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ON RULES OF PRACTICE AND PROCEDURE

Minutes of a meeting of the Rules Committee held in Training

Rooms 5 and 6 of the Judicial Education and Conference Center,

2011-D Commerce Park Drive, Annapolis, Maryland on January 6, 2012.

Members present:

Hon. Alan M. Wilner, Chair

Robert R. Bowie, Jr., Esq.

Albert D. Brault, Esq.

James E. Carbine, Esq.

Harry S. Johnson, Esq.

Hon. Joseph H. H. Kaplan

Richard M. Karceski, Esq.

Robert D. Klein, Esq.

J. Brooks Leahy, Esq.

Hon. Thomas J. Love

Zakia Mahasa, Esq.

Timothy F. Maloney, Esq.

Robert R. Michael, Esq.

Hon. John L. Norton, III

Scott G. Patterson, Esq.

Hon. W. Michel Pierson

Debbie L. Potter, Esq.

Kathy P. Smith, Clerk

Sen. Norman R. Stone, Jr.

Steven M. Sullivan, Esq.

Melvin J. Sykes, Esq.

Hon. Julia B. Weatherly

In attendance:

Sandra F. Haines, Esq., Reporter

Sherie B. Libber, Esq., Assistant Reporter

Kara K. Lynch, Esq., Assistant Reporter

Debra Gardner, Esq., Public Justice Center

David R. Durfee, Jr., Esq., Executive Director, Legal Affairs,

Administrative Office of the Courts

Mark Bittner, Executive Director, Judicial Information Systems,

Administrative Office of the Courts

D. Robert Enten, Esq.

Richard Montgomery, Director, Legislative Relations,

Maryland State Bar Association

Suzanne Delaney, Esq., Deputy Director, Government Relations,

Administrative Office of the Courts

David Weissert, Commissioner, District Court of Maryland

Kathleen M. Elmore, Esq., Treasurer, Maryland Legislative Action

Committee

Dawn Elaine Bowie, Esq.

Katherine Hager, Chief Deputy Clerk, Queen Anne’s County

Connie Kratovil-Lavelle, Esq., Executive Director, Family

Administration

Pamela Cardullo-Ortiz, Esq., Executive Director, Access to Justice

Commission

Elizabeth Embry, Esq., Office of the State’s Attorney

Frank Broccolina, State Court Administrator

Faye Matthews, Assistant State Court Administrator

Scott MacGlashan, Clerk, Circuit Court for Queen Anne’s County

Donald Sealing, Clerk, Circuit Court for Carroll County

Barbara Gavin, Esq., Director, Character & Fitness, State Board of

Law Examiners

Kathleen Wherthey, Esq., Legal Affairs, Administrative Office of

the Courts

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

The Chair convened the meeting, wishing everyone present a

happy new year.

He said that he had two announcements.

announced, with genuine regret, that Linda M. Schuett, Esq., the

Vice Chair of the Rules Committee had retired from the Committee.

She had indicated that she would still like to receive all of the

documents generated by the Committee to make sure that the

Committee stays on target.

She had sent a letter to the

Honorable Robert M. Bell, Chief Judge of the Court of Appeals,

explaining that it was time for her to move on.

She had been a

member of the Committee for almost 31 years and had been

absolutely invaluable during her entire time of service.

The

Chair added that he and the Committee would certainly miss her.

The second announcement was the decision of the Court of

Appeals in the case of DeWolfe v. Richmond (No. 34, September

Term, 2011).

It is a major decision that construes the Public

Defender statute, Code, Criminal Procedure Article, §§16-101

through 16-403, as requiring representation by the Public

Defender for indigents at the first appearance before a District

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Court commissioner and also at bail review hearings in the

District Court.

hurry.

This will require a great amount of work in a

The Public Defender had made a request to delay the

implementation of the decision, for a period of time of around

six to nine months, to be able to ask the legislature for funding

and the Court denied the request.

January 4, 2012.

The opinion was filed on

Normally, the Court’s mandate issues 30 days

after that, which would be around February 3, 2012, the date of

the next Rules Committee meeting.

It will be necessary to review

several Rules in order to implement the decision.

The Chair said that he and the Reporter had attended a

meeting the previous day with other counsel on some of the issues

associated with the opinion.

A meeting was scheduled for the

afternoon of January 10, 2012 with representatives of the Public

Defender and others to sort through some of the details of how

they propose to proceed, so rules changes could be structured

accordingly.

Paul DeWolfe, Esq., the Public Defender, along with two

members of his office, agreed to work with the Rules Committee.

Also working with the Committee will be the Assistant Attorney

General who represents the court system, as well as other

stakeholders.

It would be a relatively small drafting group to

determine which Rules need to be amended and how they need to be

amended, to draft the language, and to present it to the Rules

Committee on February 3, 2012.

The drafting group will do its

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best to make sure that the Rules are amended as appropriately as

possible.

Some of the amended Rules probably will have to be

interim Rules, because some procedures cannot be implemented

immediately.

The Chair said that it is critically important to transmit

these Rules to the Court of Appeals.

The next Rules Committee

meeting is scheduled for February 3, 2012, the date the mandate

would issue.

It may be necessary to ask the Court about a modest

delay in issuing the mandate, so that the Court can have the

opportunity to consider the rules that the Committee sends to

them.

The Committee would have to do its part, and while that

certainly does not mean that the Committee has to rubberstamp

what will be presented to it, any issues that the members of the

Committee have would have to be resolved on February 3rd.

Anyone

who has any thoughts about this process during the next month

should feel free to express them.

much input as possible.

It is important to obtain as

The District Court will be intimately

involved in this process, and the circuit court to a lesser

extent, but it certainly will be involved as well.

The Chair noted that the Governor had created a task force

on foreclosure, which had recently issued a report, and will be

recommending legislation in the coming session on a number of

issues that may require some changes to rules.

Emergency Agenda Item

The Chair said that one item had been added on to the agenda

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for the meeting and would be considered first.

The Chair presented Rule 4-216, Pretrial Release, for the

Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 - CRIMINAL CAUSES

CHAPTER 200 - PRETRIAL PROCEDURES

AMEND Rule 4-216 (e) to change “$100.00"

to “$25.00," to delete language concerning

certain advice by the judicial officer, to

add a new subsection requiring the judicial

officer to provide certain advice under

certain circumstances, and to make stylistic

changes, as follows:

Rule 4-216.

PRETRIAL RELEASE

. . .

(e) Condition of Release

(1) Imposition

The conditions of release imposed by

a judicial officer under this Rule may

include:

(1) (A) committing the defendant to the

custody of a designated person or

organization that agrees to supervise the

defendant and assist in ensuring the

defendant's appearance in court;

(2) (B) placing the defendant under the

supervision of a probation officer or other

appropriate public official;

(3) (C) subjecting the defendant to

reasonable restrictions with respect to

travel, association, or residence during the

period of release;

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(4) (D) requiring the defendant to post

a bail bond complying with Rule 4-217 in an

amount and on conditions specified by the

judicial officer, including any of the

following:

(A) (i) without collateral security;

(B) (ii) with collateral security of

the kind specified in Rule 4-217 (e) (1) (A)

equal in value to the greater of $100.00

$25.00 or 10% of the full penalty amount, and

if the judicial officer sets bail at $2500 or

less, the judicial officer shall advise the

defendant that the defendant may post a bail

bond secured by either a corporate surety or

a cash deposit of 10% of the full penalty

amount;

the kind specified in Rule 4-217 (e) (1) (A)

equal in value to a percentage greater than

10% but less than the full penalty amount;

(D) (iv) with collateral security of

the kind specified in Rule 4-217 (e) (1)

equal in value to the full penalty amount; or

(E) (v) with the obligation of a

corporation that is an insurer or other

surety in the full penalty amount;

(5) (E) subjecting the defendant to any

other condition reasonably necessary to:

(A) (i) ensure the appearance of the

defendant as required,

(B) (ii) protect the safety of the

alleged victim, and

will not pose a danger to another person or

to the community; and

(6) (F) imposing upon the defendant,

for good cause shown, one or more of the

conditions authorized under Code, Criminal

Law Article, §9-304 reasonably necessary to

stop or prevent the intimidation of a victim

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or witness or a violation of Code, Criminal

Law Article, §9-302, 9-303, or 9-305.

(2) Advice to Defendant

If the judicial officer imposes a

condition of release under subsection

(e)(1)(D)(ii), (iii), or (iv) of this Rule,

the judicial officer shall advise the

defendant that the condition may be satisfied

by posting a bail bond secured by a corporate

surety or by the required amount of

collateral security of the kind specified in

Rule 4-217 (e)(1)(A) or (e)(1), as

applicable.

Cross reference: See Code, Criminal

Procedure Article, §5-201 (a)(2) concerning

protections for victims as a condition of

release. See Code, Criminal Procedure

Article, §5-201 (b), and Code, Business

Occupations and Professions Article, Title

20, concerning private home detention

monitoring as a condition of release.

. . .

Rule 4-216 was accompanied by the following Reporter’s Note.

To better harmonize Rule 4-216 with

Code, Criminal Procedure Article, §§5-203 and

5-205 and Rule 4-217, proposed amendments to

section (e) of the Rule change “$100.00" to

“$25.00," delete from current subsection

(e)(4)(B) the requirement that the judicial

officer give certain advice when bail is set

at $2,500.00 or less, reletter the

subsections, and add a new subsection (e)(2)

requiring the judicial officer to advise the

defendant concerning the defendant’s options

for posting the required amount of collateral

security.

The Chair explained that Rule 4-216 was one of the Rules

that would need to be amended to implement the decision of the

Court of Appeals in Richmond.

The issue being considered at the

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meeting today was a separate issue.

The Chair stated that he

would not suggest sending to the Court any changes to Rule 4-216

until February when the other changes to the Rule would be made.

A revised draft of Rule 4-216 had been handed out at the meeting.

These changes resulted from an inquiry by a legislative analyst

from the Maryland Department of Legislative Services, asking

whether Rule 4-216 was inconsistent with a 2004 amendment to

Code, Criminal Procedure Article, §5-203.

The Chair pointed out that section (e) of current Rule 4-216

states what the commissioner can do with respect to pretrial

release.

Subsection (e)(4) provides that the commissioner can

release a person without any collateral security.

The defendant

signs a bond that establishes a penalty, which is the bail.

the amount of the bail is $10,000, the defendant has to sign

documents that provide that if he or she does not show up in

court, he will have to pay the penalty sum of $10,000.

However,

no security for that obligation is required to be posted.

is one option.

That

The second option is that the Commissioner can

release the defendant on the bond but require security equal to

the greater of $100 or 10% of the full penalty amount.

If the

bond is $10,000, some kind of collateral security amounting to

$1,000 would have to be posted.

The third option is the

defendant being released after putting up collateral security

greater than 10% but less than the full $10,000.

The fourth

option is that the entire $10,000 has to be secured.

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Neither the

Rule nor the statute addresses who can provide the security.

That was the genesis of the legislative inquiry.

The Chair said that current Rule 4-216 (e)(4)(B) states that

if the bail is $2,500 or less, the judicial officer must advise

the defendant that the defendant may post a bail of $2,500 with

either the greater of 10% thereof or $100 collateral.

statute does not refer to a bail of $2,500 or less.

referred to in the Rule.

The

This is only

The intent at the time that provision

was adopted was that if the commissioner set bail at $2,500 or

less, the defendant should be informed that he or she may pay the

10% ($250) to a bail bondsman, as a premium on the bondsman’s

acting as a surety on the $2,500 bond, or post the bail himself

or herself and would get it back if he or she appears in court as

required.

The Legislature passed the statute soon after this

Rule was adopted.

The Chair remarked that he had not been privy

to the legislative proceedings and he was not sure exactly what

the legislative intent had been.

Nothing in the statute refers

to advice given to a defendant as to how he or she may meet the

collateral requirement, such as a corporate insurer providing the

bond, or a property bondsman posting a property a property bond,

or the defendant or a family member posting the bail.

Comparing current Rule 4-216 against the statute, it appears

that there was at least one clear inconsistency between the Rule

and the statute.

The Rule provides for collateral security of

the greater of $100 or 10%, and the statute provides for the

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greater of $25 or 10%.

The proposal was to conform the Rule to

the statute, changing the $100 amount to $25.

internal inconsistency in the Rule.

There is also an

In what has been changed to

subsection (e)(1)(D)(ii), the language is “with collateral

security of the kind specified in Rule 4-217 (e)(1)(A)...”, which

states that the defendant may post cash, certified check, or

intangible property approved by the court.

Looking at the

language that had been proposed to be stricken, the current Rule

states that the defendant may post a bail bond secured either by

a corporate surety or a cash deposit of 10% of the full penalty

amount.

The latter option is inconsistent with Rule 4-217

(e)(1)(A), which also allows the defendant to post a certified

check or intangible property approved by the court.

The stricken

language does not provide what the commissioner may order but

only states what the commissioner must tell the defendant he or

she may do.

That advice probably should apply as well to the

next two items, collateral security of more than 10% or

collateral security total.

The commissioner could advise the

defendant that this is the condition, and this is how the

condition may be met.

The defendant may either obtain a bondsman

or a corporate insurance company, or the defendant may post the

bail himself or herself (or a family member can post the bail).

The Chair told the Committee that to conform Rule 4-216 to

the statute, the amount of the collateral security should be

changed from $100 to $25.

To resolve the inconsistency between

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Rules 4-216 and 4-217, regarding the advice to the defendant, the

“cash deposit” referred to in Rule 4-217 (e)(1)(A) would be

deleted, and Rule 4-216 (e)(2) would read: “whatever is allowed

under Rule 4-217 (e)(1)(A),” which includes a certified check and

intangible property.

If the advice to the defendant is to be

kept in the Rule, it probably should apply to the amount that is

greater than 10% but less than the full penalty amount as well as

to the collateral security equal in value to the full penalty

amount.

To do this, Rule 4-216 had been drafted to take the

advice section out of subsection (e)(1)(D)(ii) and add it as a

new subsection (e)(2).

Judge Weatherly commented that the District Court judges do

this in a large volume, at least in Prince George’s County.

She

tends to give this advice to defendants, but she does not cite

the specific amounts referred to in the Rule.

She expressed the

concern that this may cause problems for the District Court

judges.

Judge Love responded that it would not cause any

problems for them.

Mr. Karceski remarked that he was confused about a provision

in the existing Rule.

In proposed Rule 4-216, subsections

(e)(1)(D)(iii) and (iv) refer to the kind of security specified.

Under subsection (iii), it is clear that Rule 4-217 (e)(1)(A)

refers to cash or a certified check.

The Chair explained that

subsection (e)(1) of Rule 4-217 includes real property that may

be posted.

Mr. Karceski inquired why subsection (e)(2) of Rule

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4-216 would not refer to subsection (e)(1)(B) of Rule 4-217.

Subsection (e)(1) of Rule 4-217 covers more than just the money,

real property, or intangible property that may be posted.

Subsection (e)(1)(D)(iv) of Rule 4-216 seems to allow the bail to

be posted in a way other than cash and certified check, and this

other way is to post real property.

The Chair agreed, noting

that it would have to be fully collateralized.

Mr. Karceski expressed the opinion that subsection (e)(2) of

Rule 4-216 should refer specifically to “Rule 4-217

...(e)(1)(B).”

The Chair pointed out that this would exclude

subsection (e)(1)(A).

The Reporter asked if the language in Rule

4-216 (e)(2) should be: “(e)(1)(A) or (B).”

affirmatively.

Mr. Karceski replied

Judge Norton suggested that Rule 4-216 (e)(2)

could refer to: “Rule 4-217 (e)(1)” in place of “Rule 4-217

(e)(1)(A) or (e)(1),” which is duplicative.

Rule 4-217 includes (A).

Subsection (e)(1) of

Referring to “Rule 4-217 (e)(1)” covers

(A) as well as (A) and (B).

The Chair noted that if Rule 4-216 (e)(2) refers only to

“Rule 4-217 (e)(1)(B),” then subsection (e)(1)(A) is being

excluded.

Judge Norton reiterated that if the language of the

Rule is “Rule 4-217 (e)(1),” it covers both.

Mr. Klein added

that the language now refers to a subset of the Rule, and then it

refers to the entire Rule.

Mr. Karceski pointed out that he was

referring to both subsections (e)(1)(D)(iii) and (e)(2) of Rule

4-216.

He saw a problem in both provisions.

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Subsection

(e)(1)(D)(iii) addresses specifically posting cash and nothing

else.

