STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

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NOTICE OF PROPOSED RULES CHANGES

The Rules Committee has submitted its Two Hundred and

Seventh Report to the Court of Appeals, recommending recission

of current Rules 5-702 and 5-902 of the Maryland Rules of

procedure and replacement of them by revised Rules 5-702 and 5902, respectively, and transmitting thereby proposed new Title

10, Chapter 800 (Revocable Trusts); proposed new Rules 2-807, 5702, 5-902, and 16-309; and amendments to current Rules 1-326,

2-504, 2-504.1, 2-801, 4-345, 5-803, 5-901, 16-302, 16-803, 16919, 18-405, 18-409.1, 18-411, 18-428, 18-433, 18-437, 18-438,

19-102, 19-305.4, 19-308.1, 19-308.5, 19-605, 19-606, 19-701,

19-702, 19-703, 19-704, 19-705, 19-706, 19-707, 19-708, 19-711,

19-712, 19-714, 19-715, 19-716, 19-717, 19-718, 19-719, 19-720,

19-721, 19-722, 19-723, 19-724, 19-725, 19-726, 19-727, 19-728,

19-731, 19-732, 19-733, 19-734, 19-735, 19-736, 19-737, 19-738,

19-739, 19-740, 19-741, 19-742, 19-743, 19-744, 19-751, 19-752,

19-802, 20-109, and 20-405.

The Committee’s Two Hundred and Seventh Report and the

proposed Rules changes are set forth below.

Interested persons are asked to consider the Committee’s

Report and proposed Rules changes and to forward on or before

May 10, 2021 any written comments they may wish to make to:

Sandra F. Haines, Esquire

Reporter, Rules Committee

Judiciary A-POD

580 Taylor Avenue

Annapolis, Maryland

21401

Suzanne Johnson

Clerk

Court of Appeals of Maryland

April 8, 2021

The Honorable Mary Ellen Barbera,

Chief Judge

The Honorable Robert N. McDonald

The Honorable Shirley M. Watts

The Honorable Michele D. Hotten

The Honorable Joseph M. Getty

The Honorable Brynja M. Booth

The Honorable Jonathan Biran,

Judges

The Court of Appeals of Maryland

Robert C. Murphy Courts of Appeal Building

Annapolis, Maryland 21401

Your Honors:

The Rules Committee submits this, its Two Hundred and

Seventh Report, and recommends that the Court adopt the new

Rules and amendments to existing Rules transmitted with this

Report. The proposed changes fall into eight categories.

Category 1 consists of amendments to Rule 4-345, which

deals with the revisory power of a court over criminal sentences

imposed by the court.1

Compare Rule 4-331, which also provides revisory power and

control over judgments in criminal cases. That Rule focuses on

situations in which the conviction itself is challenged; the

petitioner is not merely seeking relief from the unexpired term

of a sentence.

Sections (a), (b), (c), and (d) of the current Rule permit

the court (1) to correct an illegal sentence at any time, (2) to

revise a sentence, without a specific time limitation, for

fraud, mistake, or irregularity, (3) to correct an evident

mistake in the announcement of a sentence if that is done

before the defendant leaves the courtroom, and (4) to revise a

sentence in a case involving desertion or non-support of a

spouse, child, or destitute parent in favor of probation at any

time prior to the expiration of the sentence. No changes are

proposed to those sections.

Section (e) provides a general revisory power over other

sentences, subject to three conditions or limitations: first,

the court may not increase the sentence; second, a motion to

revise must have been filed within 90 days after the sentence

was imposed; and third, the revisory power may not be exercised

after the expiration of five years from the imposition of the

sentence. A Committee Note to section (e) permits the court,

without regard to the latter two limitations, to suspend the

unserved time remaining on a sentence and commit a defendant

with a drug or alcohol dependency to a Department of Health

treatment program pursuant to Code, Health-General Article, § 8507.2

At one time, a trial court in Maryland had no power to

strike or reduce a sentence after it had become “enrolled,”

