# COURT OF APPEALS STANDING COMMITTEE

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URL: https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A510f3ac80bf801e6

## Record

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

## Text

COURT OF APPEALS STANDING COMMITTEE
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.

He

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;
(C) (iii) with collateral security of
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
(C) (iii) ensure that the defendant
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.

If

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.

It

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.

He

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.

If

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.

It

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.
(c) A lawyer may limit the scope of the
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.

If

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.
(c) (d) Requests to Clerk - Exception
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).

He

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.

It

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.

It

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.

A

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.

It

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.

It

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.

It

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
(c) of the Maryland Lawyers’ Rules of
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.
(c) (d) Effect
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
(c) of the Maryland Lawyers’ Rules of
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.
(c) (d) Effect
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).

He

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

-69-

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
d.
Section (d) is derived from former Rule 125
e.
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

-71-

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

-72-

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.

If

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

-73-

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.

-76-

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

-77-

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 Comm

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A510f3ac80bf801e6. Public record. Not legal advice.