 makes certain

changes to the Peer Review Committee.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-705, Disciplinary Fund, for

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-705, as follows:

Rule 19-705.

(a)

DISCIPLINARY FUND

Establishment; Nature

There is a Disciplinary Fund. The Fund is

created and administered pursuant to the

Constitutional authority of the Court of Appeals to

regulate the practice of law in the State of Maryland

and to implement and enforce the Maryland Attorneys'

Rules of Professional Conduct adopted by the Court.

The Fund consists entirely of contributions made by

attorneys pursuant to section (b) of this Rule, and

income from those contributions, and costs recovered

pursuant to law or court order. It is dedicated

entirely to the purposes established by the Rules in

this Title.

(b)

Payment by Attorneys

As a condition precedent to the practice of

law, each attorney shall pay annually an amount

prescribed by the Court of Appeals. The amount shall

be in addition to and paid by the same date as other

sums required to be paid to the Client Protection Fund

pursuant to Rule 19-605.

(c)

Collection and Disbursement

The treasurer of the Client Protection Fund of

the Bar of Maryland shall collect and remit to the

Commission the sums paid by attorneys to the

Disciplinary Fund.

(d)

Audit

The Commission shall direct annually an

independent audit of the Disciplinary Fund. The

expense of the audit shall be paid out of the Fund.

(e)

Enforcement

Enforcement of payment of annual assessments of

attorneys pursuant to this Rule is governed by the

provisions of Rule 19-606.

Source:

(2016).

This Rule is derived from former Rule 16-714

Mr. Frederick said that proposed Rule 19-705 contains minor

changes.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-706, Sanctions and

Remedies, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-706, as follows:

Rule 19-706.

(a)

SANCTIONS AND REMEDIES

For Professional Misconduct

An attorney who is found to have committed

professional misconduct is subject to one or more of

the following sanctions and remedies:

(1) disbarment by the Court of Appeals;

(2) suspension, for a fixed period or

indefinitely, by the Court of Appeals;

(3) probation under terms and conditions as

specified by the Court of Appeals;

(3)(4) reprimand by the Court of Appeals or, with

the attorney's consent, by the Commission;

(4)(5) conditional diversion in accordance with a

Conditional Diversion Agreement; and

(5)(6) termination of a disciplinary proceeding

with or without a warning dismissal of the complaint

with or without a letter of cautionary advice or, with

the attorney’s consent, a letter of admonition; or

(7) placement on permanent retired status.

(b)

For Incapacity

An attorney who is found to have an incapacity

is subject to the following:

(1) placement on transfer to disability inactive

status, subject to further order of the Court of

Appeals;

(2) conditional diversion in accordance with a

Conditional Diversion Agreement; or

(3) termination of a remedial proceeding placement

on permanent retired status.

Source:

(2016).

This Rule is derived from former Rule 16-721

Mr. Frederick explained that proposed Rule 19-706 refers to

probation and letters of cautionary advice and admonition.

letter of cautionary device is a “lighter” warning which is not

disclosed to the complaining person.

A letter of admonition is

more serious and can be rejected by a lawyer.

He explained that

if issued, the complaining individual is informed that the

letter was issued though no details of the substance are

disclosed.

He said that this Rule contains the “menu” of

disciplinary options.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-707, Confidentiality, for

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-707, as follows:

Rule 19-707.

(a)

CONFIDENTIALITY

Peer Review Meetings Proceedings

(1) Confidentiality Generally

All records and proceedings of a Peer Review

Panel, including all communications, whether written

or oral, and all non-criminal conduct, made or

occurring at a meeting of a peer review panel, are

confidential and not open to public disclosure or

inspection. Except as otherwise expressly permitted

in this Rule, individuals present at the meeting of

the panel shall maintain that confidentiality and may

not disclose or be compelled to disclose such

communications or conduct in any judicial,

administrative, or other proceeding.

(2) Privilege

Communications and conduct that are

confidential under this Rule are privileged and are

not subject to discovery, but information that is

otherwise admissible or subject to discovery does not

become inadmissible or protected from disclosure

solely by reason of its use or occurrence at a peer

review meeting.

(b)

Other Confidential Material

Except as otherwise provided in this Rule, the

following records and proceedings listed in this

section and the contents of those records and

proceedings are (1) confidential and not open to

public inspection and (2) may not be disclosed by Bar

Counsel, the staff and investigators of the Office of

Bar Counsel, any member of the Commission, the staff

of the Commission, any member of the Peer Review

Committee, any attorney involved in the proceeding,

or, in any civil action or proceeding, by the

complainant or an attorney for or agent of the

complainant:

(A)(1) the records of an investigation by Bar

Counsel, including the existence and content of any

complaint or response, until Bar Counsel files a

petition for disciplinary or remedial action pursuant

to Rule 19-721;

(B) the records and proceedings of a Peer Review

Panel;

(C)(2) information that is the subject of a

protective order;

(D)(3) the contents of a prior private reprimand

or Bar Counsel reprimand pursuant to the Attorney

Disciplinary Rules in effect prior to July 1, 2001,

but the fact that a private or Bar Counsel reprimand

was issued and the facts underlying the reprimand may

be disclosed to a Peer Review Panel, a circuit court,

and the Court of Appeals in a proceeding against the

attorney alleging similar misconduct;

Committee note: Disclosure under subsection (b)(2)(D)

of this Rule is not dependent upon a finding of

relevance under Rule 19-720 (c)(1).

(E)(4) the contents of a prior warning issued by

the Commission pursuant to the Attorney Disciplinary

Rules in effect prior to October January 1, 2020 2021,

but the fact that a warning was issued and the facts

underlying the warning may be disclosed to a Peer

Review Panel, a circuit court, and the Court of

Appeals in a subsequent proceeding against the

attorney when relevant to a complaint alleging similar

conduct by the attorney as provided in Rule 19-715

(d);

(5) the contents of a letter of admonition issued

by the Commission as provided in Rule 19-714;

(6) The contents of a letter of cautionary advice

issued by the Commission as provided in Rule 19-714;

(F)(7) the contents of a Conditional Diversion

Agreement as provided in Rule 19-716 (j)(2), except

that Bar Counsel may disclose to the complainant, when

applicable, the fact that, upon successful completion

of the Conditional Diversion Agreement, the Commission

will issue a reprimand to the attorney as provided in

Rule 19-716 (c)(3)(A)(ix);

(G)(8) the records and proceedings of the

Commission on matters that are confidential under this

Rule;

(9) a motion filed pursuant to Rule 19-712 (f) or

(i) and records and proceedings on that motion;

(H)(10) a Petition for Disciplinary or Remedial

Action based solely on the alleged incapacity of an

attorney and records and proceedings, other than the

final order in proceedings in the Court of Appeals, on

that petition; and

(I)(11) a petition for an audit of an attorney's

accounts filed pursuant to Rule 19-731 and records and

proceedings, other than proceedings in the Court of

Appeals, on that petition.

(c)

Public Proceedings and Records

The following records and proceedings are

public and open to inspection:

(1) except as otherwise provided in subsection

(b)(10) of this Rule, a Petition for Disciplinary or

Remedial Action, all proceedings on that petition, and

all documents or other items admitted into evidence at

any hearing on the petition;

(2) an affidavit filed pursuant to Rule 19-736

that consents to discipline and an order that disbars,

suspends, or reprimands the attorney by consent;

(3) a reprimand issued by the Commission pursuant

to Rule 19-717 or Rule 19-716; and

(4) except as otherwise provided by order of the

Court of Appeals, all filings and proceedings under

this Chapter in the Court of Appeals.

(d)

Required Disclosures by Bar Counsel

(1) Reprimand by Commission

If an attorney is reprimanded by the

Commission, Bar Counsel shall notify the Clerk of the

Court of Appeals.

(2) Conviction of a Serious Crime

If Bar Counsel has received and verified

information that an attorney has been convicted of a

serious crime, Bar Counsel shall notify the Commission

and the Clerk of the Court of Appeals.

(e) Required Disclosures by Clerk of the Court of

Appeals

If an attorney resigns or is reprimanded,

convicted of a serious crime, or, by order of the

Court of Appeals, disbarred, suspended, reinstated, or

transferred to disability inactive status, the Clerk

of the Court of Appeals of Maryland shall notify the

National Lawyer Regulatory Data Bank of the American

Bar Association and the disciplinary authority of

every other jurisdiction in which the attorney is

admitted to practice. In addition, the Clerk shall

comply with Rule 19-761 upon entry of each order of

the Court by which an attorney is disbarred,

suspended, reinstated, or transferred to disability

inactive status.