which meant after the court’s “term” had ended (other than for

illegality, fraud, mistake, or irregularity). Madison v. State,

205 Md. 425, 431 (1954). That limitation was modified by Rule,

however, initially by General Rule of Practice and Procedure,

Part Four, I, Rule 10, which followed the Federal approach of

permitting a trial court to reduce a sentence within 90 days

after the sentence was imposed. After that period, the sentence

could be revised only for illegality, fraud, mistake, or

irregularity. See Rule 744 (1958) and Rule 774 (1983). The flat

Note also the cross-reference at the end of the Rule calling

attention to (1) Code, Criminal Procedure Article, § 8-302 that

permits a court to vacate a judgment of conviction for certain

“qualifying offenses” if the person’s participation in the

offense was the direct result of human trafficking if the motion

to vacate was filed within a reasonable period of time after the

conviction, and (2) Code, Criminal Law Article, § 5-609.1,

permitting a court to modify a mandatory minimum sentence

imposed for certain drug offenses prior to September 30, 2017,

without regard to whether the defendant had filed a previous

motion to modify or reduce the sentence.

90-day limit was deleted in 1984 when the criminal procedure

Rules were generally revised. See Rule 4-345 (1984).

From

then until 2005, there was no time limit on the exercise of the

general revisory power, provided a motion to revise had been

filed within 90 days after imposition of the sentence. The

court could hold the motion sub curia indefinitely.

The five-year limitation was added to the Rule in 2005. It

was proposed by the Conference of Circuit Judges, along with a

request that the 90 days allowed for a motion to revise be

reduced to 30 days. The Rules Committee rejected both requests,

the former by a close vote of 11 to 10, with four members not

present. In light of the close vote, the Committee transmitted

both proposals to the Court in a February 17, 2004 letter

Report. The Court adopted the five-year limitation requested by

the Conference but left the 90-day limit for filing the motion

intact.

One of the functions assigned to the Rules Committee is to

“keep abreast of emerging trends and new developments in the law

that may affect practice and procedure in the Maryland Courts.”

Rule 16-701 (g). In doing so, the Committee has become aware of

a national movement to permit trial courts in criminal cases to

retain the power to revise long prison sentences imposed on

persons (1) who were juveniles, or under 25, when they committed

the crime(s) for which the sentence was imposed, or (2) who have

served a significant part of the sentence and reached a certain

age (60, 65, 70).

With respect to the younger criminal, this movement is

based on medical evidence, accepted by the United States Supreme

Court and the Court of Appeals, that the human brain is not

fully developed until the age of 25 and that younger people have

“a lack of maturity and an underdeveloped sense of

responsibility leading to recklessness, impulsivity, and

heedless risk-taking” and “lack the ability to extricate

themselves from horrific, crime-producing settings.” See

(Miller v. Alabama, 567 U.S. 460, 479 (2012); Graham v. Florida,

560 U.S. 48 (2010); and Carter v. State, 461 Md. 295, 192 A.3d

695 (2018). With respect to the ageing prison population, it is

based on the conclusions of criminologists that the continued

incarceration of many prisoners in their sixties, seventies, or

eighties often serves no rational or public safety purpose.3

See Quelling the Silver Tsunami: Compassionate Release of

Elderly Offenders, 70 Ohio St. L. Rev. 937 (2018); A Little

With the assistance of both the Attorney General’s Office

and the Public Defender’s Office, the Committee examined the

impact on those two populations of the 90-day motion requirement

and the five-year limitation and concluded that, for those

populations, they were unnecessary impediments to the circuit

courts having the ability to consider whether those long

sentences, which may have been entirely appropriate when

imposed, continue to serve a useful societal purpose and,

indeed, may be antithetical to sound judicial policy. After

debating several alternative proposals, the Committee recommends

approval of the amendments to Rule 4-345 submitted with this

Report.

There are three main aspects to the amendments. New

subsection (f)(1) puts in the Rule what is now a Committee Note

permitting the court to implement § 8-507 of the Health-General

Article by suspending the unserved part of a sentence of an

inmate with a drug or alcohol dependence, putting the inmate on

supervised probation, and, as a condition of the probation,

committing the inmate to a State Health Department treatment

program.