It includes either a certified check or cash.

added that it also refers to intangible property.

The Chair

Mr. Karceski

remarked that the second one must be real property.

The Chair

disagreed, pointing out that the intent was not to exclude the

ability to collateralize the bail with cash or intangible

property but to provide that it may also be collateralized with

real property.

The Reporter said that the intent of the revision was that

under subsection (e)(1)(D)(ii), which is 10% or less, apparently

the appropriate collateral is what is listed in subsection

(e)(1)(A) of Rule 4-217.

Looking at the next higher amount, if

the commissioner sets collateral security under Rule 4-216

(e)(1)(D)(iii) that is greater than 10% but less than 100%,

apparently what had been decided previously was that subsection

(e)(1)(A) of Rule 4-217 lists the appropriate type of collateral

security.

In subsection (e)(1)(D)(iv) of Rule 4-216, apparently

what had been decided previously was that the appropriate

collateral security is either what is in subsection (e)(1)(A) of

Rule 4-217 or what is in subsection (e)(1)(B) of Rule 4-217.

is anywhere in subsection (e)(1) of Rule 4-217, including real

estate or the other categories, if the entire amount of the

penalty is required to be posted.

and is being retained.

This is in the existing Rule

The intent is to make sure that Rule 4-

216 is properly harmonized with the statute.

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The Reporter noted that in subsection (e)(2) of Rule 4-216,

Advice to Defendant, the idea is to inform the defendant if the

commissioner sets the bail under subsection (e)(1)(D)(ii) or

(iii); the type of collateral security that must be posted is

what is listed in subsection (e)(1)(A) of Rule 4-217.

But if the

commissioner or judge requires posting of the full amount as

security, then either subsection (e)(1)(A) or (B) of Rule 4-217

applies.

This was summarized by referring to “Rule 4-217

(e)(1),” which encompasses both (A) and (B).

that this would be as applicable.

Judge Norton noted

The Reporter agreed, pointing

out that subsection (e)(1)(D)(iii) of Rule 4-216 applies to

subsection (e)(1)(A) or (B) of Rule 4-217, and subsections

(e)(1)(D)(i) and (ii) of Rule 4-216 apply only to subsection

(e)(1)(A) of Rule 4-217; subsection (e)(1)(D)(iv) of Rule 4-216

applies to subsection (e)(1)(A) or (B) of Rule 4-217.

It is

whichever is applicable.

Mr. Karceski inquired if someone could post real property in

any manner other than 100% of the bail.

Can a judge tell the

defendant that the bail is $400,000 and that he or she can post

10% cash or post real property if it is assessed by the court as

worth 10% of that amount?

to do this.

His view was that the judge was able

This is why the Rule is causing problems.

The Chair

commented that there is another provision in the statute and not

in the Rule which provides that the commissioner can direct that

the greater part of the collateral be cash.

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It appears that the

commissioner can set the bail at $10,000 and ask for 10%, but

require that most of this be in cash and not in real property.

Mr. Karceski said that while he did not disagree with what

was being proposed in Rule 4-216, there may be a problem in the

Rule as it exists.

As he read the Rule, it did not allow real

property to be posted at a percentage; it only allowed fully

collateralized real property.

The Chair agreed.

Mr. Karceski

said that he did not think that a judge could do this under the

Rule.

The Chair noted that this is the current Rule.

Mr.

Karceski remarked that he saw a problem with the current Rule.

A court can allow a defendant to post real property and post it

to the extent of whatever percentage of the bail that the judge

would like.

The Chair pointed out that under the current Rule,

if the collateralization is less than total, subsection (e)(1)(A)

of Rule 4-217 applies.

Mr. Karceski said that he read the Rule

that way, but he did not agree that this was the case.

The Chair commented that he did not know what the history of

this was.

Mr. Karceski said that it is usually this way when the

collateral is cash, not when it is real property.

The problem is

not in the proposed change, it is in the current version of the

Rule.

The Chair said that he had no policy objection to what Mr.

Karceski was suggesting, but he did not know why the Committee

approved and the Court of Appeals adopted the Rule as it stands.

Since Rule 4-216 would not be transmitted to the Court until the

Rule is discussed in February on other issues, the history of the

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Rule could be researched to see why the Committee and the Court

limited the less-than-full collateralization to cash.

Mr. Klein referred to subsection (e)(2) of Rule 4-216.

pointed out that a reference to a subsection had been omitted.

The last line referred to “Rule 4-217 (e)(l)(A)” and then

referred to the entire subsection “(e)(1)” of Rule 4-217, which

he felt did not make sense.

The Chair responded that this was

the subject of Mr. Karceski’s earlier comments.

Mr. Karceski

expressed the opinion that the second reference in subsection

(e)(2) of Rule 4-216 should be to “Rule 4-217 (e)(1)(B).”

The

Chair said that the intent was not to change the current Rule in

this regard, because such a change had not been requested.

Mr.

Klein remarked that he did not have Rule 4-217 in front of him.

However, it is simple mathematical subset logic as to why the

Rule would specify “Rule 4-217 (e)(1),” which would cover every

subpart that is under that subsection and then specify a

particular subpart.

The Chair replied that it was because for

two of these items, only subsection (e)(1)(A) was applicable.

The Reporter added that for the third item, either (e)(1)(A) or

(B) applied.

defendant.

The intent was to give the correct advice to the

The Chair noted that the defendant cannot be told

that if it is a 10% collateralization, he or she is able to post

someone’s house, because that is not allowed under the current

Rule.

Mr. Karceski expressed the opinion that it is allowed.

Judge Norton remarked that his recollection was that for

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several years, a battle concerning Rule 4-216 was ongoing until

the Honorable Joseph F. Murphy, Jr., who was then Chair of the

Committee, came up with the idea of the nominal $2,500 case.

would object to 10% cash with those cases?

Who

This was a kind of

compromise for the bail bond industry, which seemed satisfactory

to everyone.

Now the issue is 10% cash and a $5,000 bond.

the court’s intent was to have $500 on the table, is it now a $50

premium for a $500 corporate bond, or is it a $5,000 corporate

bond?

The utility of the 10% bond when it is not designated as

cash and then posted in a variety of ways leaves the other 90% to

be somewhat amorphous.

should be cash.

The old Rule suggested that the bail

This may have been ignored, but it seemed to be

the intent of the Rule.

The Chair pointed out that the reference

in subsection (e)(2) of Rule 4-216 to “subsection (e)(1)(A),”

which is in the current Rule, is an exception.

The Chair expressed the opinion that the Rule was clear that

the bond sets the penalty.

If the defendant does not appear, he

or she would have to pay the penalty amount.

collateral that is the issue.

It is the

It seems clear that if

collateralization of less than the full amount of the bond is

allowed, the collateral must be in cash, certified check, or

intangible property.

The Chair added that he was not part of the

Committee when Rule 4-216 had been last modified.

Mr. Karceski agreed with Judge Norton that the previous

changes to the Rule were trying to carve out an exception where

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$2,500 would be the magic number.

If the bail was that amount or

less, there would be a way that the court could permit release in

an easier manner.

This concerned the bail bond industry more

than anything else involving the Rule.

The discussion had gone

on for a long time with every bail bondsman in the State coming

forward at some point.

The $2,500 amount had been the main

issue.

The Chair remarked that he assumed that the intent of the

Rule was to tell the defendant in the $2,500 situation that he or

she had a choice.

The defendant could pay a bail bondsman $250,

and the bondsman would post the bond.

In that event the

defendant would not get the $250 back.

But if the defendant or

some friend or family member were to post the $250, he or she

would get it back if the defendant appeared in court as required.

After the most recent version of the Rule was adopted, it may

have been the intent of the legislature to overturn this, but the

way the Chair read the statute, it did not overturn the Rule.

did not refer to who can post the bond; it discussed how much the

bond would be.

Mr. Karceski commented that he agreed that

posting real property would not be appropriate when the bail is

less than $2,500.

The Chair noted that the Rule has the same

wording with respect to collateral of more than 10% but less than

the full penalty amount.

Mr. Karceski responded that he was

willing to accede to this, but his view was that this is an

issue.

The Reporter said that this would be considered when the

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rest of the Rule was discussed later.

Mr. Patterson observed that the discussion had digressed

from the issue regarding the last line of subsection (e)(2) of

Rule 4-216, which was whether the wording should be “... Rule 4217 (e)(1)(A) or (B)...”.

The Chair commented that the wording

could be “...(e)(1)(A) or (e)(1)(B), as applicable.”

The intent

would be to make clear with the words “as applicable” that if the

collateral is less than the full penalty amount, it can only be

paid by cash, certified check, or intangible property.

If the

collateral is for the full penalty amount, real property can be

used.

Mr. Patterson moved that the language of subsection (e)(2)

of Rule 4-216 read as follows: “...(e)(1)(A) or (B)...”.

motion was seconded.

The

Judge Pierson suggested that the wording

be: “... as specified in the applicable provision of Rule 4-217

(e)(1).”

The Chair noted that this could be worded several ways.

The

Chair pointed out that the wording suggested by Mr. Patterson

would not work, because it would allow the posting of real

property when the collateral is 10% of the full amount.

The

Reporter said that the language suggested by Judge Pierson would

be appropriate.

Mr. Patterson stated that he would withdraw his

motion, and the person who seconded the motion agreed to the

withdrawal.

Judge Pierson moved that the language of Rule 4-216

(e)(2) would be:

“... as specified in the applicable provision

of Rule 4-217 (e)(1).”

The motion was seconded, and it passed

-19-

unanimously.

The Chair asked if everyone approved of Rule 4-216

with the amendment that had just been agreed upon.

By consensus, the Committee approved Rule 4-216 as amended.

Mr. Karceski remarked that the Criminal Subcommittee had

never seen the proposed changes to Rule 4-216.

The Reporter said

that she would take a look at the distinction between subsections

(e)(1)(D)(ii) and (iii) and subsection (e)(1)(D)(iv) of Rule 4216.

These may be able to be compressed.

The Chair added that

this can be revisited when the other changes to the Rule are

discussed.

This was put on the agenda because of the

correspondence between the legislative branch and the judicial

branch over the inconsistency between Rule 4-216 and the statute.

Agenda Item 1. Consideration of proposed amendments to: Rule

1-321 (Service of Pleadings and Papers Other than Original

Pleadings), Rule 2-131 (Appearance), Rule 3-121 (Appearance),

Rule 2-132 (Striking of Attorney’s Appearance), Rule 3-132

(Striking of Attorney’s Appearance), and Maryland Lawyers’

-20-

Rules of Professional, Rule 1.2 (Scope of Representation and

Allocation of Authority Between Client and Lawyer)

_________________________________________________________________

The Chair told the Committee that Agenda Item 1 was

comprised of several Rules, one of which had some problems.

Mr. Brault presented Rule 1.2, Scope of Representation and

Allocation of Authority Between Client and Lawyer, for the

Committee’s consideration.

MARYLAND RULES OF PROCEDURE

APPENDIX: THE MARYLAND LAWYERS’ RULES OF

PROFESSIONAL CONDUCT

CLIENT-LAWYER RELATIONSHIP

AMEND Rule 1.2 to require that the scope

and limitations of a limited scope

representation by an attorney be specified in

a written agreement and be in compliance with

any applicable Maryland Rule and to add a new

Comment 8 pertaining to limited scope

representation, as follows:

Rule 1.2. SCOPE OF REPRESENTATION AND

ALLOCATION OF AUTHORITY BETWEEN CLIENT AND

LAWYER

(a) Subject to paragraphs (c) and (d), a

lawyer shall abide by a client's decisions

concerning the objectives of the

representation and, when appropriate, shall

consult with the client as to the means by

which they are to be pursued. A lawyer may

take such action on behalf of the client as

is impliedly authorized to carry out the

representation. A lawyer shall abide by a

client's decision whether to settle a matter.

In a criminal case, the lawyer shall abide by

the client's decision, after consultation

with the lawyer, as to a plea to be entered,

-21-

whether to waive jury trial and whether the

client will testify.

(b) A lawyer's representation of a client,

including representation by appointment, does

not constitute an endorsement of the client's

political, economic, social or moral views or

activities.

representation in accordance with applicable

Maryland Rules if (1) the limitation is

reasonable under the circumstances and the

client gives informed consent (2) with the

client’s informed consent, the scope and

limitations of the representation are clearly

set forth in a written agreement between the

lawyer and the client.

(d) A lawyer shall not counsel a client to

engage, or assist a client, in conduct that

the lawyer knows is criminal or fraudulent,

but a lawyer may discuss the legal

consequences of any proposed course of

conduct with a client and may counsel or

assist a client to make a good faith effort

to determine the validity, scope, meaning or

application of the law.

COMMENT

Scope of Representation. - [1] Both lawyer

and client have authority and responsibility

in the objectives and means of

representation. The client has ultimate

authority to determine the purposes to be

served by legal representation, within the

limits imposed by law and the lawyer's

professional obligations. Within those

limits, a client also has a right to consult

with the lawyer about the means to be used in

pursuing those objectives. At the same time,

a lawyer is not required to pursue objectives

or employ means simply because a client may

wish that the lawyer do so. A clear

distinction between objectives and means

sometimes cannot be drawn, and in many cases

the client-lawyer relationship partakes of a

joint undertaking. In questions of means,

the lawyer should assume responsibility for

-22-

technical and legal tactical issues, but

should defer to the client regarding such

questions as the expense to be incurred and

concern for third persons who might be

adversely affected.

[2] On occasion, however, a lawyer and a

client may disagree about the means to be

used to accomplish the client's objectives.

Because of the varied nature of the matters

about which a lawyer and client might

disagree and because the actions in question

may implicate the interests of a tribunal or

other persons, this Rule does not prescribe

how such disagreements are to be resolved.

Other law, however, may be applicable and

should be consulted by the lawyer. The

lawyer should also consult with the client

and seek a mutually acceptable resolution of

the disagreement. If such efforts are

unavailing and the lawyer has a fundamental

disagreement with the client, the lawyer may

withdraw from the representation. See Rule

1.16 (b)(4). Conversely, the client may

resolve the disagreement by discharging the

lawyer. See Rule 1.16 (a)(3).

[3] At the outset of a representation,

the client may authorize the lawyer to take

specific action on the client's behalf

without further consultation. Absent a

material change in circumstances and subject

to Rule 1.4, a lawyer may rely on such an

advance authorization. The client may,

however, revoke such authority at any time.

[4] In a case in which the client

appears to be suffering diminished capacity,

the lawyer's duty to abide by the client's

decisions is to be guided by reference to

Rule 1.14.

Independence from Client's Views or

Activities. - [5] Legal representation

should not be denied to people who are unable

to afford legal services, or whose cause is

controversial or the subject of popular

disapproval. By the same token, representing

a client does not constitute approval of the

client's views or activities.

-23-

Agreements Limiting Scope of Representation.

- [6] The scope of services to be provided by

a lawyer may be limited by agreement with the

client or by the terms under which the

lawyer's services are made available to the

client. When a lawyer has been retained by an

insurer to represent an insured, for example,

the representation may be limited to matters

related to the insurance coverage. A limited

representation may be appropriate because the

client has limited objectives for the

representation. In addition, the terms upon

which representation is undertaken may

exclude specific means that might otherwise

be used to accomplish the client's

objectives. Such limitations may exclude

actions that the client thinks are too costly

or that the lawyer regards as repugnant or

imprudent.

[7] Although this Rule affords the

lawyer and client substantial latitude to

limit the representation, the limitation must

be reasonable under the circumstances. If,

for example, a client's objective is limited

to securing general information about the law

the client needs in order to handle a common

and typically uncomplicated legal problem,

the lawyer and client may agree that the

lawyer's services will be limited to a brief

telephone consultation. Such a limitation,

however, would not be reasonable if the time

allotted was not sufficient to yield advice

upon which the client could rely. Although an

agreement for a limited representation does

not exempt a lawyer from the duty to provide

competent representation, the limitation is a

factor to be considered when determining the

legal knowledge, skill, thoroughness and

preparation reasonably necessary for the

representation. See Rule 1.1.