(f)

Permitted Disclosures

(1) Written Waiver of Attorney

If the attorney has signed a written waiver of

confidentiality, the Commission or Bar Counsel may

disclose information to the extent permitted by the

waiver.

(2) To Investigate a Complaint; Prepare a Defense

to a Complaint; Prepare for a Hearing

The parties to a disciplinary or remedial

action may use confidential information other than the

records and proceedings of a Peer Review Panel to the

extent reasonably necessary to investigate a

complaint, prepare a defense to a complaint, or

prepare for a public hearing in the action but shall

preserve the confidentiality of the information in all

other respects.

(3) Communications With Complainant

Upon written request of a complainant, Bar

Counsel may disclose to the complainant the status of

an investigation and of any disciplinary or remedial

proceedings resulting from information from the

complainant.

(4) Requests by Authorities

(i) Upon receiving a request that complies

with this subsection, the Commission or Bar Counsel

may disclose the pendency, subject matter, status, and

disposition of disciplinary or remedial proceedings

involving an attorney or former attorney that did not

result in dismissal of a complaint. The request must

be made in writing by a judicial nominating

commission, a bar admission authority, the President

of the United States, the Governor of a state, or a

committee of the General Assembly of Maryland or of

the United States Congress. The requesting entity

must represent that it is considering the nomination,

appointment, confirmation, approval, or admission to

practice of the attorney or former attorney, and that

the information will be treated as confidential and

without the consent of the attorney will not be copied

or disclosed to anyone other than the requesting

entity members or staff of the entity who require the

information in order for the entity to perform its

authorized function.

(ii) With the approval of the Chair of the

Commission, Bar Counsel may disclose the pendency,

subject matter, status, and disposition of

disciplinary or remedial proceedings involving an

attorney or former attorney that did not result in

dismissal of a complaint to a judicial nominating

commission, a bar admission authority, the President

of the United States, the Governor of a state, or a

committee of the General Assembly of Maryland or of

the United States Congress. Bar Counsel must obtain a

statement from the entity that it is considering the

nomination, appointment, confirmation, approval, or

admission to practice of the attorney or former

attorney, and that the information will be treated as

confidential and without the consent of the attorney

will not be copied or disclosed to anyone other than

the members or staff of the entity who require the

information in order for the entity to perform its

authorized function.

(5) Request by Client Protection Fund

Upon written request by the Client Protection

Fund, Bar Counsel or the Commission may permit an

authorized officer of the Fund to review and copy

specific records relating to an attorney that are

relevant to a claim pending before the Fund. Unless

the Court orders otherwise, the Fund shall maintain

the confidentiality of any records it has reviewed or

copied.

(6) Explanatory Statements

The Chair of the Commission may issue a brief

explanatory statement necessary to correct any public

misperception about actual or possible proceedings.

(7) Court Order or Grand Jury Subpoena

Bar Counsel shall comply with an order of a

court or a subpoena issued by a duly constituted grand

jury of this State or the United States to produce

records and disclose confidential information

concerning the attorney.

(8) Law Enforcement Officials

With the approval of the Chair of the

Commission, Bar Counsel may provide to law enforcement

and prosecuting officials information involving

possible criminal activity.

(9) Other Disciplinary Authorities

With the approval of the Chair of the

Commission, Bar Counsel may provide to the

disciplinary authority of any other jurisdiction in

which an attorney is admitted to practice, maintains a

location for the practice of law, or engages in the

unauthorized practice of law, records and other

confidential information concerning the attorney.

(10) Lawyer Assistance; Adult Protective Services

Bar Counsel may disclose the existence of a

complaint to a representative of a Lawyer Assistance

Program sponsored by a state or local bar association

or the appropriate Department of Human Services or

department of social services regarding the lawyer's

potential need for treatment for substance abuse or a

mental health issue. Disclosure under this rule shall

be limited to the existence of the complaint and the

issues of concern and shall not reveal the nature or

details of the complaint unless such disclosure is

necessary.

Committee Note: This subsection is intended to allow

Bar Counsel to disclose the existence of a complaint

to a lawyer assistance program when necessary to

assist the attorney in receiving appropriate services

for substance abuse or mental health problems revealed

or implicit from the complaint or through an

investigation by Bar Counsel. It is not intended to

permit Bar Counsel to act on confidential information

reported by a lawyer assistance program to Bar Counsel

absent a signed waiver or consent by the attorney. Bar

Counsel may not act on any such information unless

accompanied by a signed waiver or consent by the

attorney. This does not preclude Bar Counsel from

using or considering that kind of information lawfully

obtained from other sources.

(11) Bar Counsel may disclose the pendency,

subject matter, status, and disposition of

disciplinary or remedial proceedings involving an

attorney or former attorney that did not result in

dismissal of a complaint in response to a Petition for

Reinstatement or a Petition for Resignation filed by

an attorney.

(10)(12) Summarized Information

In order to improve the administration of

justice, the Commission and Bar Counsel may publish

reports and summaries of confidential investigations,

charges, and disciplinary or remedial proceedings,

provided that the identity of attorneys, complainants,

and witnesses is not revealed.

Source:

(2016).

This Rule is derived from former Rule 16-723

Mr. Frederick explained that proposed Rule 19-707 addresses

confidentiality and provides that a letter of cautionary advice

or admonition is not to be disclosed except under certain

circumstances.

He noted that subsection (f)(4)(B), which is

mislabeled as (f)(4)(ii) in the materials, applies to situations

where attorneys are appointed to state, federal, or local

positions that require a background check.

Subsection (f)(10)

applies to attempting to obtain assistance for attorneys through

a Lawyer Assistance Program or appropriate governmental

department.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-708, Service of Papers on

Attorney, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-708, as follows:

Rule 19-708.

(a)

SERVICE OF PAPERS ON ATTORNEY

Statement of Charges Original Process

A copy of a Statement of Charges and petition

filed pursuant to Rule 19-718 shall be served on an

attorney in the manner prescribed by Rule 2-121. If

after reasonable efforts the attorney cannot be served

personally, service may be made upon the employee

designated by the Client Protection Fund pursuant to

Rule 19-604 (a)(12), who shall be deemed the

attorney's agent for receipt of service. The Fund's

employee shall send, by both certified mail and

ordinary mail, a copy of the papers so served to the

attorney at the address maintained in the Fund's

records and to any other address provided by Bar

Counsel.

(b)

Service of Other Papers

Except as otherwise provided in this Chapter,

other notices and papers may be served on an attorney

in the manner provided by Rule 1-321 for service of

papers after an original pleading or by email to all

email addresses of record maintained by the attorney

with the Attorney Information System in accordance

with Rule 19-802.

Committee note: The attorney's address contained in

the records of the Client Protection Fund of the Bar

of Maryland may be the attorney's last known address.

Mailing address(es) and email address(es) maintained

by AIS may be relied upon by Bar Counsel and the

Commission as the attorney’s current information in

accordance with Rule 19-802 (e).

Cross reference: See Rule 19-718 concerning service

of a Statement of Charges. See Rule 19-721 concerning

service of a Petition for Disciplinary or Remedial

Action.

Source:

(2016).

This Rule is derived from former Rule 16-724

Mr. Frederick said that proposed Rule 19-708 allows for

service by email.

The Chair commented that there is a pending

Rule change to make the Attorney Grievance Commission a

constituent agency with access to the Attorney Information

System.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-711, Complaint;

Investigation by Bar Counsel, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-711, as follows:

Rule 19-711.

(a)

COMPLAINT; INVESTIGATION BY BAR COUNSEL

Who May Initiate

Bar Counsel may file a complaint on Bar

Counsel's own initiative, based on information from

any source. Any other individual person also may file

a complaint with Bar Counsel. Any communication to

Bar Counsel that (1) is in writing, (2) alleges that

an attorney has engaged in professional misconduct or

has an incapacity, (3) includes the name and address

contact information of the individual person making

the communication, and (4) states facts which, if

true, would constitute professional misconduct by or

demonstrate an incapacity of an attorney constitutes a

complaint.

(b)

Review of Complaint

(1) Bar Counsel shall make an inquiry concerning

every complaint that is not facially frivolous,

unfounded, or duplicative.

(2) If Bar Counsel concludes that a complaint is

without merit, does not allege facts which, if true,

would demonstrate either professional misconduct or

incapacity, or is duplicative, Bar Counsel shall

decline the complaint and notify the complainant. Bar

Counsel also may decline a complaint submitted by an

individual person who provides information about an

attorney derived from published news reports or thirdparty sources where the complainant appears to have no

personal knowledge of the information being submitted.

(3) Unless a complaint is declined for one of the

reasons set forth in subsection (b)(2) of this Rule,

Bar Counsel ordinarily shall obtain a written response

from the attorney who is the subject of a complaint

and consider other appropriate information to assist

in evaluating the merits of the complaint. If Bar

Counsel determines based upon such evaluation that an

insufficient basis exists to demonstrate misconduct or

incapacity or that the overall circumstances do not

warrant investigation, Bar Counsel may close the file

without approval of the Commission. Otherwise,

subject to subsection (b)(4) (b)(5) of this Rule, Bar

Counsel shall (A) docket the complaint, (B) notify the

complainant and explain in writing the procedures for

investigating and processing the complaint, (C) comply

with the notice requirement of section (c) of this

Rule, and (D) conduct an investigation to determine

whether reasonable grounds exist to support the

allegations of the complaint there exists a

substantial basis to conclude the attorney committed

professional misconduct or is incapacitated.

(4) If a complaint is declined or closed by Bar

Counsel, allegations made in the complaint may not be

used in any disciplinary proceeding against the

attorney. If additional information becomes known to

Bar Counsel regarding a complaint that was declined or

closed before docketing, the earlier allegations may

be reopened.

Committee note: In this Rule, “docket” refers to the

process of listing a complaint on the docket of active

investigations maintained by Bar Counsel, rather than

on a docket maintained by the clerk of a court.

Before determining whether a complaint is frivolous or

unfounded, Bar Counsel may contact the attorney and

obtain an informal response to the allegations.

(4)(5) If Bar Counsel concludes that a civil or

criminal action involving material allegations against

the attorney substantially similar or related to those

alleged in the complaint is pending in any court of

record in the United States, or that substantially

similar or related allegations presently are under

investigation by a law enforcement, regulatory, or

disciplinary agency, Bar Counsel, with the approval of

the Commission, may defer action on the complaint

pending a determination of those allegations in the

pending action or investigation. Bar Counsel shall

notify the complainant of that decision and, during

the period of the deferral, shall report to the

Commission, at least every six months 90 days, the

status of the other action or investigation. The

Commission, at any time, may direct Bar Counsel to

proceed in accordance with subsection (b)(1) or (3) of

this Rule.

(c)

Notice to Attorney

(1) Except as otherwise provided in this section,

Bar Counsel shall notify the attorney who is the

subject of the complaint that Bar Counsel is

undertaking an investigation to determine whether the

attorney has engaged in professional misconduct or is

incapacitated. The notice shall be given before the

conclusion of the investigation and shall include the

name and address contact information of the

complainant and the general nature of the professional

misconduct or incapacity under investigation. As part

of the notice, Bar Counsel may demand that the

attorney provide information and records that Bar

Counsel deems appropriate and relevant to the

investigation. The notice shall state the time within

which the attorney shall provide the information and

any other information that the attorney may wish to

present. The notice shall be served on the attorney

in accordance with Rule 19-708 (b).

(2) Bar Counsel need not give notice of

investigation to an attorney if, with the approval of

the Commission, Bar Counsel proceeds under Rule 19737, 19-738, or 19-739.

(d)

Time for Completing Investigation

(1) Generally

Subject to subsection (b)(4)(b)(5) of this

Rule or unless the time is extended pursuant to

subsection (d)(2) of this Rule, Bar Counsel shall

complete an investigation within 90 120 days after

docketing the complaint.

(2) Extension

(A) Upon written request by Bar Counsel and a

finding of good cause by the Commission, the

Commission may grant an extension for a specified

period. Upon a separate request by Bar Counsel and a

finding of good cause, the Commission may renew an

extension for a specified period.

(B) The Commission may not grant or renew an

extension, at any one time, of more than 60 days

unless it finds specific good cause for a longer

extension.

granted, Bar Counsel shall provide the Commission with

a status report at least every 60 days.

(3) Sanction

For failure to comply with the time

requirements of section (d) of this Rule, the

Commission may take any action appropriate under the

circumstances, including dismissal of the complaint

and termination of the investigation.

Source:

(2016).

This Rule is derived from former Rule 16-731

Mr. Frederick said that proposed Rule 19-711 allows Bar

Counsel to reopen and pursue a case if more information comes

out after the case is closed.

The Chair pointed out that this

is in line with the American Bar Association Model Rules.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-712, Investigative

Subpoena, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-712, as follows:

Rule 19-712.

(a)

INVESTIGATIVE SUBPOENA

Approval and Issuance

(1) The Chair of the Commission may authorize Bar

Counsel to issue a subpoena to (A) compel attendance

of witnesses and the production of the person to whom

it is directed to attend, give testimony, and produce

designated documents, electronically stored

information, or other tangible things at a time and

place specified in the subpoena, or (B) to compel the

attorney to submit to a mental or physical examination

by a suitably licensed or certified examiner.

(2) The Chair of the Commission may authorize a

subpoena if the Chair finds that (A) the subpoena is

necessary to and in furtherance of an investigation

being conducted by Bar Counsel pursuant to Rule 19711, 19-735, 19-751, or 19-752 or (B) the subpoena has

been requested by a disciplinary authority of another

jurisdiction pursuant to the law of that jurisdiction

for use in a disciplinary or remedial proceeding in

that jurisdiction to determine alleged professional

misconduct or incapacity of an attorney subject to the

jurisdiction of that disciplinary authority.

(2)(3) Upon approval, Bar Counsel may issue the

subpoena.

(b)

Contents

(1) A subpoena shall comply with the requirements

of Rule 2-510 (c), except that to the extent

practicable, a subpoena shall not identify the

attorney under investigation. A subpoena to compel

attendance of a witness shall include or be

accompanied by a notice that the witness (1) has the

right to consult with an attorney with respect to the

assertion of a privilege or any other matter

pertaining to the subpoena and (2) may file a motion

for judicial relief under Rule 2-510.

(2) A subpoena to compel the attorney to submit to

a mental or physical examination shall specify the

time and place, manner, conditions, and scope of the

examination and the person or persons by whom it is to

be made.

(c)

Service

Except for service upon an attorney in accordance with

Rule 19-708 (b), a

(1) Generally

A subpoena shall be served in accordance with

Rule 2-510 (d). Promptly after service of a subpoena

on a person other than the attorney under

investigation and in addition to giving any other

notice required by law, Bar Counsel shall serve a copy

of the subpoena on the attorney under investigation.

Cross reference: For examples of other notice

required by law, see Code, Financial Institutions

Article, § 1-304, concerning notice to depositors of

subpoenas for financial records; Code, Health General

Article, § 4-306 concerning disclosure of medical

records, and Code, Health General Article, § 4-307,

concerning notice of a request for issuance of

compulsory process seeking medical records related to

mental health services. See also Rule 19-411 (b),

concerning notices required in connection with IOLTA

accounts.

(2)

Alternative Service

If after reasonable efforts the attorney

cannot be served personally, service may be made on

the attorney by sending by email to all email

addresses of record maintained by the attorney with

the Attorney Information System in accordance with

Rule 19-802.

(g)(d)

Recording of Statements

All statements testimony by the subpoenaed

witness shall be under oath and shall be

contemporaneously recorded stenographically or

electronically by electronic audio or audio-video

recording.

(d)(e)

Objection

The person served with the subpoena or the

attorney under investigation may file a motion in the

circuit court for the county in which the subpoena was

served for any order permitted by Rule 2-510 (e). The

motion shall be filed promptly and, whenever

practicable, at or before the time specified in the

subpoena for compliance.

(e)(f)

Enforcement

(1) Order enforcing compliance

(A) If (i) the person served with a subpoena

fails to file a timely motion under section (e) or the

court denies such a motion, and (ii) the person fails

to comply with the subpoena, [o]n the motion of Bar

Counsel may file a motion in the circuit court for the

county in which the subpoena was served for an order

to, the court may enforce compliance with the

subpoena.

(B) Papers filed in the circuit court pursuant

to this subsection shall be sealed upon filing and

shall be open to inspection only by order of the

court. A hearing before the court shall be on the

record and shall be conducted outside of the presence

of all individuals other than Bar Counsel, the

attorney, the judge, and those individuals whose

presence the court deems necessary.