[8] A lawyer and a client may agree that

the scope of the representation is to be

limited to clearly defined specific tasks or

objectives, such as: (1) without entering an

appearance, filing papers, or otherwise

participating on the client’s behalf in any

judicial or administrative proceeding, (i)

giving legal advice to the client regarding

-24-

the client’s rights, responsibilities, or

obligations with respect to particular

matters, (ii) conducting factual

investigations for the client, (iii)

representing the client in settlement

negotiations or in private alternative

dispute resolution proceedings, (iv)

evaluating and advising the client with

regard to settlement options or proposed

agreements, or (v) drafting documents,

performing legal research, and providing

advice that the client or another attorney

appearing for the client may use in a

judicial or administrative proceeding; or (2)

in accordance with applicable Maryland Rules,

representing the client in discrete judicial

or administrative proceedings, such as a

court-ordered alternative dispute resolution

proceeding, a pendente lite proceeding, or

proceedings on a temporary restraining order,

a particular motion, or a specific issue in a

multi-issue action or proceeding. Before

entering into such an agreement, the lawyer

shall fully and fairly inform the client of

the extent and limits of the lawyer’s

obligations under the agreement.

[8] [9] All agreements concerning a

lawyer's representation of a client must

accord with the Maryland Lawyers' Rules of

Professional Conduct and other law. See,

e.g., Rule 1.1, 1.8 and 5.6.

Criminal, Fraudulent and Prohibited

Transactions. - [9] [10] Paragraph (d)

prohibits a lawyer from knowingly counseling

or assisting a client to commit a crime or

fraud. This prohibition, however, does not

preclude the lawyer from giving an honest

opinion about the actual consequences that

appear likely to result from a client's

conduct. The fact that a client uses advice

in a course of action that is criminal or

fraudulent does not, of itself, make a lawyer

a party to the course of action. There is a

critical distinction between presenting an

analysis of legal aspects of questionable

conduct and recommending the means by which a

crime or fraud might be committed with

impunity.

-25-

[10] [11] When the client's course of

action has already begun and is continuing,

the lawyer's responsibility is especially

delicate. The lawyer is required to avoid

assisting the client, for example, by

drafting or delivering documents that the

lawyer knows are fraudulent or by suggesting

how the wrongdoing might be concealed. A

lawyer may not continue assisting a client in

conduct that the lawyer originally supposed

was legally proper but then discovers is

criminal or fraudulent. The lawyer must,

therefore, withdraw from the representation

of the client in the matter. See Rule

1.16(a). In some cases withdrawal alone

might be insufficient. It may be necessary

for the lawyer to give notice of the fact of

withdrawal and to disaffirm any opinion,

document, affirmation or the like. See Rules

1.6, 4.1.

[11] [12] Where the client is a

fiduciary, the lawyer may be charged with

special obligations in dealings with a

beneficiary.

[12] [13] Paragraph (d) applies whether

or not the defrauded party is a party to the

transaction. Hence, a lawyer must not

participate in a transaction to effectuate

criminal or fraudulent avoidance of tax

liability. Paragraph (d) does not preclude

undertaking a criminal defense incident to a

general retainer for legal services to a

lawful enterprise. The last clause of

paragraph (d) recognizes that determining the

validity or interpretation of a statute or

regulation may require a course of action

involving disobedience of the statute or

regulation or of the interpretation placed

upon it by governmental authorities.

[13] [14] If a lawyer comes to know or

reasonably should know that a client expects

assistance not permitted by the Maryland

Lawyers' Rules of Professional Conduct or

other law or if the lawyer intends to act

contrary to the client's instructions, the

lawyer must consult with the client regarding

the limitations on the lawyer's conduct. See

-26-

Rule 1.4(a)(4).

Model Rules Comparison. -- Rule 1.2 is

substantially similar to the language of the

Ethics 2000 Amendments to the ABA Model Rules

of Professional Conduct except for wording

changes in Rule 1.2(a) and the retention of

existing Maryland language in Comment [1].

Rule 1.2 was accompanied by the following Reporter’s note.

See the Reporter’s note to Rule 1-321.

Mr. Brault explained that Rule 1.2 currently states that an

attorney may limit the scope of representation, and this is

common in a legal practice.

It is done for many reasons.

The

attorney can say that he or she represents the ABC corporation

for specific purposes, which is allowable.

Many times, attorneys

write papers for clients but the clients, not the attorneys, file

the papers.

The attorney may give advice to a client as to how

to write a will or other document, but the client does the

writing himself or herself.

The attorney who does this should be

careful to write a retainer agreement that specifies that

limitation.

Many people who appear in proper person seem to

write excellent papers, but someone else wrote the paper for the

person.

This is appropriate.

It is important to make sure that

when a party is in the courtroom, it is clear what is appropriate

for an attorney to do when representing that person on a limited

basis.

The Attorneys Subcommittee created a specific change in

Rule 1.2, but whether it is necessary is debatable.

Much of the

energy behind limited representation and changes to the Rules

-27-

applying to it come from the family law segment of the bar where

limited representation seems to be far more common.

Mr. Brault noted that in section (c) of Rule 1.2, language

has been added to the first sentence that provides that a lawyer

may limit the scope of the representation in accordance with

applicable Rules.

Other new language requires the client’s

consent and that the scope and limitations of the representation

are clearly set forth in a written agreement between the attorney

and the client.

A new paragraph 8. has been added to the

comments at the end of Rule 1.2.

It contains examples of what

aspects of a legal representation may be limited.

The examples

give an idea of what the impetus was to amend the Rules.

Initially, the Subcommittee wanted to know if everyone agreed

with the concept of Rule 1.2 being amended and being interpreted

in accordance with what will be put into the Rules.

The Chair asked if anyone had a comment on Rule 1.2.

Mr.

Leahy noted that although it may be appropriate, one of the

proposed changes would put a burden on the attorney and client to

enter into a fairly complex limited representation agreement.

Mr. Brault explained that the idea was to avoid downstream

problems.

It does add a burden, but it also clarifies the

situation and makes it easier.

He said that he and his son, who

is also an attorney, would be arguing a case in the Court of

Special Appeals the following week.

They had not been involved

in the trial of the case in the lower court.

-28-

They had gone

before the trial judge on motions relating to attempts to collect

and told the judge that they were only entering their appearance

to answer one motion.

The trial judge had no idea what they were

talking about.

Mr. Brault said that he had tried to explain to the judge

that it was a limited representation agreement to simply argue

the one post-trial motion, and that they did not want to enter

their appearance generally, because the client was in New York,

and they did not want to make service upon them available.

The

other side, a major law firm in Washington, D.C., argued that Mr.

Brault and his son could not represent the client on the limited

issue.

This indicated that amending the Rules was necessary.

the attorney and client did not have a written agreement, it

would be difficult to establish before the court or by the client

in a post-trial proceeding that the attorney and client had a

bona fide agreement.

Judge Weatherly remarked that even though it may be a

burden, it is important that there will be two different groups

of attorneys, those who are in the entire case and those who come

in on a discovery issue or another separate issue.

The court

should be able to ask an attorney to provide some evidence of the

limited representation agreement, which should be able to be

defined.

It should not be a burden to articulate in writing what

the agreement is so as to avoid confusion.

The Chair commented

that these proposals were brought to the Committee by the

-29-

Commission on Access to Justice.

the need for clarity.

The Subcommittee had discussed

The role of the attorney and the role of

the client need to be clearly delineated, so that problems do not

arise later in the case.

By consensus, the Committee approved Rule 1.2 as presented.

Mr. Brault presented Rule 1-321, Service of Pleadings and

Papers Other than Original Pleadings, for the Committee’s

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 1 - GENERAL PROVISIONS

CHAPTER 300 - GENERAL PROVISIONS

AMEND Rule 1-321 to add a new section

(b) pertaining to service after entry of

limited appearance and to make stylistic

changes, as follows:

Rule 1-321. SERVICE OF PLEADINGS AND PAPERS

OTHER THAN ORIGINAL PLEADINGS

(a)

Generally

Except as otherwise provided in these

rules or by order of court, every pleading

and other paper filed after the original

pleading shall be served upon each of the

parties. If service is required or permitted

to be made upon a party represented by an

attorney, service shall be made upon the

attorney unless service upon the party is

ordered by the court. Service upon the

attorney or upon a party shall be made by

delivery of a copy or by mailing it to the

address most recently stated in a pleading or

paper filed by the attorney or party, or if

not stated, to the last known address.

Delivery of a copy within this Rule means:

-30-

handing it to the attorney or to the party;

or leaving it at the office of the person to

be served with an individual in charge; or,

if there is no one in charge, leaving it in a

conspicuous place in the office; or, if the

office is closed or the person to be served

has no office, leaving it at the dwelling

house or usual place of abode of that person

with some individual of suitable age and

discretion who is residing there. Service by

mail is complete upon mailing.

(b) Service After Entry of Limited

Appearance

Every document required to be served

upon a party’s attorney that is to be served

after entry of a limited appearance shall be

served upon the party and, unless the

attorney’s appearance has been stricken

pursuant to Rules 2-132 or 3-132, the limited

appearance attorney.

(b) (c) Party in Default - Exception

No pleading or other paper after the

original pleading need be served on a party

in default for failure to appear except a

pleading asserting a new or additional claim

for relief against the party which shall be

served in accordance with the rules for

service of original process.

A request directed to the clerk for

the issuance of process or any writ need not

be served on any party.

Source: This Rule is derived as follows:

Section (a) is derived from former Rule 306

a 1 and c and the 1980 version of Fed. R.

Civ. P. 5 (a).

Section (b) is new.

Section (b) (c) is derived from former Rule

306 b and the 1980 version of Fed. R. Civ. P.

5 (a).

Section (c) (d) is new.

-31-

Rule 1-321 was accompanied by the following Reporter’s note.

The Maryland Access to Justice

Commission and family law practitioners have

requested that provisions concerning limited

scope representation be added to the Maryland

Rules. Amendments to Rules 1-321, 2-131, 2132, 3-131, and 3-132 and Rule 1.2 of the

Maryland Lawyers’ Rules of Professional

Conduct are proposed by the Attorneys

Subcommittee to expressly authorize the entry

of limited appearances in the District Court

and circuit courts, to address the service of

pleadings and papers after an attorney enters

a limited appearance, to provide guidance

regarding informed consent of the client when

an attorney and a client wish to agree to

limited scope representation, and to permit

the filing of a notice of withdrawal of

appearance after the proceeding for which the

appearance was entered has concluded or the

purpose of the limited representation has

been accomplished.

Mr. Brault told the Committee that the proposed changes to

Rule 1-321 create a problem, which is the clerks’ ability to

track the limited representation on the computer.

Ms. Smith said

that it would cause problems for the circuit court, but she was

not sure that it would affect the District Court.

Mr. Brault

said that the changes to the Rule address service on attorneys

who have entered a limited appearance.

The Subcommittee’s view

was that everything should be served on the attorney who entered

a limited appearance.

The new language states that every

document required to be served on a party’s attorney shall be

served after entry of a limited appearance upon the party and

upon the limited appearance attorney, unless the attorney’s

-32-

appearance has been stricken.

The Chair commented that Ms. Smith had first notified the

Committee of the problem with the Rule.

There is no problem as

to service of papers by the other side.

The other party can

serve both the attorney and the client.

The problem is service

of documents or notices by the court.

Five counties in Maryland

send out notices through legacy case management systems, which do

not permit sending notices to both the client and the attorney.

To change the systems so that they could do this would cost a

considerable amount of money.

When the court system gets into

the full electronic program in about two years, this will no

longer be a problem, because the system can be designed to

accommodate this.

The concern has been expressed that to do this

now for the five counties with legacy systems would be very

expensive.

The judicial budget is already tight, and it is not

worth going to this expense, when in two years, the new system

will permit it to be done.

Mr. Broccolina told the Committee that he had distributed to

the Committee a document laying out the reasons already

articulated by the Chair as to why the proposed changes to Rule

1-321 would not be compatible with some aspects of the District

Court Civil and UCS case management system. (See Appendix 1).

introduced Mr. Mark Bittner, the Director of Judicial Information

Systems (JIS), to speak about this issue.

Mr. Bittner said that each person present should have a one-

-33-

page, two-sided document that constitutes a brief analysis of

this topic.

There were two primary premises on which the

analysis was based.

The first was that in a limited appearance

by an attorney, notices from the court would be sent to both the

litigant and to his or her attorney.

The second was that in a

limited appearance, the attorney would be attached to a specific

party in the case, just as a full-time attorney would be.

The

time frames that they had looked at to complete changes of this

nature to both the District Court and circuit court systems have

to take into account all of the other activities that JIS and the

resources from these systems are engaged in now and will very

likely be engaged in later on this year.

They engage in

primarily legislative changes every year, and they are working

towards instituting the new case management system.

Attention

diverted from that activity prolongs that effort, and they cannot

afford to do that.

Mr. Brault told the Committee that the cost considerations

included in the estimate of changing the system to accommodate

limited representation would include assessing what needs to be

done as well as changing the likely portions of the system that

are typically modified in this type of adjustment.

They estimate

that it would cost $100,000 and it would require between eight

and 12 months to complete these changes, because now the systems

in question can either produce notices to the pro se litigant or

to the attorney, but not to both.

-34-

The changes to the system

would have to recognize this particular condition as unique.

The

limited appearance would have to be recorded in the case

management system, and vehicles would have to be provided by

which the clerks could manage this.

The appearances and the

entry and exit of the limited appearance would then be able to

generate all notices that would be effective based on those in

that situation and also produce any reporting or tracking

associated with this activity.

Mr. Maloney commented that the legacy systems are outdated

and asked what the short-term or long-term plan was to eliminate

the systems.

Mr. Bittner replied that the long-term plan is to

eliminate the legacy systems within two years.

Anne Arundel County would facilitate this.

The new system in

After that, it would

take probably three years for the new system to be installed

statewide.

Mr. Maloney inquired about how the five counties

using the legacy systems other than UCS will be handled.

Mr.

Bittner said that he and his colleagues have determined that the

circuit court system used in Prince George’s County would need

only minimal changes, so that it could handle the limited

representation.

It would be the same for Montgomery County.

is primarily the District Court civil system and any court using

the UCS (Unified Case System) that now are not equipped to handle

this situation.

Mr. Klein asked if it would make any difference to the

system whether the Rules Committee chooses the party or the

-35-

attorney if the system requires that either one or the other can

be chosen.

Mr. Bittner replied that if the attorney is chosen,

he or she would receive the notices on behalf of the party.

Notices automatically go to the attorney, so it is not a matter

of choosing which one in a specific case.

The Rule could state

that if someone had not been entered as the attorney in the case,

the self-represented litigant (SRL) would have to provide the

attorney with any notices that he or she had received.

The

difficulty arises in sending the notices to both the party and

the attorney.

Mr. Brault asked what happens when a new attorney enters an

appearance and a former attorney withdraws.

Mr. Bittner answered

that the new attorney would be on a full-time basis, and the

litigant does not get the notices.

attorney would get the notices.

system can change attorneys.

Either the former or the new

Mr. Brault inquired if the

Mr. Bittner answered affirmatively.

Mr. Brault asked if the system could change from notice sent to

an attorney to notice sent to a SRL.

Mr. Bittner responded that

it would be one or the other, but both cannot receive notices.

The system can change to a SRL, but then the SRL is the only one

getting notices.

The attorney who is in the case on a limited

basis would not be sent notices.

Ms. Smith remarked that the

system would not allow either the party, the defendant, or the

attorney to get notices.

Mr. Maloney questioned why a category could not be created

-36-

that would be entitled “attorney - proper person.”

attorney could be named as “attorney/self.”

Then the

Mr. Bittner

commented that the notices would only go to that party.

Mr.

Maloney noted that if the system can allow multiple attorneys, it

could include one entitled “attorney - proper person.”

Mr.

Bittner responded that the new system would accommodate this.

The existing system would add the designation to the attorney

table.

The way the system works is that it uses a centralized

attorney table with information about the attorneys.

The

attorney table would be polluted with private citizens, and at

the time when the new system is adopted, they would not be able

to know which ones were attorneys and which ones were not.

Mr.

Maloney observed that if the designation is “attorney/self,” the

system could identify the non-attorney.

Mr. Bittner explained

that the names of the non-attorneys would have to be changed and

stripped out at a later time.

He was not implying that

procedurally there are no ways to work around this problem, but

they would raise extra effort at the time of converting the data

to the new system to properly reflect that they are parties in

the case.

Mr. Brault inquired what must be done to implement the Rule

as it has been proposed, since the system is not capable of

handing the necessary electronics or all of the data processing.

Mr. Bittner replied that he had been asked to comment on what it

would take to solve the problem.

-37-

The Chair acknowledged Mr.