(2) Petition for contempt

If a person willfully fails to comply with an

order issued under subsection (f)(1), Bar Counsel may

file a petition for contempt pursuant to Rule 15-206

or for a body attachment pursuant to Rule 2-510 (j).

(3) Other sanctions

If the person is the attorney who is the

subject of the investigation, Bar Counsel may, in

addition, (A) with the approval of the Chair of the

Commission, file with the Court of Appeals a petition

to suspend the attorney from practicing law pending

compliance with the subpoena, and (B) file a statement

of charges pursuant to Rule 19-718 for violation of

Rule 19-308.1. The attorney may file a response to a

petition for suspension within 15 days after service

of the petition. The Court may decide the issue on

the papers filed or shall hold an expedited hearing on

the petition.

(f)(g)

Confidentiality

Any paper filed in the circuit court with

respect to a subpoena shall be sealed upon filing and

shall be open to inspection only by order of the

court. A hearing before the court on any motion shall

be on the record and shall be conducted out of the

presence of all individuals other than Bar Counsel,

the attorney, and those individuals whose presence the

court deems necessary.

(h)

Petition for Disciplinary or Remedial Action

(1) If the circuit court makes a finding of

contempt pursuant to Rule 15-206, Bar Counsel, with

the approval of the Chair of the Commission, may file

a Petition for Disciplinary or Remedial Action in the

Court of Appeals pursuant to Rule 19-721 (a)(1). A

certified copy of the order of contempt shall be

attached to the Petition, and a copy of the Petition

and order shall be served on the attorney in

accordance with Rule 19-723.

(2) Show Cause Order

When a petition and certified copy of an order

of contempt have been filed, the Court of Appeals

shall order that the attorney, within 15 days from the

date of the order, show cause in writing why the

attorney should not be suspended immediately from the

practice of law until the further order of the Court

of Appeals.

(3) Action by the Court of Appeals

Upon consideration of the petition and any

answer to the order to show cause, the Court of

Appeals may enter an order (1) immediately suspending

the attorney from the practice of law, (2) designating

a judge pursuant to Rule 19-722 to hold a hearing in

accordance with Rule 19-727, or (3) containing any

other appropriate provisions. The provisions of Rules

19-741 and 19-743 apply to an order under this section

that suspends an attorney.

(4) Presumptive Effect of Order of Contempt

A finding of contempt is presumptive evidence

that the attorney is in contempt of court, but the

introduction of such evidence does not preclude Bar

Counsel or the attorney from introducing additional

evidence or otherwise showing cause why no suspension

should be imposed.

(5) Termination of Suspension

On notification by Bar Counsel that the

attorney has purged the contempt, the Court of Appeals

shall order the attorney reinstated to the practice of

law, unless other grounds exists for the suspension to

remain in effect.

(6) Other Disciplinary Proceedings

Proceedings under this Rule shall not preclude

the use of the facts underlying the order of contempt

when relevant to a pending or subsequent disciplinary

proceeding against the attorney.

Source:

(2016).

This Rule is derived from former Rule 16-732

Mr. Frederick explained that proposed Rule 19-712 allows

for alternative service if traditional service is not successful

and provides contempt options for failure to comply with an

order.

Judge Bryant inquired as to whether hearing transcripts

should be sealed in addition to the papers.

The Chair responded

that a sentence could be added stating “any transcript of the

hearing shall be sealed.”

Judge Bryant moved to amend the Rule

to adopt the Chair’s language.

The motion was seconded and

approved by majority vote.

There being no motion to further amend or reject the

proposed Rule, it was approved as amended.

Mr. Frederick presented Rule 19-714, Action by Bar Counsel

Upon Completion of Investigation, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-714, as follows:

Rule 19-714. ACTION BY BAR COUNSEL UPON COMPLETION OF

INVESTIGATION

Upon completion of an investigation, Bar Counsel

shall:

(a) recommend to the Commission dismissal of the

complaint or termination of the proceeding without

disciplinary or remedial action, with or without a

warning a letter of cautionary advice or a letter of

admonition, in accordance with Rule 19-715;

(b) recommend to the Commission approval of a

Conditional Diversion Agreement in accordance with

Rule 19-716;

accordance with Rule 19-717;

(d) recommend to the Commission that the attorney

be placed on permanent retired status in accordance

with Rule 19-717.1;

(d)(e) file with the Commission a Statement of

Charges in accordance with Rule 19-718;

(e)(f) recommend to the Commission the immediate

filing of a Petition for Disciplinary or Remedial

Action, with or without collateral remedial

proceedings, in accordance with Rules 19-737, 19-738,

or 19-739, or 19-741.

Source:

(2016).

This Rule is derived from former Rule 16-734

Mr. Frederick said that proposed Rule 19-714 adds

references to letters of cautionary advice and admonition.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-715, Dismissal of

Complaint; Dismissal of Disciplinary or Remedial Proceeding, for

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-715, as follows:

Rule 19-715. DISMISSAL OF COMPLAINT; TERMINATION

DISMISSAL OF DISCIPLINARY OR REMEDIAL PROCEEDING

(a)

Panel

Recommendation by Bar Counsel or Peer Review

Bar Counsel, upon completion of an

investigation, or a Peer Review Panel, after a meeting

of the Panel, may recommend to the Commission that:

(1) a complaint be dismissed because the evidence

fails to show that the attorney has engaged in

professional misconduct or is incapacitated; or

(2) a disciplinary or remedial proceeding be (A)

terminated dismissed, with or without a warning a

letter of cautionary advice or letter of admonition,

because any professional misconduct on the part of the

attorney was not sufficiently serious to warrant

discipline and is not likely to be repeated, or (B)

terminated dismissed, without a warning a letter of

cautionary advice or letter of admonition, because any

incapacity on the part of the attorney is not

sufficiently serious or long-lasting to warrant

remedial action or, if resolved, is not likely to

recur.

(b)

Action by Commission

If satisfied with the recommendation of Bar

Counsel or the Peer Review Panel, the Commission shall

dismiss the complaint or terminate dismiss the

disciplinary or remedial proceeding, as appropriate.

If the recommendation includes a warning a letter of

cautionary advice or letter of admonition, the matter

shall proceed as provided in section (c) of this Rule.

Letter of Cautionary Advice or Letter of Admonition

(1) Letter of Cautionary Advice

Panel

(A) Recommendation by Bar Counsel or Peer Review

Bar Counsel or the Peer Review Panel may

recommend to the Commission that the termination

dismissal of a disciplinary or remedial proceeding be

accompanied by a warning letter of cautionary advice

upon their respective conclusion that such a warning

letter would be helpful to ensure that the conduct

that led to the proceeding is not repeated, the

attorney has no prior sanction, and the attorney has

not received a prior warning, letter of cautionary

advice, or letter of admonition for similar conduct by

the attorney.

(2)(B) Action by Commission

(A)(i) If satisfied that termination dismissal

of the disciplinary or remedial proceeding should be

accompanied by a warning letter of cautionary advice,

the Commission shall mail to the attorney a notice

that states (i)(1) that on or after 30 days from the

date of the notice, the Commission intends to

terminate dismiss the disciplinary or remedial

proceeding and accompany the termination dismissal

with a warning letter of cautionary advice. (ii) the

content of the proposed warning, and (iii) that the

attorney may reject the proposed warning by filing a

written rejection with the Commission no later than 25

days after the date of the notice.

(B) If the warning is not timely rejected, the

Commission shall issue the warning when it dismisses

the disciplinary or remedial proceeding.

warning shall not be issued, but Bar Counsel or the

Commission may take any other action permitted under

this Chapter.

(3)(C) Nature and Effect of Warning Letter of

Cautionary Advice

A warning letter of cautionary advice does is

not constitute discipline.

(2) Letter of Admonition

Panel

(A) Recommendation by Bar Counsel or Peer Review

Bar Counsel or the Peer Review Panel may

recommend to the Commission that the dismissal of a

disciplinary or remedial proceeding be accompanied by

a letter of admonition upon their respective

conclusion that such a letter would be helpful to

ensure that the conduct that led to the proceeding is

not repeated.

(B) Action by Commission

(i) If satisfied that dismissal of the

disciplinary or remedial proceeding should be

accompanied by a letter of admonition, the Commission

shall mail to the attorney a notice that states (1)

that on or after 30 days from the date of the notice,

the Commission intends to dismiss the disciplinary or

remedial proceeding and accompany the dismissal with a

letter of admonition, (2) the content of the proposed

letter of admonition, and (3) that the attorney may

reject the proposed letter of admonition by filing a

written rejection with the Commission no later than 25

days after the date of the notice.