Bittner’s point that the current system, except for minimal

changes in Prince George’s and Montgomery Counties, cannot send

notices to both the attorney and the party.

However, Mr. Bittner

had said that if the attorney enters a limited appearance, the

attorney and not the party would get the notices.

asked why this is so.

The Chair

Mr. Bittner answered that if an attorney

is attached to a party, the attorney will get the notices.

The

Chair inquired whether the attorney has to be attached to the

party for Mr. Bittner’s purposes.

Mr. Bittner replied that

technically the attorney does not have to be attached to the

party.

Ms. Potter commented that the attorney has to sign off as to

the limited scope.

Can the attorney be the one signing off in

the document that he or she is the one responsible for checking

the docket?

It should be up to the attorney to take care of

this.

The Chair said that the Committee may accept the JIS

position that at this point, notices cannot be sent to both the

attorney and the party, and it may be several years before this

can be done.

Mr. Bittner explained that not being able to send

notices to both means that an attorney is attached to a party.

The Chair asked Ms. Smith if there is some way that a limited

appearance can be entered, but some code assigned, so that the

attorney is not regarded as attached.

Ms. Smith responded that

it is possible that a different type of party could be

-38-

designated, but she was not sure.

Mr. Bittner commented that he

would be willing to research what the impact of this suggestion

would be.

Several questions would need to be answered related to

that.

Mr. Brault questioned whether there is a category for an

attorney who is not attached to a party in the JIS systems

currently.

Mr. Bittner answered in the negative.

Judge Pierson noted that there is a category for interested

persons.

type.

Mr. Bittner pointed out that this is a different party

However, they would have no data related to the fact that

the interested person was an attorney at any point in time,

either now or in the future after conversion.

be designated as another party forever.

That person would

The Reporter noted that

this would not be the case if the person withdraws his or her

appearance.

They would then be out.

Mr. Bittner acknowledged

this, but he noted that within the case management system, they

would never have the data to identify that person as an attorney.

Mr. Brault asked if language could be added to Rule 1-321

indicating that an attorney in a case of a limited appearance

shall be designated as an interested person.

The Reporter

expressed the view that this could be done.

Mr. Broccolina

remarked that if it is just an attorney entering a limited

appearance in a case and he or she is listed in the system as a

party to the case, that would not cause a problem.

However, if

data is requested, such as asking in how many cases did a certain

-39-

court have limited-appearance attorneys, it cannot be given.

Mr. Klein remarked that if attorneys are called parties, and

a credit check was done to find out who has been a party to a

lawsuit, this could create a problem.

He asked Mr. Bittner

whether the system would send notice to both the attorney and the

party if no change was made in the JIS system, but the clerks

were instructed that if an attorney enters a limited appearance,

in addition to the attorney’s name being entered in the system as

would be done currently, the name of a party was also entered in

the attorney fields preceded by some special character, such as

an asterisk.

Ms. Smith commented that this affects the attorney table.

Mr. Klein noted that the designation could be preceded with some

character.

Mr. Bittner responded that the character would only

be the indicator that would be chosen.

To allow an entry

mechanism to put that character in would require programming to

recognize that condition with that character.

It would have to

be set in the database, and all of the notice programs would have

to be changed to look for that special character.

He said that

he understood how simple it sounded, but the legacy systems are

35 years old.

It is like comparing the computers that first came

out to what is able to be done today and how quickly new

functionality on the computers can be obtained.

With the new

system, these kinds of changes can be easily made.

The staff at

JIS are severely limited with the lack of flexibility in the

-40-

current systems, which is one of the main reasons why they are

being replaced.

Mr. Carbine asked about the attorney table.

Ms. Smith

responded that when there is a party who has an attorney attached

to him or her, the name of the attorney is put into an attorney

table, so that there can be a check to make sure someone is

actually an attorney.

way.

The data has to be entered in the same

A clerk could not put the attorney’s name in one way one

time, and then another way at some other time.

When the name of

an attorney is entered, a mail flag is switched, so that the

attorney will get all of the mail.

If the attorney withdraws

from the case, this switches the mail flag, so that the party

gets all of the notices.

Once the attorney’s name is put into

the table, another attorney cannot be added.

Mr. Carbine said that he had thought of an approach to this

problem that would cost almost nothing to implement.

assumption is that the computer system is archaic.

First, the

Secondly,

there is money in the budget to have this enormous shift over to

electronic filing and electronic records in two years, so that

Maryland will have a state-of-the-art computer system.

This

State has operated without limited appearances for a long time.

The people who would like the Rules to be changed to permit

limited appearances are primarily the attorneys who do not want

to be in the case for the entire length of it, and the clients

who do not want to pay the legal fees to have the attorneys in

-41-

for the entire case.

This would only apply to written court

notices, not to an attorney sending a service copy to the other

side.

When the notice goes to the limited appearance attorney,

that attorney is obligated under the Rules to mail a copy to the

client.

Ms. Potter noted that the obligation to the client does not

end as soon as the attorney withdraws his or her appearance.

Chair pointed out that there are two defaults.

The

Assuming that

both the attorney and the client will not be able to get notice,

notice can be sent to the attorney who can ascertain if he or she

is in this case or not, or the notice can be sent to the selfrepresented client, who can be required to send it to the

attorney as part of the limited representation.

and cons to each method.

There are pros

Mr. Carbine remarked that the court has

more control over the attorneys than the clients.

The Chair said that if the notice is sent to the attorney,

he or she may only be in the case for a narrow issue, such as a

motion for summary judgment, and the attorney may start getting

notices about many other aspects of the case.

The Reporter added

that this is particularly evident in domestic cases, which may be

very complicated, but the attorney may only be in for one narrow

part, such as to draft a QDRO (qualified domestic relations

order).

The Chair pointed out that this is the down side, but

the up side is that if the notice falls within the limited scope

of the representation, then the attorney has it.

-42-

Mr. Brault asked what happens when the attorney enters an

appearance, whether general or limited, and then withdraws.

Ms.

Smith answered that the mail flag switches back to the party, and

the party is sent a notice that the attorney has withdrawn.

When a new attorney comes into the case, the mail flag switches

back.

Mr. Brault asked what the problem would be requiring by

rule that the attorney withdraw.

Why does the notice going to

the attorney not satisfy the Rule?

Why does the notice have to

go to both the attorney and the client?

The Reporter responded

that it is because the client is representing himself or herself

on all of the other issues in the case.

If it is a domestic

case, there could be change of custody, child support, contempt,

and many other issues.

draft a QDRO.

The attorney may only be in the case to

Mr. Carbine said that if the attorney wants to do

a limited representation, there is a price, which is that when

the attorney gets the eight other notices that do not involve him

or her, the attorney mails them to the client for a certain

amount of time.

The Chair commented that they had looked at rules in other

states on this issue.

Most states send the notices to both the

attorney and the client.

the notices.

Other states do not refer to who gets

He asked Ms. Ortiz for her comments since her

agency had raised the issue of limited representation.

Ms. Ortiz

told the Committee that the primary interest of the Commission on

Access to Justice was to create a vehicle through which lower-

-43-

and moderate-income clients could retain limited-scope attorneys.

The Commission’s primary interest is in seeing that these

attorneys can enter a limited appearance with the court.

would be optimal if both the self-represented litigant and the

limited-scope attorney could get notice.

The party does retain

primary responsibility for the litigation.

However, attorneys

are more familiar with the litigation process.

This Rule

anticipates that the limited-scope attorney, when he or she

enters an appearance in court, will then withdraw when the

purposes for which the attorney was hired are completed.

may be a case with bifurcated issues.

There

Ms. Ortiz said that she

was not sure how often there would be separate bifurcated issues.

This is the one area where attorneys may be getting notices for

issues with which they are not involved.

Dawn Bowie, Esq., a family law practitioner, told the

Committee that she had entered limited appearances previously and

that she would speak to the issue of the burden on attorneys.

The solution that had been suggested was the closest to what she

and her colleagues had anticipated would happen.

The limited-

appearance attorneys are much like other attorneys for the period

of time in which they work.

The Chair asked Ms. Ortiz if she would prefer that the

attorney get the notices in terms of the two possible defaults to

which he had referred, sending the notice to the attorney, or

sending it to the client who would them send it to the limited-

-44-

appearance attorney.

Ms. Ortiz answered affirmatively.

Cases

that had attorneys for a period of time would be able to be

identified.

It would be similar to the way it is now, and it

would be seamless for the clerks to handle it that way.

Ms.

Bowie expressed the view that the selected solution is the better

one.

Her limited-scope practice reflects the full range of her

professional responsibilities, but instead of an entire case, it

is one event.

She has the same duties in a limited-scope case

that she would have for an entire case.

The Chair inquired whether JIS would have any problem with

Rule 1-321 providing that once an attorney files a limited

appearance, the attorney would get all notices from the court

regarding that case until such time as the attorney withdraws

from the case.

Then the notices would be sent to the client.

Mr. Bittner replied that this is how the system currently works.

His thought on this was that if JIS were asked to identify cases

with limited appearances, they would have no way of knowing that

the entry and exit was not a change of attorney or a dismissal of

an attorney as opposed to a limited appearance.

that this would only be for two years.

The Chair noted

Mr. Bittner said that it

would be only until the new system is in place, in which case

that situation is resolved.

Mr. Brault suggested that section (b) of Rule 1-321 could be

changed to read “Every document required to be served upon a

party’s attorney that is to be served after entry of a limited

-45-

appearance shall be served upon the attorney, unless that

attorney’s appearance has been stricken pursuant to Rules 2-132

or 3-132, in which event it would be served upon the party.”

The Reporter observed that Rule 1-321 could be left as it

currently is, and Rule 1-324, Notice of Orders, which addresses

the court’s actions could be modified.

It seems like a good idea

to have parties serving both the other party and the limited

appearance attorney.

to be modified.

The Chair agreed that Rule 1-324 would have

This would not have to be drafted now.

Rule 1-

321, addressing documents that the other side must serve, would

provide that documents would have to be served on both the party

and the limited-appearance attorney.

they agreed with this.

this suggestion.

He asked the Committee if

By consensus, the Committee agreed with

The Chair said that Rule 1-324 would provide

that notice would go to the limited-appearance attorney until the

attorney’s appearance is stricken.

By consensus, the Committee

agreed with this proposal.

Mr. Klein suggested that a Reporter’s note be included for

the benefit of the Court of Appeals explaining that this is an

interim solution until a more up-to-date computer system can be

installed.

The Reporter asked if it should be a Committee note,

but Mr. Klein replied that it should be a Reporter’s note.

Ms.

Smith asked how attorneys will know about the new procedure since

they are familiar with the current procedure.

The Chair

responded that the way to address this is in Rule 2-131,

-46-

Appearance, where the notice is.

Language could be added

indicating that the attorney understands that he or she must send

notices to the client that do not pertain to the limited

representation.

Judge Pierson commented that this will create a problem.

When the notices are not sent, parties will say that they did not

know about the proceeding.

They may request a postponement,

which could violate deadlines.

The Chair agreed that this is the

down side of this procedure no matter who gets the notice.

Reporter noted that there may be timing problems, also.

The

Mr.

Patterson remarked that if both the attorney and the party get

the notice, then the SRL can be told that the attorney had been

sent the notice.

There is a reason why the notice should go to

both.

Ms. Gardner told the Committee that she was from the Public

Justice Center.

She had a suggestion that would provide a way

for both attorney and client to get notices, but she did not know

what other problems would be created.

If the limited-appearance

attorney was entered into the system in the case, and the party

was also duplicated as an interested person, then they would both

get the notices.

The party could be taken out of the category of

“interested person” when the attorney withdrew.

The Chair said

that the only problem with this is that the client is not an

interested person in the case; the client is the party.

Ms.

Gardner said that the designation would appear as both the

-47-

plaintiff and an interested person in the system.

Then the

plaintiff would get the notices along with the attorney.

Mr. Carbine said that he had a comment on Judge Pierson’s

problem.

Right now, every time Mr. Carbine serves discovery

requests on another party, he has to file a notice of service.

high-volume office has a form which is one sheet of paper.

The

attorney files the notice with the court stating that he or she

had sent papers on to the client, and the judge has that put into

the court file.

There would be some record in the court file to

indicate that the client had been mailed copies of a certain

document.

Mr. Bittner remarked that this is not a technical issue, but

a procedural one.

Master Mahasa asked him to clarify this.

Mr.

Bittner responded that when an event occurred where it was a

limited appearance, the clerks would not only have to record that

event, but within the clerk’s office, they would then have to add

the party as an interested person at that point in time.

would be additional work for the clerk’s office.

The system

would not automatically note the limited appearance and add the

party as an interested person.

Master Mahasa remarked that the

clerk’s office would have to do that anyway to add someone as an

interested person.

Mr. Bittner stated that the person already

would have been entered into the case as a party.

Master Mahasa

pointed out that there may already be a category available,

because sometimes interested persons are also parties.

-48-

The clerk

would have to add that person’s name.

Mr. Bittner noted that what had been suggested was that in

the event of a limited appearance, when the attorney enters the

case, the party who the attorney is representing would be added

as an interested person.

This would be a function of the clerk.

Ms. Smith observed that this may be handled differently

throughout the case.

Attorneys would have to remember to

withdraw from the case, so that they do not get two sets of

notices at a time.

Mr. Johnson pointed out that the interested person is

designated this for a reason.

The person with an attorney is a

party even if he or she has a limited-appearance attorney.

This

will confuse the system and create a great amount of work for the

clerk’s office.

How does the clerk know that the person is no

longer an interested person but a party?

The Chair commented

that the designation would have to be done at both ends.

The

party would have to be designated as an interested person when

the notice of appearance of the attorney is filed, and then when

it is withdrawn, the designation of interested person would have

to be taken away.

Mr. Durfee expressed concern about naming

parties as interested persons.

Protections in the access rules

in Title 16 apply to parties, such as protecting the address of a

party and other identifiers.

interested persons.

These protections may not apply to

In a domestic violence case, someone could

get access to confidential information.

-49-

Because of

confidentiality provisions, it is important to be cautious about

changing designations.

The Chair said that he understood Ms. Gardner’s point to

mean that the party who is designated both as a party and an

interest person will have two designations.

it would appear twice on Casesearch.

Ms. Smith noted that

Mr. Brault inquired about

notices -- what triggers the clerk sending notices?

attorney enters an appearance, what happens?

If an

Ms. Smith responded

that when an attorney enters an appearance, the attorney will get

all notices, including whatever the assignment office sends.

Mr.

Brault noted that Rule 1-321 triggers the scheduling notices sent

by the clerk.

The Chair pointed out that Rule 1-324 is the

correct Rule.

Mr. Brault pointed out that Rule 1-324 pertains to

orders or rulings.

Rule 1-321 applies to not only what the party

must do, but also to what the clerk does thereafter to notify the

attorneys and parties as to when certain events have been

scheduled.

The problem is that when all of the notices go to the

attorney, the party gets no notice of when the trial is or does

not get any other notice.

Judge Weatherly remarked that when she sends out an order

from her office, the court jacket will almost always reflect it.

She had learned that when the assignment office in Prince

George’s County sends out notices, they do not have the file.

They have a computer that pulls the information up.

their computer system.

They rely on

There are too many files to allow clerks

-50-

the time to fill out the case jacket.

administrative burden.

It would be an

The clerk’s office and the assignment

office frequently send out notices without a file there.

provides a benefit to the administration of this, but it creates

havoc sometimes.

Mr. Brault added that the party will not get

notice if the attorney does not tell the party about a court

event that has been scheduled.

The Chair observed that until the new system comes into

play, it is possible to send a notice to the attorney, which,

subject to Ms. Gardner’s point, seems to be the preferred way as

opposed to sending it to the client.

The only downside, other

than that the attorney has to make sure that the client knows

about it, is that these cases will not be able to be tracked for

two years.

The Chair inquired if anyone had a motion to add to

the Rules Ms. Gardner’s suggestion to label the party as an

interested person.

Master Mahasa responded that she had a

concern about confidentiality as pointed out by Mr. Durfee.

The Reporter asked about the flip side of this, labeling the

attorney as an interested person, although Case Search would come

up with the attorney being a party.

could be coded as something else.

coding could be.

Ms. Smith remarked that it

The Reporter asked what the

Ms. Smith answered that there could be a code

for a limited-scope attorney, but this could not be tracked.

Mr. Bittner said that if the limited-scope attorney was

entered as a party in a case, it would be an effort to establish

-51-

a new party code.

to be parties.

Ms. Potter stated that attorneys do not want

The Chair noted that then the attorney is listed

as a party on the Internet.

Mr. Bittner remarked that this could

not be avoided.

Judge Weatherly suggested that the attorney could be listed

as a best interest attorney as in a family law case.

Best

Interest attorneys get notices but do not represent either party,

and the child is not a party in the case.

domestic cases are handled differently.

Ms. Smith noted that

Ms. Ortiz said that she

had the unique perspective of working with the Commission on

Access to Justice, while also being a part of the Administrative

Office of the Courts.

As much as she would like to see these

Rules approved, she cautioned against this kind of circumvention

of current procedure.

It is very difficult to train for this

kind of change, to enforce it, and to make sure that it is

consistent.

This kind of change would do more harm than good.

The Commission will revisit this issue when the electronic system

can legitimately provide for dual notice.

It will create a bad

name for limited representation if the solution that is decided

on is not really viable.

The Chair commented that this issue

needs to be addressed from a global perspective.

get these notices.

Someone has to

If the best way to do this is for the

attorney to get the notice, the entire project can go forward.

It can be considered again later when the new system is in place.

It is not known exactly when that will be.

-52-

The Commission on

Access to Justice would like the project to go forward.

Judge Pierson said that he had a comment that is relevant

now.

If the stopgap solution were to be that notices would be

sent to the attorney during the period of that attorney’s limited

representation, there was also an issue that had not been

discussed.

The intent of the Rule is that a limited-appearance

attorney moves automatically out of the case when the attorney’s

role is concluded.

The Chair clarified that this is not

automatic; the attorney has to file a notice of withdrawal.

Judge Pierson added that then the court would know when that

representation is over.

Mr. Brault remarked that the only other change that could be

made would be to put the burden on the attorney to assure that

the party gets the notice, as Mr. Carbine had suggested, and

include a reference to this in Rule 1-321.

It would provide that

as long as the attorney receives notice, the attorney would be

required to notify the party.

Mr. Brault added that he would not

like to see the Rule not approved due to a computer glitch.

Everything that he had heard from the attorneys interested in

this was that this is a Rule they need.

Limited representation

is actually going on, and it has to be addressed.

taking place more than anyone realizes.

It may be

The limited

representation Rules should be approved, so that the trial judges

know about it.

This would avoid the situation Mr. Brault had

described where the judge had no idea what it meant for the

-53-

attorneys to be in a case to answer one question.

Mr. Sullivan asked if there would be a problem with a

limited-appearance attorney entering his or her appearance,

getting logged in as an attorney, and the name of the party

linked to that attorney being designated “limited-appearance

attorney.”

The original party would still get notice as a party.

The limited-appearance attorney would be getting the same notice

as the other attorneys.

The system still has something to track,

because there would be a place-holder in the “party” column that

reads “limited-appearance attorney.”

Ms. Smith responded that

this would cause a problem, because this is creating another

link.

The Reporter explained that what Mr. Sullivan was suggesting

was that in place of the name, the new party’s name would be

“limited-appearance attorney.”

Ms. Smith pointed out that some

changes would still have to be made.

required.

New coding would be

The Reporter noted that new parties could be entered

as the case progresses.

appearance attorney.”

One would be designated “limited-

Ms. Smith said that the system does not

currently have a code for a “limited-appearance attorney.”

Mr.

Sullivan explained that for the purposes of the system only, the

name would be “limited-appearance attorney,” so that if there are

any future studies of data, the statistics can be screened for a

limited-appearance attorney.

Mr. Bittner remarked that a party

named “limited appearance” would have to be added to the case.

-54-

It is an “either-or” situation.

notices.

All attorneys would get the

The pro se party is still not getting the notices.

Ms.

Smith reiterated that a new code would have to be created.

Mr. Brault moved to amend Rule 1-321 by adding to it

language to the effect that until the limited appearance is

withdrawn, the attorney shall assure that the party receives all

notices.

When the system is corrected, this phrase can be

withdrawn from the Rule.

The Rule should not be disapproved

because of the computer problem.

Judge Norton commented that he

did not know how to handle the issue of withdrawal.

One of the

proposals is that withdrawal can be effected by notice.

A notice

of withdrawal could be filed on Monday, but the attorney would

still be getting communications pertaining to the case on

Tuesday, Wednesday, Thursday, and Friday.

would not address this situation.

The suggested language

Mr. Carbine remarked that his

experience had been that the attorney is in the case until the

judge signs the order of withdrawal, but the proposed Rule says

that the withdrawal can be effected by notice.

Mr. Brault said

that the Rule could provide that the withdrawal is effective when

authorized by the court.

Judge Norton responded that this would

solve the problem.

The Chair commented that the Subcommittee did not include

this in Rule 1-321 for a reason.

It was so that the judge would

not have to get involved each time an attorney withdraws an

appearance when his or her purpose for entering the limited

-55-

appearance is over.

Someone may file a motion to object, and

then an answer would be filed.

There would be a hearing.

is what the Subcommittee was trying to avoid.

This

The attorney had

filed a notice of limited appearance pursuant to this Rule, and

when his or her part in the case was over, the attorney would

file a notice of withdrawal of the appearance.

If anyone would

like to object to the withdrawal, he or she can do so, but it

would not automatically trigger the judge getting involved in the

case.

Mr. Brault asked what happens currently when an attorney

withdraws from a case by consent, and no successive attorney

comes in.

Judge Pierson replied that an order is required.

The

Chair noted that the idea behind the proposed change to the Rule

was to supersede that and avoid going through that process.

may be that the attorney should not be allowed to withdraw while

the case is going on.

But if the original appearance was only

for a motion for summary judgment, and that is decided, a

withdrawal that does not affect the court should be permitted.

Ms. Gavin suggested that if the attorney receives documents

pertaining to that particular client, the Rule should extend the

obligation of the attorney to forward the documents to the client

even if the attorney had withdrawn from the case.

the Committee approved this suggestion.

By consensus,

The Chair stated that

some redrafting of Rule 1-321 would be required.

The Reporter

suggested that in the language proposed by Mr. Brault, in place

-56-

of the words “assure that” the client gets the notices, the

language would be “promptly provide that the client gets the

notices.”

By consensus, the Committee approved of this change.

Rule 1-321 will be redrafted and sent back to the Committee for

one more review.

By consensus, the Committee approved Rule 1-321 as amended.

Mr. Brault presented Rules 2-131 and 3-131, Appearance, for

the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT

CHAPTER 100 - COMMENCEMENT OF ACTION AND

PROCESS

AMEND Rule 2-131 to permit the entry of

a limited appearance under certain

circumstances, to add a form of

acknowledgment of the scope of limited

representation, and to add a cross reference

pertaining to limited appearances, as

follows:

Rule 2-131.

(a)

APPEARANCE

By an Attorney or in Proper Person

Except as otherwise provided by rule

or statute: (1) an individual may enter an

appearance by an attorney or in proper person

and (2) a person other than an individual may

enter an appearance only by an attorney.

(b) Limited Appearance

(1) Notice of Appearance

-57-

An attorney, acting pursuant to an

agreement with a client for limited

representation that complies with Rule 1.2

Professional Conduct, may enter an appearance

limited to participation in a discrete matter

or judicial proceeding. The notice of

appearance shall specify the scope of the

appearance including, to the extent possible,

the specific proceeding to which it applies,

and shall be accompanied by an acknowledgment

of scope of limited representation form in

accordance with subsection (b)(2) of this

Rule.

(2) Acknowledgment of Scope of Limited

Representation

The limited scope attorney shall file

with the court a signed acknowledgment of

scope of limited representation substantially

in the following form:

[CAPTION]

ACKNOWLEDGMENT OF SCOPE OF LIMITED REPRESENTATION

Client: ________________________________________________________

Attorney: ______________________________________________________

I have entered into a written agreement with the above-named

attorney.

I understand that the attorney will represent me for

the following limited purposes (check all that apply):

“

Arguing a motion or motions.

(Please specify):

______________________________________________________.

“

Attending a pretrial conference.

“

Attending a settlement conference.

“

Attending a court-ordered mediation or other courtordered alternative dispute resolution proceeding for

-58-

purposes of advising the client during the proceeding.

(Please specify):

_______________________________________________________

“

Acting as counsel for a particular hearing,

[deposition?], or trial.

(Please specify):

_______________________________________________________

“

With leave of court, for a specific issue or a specific

portion of a trial or hearing.

(Please specify): _____

_______________________________________________________

I understand that except for the legal services specified

above, I am fully responsible for handling my case, including

complying with court Rules and deadlines.

______________________________

Client

______________________________

Signature

______________________________

Date

Cross reference: See Maryland Lawyers’ Rules

of Professional Conduct, Rule 1.2, Comment 8.

For striking of an attorney’s limited

appearance, see Rule 2-132 (a).

(b) (c) How Entered

Except as otherwise provided in

section (b) of this Rule, An an appearance

may be entered by filing a pleading or

motion, by filing a written request for the

entry of an appearance, or, if the court

-59-

permits, by orally requesting the entry of an

appearance in open court.

The entry of an appearance is not a

waiver of the right to assert any defense in

accordance with these rules. Special

appearances are abolished.

Cross reference: Rules 1-311, 1-312, 1-313;

Rules 14, 15, and 16 of the Rules Governing

Admission to the Bar. See also Rule 1-202

(t) for the definition of "person".

Source: This Rule is in part derived from

former Rule 124 and in part new.

Rule 2-131 was accompanied by the following Reporter’s note.

See the Reporter’s note to Rule 1-321.

MARYLAND RULES OF PROCEDURE

TITLE 3 - CIVIL PROCEDURE - DISTRICT COURT

CHAPTER 100 - COMMENCEMENT OF ACTION AN

PROCESS

AMEND Rule 3-131 to permit the entry of

a limited appearance under certain

circumstances, to add a form of

acknowledgment of the scope of limited

representation, and to add a cross reference

pertaining to limited appearances, as

follows:

Rule 3-131.

APPEARANCE

-60-

(a)

By an Attorney or in Proper Person

Except as otherwise provided by rule

or statute: (1) an individual may enter an

appearance by an attorney or in proper person

and (2) a person other than an individual may

enter an appearance only by an attorney.

(b)

Limited Appearance

(1) Notice of Appearance

An attorney, acting pursuant to an

agreement with a client for limited

representation that complies with Rule 1.2

Professional Conduct, may enter an appearance

limited to participation in a discrete matter

or judicial proceeding. The notice of

appearance shall specify the scope of the

appearance including, to the extent possible,

the specific proceeding to which it applies,

and shall be accompanied by an acknowledgment

of scope of limited representation form in

accordance with subsection (b)(2) of this

Rule.

(2) Acknowledgment of Scope of Limited

Representation

The limited scope attorney shall file

with the court a signed acknowledgment of

scope of limited representation substantially

in the following form:

[CAPTION]

ACKNOWLEDGMENT OF SCOPE OF LIMITED REPRESENTATION

Client: ________________________________________________________

Attorney: ______________________________________________________

I have entered into a written agreement with the above-named

attorney.

I understand that the attorney will represent me for

the following limited purposes (check all that apply):

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“

Arguing a motion or motions.

(Please specify):

______________________________________________________.

“

Attending a pretrial conference.

“

Attending a settlement conference.

“

Attending a court-ordered mediation for purposes of

advising the client during the proceeding.

“

Acting as counsel for a particular hearing or trial.

(Please specify): _____________________________________

“

With leave of court, for a specific issue or a specific

portion of a trial or hearing.

(Please specify): _____

_______________________________________________________

I understand that except for the legal services specified

above, I am fully responsible for handling my case, including

complying with court Rules and deadlines.

_______________________________

Client

_______________________________

Signature

_______________________________

Date

Cross reference: See Maryland Lawyers’ Rules

of Professional Conduct, Rule 1.2, Comment 8.

For striking of an attorney’s limited

appearance, see Rule 3-132 (a).

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(b) (c) How Entered

An appearance may be entered by filing

a pleading, motion, or notice of intention to

defend, by filing a written request for the

entry of an appearance, or, if the court

permits, by orally requesting the entry of an

appearance in open court.

The entry of an appearance is not a

waiver of the right to assert any defense in

accordance with these rules. Special

appearances are abolished.

Cross reference: Rules 1-311, 1-312, 1-313;

Rules 14 and 15 of the Rules Governing

Admission to the Bar. See also Rule 1-202

(t) for the definition of "person", and Code,

Business Occupations and Professions Article,

§10-206 (b) (1), (2), and (4) for certain

exceptions applicable in the District Court.

Source: This Rule is in part derived from

former Rule 124 and in part new.

Rule 3-131 was accompanied by the following Reporter’s note.

See the Reporter’s note to Rule 1-321.

Mr. Brault told the Committee that Rules 2-131 and 3-131

authorize notice of appearance.

Subsection (b)(1) allows an

attorney acting pursuant to an agreement with a client for

limited representation that complies with Rule 1.2 (c) to enter

an appearance limited to participation in a discrete matter or

judicial proceeding.

The notice of appearance shall specify the

scope of the appearance and shall be accompanied by an

“Acknowledgment of Scope of Limited Representation” form.

Subsection (b)(2) contains the form.

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The idea behind this is to

avoid disputes during the course of the representation as to

whether an attorney should have done something else or did not

perform a task that the attorney was supposed to do.

Mr. Klein inquired if the language “discrete matter” means

something different from and less inclusive than the word

“action.”

Mr. Brault replied affirmatively, noting that the word

“action” would mean the entire proceeding.

Judge Pierson pointed

out that a “proceeding” is defined by Rule 1-202, Definitions, as

a part of an action.

Mr. Klein commented that he wanted to avoid

the situation where an attorney who is hired for asbestos case

“A” is not automatically assumed to be defending the client in

that case for the next 3,000 asbestos cases.

The Chair remarked that he was not sure how this would work

in a normal civil case, such as an automobile accident, where the

plaintiff sues the defendant, who then countersues.

The

plaintiff then becomes a plaintiff and a defendant.

The

plaintiff’s insurance company will select an attorney to

represent the plaintiff as a defendant.

appearance?

Is this a limited

Ms. Potter answered that if she is in the case for

the plaintiff, then that is what she is in the case for.

If she

is served with a counterclaim, she would have to respond to the

counterclaim.

There will be two attorneys, one for the

insurance company.

Mr. Brault stated that this scenario is not covered under

these Rules.

The problem that he saw was the one he had

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personally encountered, which was that an attorney is an agent

for process for his or her client.

Once the attorney has entered

an appearance, subpoenas can be served on the client by serving

the attorney.

Documents involving other proceedings in the case

can be served on the attorney and not on the client.

The limited

representation concept should define what the attorney is doing,

so that the attorney does not become an agent for process on

anything else.

Ms. Potter noted that subsection (b)(2) of Rules

2-131 and 3-131 has defined this.

She expressed the opinion that

subsection (b)(1) was too long, and the second sentence was not

necessary, because subsection (b)(2) covers it.

The Reporter asked if Ms. Potter’s idea was that the

attorney as well as the client should sign the form in subsection

(b)(2).

Ms. Potter answered that both should sign.

The Reporter

noted that subsection (b)(1) allows the attorney to enter his or

her appearance, and the caption to that is the acknowledgment.

Ms. Potter reiterated that both the attorney and the client

should sign, so that everyone knows what the limited

representation is.

If the client checked off more actions than

the attorney had agreed to, there would be a problem.

The

Reporter pointed out that the attorney is linking this form with

his or her entry of appearance.

The attorney should not be

filing it if the client has checked off too many tasks.

Ms.

Potter inquired why the attorney should not sign the form.

Reporter answered that the agreement that is entered into

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The

pursuant to Rule 1.2 should be broader.

Ms. Potter remarked that

she may not want to attach her retainer fee agreement, which

states what she is charging the client.

That is a matter that is

not required by the Rule.

Mr. Michael said that the ideal would be a clear statement

that is on the record indicating what the client and the attorney

had agreed to as far as the limited representation.

show exactly what that representation is.

requirement be added to the Rule.

It would

He moved that this

The motion was seconded.

Mr. Brault inquired if the agreement would be signed by both the

attorney and the client.

The Chair replied affirmatively, noting

that Rules 2-131 and 3-131 would have to be redrafted.

The

motion passed unanimously.

Judge Pierson expressed the view that the word “matter”

should be eliminated from subsection (b)(1).

defined anywhere in the Rules.

The word is not

Rule 1-202 already defines the

word “proceeding” as part of an action.