(ii) If the letter of admonition is not timely

rejected, the Commission shall issue the letter when

it dismisses the disciplinary or remedial proceeding.

(iii) If the letter of admonition is timely

rejected, the letter shall not be issued, but Bar

Counsel or the Commission may take any other action

permitted under this Chapter.

A letter of admonition is not discipline.

(d) Disclosure of Termination Dismissal; or Warning

Letter of Cautionary Advice; Letter of Admonition

(1) Disclosure of Dismissal or Termination of

Complaint or Proceedings

(A) Except as provided in subsections (d)(2) and

(d)(3) of this Rule, a dismissal or a termination of a

complaint or proceedings under this Rule, with or

without a warning letter of cautionary advice or

letter of admonition, shall not be disclosed by the

Commission or Bar Counsel in response to any request

for information as to whether an attorney has been the

subject of a disciplinary or remedial proceeding.

(B) The nature and existence of a proceeding

terminated dismissed under this Rule, including any

investigation by Bar Counsel that led to the

proceeding, need not be disclosed by an attorney in

response to a request for information as to whether

the attorney has been the subject of a disciplinary or

remedial proceeding.

(2) Disclosure of Warning Letter of Cautionary

Advice

(A) The fact that a warning letter of cautionary

advice was issued in conjunction with the termination

dismissal of a complaint shall not be disclosed to the

complainant. The complainant shall only be notified

that the complaint was dismissed.

(B) The fact that a warning letter of cautionary

advice was issued and the facts underlying the warning

letter may be disclosed in a subsequent proceeding

against the attorney when relevant to a complaint

alleging similar conduct by the attorney.

or rejected nor the contents of a warning that was not

issued is admissible into evidence in any judicial or

administrative proceeding.

(3) Disclosure of Letter of Admonition

(A) The fact that a letter of admonition was

issued in conjunction with the dismissal of a

complaint shall be disclosed to the complainant.

(B) The fact that a letter of admonition was

issued and the facts underlying the letter may be

disclosed in a subsequent proceeding against the

attorney when relevant to a complaint alleging similar

conduct by the attorney.

was proposed or rejected nor the contents of a letter

of admonition that was not issued is admissible into

evidence in any judicial or administrative proceeding.

Source:

(2016).

This Rule is derived from former Rule 16-735

Mr. Frederick said that proposed Rule 19-715 describes the

details of letters of cautionary advice and admonition.

letter of cautionary advice is appropriate for a lawyer with no

prior sanctions and no prior warnings or letters of cautionary

advice or admonition for similar conduct.

reject a letter of cautionary advice.

The lawyer cannot

A letter of admonition is

for more serious conduct which does not rise to the level of a

reprimand.

The process for issuing these letters is contained

in section (c).

He pointed out that a letter of admonition is

not considered discipline for the purposes of malpractice

insurance.

The Chair said that former Bar Counsel Glenn

Grossman submitted a comment recommending that the Rule specify

that if the Commission is not satisfied with the recommendation,

it should not dismiss the complaint and asking if the Commission

should be required to state its reasons.

Mr. Kramer said that

the peer review panel has no power other than to make a

recommendation, which goes to the Commission.

If the Commission

rejects the recommendation, there is no explanation for why its

members deviated from the panel.

He proposed that if diversion

is appropriate, the peer review panel should be able to

recommend it without Bar Counsel’s agreement.

The Chair suggested that the Committee take up the issue of

conditional diversion agreements and asked for a motion to alter

the current Rule and the proposed Rule that a conditional

diversion agreement does not have to be agreed to by Bar

Counsel.

Mr. Kramer said that a proposed revision suggested by

attorney Jeffrey Hines calls for diversionary plans, not ad hoc

agreements, and requested a workgroup to study the issue.

The

Chair noted that this suggestion was rejected by the

subcommittee.

Mr. Kramer moved to remand proposed Rule 19-715

to the Subcommittee or to a workgroup for further

discussion.

Mr. Zollicoffer seconded the motion.

expressed his support for Mr. Kramer’s position.

Mr. Ucheomumu

He explained

that as a minority, he tends to have the impression of “back

room” deals, whether accurate or not, and would like to have a

written explanation for why Bar Counsel rejects a peer review

panel recommendation or doesn’t recommend a conditional

diversion agreement.

The motion failed.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-716, Conditional Diversion

Agreement, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-716, as follows:

Rule 19-716.

(a)

CONDITIONAL DIVERSION AGREEMENT

When Appropriate

A Conditional Diversion Agreement may be

appropriate and may be approved by the Commission when

there is an agreement between Bar Counsel and the

attorney that:

(1) the attorney committed professional misconduct

or is incapacitated;

(2) the professional misconduct or incapacity was

not the result of any wilful willful or dishonest

conduct and did not involve conduct that could be the

basis for an immediate Petition for Disciplinary or

Remedial Action pursuant to Rules 19-737, 19-738, or

19-739;

(3) the cause or basis of the professional

misconduct or incapacity is subject to remediation or

resolution through available alternative programs or

mechanisms, including (A) medical, psychological, or

other professional treatment, counseling, or

assistance, (B) appropriate educational courses or

programs, (C) mentoring or monitoring services, or (D)

dispute resolution programs; and

(4) the public interest and the welfare of the

attorney's clients and prospective clients will not be

harmed if, instead of the matter proceeding

immediately with a disciplinary or remedial

proceeding, the attorney agrees to and complies with

specific measures that, if pursued, will remedy the

immediate problem and likely prevent any recurrence of

it.

Committee note: Examples of conduct that may be

susceptible to conditional diversion include conduct

arising from (A) unfamiliarity with proper methods of

law office management, record-keeping, or accounting,

(B) unfamiliarity with particular areas of law or

legal procedure, (C) negligent management of attorney

trust accounts or other financial matters, (D)

negligent failure to maintain proper communication

with clients, (E) negligent failure to provide proper

supervision of employees, or (F) emotional stress or

crisis or abuse of alcohol or other drugs.

(b) Voluntary Nature of Agreement; Effect of

Rejection or Disapproval

(1) Voluntary Nature

Neither Bar Counsel nor the attorney is under

any obligation to propose or enter into a Conditional

Diversion Agreement.

(2) Effect of Rejection or Disapproval

If a Conditional Diversion Agreement is

proposed and rejected or if a signed Agreement is not

approved by the Commission, Bar Counsel may take any

other action permitted under this Chapter. Neither

the fact that an Agreement was proposed, rejected, or

not approved nor the contents of the Agreement may be

admitted into evidence.

(c)

Terms of Agreement

(1) In Writing and Signed

A Conditional Diversion Agreement shall be in

writing and signed by Bar Counsel, the attorney, and

any monitor designated in the Agreement.

(2) Required Provisions

The agreement shall:

(A) recite the basis for it, as set forth in

section (a) of this Rule;

(B) state that the attorney voluntarily consents

to its terms and promises to pay all expenses

reasonably incurred in connection with its performance

and enforcement;

that the attorney (i) has engaged in conduct that

constitutes professional misconduct, or (ii) is

currently incapacitated, and a warranty that the

attorney has not concealed from or misrepresented to

Bar Counsel any material fact pertaining to the

attorney's conduct or status as incapacitated or to

the Agreement;

(D) state the particular course of remedial

action that the attorney agrees to follow and a time

for performance or completion of that action;

(E) provide for a stay of any disciplinary or

remedial proceeding pending satisfactory performance

by the attorney; and

(F) state that it is expressly conditioned on

(i) the attorney's not engaging in any further conduct

that would constitute professional misconduct, or,

(ii) non-recurrence of the nature or severity of the

incapacity.

(3) Permissive Provisions

The agreement may:

(A) provide for any program or corrective action

appropriate under the circumstances, including:

(i) mediation or binding arbitration of a fee

dispute;

(ii) restitution to persons financially

injured by the attorney’s professional misconduct, to

a client of unearned or excessive fees, and to the

Client Protection Fund for amounts paid on claims

arising from the attorney’s professional misconduct;

in a stipulated amount;

(iii) a public apology to designated persons;

(iv) assistance in law office management,

including temporary or continuing monitoring,

mentoring, accounting, bookkeeping, financial, or

other professional assistance, and completion of

specific educational programs dealing with law office

management;

(v) completion of specific legal education

courses or curricula, including courses in legal

ethics and professional responsibility;

(vi) an agreement not to practice in specific

areas of the law (a) unless the attorney associates

himself or herself with one or more other attorneys

who are proficient in those areas, or (b) until the

attorney has successfully completed a designated

course of study to improve the attorney's proficiency

in those areas;

(vii) one or more specific courses of

treatment for emotional distress, mental disorder or

disability, dependence on alcohol, drugs, or other

intoxicants;

(viii) a stipulated number of hours of pro

bono legal services; or

(ix) a reprimand to be issued upon the

successful termination of a Conditional Diversion

Agreement. If that provision is included, The the

text of the reprimand shall be agreed upon and

attached to the Agreement as a separate document; and

Committee note: The text of the Conditional Diversion

Agreement must be separate from the text of the

reprimand because the contents of the Agreement are

confidential, whereas the contents of the reprimand

are public. See Rules 19-716 (j) and 19-717.

(B) designate either a private monitor engaged

at the attorney's expense or Bar Counsel to supervise

performance and compliance with the terms and

conditions of the agreement.

(4) If Monitor Designated

(A) If the agreement designates Bar Counsel or a

private monitor pursuant to subsection (c)(3)(B) of

this Rule, the agreement shall authorize Bar Counsel

or the monitor to request and receive all information

and inspect any records necessary to verify

compliance.

(B) If a private monitor is designated, the

agreement shall specify the fees of the monitor and

the method and frequency of payment of the fees and

shall direct the monitor promptly to report any

violation or noncompliance to Bar Counsel.

(d)

Submission to Commission

A Conditional Diversion Agreement is not

effective until approved by the Commission. Upon

signing the Agreement, Bar Counsel and the attorney

shall submit to the Commission the Agreement, any

explanatory material they believe relevant, and any

further information that the Commission requests.

(e)

Action by Commission

(1) Generally

After consideration, the Commission may:

(A) approve the Agreement if satisfied that it

is reasonable and in the public interest;

(B) disapprove the Agreement if not convinced

that it is reasonable and in the public interest; or

condition of approval.

(2) Upon Commission Recommendations

The parties may accept or reject the

Commission's proposed amendments. If Bar Counsel and

the attorney accept the proposed amendments, they

shall notify the Commission of the acceptance, and the

Commission shall approve the Agreement as amended. If

either party rejects a proposed amendment, the

Agreement shall be deemed Commission may disapproved

disapprove the Agreement by the Commission.

(f)

Effect of Agreement

Approval by the Commission of a Conditional

Diversion Agreement does not constitute discipline.

(g)

Amendment of Agreement

A Conditional Diversion Agreement may be

amended from time to time. An amendment shall be in a

writing signed by Bar Counsel and the attorney and

approved by the Commission.

(h)

Revocation of Agreement

(1) Declaration of Proposed Default

Bar Counsel may declare a proposed default on

a Conditional Diversion Agreement if Bar Counsel

determines that the attorney (A) engaged in further

professional misconduct while subject to the

agreement, (B) wilfully willfully misrepresented or

concealed material facts during the negotiation of the

Agreement that induced Bar Counsel to recommend

approval of the Agreement, or (C) has failed in a

material way to comply with the Agreement. Bar

Counsel shall give written notice to the attorney of

the proposed default and afford the attorney a

reasonable opportunity to refute the determination.

(2) Petition

If the attorney fails to refute the charge or

to offer an explanation or proposed remedy

satisfactory to Bar Counsel, Bar Counsel shall file a

petition with the Commission to revoke the Agreement

and serve a copy of the petition on the attorney. The

attorney may file a written response with the

Commission within 15 days after service of the

petition. The Commission may act upon the petition

and response or may request the parties to supply

additional information, in writing or in person.

(3) Action by Commission

If the Commission concludes that the attorney

is in material default of the Agreement, it shall

revoke the Agreement, revoke the stay of the

disciplinary or remedial proceeding and any reprimand,

and direct Bar Counsel to proceed in accordance with

Rule 19-721, or as otherwise authorized by the Rules

in this Chapter.

(i)

Satisfaction of Agreement

If Bar Counsel determines that the attorney has

complied in full with the requirements of the

Agreement and that the disciplinary or remedial

proceeding should be terminated, Bar Counsel shall

inform the Commission and request that the

disciplinary or remedial proceeding be terminated.

satisfied with Bar Counsel's recommendation, the

Commission shall terminate the disciplinary or

remedial proceeding.

(j)

Confidentiality

(1) Fact that Approved Agreement was Signed;

Notice to Complainant

(A) The fact that an attorney has signed a

Conditional Diversion Agreement approved by the

Commission is public.

(B) Upon approval of an Agreement by the

Commission, Bar Counsel shall inform the complainant

(i) that such an Agreement has been entered into and

approved, (ii) that the disciplinary or remedial

proceeding has been stayed in favor of the Agreement,

(iii) that, if the attorney complies with the

Agreement, the proceeding will be terminated, and (iv)

of the potential for and consequences to the attorney

of noncompliance.

(2) Contents of Agreement

(A) Except as provided in subsections (j)(2)(B),

(C), and (D) of this Rule, the contents of a

Conditional Diversion Agreement are confidential and

may not be disclosed.

(B) If the Agreement requires payment or the

transfer of property to the complainant by the

attorney or requires other communication with the

complainant by the attorney, Bar Counsel shall inform

the complainant of those requirements, but not of any

other terms of the Agreement.

section (h) of this Rule, the contents of the

Agreement may be disclosed in any ensuing disciplinary

or remedial proceeding.

(D) The contents of a Conditional Diversion

Agreement may be disclosed in a subsequent proceeding

against the attorney if relevant to a subsequent

complaint based on similar misconduct or incapacity.

Source:

(2016).

This Rule is derived from former Rule 16-736

Mr. Frederick said that proposed Rule 19-716 lays out the

conditional diversion agreement process.

He explained that a

change provides for financial restitution, but the remaining

changes are not significant.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-717, Reprimand by

Commission, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-717, as follows:

Rule 19-717.

(a)

REPRIMAND BY COMMISSION

Scope

This Rule does not apply to a reprimand that is

to be issued upon successful termination of a

Conditional Diversion Agreement.

Cross reference:

(b)

See Rule 19-716 (c)(3)(A)(ix).

Offer

(1) Service on Attorney

If Bar Counsel determines after completion of

an investigation, or the Peer Review Panel determines

after a Panel meeting, that an attorney has engaged in

professional misconduct and that the appropriate

sanction for the misconduct is a reprimand, Bar

Counsel or the Panel shall serve on the attorney a

written offer of a reprimand and a waiver of further

disciplinary or remedial proceedings that is

contingent upon acceptance of the reprimand by the

attorney and approval of the reprimand by the

Commission.

(2) Content

The offer shall include the text of the

proposed reprimand, the date when the offer will

expire, a contingent waiver of further disciplinary or

remedial proceedings, and advice that the offer, if

accepted, is subject to approval by the Commission.

The text of the proposed reprimand shall summarize the

misconduct for which the reprimand is to be imposed

and include a reference to any rule, statute, or other

law allegedly violated by the attorney.

(c)

Response

The attorney may accept the offer by signing

the stipulation, endorsing the proposed reprimand, and

delivering both documents to Bar Counsel or the Panel

within the time stated in the notice or otherwise

agreed to by Bar Counsel or the Panel. The attorney

may (1) reject the offer expressly or by declining to

return the documents timely, or (2) propose amendments

to the proposed reprimand, which Bar Counsel or the

Panel may accept, reject, or negotiate.

(d)

Submission to Commission

If the attorney agrees to the proposed

reprimand, Bar Counsel or the Panel shall submit the

proposed reprimand to the Commission for approval,

together with any explanatory material that the

attorney or Bar Counsel believes relevant and any

further information that the Commission requests.

(e)

Action by Commission

(1) Generally

After consideration, the Commission may:

(A) approve the reprimand, if satisfied that it

is appropriate under the circumstances, in which event

Bar Counsel the Commission shall promptly administer

serve the reprimand to on the attorney in accordance

with Rule 19-708 and terminate the disciplinary or

remedial proceeding;

(B) disapprove the reprimand, if not satisfied

that it is appropriate under the circumstances and

direct Bar Counsel to proceed in another manner; or

condition of approval.