The introduction of the

word “matter” will introduce confusion.

Ms. Potter suggested

that the wording of the first sentence should be: “...may enter a

limited appearance.”

Then subsection (b)(2) provides the details

of how the limited appearance works.

Mr. Johnson suggested that

in place of the language: “limited to participation in a discrete

matter,” the language “limited to participation in a judicial

proceeding” could be substituted.

Since “judicial proceeding” is

defined already as part of an action, he noted that this narrows

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the scope.

Ms. Ortiz pointed out that what the Commission had intended

in this Rule is that an attorney could enter his or her

appearance on an issue.

It may be better to substitute the word

“issue” for the word “matter.”

format.

A “proceeding” is defined as a

The Chair pointed out that a “proceeding” may involve

several issues, and the attorney may be in the case for only one

issue.

The Reporter said that the word “proceeding” is a defined

term in section (v) of Rule 1-202, Definitions, meaning any part

of an action.

However, the attorney may be in the case for only

one issue, such as a QDRO.

Ms. Ortiz remarked that the issue may

be significant.

Mr. Klein suggested that subsection (b)(1) could read

“...limited to participation in the action for the purposes

specified in the agreement.”

The Chair responded that this

language would be appropriate as between the attorney and the

client.

The idea was that the court would have a record of what

the attorney is in the case for.

It makes it easier when an

attorney withdraws from the case to know that the appearance is

over.

Mr. Klein remarked that he had been trying to address the

words “matter” and “judicial proceeding,” because neither one of

them really fit.

The Chair noted that it is not an agreement but

an acknowledgment.

Mr. Klein pointed out that the word

“agreement” had been used earlier in subsection (b)(1).

suggested the language: “An attorney, acting pursuant to an

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agreement, may enter an appearance limited to participation in

the action for the purposes specified in that agreement.”

Chair pointed out that the agreement is not filed.

The

Subsection

(b)(1) could provide that it would be pursuant to the agreement,

but it would be limited to the purposes stated in the attached

acknowledgment.

By consensus, the Committee approved the Chair’s

suggestion.

Mr. Karceski asked if someone had said earlier that there is

no limited appearance in an auto tort case.

Mr. Brault responded

that if the insurance company retains an attorney to defend the

insured, the attorney will be in the entire case.

Mr. Karceski

inquired if an attorney is allowed to enter a limited appearance

in that type of action in a pretrial conference or something

similar.

Mr. Brault answered affirmatively.

Mr. Karceski asked

if the limited representation is only for certain types of

actions.

Judge Pierson inquired if it would be appropriate

before the new system is available to put into the

“Acknowledgment and Scope of Limited Representation” form

language that would provide that the client understands that

while the attorney’s appearance is in, all court notices will be

sent to the attorney.

idea.

The Chair answered that this was a good

By consensus, the Committee agreed with Judge Pierson’s

suggestion.

The Chair noted that the same changes would be made to Rule

3-131.

When the changes to Rule 4-216 involving representation

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by the Public Defender are implemented, one issue that may need

to be considered is a limited appearance in a criminal case.

Mr. Brault remarked that this is more difficult than in a civil

case.

The Reporter pointed out that an attorney can appear for a

bail review but not be in the remainder of the case.

Mr.

Karceski added that the only way an attorney is obligated to

remain in the case is if he or she had appeared in the District

Court, and the defendant asks for a jury trial.

By consensus, the Committee approved Rules 2-131 and 3-131

as amended.

Mr. Brault presented Rule 2-132 and 3-132, Striking of

Attorney’s Appearance, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 2 - CIVIL PROCEDURE - CIRCUIT COURT

CHAPTER 100 - COMMENCEMENT OF ACTION AND

PROCESS

AMEND Rule 2-132 to permit an attorney

who has entered a limited appearance to file

a notice of withdrawal under certain

circumstances, as follows:

Rule 2-132.

APPEARANCE

(a)

STRIKING OF ATTORNEY’S

By Notice

When the client has another attorney

of record, an An attorney may withdraw an

appearance by filing a notice of withdrawal

when (1) the client has another attorney of

record; or (2) the attorney entered a limited

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appearance pursuant to Rule 2-131 (b), and

the particular proceeding for which the

appearance was entered has concluded or the

purpose of the limited representation has

otherwise been accomplished.

(b)

By Motion

When the client has no other attorney

of record, an an attorney is not permitted to

withdraw an appearance by notice under

section (a) of this Rule, the attorney

wishing to withdraw an appearance shall file

a motion to withdraw. Except when the motion

is made in open court, the motion shall be

accompanied by the client's written consent

to the withdrawal or the moving attorney's

certificate that notice has been mailed to

the client at least five days prior to the

filing of the motion, informing the client of

the attorney's intention to move for

withdrawal and advising the client to have

another attorney enter an appearance or to

notify the clerk in writing of the client's

intention to proceed in proper person.

Unless the motion is granted in open court,

the court may not order the appearance

stricken before the expiration of the time

prescribed by Rule 2-311 for responding. The

court may deny the motion if withdrawal of

the appearance would cause undue delay,

prejudice, or injustice.

(c)

Notice to Employ New Attorney

When, pursuant to section (b) of this

Rule, the appearance of the moving attorney

is stricken and the client has no attorney of

record and has not mailed written

notification to the clerk of an intention to

proceed in proper person, the clerk shall

mail a notice to the client's last known

address warning that if new counsel has not

entered an appearance within 15 days after

service of the notice, the absence of counsel

will not be grounds for a continuance. The

notice shall also warn the client of the

risks of dismissal, judgment by default, and

assessment of court costs.

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(d)

Automatic Termination of Appearance

When no appeal has been taken from a

final judgment, the appearance of an attorney

is automatically terminated upon the

expiration of the appeal period unless the

court, on its own initiative or on motion

filed prior to the automatic termination,

orders otherwise.

Source: This Rule is derived as follows:

Section (a) is new.

Section (b) is in part derived from former

Rule 125 a and the last sentence of c 2 and

is in part new.

Section (c) is derived from former Rule 125

Section (d) is derived from former Rule 125

Rule 2-132 was accompanied by the following Reporter’s note.

See the Reporter’s note to Rule 1-321.

MARYLAND RULES OF PROCEDURE

TITLE 3 - CIVIL PROCEDURE - DISTRICT COURT

CHAPTER 100 - COMMENCEMENT OF ACTION AND

PROCESS

AMEND Rule 3-132 to permit an attorney

who has entered a limited appearance to file

a notice of withdrawal under certain

circumstances, as follows:

Rule 3-132.

APPEARANCE

(a)

STRIKING OF ATTORNEY’S

By Notice

When the client has another attorney

of record, an An attorney may withdraw an

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appearance by filing a notice of withdrawal

when (1) the client has another attorney of

record; or (2) the attorney entered a limited

appearance pursuant to Rule 3-131 (b), and

the particular proceeding for which the

appearance was entered has concluded or the

purpose of the limited representation has

otherwise been accomplished.

(b)

By Motion

When the client has no other attorney

of record, an an attorney is not permitted to

withdraw an appearance by notice under

section (a) of this Rule, the attorney

wishing to withdraw an appearance shall file

a motion to withdraw. Except when the motion

is made in open court, the motion shall be

accompanied by the client's written consent

to the withdrawal or the moving attorney's

certificate that notice has been mailed to

the client at least five days prior to the

filing of the motion, informing the client of

the attorney's intention to move for

withdrawal and advising the client to have

another attorney enter an appearance or to

notify the clerk in writing of the client's

intention to proceed in proper person. Unless

the motion is granted in open court, the

court may not order the appearance stricken

before the expiration of the time prescribed

by Rule 3-311 for requesting a hearing. The

court may deny the motion if withdrawal of

the appearance would cause undue delay,

prejudice, or injustice.

(c)

Automatic Termination of Appearance

When no appeal has been taken from a

final judgment, the appearance of an attorney

is automatically terminated upon the

expiration of the appeal period unless the

court, on its own initiative or on motion

filed prior to the automatic termination,

orders otherwise.

Source: This Rule is derived as follows:

Section (a) is derived from former M.D.R.

125 a.

Section (b) is in part derived from former

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M.D.R. 125 a and is in part new.

Section (c) is derived from former M.D.R.

125 b.

Rule 3-132 was accompanied by the following Reporter’s note.

See the Reporter’s note to Rule 1-321.

Mr. Brault explained that the problem about notice in a

limited representation also affects Rules 2-132 and 3-132.

there is another attorney in the case with the attorney who is

withdrawing, it does not cause a problem.

Ms. Potter expressed

the opinion that the word “may” in the first sentence of section

(a) was inappropriate for a limited representation.

The attorney

would have to get out of the case, so that notice would then be

sent to the party.

The Chair said that the word “shall” could

apply only to the limited representation.

apply to the rest of the Rule.

The word “may” has to

By consensus, the Committee

approved this change.

Mr. Sullivan inquired if language that provides that the

limited-representation attorney has the ongoing obligation to

send to the party notices received even after the attorney has

withdrawn from the case should be included.

Mr. Brault suggested

that the language of section (a) of Rules 2-132 and 3-132 should

be: (1) the client has another attorney of record; and (2) the

attorney....”.

Ms. Potter noted that the “shall” is only going

to apply to the limited representation.

is simply a matter of drafting.

The Chair said that this

If the obligation to continue to

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send notices is added, the Rules may need to be restructured.

The Reporter questioned whether adding to the Rule the

obligation to send notices should be left open-ended, or whether

a time frame should be added, such as for the next 60 days.

Ms.

Potter remarked that the clerk’s office may be so busy that

notices may not be docketed for three weeks.

The Reporter

acknowledged this and said that the obligation to send the notice

should not be indefinite.

The Chair suggested that a time frame

could be added that would be that the attorney is obligated to

send notices to the client until such time as the withdrawal is

docketed.

Attorneys are supposed to check the dockets.

Judge Weatherly observed that as long as the attorney is

getting notices, the client is not getting them.

The Chair

commented that after the withdrawal is docketed, the attorney

should no longer be getting the notices.

Judge Weatherly

responded that this may not be true for Prince George’s County.

By consensus, the Committee approved the suggestion to add

language that provides that the limited-representation attorney

has the ongoing obligation to send to the party notices received

even after the attorney has withdrawn from the case.

By consensus, the Committee approved Rules 2-132 and 3-132

as amended.

Ms. Gardner told the Committee that she had a problem with

the amendments to Rule 1.2.

The requirement for the written

agreement where the limited-representation attorney would be

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representing someone in court is important, but the requirement

for a written agreement in a broader context would be very

difficult logistically.

The Rule uses the word “representation,”

but this actually encompasses many other forms of limited

assistance for which a written agreement, as opposed to informed

consent, is logistically impossible.

Ms. Gardner observed that one example is the Public Justice

Center’s Tenants in Foreclosure project, which provides advice to

tenants in properties subject to foreclosure proceedings.

The

tenants are given a form to fill out and file to notify the

foreclosure court that the tenant is an interested person and

should be getting notices concerning the foreclosure.

To be

required to have a written agreement before her agency can

provide that limited assistance would be very difficult.

Limiting the requirement for a written agreement to matters

involving a limited appearance in a court proceeding is sensible,

but short of entering a limited appearance in a proceeding, the

informed consent procedure for lesser forms of advised assistance

is better.

The Chair inquired how the informed consent procedure can be

documented.

Ms. Gardner replied that it is typically in a cover

letter with the sample motion.

The letter would be addressed to

the tenant stating that included with the letter is the motion

that had been discussed on the telephone.

The letter would

explain the extent of the assistance that the Public Justice

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Center would be providing the tenant in the foreclosure matter.

The Chair asked if the client could send back a letter indicating

that he or she agreed with what the attorney had sent.

Ms.

Gardner cautioned that they might not send back a letter.

Does

the staff at the Public Justice Center have to get that agreement

from the person before they can send them the material?

Mr. Carbine questioned how one would know that it is

informed consent.

Ms. Gardner answered that the attorney and the

client would have had the conversation on the telephone, and what

the extent of the representation or the extent of the assistance

by the Public Justice Attorney is would have been confirmed in

writing.

The Legal Aid Bureau provides a huge array of limited

assistance to people, sometimes in very short proceedings.

She

stated that it may be impossible to get a written agreement for

all of those kinds of limited assistance.

None of them pertain

to an attorney undertaking to enter an appearance and become

involved in a judicial proceeding.

The Chair pointed out that there are limited appearances in

settlement discussions either before or after the case is filed.

An attorney may represent someone for an Alternative Dispute

Resolution proceeding either before or after the case.

The

limited appearance may be in a foreclosure action where the

attorney would represent the person only in the proceeding before

the Office of Administrative Hearings for the mediation, but the

attorney is not in any other part of the case.

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The intent of the

requirement for a written agreement was to have some evidence

that both the attorney and the client understand what the

arrangement is.

Ms. Gardner said that up until now in a

situation where the attorney is providing limited assistance that

does not involve entering an appearance and becoming engaged with

third parties, such as in a settlement negotiation, or in the

wide array of other forms of limited assistance, the

memorialization of the informed consent has sufficed.

The Chair asked Ms. Gardner if her problem would be solved

if the exception to the written agreement would only be providing

advice to the client and not representing the client.

Ms.

Gardner responded that she had been thinking of the wide variety

of circumstances to which this would apply.

Her problem would be

solved if the requirement for a written agreement was limited to

matters in which the attorney was going to enter an appearance.

The Chair pointed out that this would be too narrow, because

there are other kinds of proceedings that do not involve entering

an appearance in court.

Is the concern only giving advice to the

client, and not otherwise representing the client?

Ms. Gardner

remarked that her concern with that approach was the definition

of the word “advice” and whether that would create problems or

questions.

Ms. Gardner told the Committee that one way to address this

would be to require a written agreement only where there was inperson contact, and the attorney was able to get the written

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agreement.

What if the attorney were doing an outreach event,

talking to 100 people, providing them with legal information and

legal advice?

The Chair asked whether the attorney is

representing any of the people if the attorney gave advice to 100

people at a community meeting.

Ms. Gardner responded that the

attorney is providing limited assistance under Rule 1.2, and the

revised Rule would require a written agreement.

She may be

telling 100 people at the same time how to fill out forms.

The

Chair inquired if she would be representing any of those 100

people, which is what the Rule addresses.

Ms. Gardner replied

that the word “representation” is used, but the Rule covers a

wide array of provision of services.

The Chair noted that Rule 1.2 addresses scope of

representation.

Ms. Gardner observed that paragraph 8 of the

Comments to the Rule references assessing a client’s case and

providing him or her advice.

The language does not quite match

what the scope of the Rule covers, including the other forms of

assistance.

Ms. Hager pointed out that Rule 6.5, Nonprofit and

Court-Annexed Limited Legal Services Programs, covers self-help

groups.

She asked about a retainer agreement, but Ms. Gardner

responded that there may not be one.

The Chair said that he understood Ms. Gardner’s concern, but

he asked how Rule 1.2 could address this without changing the

meaning of the rest of the Rule.

Mr. Klein inquired if one

solution would be to eliminate from paragraph 8 of the Comment

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the language: “(i) giving legal advice to the client regarding

the client’s rights.”

This seems to be causing the problem.

The Chair noted that the point raised was brought up in a

slightly different context and became the subject of some

discussion.

It is if an attorney is only giving advice to a

client who is able to use that advice to draft documents, is it

necessary to disclose that the attorney gave that advice?

Carbine said that he saw no problem.

Mr.

The Rule does not require

that the written agreement be signed by the client.

If the form

letter that goes out from the agency states what the attorney is

doing, and there is nothing else being done, that is the end of

it.

The Chair asked what would happen if the last sentence of

the letter to the client read: “If you disagree with this, you

must let us know within 48 hours.”

next step would be.

Ms. Gardner asked what the

The Chair answered that otherwise the

attorney would assume that the client acquiesces, and this could

also go at the end of the letter.

Ms. Gardner noted that what

the client would be disagreeing with is that the assistance of

the attorney is limited.

The Public Justice Center would not

agree to provide further assistance, but the client would not

agree to the limited assistance that the attorney had provided.

Mr. Brault commented that the agreement would not be signed.

In the real world, attorneys write letters stating “I will be

representing you for “X” only.”

Included in this is a statement

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that the attorney is going to charge a certain amount per hour,

the client agrees to pay, and if the client does not pay, the

case would go to arbitration.

However, the scope of

representation is what the attorney says that he or she will do.

If the client accepts it, it is an agreement.

Mr. Brault agreed

with Mr. Carbine that there is no problem.

Ms. Gardner remarked that when Rule 1.2 had the language in

section (c) “with the client’s informed consent,” she and her

colleagues were comfortable memorializing informed consent in a

unilateral communication.

If the language of the Rule will be

“in a written agreement between the lawyer and the client,”

unless the history of the proceedings of the Rules Committee is

incredibly clear that the unilateral communication without a

signature from a client remains acceptable, she could never

counsel her staff that a written agreement between an attorney

and a client would not have to be signed by the client.

The Reporter agreed with Ms. Gardner that the language of

Rule 1.2 should be “memorialized in a writing” if the

communication is unilateral.

The Chair inquired if the term

“acquiescence” could be used in place of the term “agreement.”

Ms. Gardner responded that this would be changing greatly what

the Rule is trying to require, which is an actual written

agreement for a limited representation.

Mr. Brault observed that

a signed agreement is not even entered in an appearance at the

court.

Ms. Gardner responded that this was why she was raising

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the issue, because she did not think that this is what Rule 1.2

was proposing.

Mr. Brault said that Rule 1.2 is much broader.

He did not

see the problem if the attorney writes to the client stating that

the attorney is in the case for “X”, and the client accepts this.

Judge Norton noted that the problem is with a self-help center.

For example, in Anne Arundel County, there is telephone

assistance for legal questions.

The case being inquired about

may be the next day, and there is no time for the exchange of

letters.

Ms. Bowie remarked that she had used the computer software

“Virtual Laws of Technology,” which provides a number of

agreements that her clients just have to click on.

with Mr. Brault that there is no problem.

She agreed

Judge Norton pointed

out the exception for self-help advice done for media.

Mr.

Brault asked if Ms. Gardner would be satisfied if in place of the

language “set forth in a written agreement” in section (c), the

language “set forth in writing” would be substituted.

Ms.

Gardner replied that this would be appropriate for her, but she

did not know if it would serve the purposes of the Committee for

the higher forms of actual limited representation.

Ms. Ortiz

noted that Rule 1-321 requires a signature for a limited court

appearance.

A self-help center would be covered by Rule 6.5.

retainer is required.

Ms. Gardner commented that much of what

the Public Justice Center and Legal Aid does is beyond the scope

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of Rule 6.5 but less than a limited representation in a court

proceeding.

The Reporter said that there was a way to address this

issue.

In the first sentence of section (c) of Rule 1.2, the

added language that reads: “in accordance with applicable

Maryland Rules” covers the limited appearance, which is already

in the Rules.

There has to be a written agreement signed by both

the attorney and the client.

The court may not see it, but the

agreement has to be signed.

Subsection (c)(2) would read: “with

the client’s informed consent, the scope and limitations of the

representation are clearly set forth in writing...”.

This covers

Ms. Gardner’s point about sending out the letter but not getting

it back.

Ms. Gardner agreed that this would address her concern.

By consensus, the Committee agreed to this change.

By consensus, the Committee approved Rule 1.2 as amended.

Agenda Item 7. Consideration of proposed amendments to the Rules

Governing Admission to the Bar of Maryland, Rule 4 (Eligibility

to Take Bar Examination)

_________________________________________________________________

Mr. Brault presented Bar Admission Rule 4, Eligibility to

Take Bar Examination, for the Committee’s consideration.

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MARYLAND RULES OF PROCEDURE

RULES GOVERNING ADMISSION TO THE BAR OF

MARYLAND

AMEND Rule 4 to expand the Board’s

discretion to waive the requirements of Bar

Admission Rules 3 and 4 (a)(2) under certain

circumstances, and to make stylistic changes,

as follows:

Rule 4.

(a)

ELIGIBILITY TO TAKE BAR EXAMINATION

Legal Education

(1) In order to take the bar examination

of this State an person individual either

shall have graduated or shall be

unqualifiedly eligible for graduation from a

law school.

(2) The law school shall be located in a

state and shall be approved by the American

Bar Association.

(b)

Waiver

The Board shall have discretion to

waive the requirements of subsection (a)(2)

of this Rule and Rule 3 for any person

individual who, in the Board's opinion, is

qualified by reason of education, experience,

or both to take the bar examination and:

(1) has passed the bar examination of

another state and is a member in good

standing of the Bar of that state; or

(2) is admitted to practice in a

jurisdiction that is not defined as a state

by Rule 1 and has obtained an additional

degree from an American Bar Association

approved law school in Maryland that meets

the requirements prescribed by the Board

Rules.

(c)

Minors

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If otherwise qualified, an person

individual who is under 18 years of age is

eligible to take the bar examination but

shall not be admitted to the Bar until 18

years of age.

Source: This Rule is derived as follows:

Section (a) is derived from former Rule 5

Section (b) is derived from former Rule 5

Section (c) is derived from former Rule 5

Bar Admission Rule 4 was accompanied by the following

Reporter’s note.

The proposed amendment to Bar Admission

Rule 4 expands the Board’s discretion to

waive the education prerequisites to taking

the bar examination under certain

circumstances. The current rule limits

waivers to applicants who are members of a

bar of another state. The amendment permits

the Board to grant a waiver to an applicant

who has been admitted to practice law in a

jurisdiction that is not a state, provided

that the applicant has also received an

additional degree from an ABA approved

Maryland law school.

The amendment to Rule 4 is accompanied

by a Board Rule that sets forth the

requirements for the additional degree to

qualify under Rule 4, and requires the

applicant to furnish to the Board certain

documents and certifications.

The word “person” is changed to

“individual.” Rule 1-202 (l) defines

“individual” as a human being, and defines

“person” to include corporations and

partnerships, among other things.

Ms. Gavin explained that additional language had been added

to Rule 4 of the Rules Governing Admission to the Bar of

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Maryland.

Generally under Rule 4, the qualifications for taking

the bar examination are set out.

To take the examination,

someone must be a graduate of a law school approved by the

American Bar Association (ABA).

Rule 4 has a provision where the

Board of Law Examiners may waive the requirement that the law

school has to have been approved by the ABA if someone is a

member of a bar of another state.

The word “state” is defined in

Rule 1 as follows: “‘State’ means (1) a state, possession,

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

District of Columbia.”

The person would have to have the

requisite education that the Board believes would entitle the

person to take the examination.

Ms. Gavin said that several Board members had investigated

the masters program for international students at the University

of Baltimore.

They had asked that additional language be added

to Rule 4 to allow people who get their master of laws degree

(LLM) from the foreign jurisdiction program to take the bar

examination, the same one given to anyone who recently graduated

from law school.

Rule 4 would add an exception to the

eligibility to take the bar examination for people who come

through these programs at the two Maryland ABA-approved schools.

Other states have similar limitations in scope.

such a rule.

Virginia has

The proposed Rule is based on the Rule in Virginia.

They have LLM programs at their law schools for foreign students,

and if the students get their advanced degree at an ABA-approved

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law school in Virginia, they can take the Virginia bar

examination.

Otherwise, they cannot take the examination.

Virginia does not have the first part of the waiver that is in

Rule 4.

Ms. Gavin commented that there is a Board Rule that provides

strict guidelines as to what documentation must be sent to the

Board, what the curriculum should be, how many hours of barrelated subjects are required, and the likelihood of success.

Background documentation that is gathered by the law school must

be forwarded to the Board.

The school must state its reasons for

admitting the person to the program.

information very thoroughly.

The Board went through this

The University of Maryland could

also institute an LLM program for foreign students.

This Rule would apply only to the two ABA-approved schools

in Maryland.

The Board would not accept a person with an LLM

degree outside of the State.

Mr. Johnson commented that he had no problem with Rule 4

generally, but he asked why the Rule would be limited to schools

in Maryland if a law school is approved by the ABA.

attend law school in the District of Columbia.

Many people

Ms. Gavin

responded that LLM programs are not ABA-accredited.

The Doctor

of Jurisprudence (JD) program that the school has is ABAaccredited.

The ABA does not accredit LLM programs anywhere.

Mr. Johnson observed that the program at the University of

Baltimore currently or the potential program at the University of

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Maryland are not ABA-accredited programs.

this is correct.

Ms. Gavin said that

There would not be a problem if the programs

were accredited by the ABA.

Only the JD program is accredited.

Mr. Sullivan asked what gives the Board confidence that

these programs at the University of Baltimore would measure up to

the ABA standard.

Does the Board review the program?

Ms. Gavin

answered affirmatively, noting that the Board had reviewed the

program thoroughly.

The Board Rule states: “In order for an

additional degree from an ABA approved law school in Maryland to

qualify under Rule 4 (b) of the Rules Governing Admission to the

Bar of Maryland: (l) The requirements of the award of the degree

from the applicant’s law school in Maryland must contain a

minimum of 26 credit hours in the bar examination subjects listed

in Board Rule 4 and; (2) The applicant shall furnish the

following documents and certifications in a form required by the

Board: (a) a certification from the dean, assistant dean or

acting dean of an ABA approved law school in Maryland that the

applicant’s foreign legal education, together with the

applicant’s approved law school degree, is the equivalent of that

required for an LL.B or a J.D. Degree in that law school; (b) a

certification from the dean, assistant dean or acting dean of an

ABA approved law school in Maryland that the applicant has

successfully completed a minimum of 26 credit hours in the bar

examination subjects listed in Board Rule 4; and (c) all

documents considered for admission of the applicant to the degree

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program at an ABA approved law school in Maryland must be

submitted by the law school and translated into the English

language.”

The law schools must abide by the requirements of

the Board.

The Chair told the Committee that the program at the

University of Baltimore Law School was getting students from

Japan, China, and a number of other places.

in American law.

The LLM program is

He was not sure how many of those students had

actually taken the bar examination.

Ms. Gavin responded that a

few of the students wanted to take the exam, and they went to New

York or D.C. which allows foreign students with LLM degrees to

take that jurisdiction’s bar examination.

Then the student could

ask for a Rule 4 waiver in Maryland by being the member of a bar

in another state.

Essentially, the proposed Rule change would

avoid the situation where the foreign students have to go to

another state to become a member of the bar first and then come

back to Maryland to take the bar exam here.

Mr. Johnson expressed his concern about the application of

this later in time.

The way that Rule 4 is drafted now, it is

subject to the Board Rules.

Ms. Gavin had explained earlier that

the Board has certain criteria for an applicant to qualify.

Why

would any ABA-approved law school not qualify for the Rule 4

waiver since, by using the criteria, the Board has control over

the qualification of the program?

This would leave the Rule

broad enough, so that it is not limited to schools in Maryland.

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Many people go to law schools in D.C.

If someone goes to

Georgetown Law School, he or she would be prevented from taking

the bar examination, because of not having attended the

University of Maryland or the University of Baltimore.

The Chair acknowledged that this is an issue.

He noted that

the tradeoff is that, to some extent, the Board can control what

the program is at the University of Baltimore or the University

of Maryland.

They can find out what the program is, how the

program is operated, who the professors are.

The Board will not

have the same degree of information about a program in another

law school, even if it is ABA-accredited.

This was the reason

that the Rule was limited to local law schools.

There may be a

good reason to keep it local, but there may be a commerce clause

issue.

Ms. Gavin remarked that the reason that Virginia kept

their rule confined to Virginia law schools is that without this

limitation, there would be too little control, because there are

so many law schools across the country.

Mr. Brault asked if the schools in the District of Columbia

could be added to the Rule.

The Chair responded that this could

open the door to many other jurisdictions, such as Pennsylvania

and Delaware.

Mr. Brault commented that Mr. Johnson was correct

that the scope should be broader.

attended Georgetown Law School.

Mr. Brault himself had

This is the trend that was seen

when the Commission on the Rules of Ethics had met.

The

discussion involved the modern age of nation-wide and world-wide

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practice of law and legal ethics.

The Chair explained that one of the concerns was that it is

not just the LLM program itself, but a question of who is being

accepted into these programs.

What kind of law school in a

foreign country did the individual go to?

The concern was not

being able to identify the criteria of some law school outside of

Maryland.

What are their criteria for accepting people?

kind of legal education did the person really have?

What

Was it in a

system that is in any way comparable to the one in Maryland?

Did

it require only one year of law school and two years of

apprenticing, or was it a real law school?

Mr. Brault responded that someone would have to rely on the

school that had accepted the person in the LLM program.

The

Chair noted that the question is how much information would be

available about that law school.

Mr. Brault remarked that he

would rely on the school itself.

In D.C., the law schools are at

Georgetown, American, and George Washington Universities.

would not be concerned with students who went to school in

another country.

He would rely more on the institution that has

accepted the person into an LLM program.

Mr. Sullivan commented

that 49 other jurisdictions are likely to be waiting to get into

this.

Mr. Johnson noted that Rule 4 seems to indicate that the

Board still has to make a determination under the waiver Rule in

the first part of section (b) that the applicant “is qualified by

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reason of education, experience, or both to take the bar

examination...”.

Ms. Gavin responded that someone who is not a

member of the bar of another state is not qualified.

application is sent back to that person.

The

Mr. Johnson said that

the way the Rule is constructed, section (b) states:

“The Board

shall have discretion to waive the requirements of subsection

(a)(2)...,” one of which is that the person goes to an ABAapproved law school in a state.

A determination is already being

made for a waiver that the person has the necessary education and

experience.

Ms. Gavin pointed out that subsection (b)(1)

requires that the person has passed the bar examination of

another state and is a member in good standing of the Bar of that

state and (in the sentence before that) in the Board’s opinion,

is qualified by reason of education, experience, or both to take

the bar examination.

The Chair pointed out that the problem is with subsection

(a)(2) of Rule 4.

Ms. Gavin observed that it is in addition to

having to be the member of the bar of another state.

Mr.

Sullivan inquired if this determination is subject to review by

the court.

Ms. Gavin said that she processes waivers for every

examination.

She probably gets about 20 requests for them.

Someone must be a member of the bar of another state in the

United States.

The Chair commented that the answer to Mr.

Sullivan’s question is that the court is not involved at this

level.

This only allows someone to take the bar exam.

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If the

person takes the exam and does not pass, the court is not

involved.

The court only gets involved if an individual takes

the bar exam, passes, and then someone objects.

The Reporter commented that a person who does not meet the

qualifications is not allowed to take the bar exam.

Mr. Sullivan

asked if there is any mechanism for challenging the refusal to

let the person take the exam.

challenged this.

Ms. Gavin replied that no one has

The Chair noted that someone could file for a

judicial review of an administrative agency decision.

Ms. Gavin

remarked that in other instances, decisions could be challenged

according to the Bar Admission Rules.

For example, Rule 2,

Application for Admission and Preliminary Determination of

Eligibility, provides in subsection (c)(3) that the Board may

accept an application filed after the applicable deadline for

good cause shown.

The new Secretary to the Board denies good

cause for people who are consistently late.

The Court has backed

him up.

The Board follows the

These are the Rules of the Court.

Rules, and the matter can always go to court.

Judge Norton inquired what the “additional degree” referred

to in subsection (b)(2) means.

law school?

Could some degree be created by a

The Rule does not require that the degree be an LLM.

He expressed the preference for the Rule to require an LLM from

an ABA-approved law school.

Ms. Gavin noted that Rule 4 is

limited to Maryland law schools.

Judge Norton said that as long

as it is limited to law schools in Maryland, he had no problem

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with this language.

If the Rule is to be extended to other law

schools, he suggested that the degree referenced in subsection

(b)(2) be an LLM.

Mr. Brault questioned whether any other school had ever

asked the Board about this.

Ms. Gavin answered that waiver

applicants had asked her, because they have to go to other states

and become a member of the bar there before they can take the

exam in Maryland.

They cannot go to an LLM program.

Other

states do offer LLM programs, and those states allow someone who

got an LLM to take the bar examination.

states.

Virginia is one of those

The Chair said that he thought that this proposed change

applied only to the University of Baltimore.

Currently, the

University of Maryland does not have this type of program,

although it may in the future.

Mr. Brault commented that it is

really difficult for someone to have to take two bar

examinations.

It is a burden on the students.

To make the

students at Georgetown, George Washington, or American University

Law Schools go to New York for one exam and to Maryland for

another exam makes no sense.

Ms. Gavin noted that the Board has

not explored including law schools other than those in Maryland.

Mr. Johnson moved to approve the amendments to Bar Admission

Rule 4 as written.

The motion was seconded.

Mr. Brault asked

Ms. Gavin to take this issue back to the Board to see if it could

be expanded to schools such as Georgetown.