(2) Upon Commission Recommendations

The parties may accept or reject the

Commission's proposed amendments. If the parties

accept the amendments, they shall notify the

Commission of the acceptance, and the Commission shall

then approve the reprimand. If either party rejects a

proposed amendment, the reprimand shall be deemed

disapproved by the Commission may disapprove the

reprimand.

(f)

Effect of Rejection or Disapproval

If a reprimand is proposed and rejected or if a

reprimand to which the parties have stipulated is not

approved by the Commission, the proceeding shall

resume as if no reprimand had been proposed, and

neither the fact that a reprimand was proposed,

rejected, or not approved nor the contents of the

reprimand or stipulation may be admitted into

evidence.

(g)

Effect of Reprimand

A reprimand constitutes discipline.

Source:

(2016).

This Rule is derived from former Rule 16-737

Mr. Frederick said that proposed Rule 19-717 contains a

slight update.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-717.1, Permanent Retired

Status, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 4.

SPECIAL PROCEEDINGS

AMEND Rule 19-740 as follows:

Rule 19-740 19-717.1.

(a)

PERMANENT RETIRED STATUS

Purpose

Permanent retired status is intended to enable

an attorney whose alleged conduct (1) meets the

criteria set forth in section (b) of this Rule and (2)

was predominantly the product of the attorney's ill

health or decline, to retire permanently from the

practice of law with dignity and to ensure the

protection of the public. Permanent retired status is

not a sanction, and no record of any investigation by

Bar Counsel, documents associated therewith, or

proceedings in connection with the determination that

the attorney be placed on permanent retired status,

shall be made public except with the written consent

of the attorney, a duly authorized representative of

the attorney, or, upon good cause shown, by the Court

of Appeals.

(b)

Criteria

Upon completing an investigation and upon

agreement of the attorney, Bar Counsel may recommend

to the Commission that the attorney be placed on

permanent retired status if Bar Counsel concludes

that:

(1) the attorney is the subject of a complaint or

allegation which if found meritorious, could lead to

the attorney being disciplined or placed on inactive

status;

(2) the alleged conduct was predominantly a result

of the attorney's ill health or decline;

(3) the alleged conduct does not involve

misconduct so serious that, if proven, would likely

result in the suspension or disbarment of the attorney

or placement of the attorney on inactive status;

(4) the alleged conduct does not reflect adversely

on the attorney's honesty or involve conduct that

could be the basis for an immediate Petition for

Disciplinary or Remedial Action pursuant to Rules 19737 or 19-738;

(5) the alleged conduct either did not result in

actual loss or harm to a client or other person, or,

if it did, full restitution has been made;

(6) because of the effect of the attorney's ill

health or decline on the attorney's ability to comply

fully with the Maryland Attorneys' Rules of

Professional Conduct, the attorney should no longer

engage in the practice of law; and

(7) the attorney has taken all appropriate actions

to wind-up his or her practice or will do so within a

time established by the Commission in any approval of

permanent retired status.

(c)

Action by Commission

If the attorney agrees to permanent retired

status, Bar Counsel or the attorney may submit any

explanatory materials that either believes relevant

and shall submit any further material that the

Commission requests. Upon submission, the Commission

may take any of the following actions:

(1) the Commission may approve permanent retired

status for the attorney, if satisfied that it is

appropriate under the circumstances, in which event

the attorney, upon notice of the Commission's written

approval and upon the date specified by the

Commission, shall take the actions set forth in

section (e) of this Rule, and Bar Counsel shall

terminate the disciplinary or remedial proceeding; or

(2) the Commission may disapprove permanent

retired status for the attorney if not satisfied that

it is appropriate under the circumstances and direct

Bar Counsel to proceed in another manner consistent

with the Rules in this Chapter.

(d)

Effect of Disapproval

If permanent retired status is not approved by

the Commission, any investigation or proceeding shall

resume as if permanent retired status had not been

recommended, and the fact that permanent retired

status was recommended or that it was not approved may

not be entered into the record of any proceeding.

(e)

Effect of Permanent Retired Status

An attorney who has been placed on permanent

retired status:

(1) shall, upon receipt of the Commission's

determination that the attorney be placed on permanent

retired status, cease the practice of law in this

State and in all other jurisdictions in which the

attorney was admitted on or before the date specified

by the Commission;

(2) shall, by such date, notify the Client

Protection Fund, in writing, of the Commission's

approval of permanent retired status, and shall

include with such notice a copy of the Commission's

approval;

(3) shall not apply for admission to the bar of

this State or any other jurisdiction or for revocation

of permanent retired status; and

(4) shall, by such date, comply with the

provisions of Rule 19-742 (b) 19-741 (b).

Committee note: The name of a permanently retired

attorney must be removed from the letterhead of any

law firm with which the attorney was associated, but

if the attorney's last name was part of a firm name

that consisted of two or more last names, the firm is

not required to remove the last name of the attorney

from the name of the firm.

(f)

Extension

Upon a showing of good cause and consideration

of any objection by Bar Counsel, the Commission may

permit an extension of the period to complete one or

more of the tasks itemized in section (e) of this

Rule.

Source:

(2016).

This Rule is derived from former Rule 16-738

Mr. Frederick said that proposed Rule 19-717.1 contains

updated references.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-718, Statement of Charges,

for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-718, as follows:

Rule 19-718.

(a)

STATEMENT OF CHARGES

Filing

Upon completion of an investigation, Bar

Counsel shall file with the Commission a Statement of

Charges if Bar Counsel determines that:

(1) the attorney engaged in conduct constituting

professional misconduct or is incapacitated; and

(2) the professional misconduct or incapacity does

not warrant an immediate Petition for Disciplinary or

Remedial Action;.

(3) a Conditional Diversion Agreement is not

appropriate under the circumstances; and

(4) a reprimand is not appropriate under the

circumstances or a proposed reprimand (A) was offered

and rejected by the attorney or (B) was disapproved by

the Commission and Bar Counsel was directed to file a

Statement of Charges.

(b)

and:

Content

The Statement of Charges shall be in writing

(1) in clear and specific language, inform the

attorney of all professional misconduct charged;

(2) contain a reference to each Rule of the

Maryland Attorneys' Rules of Professional Conduct

allegedly violated; and

(3) include or be accompanied by a fair summary of

the evidence developed through the investigation

documentation and information, including any response

that the attorney sent to Bar Counsel regarding the

matter and any exculpatory material.

(c)

Service; Peer Review

(1) Bar Counsel shall serve on the attorney a copy

of a Statement of Charges, together with the

documentation and information filed pursuant to

section (b) of this Rule, on an attorney in the manner

prescribed by Rule 2-121 (a). If after reasonable

efforts the attorney cannot be served personally,

service may be made by email to all email addresses

maintained by the attorney with the Attorney

Information System in accordance with Rule 19-802.

Cross reference: See Rule 19-723 concerning service

of a Petition for Disciplinary or Remedial Action.

(2) Bar Counsel shall serve on the attorney and

send to the Chair of the Peer Review Committee a copy

of the Statement of Charges, together with the

supporting information and documentation filed

pursuant to section (b) of this Rule. The matter

shall then proceed in accordance with Rules 19-719 and

19-720.

Cross reference: See Rule 19-708 (a) concerning

service of the Statement of Charges on the attorney.

Source:

(2016).

This Rule is derived from former Rule 16-741

Mr. Frederick explained that proposed Rule 19-718 includes

a significant change to means of service in section (c),

permitting service by email if traditional service fails.

The

Chair noted that Mr. Rheinstein submitted a comment asking that

the statement of charges be made under oath, but Committee staff

researched the issue and found no precedent for the requirement

in the judicial discipline rules or professional disciplinary

statutes.

Mr. Rheinstein commented that Washington D.C.

requires ethics charges to be made under oath.

Ms. Lawless said

that complaints are not made under oath but the respondent can

depose the person making the complaint under oath.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-719, Peer Review Panel, for

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-719, as follows:

Rule 19-719.

(a)

PEER REVIEW PANEL

Appointment

Within 30 days after receiving a copy of a

Statement of Charges filed with the Commission, the

Chair of the Peer Review Committee shall (1) appoint a

Peer Review Panel, (2) notify the Commission, Bar

Counsel, and the attorney of the appointment of the

Panel and the names and addresses of its members, (3)

send to the members of the Panel a copy of the

Statement of Charges and the supporting material filed

by Bar Counsel with the Commission cause a copy of the

statement of charges and documentation and information

filed by Bar Counsel to be sent to the members of the

Panel, and (4) in accordance with Rule 19-720 (b),

schedule a meeting of the Peer Review Panel.