Mr. Johnson inquired

what the harm would be in taking out the language in subsection

-93-

(b)(2) that reads: “in Maryland” since a Maryland school is the

only program that is applying for this at this point.

This would

provide flexibility, so that the Board does not have to ask the

Committee for a change to the Rule later.

The Board’s Rules are

not being changed, and if the Board determines that some other

program qualifies for this, then this Rule would allow it.

should state that it applies to the University of Baltimore Law

School, because that is the school being discussed.

The Board

would still have the right to review and determine whether these

applicants deserve the waiver, and the Rule would allow more

flexibility.

Ms. Gavin cautioned that this change would also

give them a flood of waiver applicants from other states where

they would have to examine all of those programs.

The motion to approve Bar Admission Rule 4 as it was

presented passed with three opposed.

Agenda Item 2. Consideration of proposed new Rule 1-342

(Vexatious Litigants)

___________________________________________________________

After the lunch break, Mr. Brault presented Rule 1-342,

Vexatious Litigants, for the Committee’s consideration.

MARYLAND RULES OF PROCEDURE

TITLE 1 - GENERAL PROVISIONS

CHAPTER 300 - GENERAL PROVISIONS

ADD new Rule 1-342, as follows:

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Rule 1-342.

VEXATIOUS LITIGANTS

(a) Scope

The provisions of this Rule are

separate from and in addition to any other

remedy prescribed by Rule, statute, or the

common law.

(b) Applicability

Unless otherwise ordered by the court,

a prefiling order issued under this Rule does

not apply to an action for a protective order

under Code, Family Law Article, Title 4,

Subtitle 5 or peace order under Code, Courts

Article, Title 3, Subtitle 15.

(1) Litigation

“Litigation” means any civil action

or proceeding commenced, maintained or

pending in any state or federal court,

including administrative appeals.

(2) Security

“Security” means an undertaking to

assure payment, to the party for whose

benefit the undertaking is required to be

furnished, of the party’s reasonable

expenses, including attorney’s fees, and

costs incurred in or in connection with a

litigation instituted or maintained by a

vexatious litigant.

(3) Vexatious Conduct

“Vexatious conduct” means the conduct

of a self-represented individual in a civil

action that satisfies any of the following:

(A) the conduct serves to harass or

maliciously injure another party to the civil

action;

(B) the conduct is not warranted under

-95-

existing law and cannot be supported by a

good faith argument for an extension,

modification, or reversal of existing law;

unnecessary or unreasonable delay;

(D) the conduct is imposed to hinder

the effective administration of justice, to

unduly burden judicial personnel and

resources, or to impede the normal

functioning of the judicial process.

(4) Vexatious Litigant

“Vexatious litigant” means any selfrepresented individual who has habitually,

persistently, and without reasonable grounds

engaged in vexatious conduct in a civil

action, whether in the District Court, a

circuit court, or the appellate courts of

this State, and whether the vexatious conduct

was against the same party or against

different parties.

Committee note: The definition of vexatious

litigant is limited to self-represented

individuals because an attorney’s conduct is

governed by Rule 1-311 (b) and the Maryland

Lawyers’ Rules of Professional Conduct.

(d) Proposed Prefiling Orders

A prefiling order may be issued only by

the chief judge or an administrative judge of

the court. If the court, on its own

initiative, finds that there is a basis to

conclude that the individual has engaged in

vexatious conduct and that a prefiling order

should be issued, the court shall first issue

a proposed prefiling order. The proposed

prefiling order shall be captioned “In the

Matter of ______, an alleged vexatious

litigant,” and shall include proposed

findings to support the issuance of the

prefiling order. The court may consider and

include in its proposed findings:

(1) the number of litigations that the

individual has commenced within a given time

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frame that have been finally determined

adversely to the individual;

(2) the number of motions, pleadings, or

other papers that the individual filed within

a given time frame;

(3) whether the individual has filed, in

bad faith, unmeritorious motions, pleadings

or other papers, has conducted unnecessary

discovery, or has engaged in other tactics

that are frivolous or intended to cause

unnecessary cost or delay;

(4) whether, after a litigation has been

finally resolved against the individual, the

individual has relitigated or attempted to

relitigate either (A) the validity of the

determination against the same defendant or

defendants as to whom the litigation was

finally determined or (B) the cause of

action, claim, controversy, or any of the

issues of fact or law, determined or

concluded by the final determination against

the same defendant or defendants as to whom

the litigation was finally determined;

(5) whether the individual has previously

been declared to be a vexatious litigant by

any state or federal court of record in any

action or proceeding.

Committee note: A prefiling order is not

applicable to civil actions that are

collateral attacks on a criminal judgment.

(e) Response; Hearing

The individual who would be designated

as a vexatious litigant in the proposed

prefiling order shall respond within the time

provided by Rule 2-321. If a response is

filed, the court may, in its discretion,

conduct a hearing on the proposed order. If

no response is filed, or if the court

concludes, based upon [clear and convincing

evidence] [a preponderance of the evidence],

following a response and any subsequent

hearing, that there is a basis for issuing

the order, the court may find the individual

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to be a vexatious litigant and issue the

prefiling order. No determination made by the

court shall be deemed to be a determination

of any issue in the litigation.

(f) Contents of Prefiling Order

The court may enter an order requiring

a vexatious litigant to:

(1) furnish security to assure payment of

the party against whom the vexatious conduct

is imposed, including estimated costs,

attorneys’ fees, and other expenses;

(2) obtain legal counsel before the

vexatious litigant can continue legal

proceedings or commence new litigation;

(3) obtain leave of court before filing

any paper, pleading or motion in a pending

action;

(4) obtain leave of court before

commencing any new litigation;

(5) take any other action reasonably

necessary to curtail the vexatious litigant’s

conduct. A prefiling order also may direct

that a ruling on a request by the vexatious

litigant for a waiver of costs be made only

by the chief judge or an administrative judge

of the court.

(g) Violation of Prefiling Order

If a vexatious litigant files a

pleading or motion in violation of a

prefiling order, the court on its own

initiative or on motion of a party may strike

the pleading or motion; initiate a proceeding

for contempt pursuant to the Rules in Title

15, Chapter 200; or take any other action the

court deems appropriate.

(h) Security

(1) Generally

If the court issues an order requiring

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a vexatious litigant to furnish security, the

court shall determine the amount of security

and the time within which the security shall

be furnished.

(2) Dismissal on Failure to Furnish

Security

If the court has ordered a vexatious

litigant to post security, and the vexatious

litigant does not furnish it as ordered, the

court, in its discretion, may dismiss the

litigation as to the defendant for whose

benefit it was ordered to be furnished.

(i) Application for Leave of Court; Where

Filed

If the court has ordered a vexatious

litigant to obtain leave of court pursuant to

section (f) of this Rule, the application

shall be filed, together with the proposed

pleading or motion, in the court in which the

vexatious litigant wishes to file the

pleading or motion.

Committee note: The administrative judge of

a court may give to the clerk of that court a

directive for the handling of proposed

filings by vexatious litigants that differs

from directives given by administrative

judges of other courts. For example, if a

vexatious litigant attempts to file a paper

in an open case, the clerk could be directed

to bring the application for leave of court

and paper to a judge prior to docketing, or

the clerk could be directed to docket the

documents without first bringing them to the

attention of a judge. If a vexatious

litigant attempts to file a pleading that

would open a new case, the directive to the

clerk could be to handle the matter in a

manner similar to the manner in which a

request for the waiver of prepayment of a

filing fee is handled by that court.

Source: This Rule is new.

Rule 1-342 was accompanied by the following Reporter’s note.

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New Rule 1-342 is proposed in light of

issues associated with self-represented

litigants who repeatedly file frivolous

lawsuits. The Court of Special Appeals

acknowledged some of these issues in Riffin

v. Baltimore County, 190 Md. App. 11 (2010)

and suggested that:

It may be desirable for the

Rules Committee to consider

whether it should propose a

rule that expressly authorizes

pre-filing orders and

establishes procedures for

notice, opportunity to be

heard, standards for issuance

of such orders, appropriate

parties, and case captioning.

Id. at 36.

At its September 2010 meeting, the Rules

Committee passed a motion that a Rule should

be drafted that sets forth procedures for

handling vexatious litigants. California,

Delaware, Florida, Hawaii, Ohio, and Texas

have adopted statutes regarding vexatious

litigation. Idaho has adopted a Rule on the

subject, and Utah has proposed a Rule. Those

statutes and Rules were used as guides in

drafting Rule 1-342.

Section (a) makes clear that the Rule is

separate from other remedies that can be used

to handle vexatious litigants, such as

injunctions or the denial of prepayment

waivers.

Section (b) allows vexatious litigants

to file peace orders and protective orders

without regard to any restrictions imposed by

the prefiling order unless otherwise ordered

by the court.

Section (c) contains definitions.

Section (d) outlines the procedure for

the court, on its own initiative, to issue

proposed prefiling orders. The Rule does not

contain a provision allowing a party to file

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a motion for a prefiling order. Section (d)

also lists the facts the court may consider

and include in its proposed prefiling order.

Section (e) provides the procedures for

a response and hearing. Two alternatives are

presented regarding the standard of proof for

finding an individual to be a vexatious

litigant: clear and convincing evidence, or a

preponderance of the evidence.

Section (f) outlines the contents of a

prefiling order.

Section (g) outlines possible

ramifications for violating a prefiling

order.

Section (h) deals specifically with

furnishing security.

Section (i) states that an application

for leave of court must be filed in the court

in which the vexatious litigant wishes to

file the proposed pleading or motion.

A Committee note following section (i)

explains that the administrative judge of a

court may give the clerk a directive for

handling proposed filings, and provides an

example of a directive.

Mr. Brault explained that the topic of vexatious litigants

had been before the Committee once previously.

The Reporter

added that it had been presented as a policy question as to

whether there should be a Rule on this subject.

Mr. Brault told

the Committee that section (b) of Rule 1-342 addressed one of the

problems that arose.

People who need protective orders, peace

orders, and other similar orders may have to get them repeatedly

because of spousal abuse or other reasons, so the Attorneys

Subcommittee did not want the Rule to prohibit this.

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In those

instances, there is a need for multiple litigation.

problem was to define the term “litigation.”

The next

The question of

federal litigation came up.

Rule 1-342 includes federal court

and administrative appeals.

The point of the Rule is not to try

to control what the federal courts do but to include in the

determination of vexatious conduct the litigant’s past conduct in

federal court.

The Chair commented that he was not sure that this had been

accomplished by keeping the term “federal court” in the

definition of the word “litigation” in subsection (c)(1) of Rule

1-342.

It could be added to the definition of the term

“vexatious litigant” in subsection (c)(4) by taking into account

what is done in federal court.

“security” is defined.

defined.

Mr. Brault noted that the term

The term “vexatious conduct” is generally

He asked the Chair about his question as to whether the

definition should also particularize what it means.

California

and other jurisdictions have put in fairly definite details.

The Subcommittee had not wanted to define this in too much

detail.

Mr. Brault said that another issue to discuss was the

addition of the language “unnecessary or unreasonable delay” as

opposed to the word “delay,” because almost everything is delayed

in litigation.

The Chair said that in this definition, the

language “or the U.S. District Court for the District of

Maryland” could be added after the word “State” and before the

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word “and.”

Another possibility is to add in a reference to all

federal courts.

Mr. Brault asked if the reference in Rule 1-342

should be limited to the U.S. District Court of Maryland.

The

Chair responded that it could apply to all federal courts.

The

language “or federal court” should be taken out of the definition

of the word “litigation” in subsection (c)(1).

By consensus, the

Committee agreed to these changes.

The Chair referred to the definition of “litigation” in

subsection (c)(1) and inquired if the language “administrative

appeals” means judicial review actions.

Usually, they are not

appeals, but are actions for judicial review that are within the

original jurisdiction of the circuit court.

be “judicial review actions.”

The language could

The Chair noted that he was not

sure that this language is needed, because if it is a civil

action, then it is in the circuit court.

Judge Weatherly pointed

out that the Rule may be trying to include actions pending before

administrative law judges.

The Chair responded that if this is

what is intended, the Rule should have this language.

Mr. Brault asked if the language “or federal court” should

remain in subsection (c)(1).

The Chair answered in the negative,

noting that in section (f), which addresses contents of prefiling

orders, one of the items is to obtain leave of court before

commencing any new litigation.

One need not get leave of a

circuit court judge to file an action in the U.S. District Court.

Mr. Brault commented that the definition of the term “litigation”

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would be: “‘Litigation’ means any civil action or proceeding.”

The Chair asked if the term “court” in Maryland should include

administrative agencies.

controlled?

However, can those agencies be

They are executive agencies.

Mr. Brault responded

that these are not controlled, so the Rule would apply only to a

Maryland court.

The Chair pointed out that the Committee note after section

(d) belongs in section (a), Scope.

The Committee note provides

that this does not apply to civil actions that are collateral

attacks on a criminal judgment.

The Rule does not apply to

habeas corpus and coram nobis actions nor does it apply to

actions under the Post Conviction Procedure Act.

note should be in the Rule.

The Committee

Mr. Sullivan noted that some

vexatious litigants may get a free pass, because many persistent

litigants have some past involvement in criminal cases that gets

woven into whatever the person’s current grievance is.

It is a

collateral attack on criminal actions, and their subsequent

filings may involve criminal cases.

The Chair explained that habeas corpus, coram nobis, and

post conviction actions are civil actions.

Post conviction

actions are limited by statute, but there is no limit to the

number of habeas corpus and coram nobis actions that can be

filed.

Mr. Sullivan suggested that this be defined, so that the

specific vehicles that should be excluded be named, rather than

leaving it open as “civil actions.”

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Litigants are not always

meticulous as to how they style a particular cause of action that

they are pursuing.

The Chair expressed his concern with habeas

corpus and other such cases.

Mr. Brault inquired if the courts

preclude the refiling of habeas corpus cases.

The Chair answered

that the person may not get any relief but that the court could

not preclude the filing of a habeas corpus petition.

Mr. Klein questioned whether it was the intention of the

Subcommittee that for the purposes of issuing a prefiling order,

the court look at the number of litigations that the person had

filed only in Maryland or the number that the person had filed

anywhere.

Mr. Brault answered that he thought that it was meant

to include cases filed anywhere.

Mr. Klein noted that the Chair

had narrowed this to cases only filed in Maryland.

Judge Norton

observed that the breadth of this Rule is covered under the

definition of “vexatious litigant.”

Mr. Klein remarked that subsection (d)(1) of Rule 1-342

provides that the court may consider the number of litigations

that the person has commenced.

If the litigation is narrowed to

State courts, no other case can be considered.

The Chair

commented that he had not been concerned with section (d) but

with including in the definition of the word “litigation” what

can be put into the prefiling order.

other courts cannot be controlled.

The filing of actions in

Mr. Klein said that he was

asking about which other cases are counted for purposes of

issuing the order.

Section (d) is written using the definition

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of the word “litigation” as a defined term.

narrowed tremendously in scope.

It had just been

Mr. Sullivan expressed the view

that this should be broadened to consider other jurisdictions as

well.

Mr. Klein suggested that there should be no geographic

limitation on the definition of the term “litigation.”

If a

geographic limitation is to be included, it should be put into

the order.

The Chair agreed with this.

Committee agreed with this suggestion.

By consensus, the

Mr. Brault noted that

this would put the Rule back to the way that it had originally

been written as “any state or federal court.”

He said that he

thought that this was what had been intended.

The Reporter asked whether the language “including

administrative appeals” should remain in subsection (c)(1) of

Rule 1-342, amending it to “actions for judicial review.”

The

Chair noted that a period could be put after the word “court.”

By consensus, the Committee agreed to this change.

Judge Norton inquired if the language “in other states”

should be included in the definition of the term “vexatious

litigant.”

The definition provides that the individual

habitually engages in vexatious conduct, and this could include

conduct in other states.

The Chair commented that it is a leap

to forbid someone from filing an action in the State of Maryland

simply because he or she has been a vexatious litigant in

Nebraska.

This is a policy question.

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The Reporter remarked that

it is also a leap to include the federal court in subsection

(c)(4), because the structure of the Rule now is that the court

is doing this sua sponte.

How would the court in Maryland know

what has been going on in federal court?

Judge Love said that there might be a sanction imposed by

the Superior Court of the District of Columbia defining the

person to be vexatious.

Mr. Brault noted that this definition

would apply after the court has made findings, after doing some

investigation.

The words “of this State” could be change

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