(b)

Composition of Panel

(1) The Peer Review Panel shall consist of at

least three members of the Peer Review Committee.

(2) A majority of the members of the Panel shall

be attorneys, but at least one member shall not be an

attorney.

(3) If practicable, the Chair shall appoint to the

Panel members from the circuit in which the attorney

who is the subject of the charges has an office for

the practice of law or, if there is no such office,

the circuit in which the last known address of the

attorney, as reflected on the records of the Client

Protection Fund, is located.

(c)

Panel Chair

The Chair of the Peer Review Committee shall

appoint an attorney member of the Panel as the Panel

Chair.

(d)

Removal and Recusal of Members

The Chair of the Peer Review Committee may

remove a member of the Peer Review Panel for cause. A

member of a Peer Review Panel shall not participate in

any proceeding in which the member's impartiality

might reasonably be questioned. A member who is

required to recuse or who cannot attend the Peer

Review meeting shall immediately notify the Chair of

the Peer Review Committee, who shall promptly appoint

another member.

(e)

Quorum

The presence of any three members of the Peer

Review Panel constitutes a quorum, whether or not a

non-attorney member is present. With the consent of

the Panel members who are present, Bar Counsel and the

attorney may waive the quorum requirement. The

concurrence of a majority of the members present is

necessary to a recommendation to the Commission.

Source:

(2016).

This Rule is derived from former Rule 16-742

Mr. Frederick said that proposed Rule 19-719 makes minor

changes.

There being no motion to amend or reject the proposed Rule,

it was approved as presented.

Mr. Frederick presented Rule 19-720, Peer Review Process,

for consideration.

100

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-720, as follows:

Rule 19-720.

(a)

PEER REVIEW PROCESS

Purpose

The purpose of the peer review process is for

the Peer Review Panel to consider the Statement of

Charges and all relevant information offered by Bar

Counsel and the attorney concerning it and to

determine (1) whether the Statement of Charges has a

substantial basis and there is reason to believe that

the attorney has committed professional misconduct or

is incapacitated, and, if so, (2) whether a Petition

for Disciplinary or Remedial Action should be filed or

some other disposition is appropriate. The peer

review process is not intended to be an adversarial

one and it is not the function of Peer Review Panels

to hold evidentiary hearings, adjudicate facts, or

write full opinions or reports.

Committee note: If a Peer Review Panel concludes that

the complaint has a substantial basis indicating the

need for some remedy, some behavioral or operational

changes on the part of the attorney, or some

discipline short of suspension or disbarment, part of

the peer review process can be an attempt through both

evaluative and facilitative dialogue, (a) to

effectuate directly or suggest a mechanism for

effecting an amicable resolution of the existing

dispute between the attorney and the complainant, and

(b) to encourage the attorney to recognize any

deficiencies on his or her part that led to the

problem and take appropriate remedial steps to address

those deficiencies. The goal, in this setting, is not

to punish or stigmatize the attorney or to create a

fear that any admission of deficiency will result in

substantial harm, but rather to create an ambience for

101

a constructive solution. The objective views of two

fellow attorneys and a lay person, expressed in the

form of advice and opinion rather than in the form of

adjudication, may assist the attorney (and the

complainant) to retreat from confrontational positions

and look at the problem more realistically.

(b)

Scheduling of Meeting; Notice to Attorney

(1) The Chair of the Peer Review Committee, after

consultation with the members of the Peer Review

Panel, Bar Counsel, and the attorney, shall schedule a

meeting of the Panel.

(2) If, without substantial justification, the

attorney does not agree to schedule a meeting within

the time provided in subsection (b)(5) of this Rule,

the Chair may recommend to the Commission that the

peer review process be terminated. If the Commission

terminates the peer review process pursuant to this

subsection, the Commission may take any action that

could be recommended by the Peer Review Panel under

section (e) of this Rule.

(3) The Chair shall notify Bar Counsel, the

attorney, and each complainant of the time, place, and

purpose of the meeting and invite their attendance.

(4) The notice to the attorney shall inform the

attorney of the attorney's right to respond in writing

to the Statement of Charges by filing a written

response with the Commission and sending a copy of it

to Bar Counsel and each member of the Peer Review

Panel at least ten days before the scheduled meeting.

(5) Unless the time is extended by the Commission,

the meeting shall occur within 60 days after

appointment of the Panel.

(c)

Meeting

(1) The Peer Review Panel shall conduct the

meeting in an informal manner. It shall allow Bar

Counsel, the attorney, and each complainant to explain

their positions and offer such supporting information

as the Panel finds relevant. Upon request of Bar

Counsel or the attorney, the Panel may, but need not,

hear from any other individual. The Panel is not

102

bound by any rules of evidence, but shall respect

lawful privileges. The Panel may exclude a

complainant after listening to the complainant's

statement and, as a mediative technique, may consult

separately with Bar Counsel or the attorney. The

Panel may meet in private to deliberate.

(2) If the Panel determines that the Statement of

Charges has a substantial basis and that there is

reason to believe that the attorney has committed

professional misconduct or is incapacitated, the Panel

may (A) conclude the meeting and make an appropriate

recommendation to the Commission or (B) inform the

parties of its determination and allow the attorney an

opportunity to consider a reprimand or a Conditional

Diversion Agreement.

(3) The Panel may schedule one or more further

meetings, but, unless the time is extended by the

Commission, it shall make a recommendation to the

Commission within 90 30 days after appointment of the

Panel conclusion of the meeting. If a recommendation

is not made within that time or any extension granted

by the Commission, the peer review process shall be

terminated dismissed and the Commission may take any

action that could be recommended by the Peer Review

Panel under section (e) of this Rule.

(d)

Ex Parte Communications

Except for administrative communications with

the Chair of the Peer Review Committee and as allowed

under subsection (c)(1) of this Rule as part of the

peer review meeting process, no member of the Panel

shall participate in an ex parte communication

concerning the substance of the Statement of Charges

with Bar Counsel, the attorney, the complainant, or

any other person.

(e)

Recommendation of Panel

(1) Agreed Upon Recommendation

(A) If Bar Counsel, the attorney, and the Panel

agree upon a recommended disposition, the Panel shall

transmit the recommendation to the Commission.

103

(B) If the Panel determines that the attorney

committed professional misconduct or is incapacitated

and that the parties should consider a Conditional

Diversion Agreement, the Panel shall orally advise the

parties of that determination and afford them the

opportunity to consider and enter into such an

Agreement in accordance with Rule 19-716. If an

Agreement is reached, the Conditional Diversion

Agreement shall be the Panel's recommended

disposition.

(2) If No Agreement

If there is no agreed-upon recommendation

under subsection (e)(1) of this Rule, the Panel shall

transmit to the Commission an independent

recommendation, not subject to the approval of Bar

Counsel, and shall accompany its recommendation with a

brief explanatory statement. The Panel's

recommendation shall be one of the following:

(A) the filing of a Petition for Disciplinary or

Remedial Action;

(B) a reprimand in accordance with Rule 19-717;

the proceeding without discipline, but with a warning

a letter of cautionary advice or letter of admonition,

in accordance with Rule 19-715 (c); or

(D) dismissal of the complaint or termination of

the proceeding without discipline and without a

warning a letter of cautionary advice or letter of

admonition, in accordance with Rule 19-715.

(f)

Action by Commission

The Commission may:

(1) direct Bar Counsel to file a Petition for

Disciplinary or Remedial Action;

(2) take any action on the Panel's recommendation

that the Commission could take on a similar

recommendation made by Bar Counsel under Rule 19-714;

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(3) dismiss the Statement of Charges complaint and

terminate the proceeding.

Source:

(2016).

This Rule is derived from former Rule 16-743

Mr. Frederick said that proposed Rule 19-720 conforms the

Rule to previous amendments.

Mr. Kramer requested that

subsection (e)(1)(B) allow the panel to recommend intervention

for the attorney even though only Bar Counsel can make the

determination that intervention or diversion is

appropriate.

Ms. Lawless said that the panel is free to tell

the attorney that it recommends treatment, but the

recommendation to the Commission must be something the

Commission has the power to recommend.

Mr. Kramer moved to

amend the Rule to add, “If there is no agreement, the panel may

express its opinion regarding the propriety of diversion or

intervention.”

This text is long and has been trimmed here. Open the source document for the complete record.

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