Subsection (f)(2) is the new provision. It first defines

the members of the two target populations who may file a

petition or motion for relief as inmates who have been sentenced

to terms of 15 years or more and who (1) committed the last

offense for which the sentence or any part of the sentence was

Child Shall Lead Them: Juvenile Justice, Aging Out, And The

First Step, 87 Tenn. L. Rev. 569 (2021). See also Recidivism

Among Older Adults: Correlates of Prison Re-entry, 15 Justice

Pol’y J.9 (Spring 2018); Special Report, 2018 Update on Prisoner

Recidivism: A 9-Year Follow-Up Period, NCJ 250975, Bureau of

Justice Statistics, 8-9 (May 2018)); Age of Gray Matters:

Neuroprediction of Recidivism, 19 Neuroimage Clinical, 813-23

(2018); The Association of Age and Recidivism, Correctional

Service Canada (April 2018); Minnesota Criminal History Score

Recidivism Project, Robina Inst. Of Crim. Law & Crim. Just. 12

(2018); Growing Up Is Hard To Do: An Empirical Evaluation of

Maturation and Desistance, 1 J. Dev. Life Course Criminol. 35084 (2015; Connecticut Statistical Analysis Ctr., Incarceration

History & Age (Nov. 2010). The “see also” citations were

provided by the Public Defender’s Office.

imposed before reaching the age of 25 and has served the greater

of 15 years or sixty percent of the sentence, or (2) has served

at least 15 years of the sentence and has reached the age of 60.

Because of the percentage-of-service requirement for the

juvenile offenders, account needs to be taken of life sentences.

The Committee proposes that, for purposes of that calculation, a

sentence of life or of a term exceeding 40 years shall be

considered a term of 40 years.

Attached to this Report as APPENDIX A are charts prepared

by the Attorney General’s Office showing how these proposals

actually will work. The vertical columns take account of the

length of the sentence. The horizontal columns take account of

the age of the defendant when the crime was committed. Chart A

shows, in the internal boxes, how many years the defendant must

serve before being eligible to petition for relief. Chart B

shows, in the internal boxes, how old the person will be when he

or she first can petition for relief.

Subsection (f)(2)(B) is the provision that allows the court

to grant relief, which may be in the form of modifying,

reducing, or vacating the unexpired term of the sentence, or

suspending all or part of the unexpired term and placing the

defendant on probation.

Section (g) sets the procedure – where the petition is to

be filed, what the petition must contain, service on the State’s

Attorney, notice to any victims and, if the defendant is

unrepresented, notice to the district public defender, to see if

that office may be interested in representing the defendant.4

Subsection (h)(3) requires generally that the court hold a

hearing on the petition but requires that the court dismiss a

petition under subsection (f)(2) without a hearing if it

concludes that the petitioner does not qualify as an eligible

petitioner under that subsection and may dismiss the petition

without a hearing if an earlier petition under subsection (f)(2)

was filed within the preceding six years and was dismissed after

a hearing. That is to protect the court and victims from

vexatious filings.

Subsection (h)(2) precludes a petitioner from waiving his

or her right to be present at a hearing under subsection (f)(2)

unless the petitioner is not capable of appearing and

See a comparable provision in Rule 4-403, dealing with post

conviction procedure applications. The Public Defender’s Office

has approved the proposed amendment.

participating in a hearing. Subsection (h)(4) lists some

factors relevant for the court to consider in deciding whether

to grant a petition.

Subsection (f)(2) is not intended to displace or be in

competition with the Executive Branch parole system. Paroles do

not affect the sentence that was imposed but merely permit the

defendant to serve part of that sentence outside the prison

walls. Other than the Governor’s Constitutional commutation

power, the sentence itself remains within the control of the

court that imposed it, subject only to limitations and

conditions imposed by Rules of the Court of Appeals and

appellate adjudications.

Category 2 consists of revisions to Title 19, Chapter 700

of the Maryland Rules – the Rules dealing with Bar Counsel, the

Attorney Grievance Commission (AGC), and proceedings relating to

complaints made against attorneys. Most of those changes were

recommended by Bar Counsel, AGC, or attorneys who have

represented client-attorneys in dealing with Bar Counsel or AGC;

others were the product of a general review by the Rules

Committee of the existing Rules, in part in light of changes

recently made to the Rules regarding the Judicial Disabilities

Commission and the processing of complaints charging a judge

with sanctionable conduct, impairment, or permanent disability

(JDC Rules).

The specific changes to the various Rules are described in

the Reporter’s Notes to those Rules. We do call the Court’s

attention to some of the more significant ones.

(1) At the request of several attorneys and with the

concurrence of Bar Counsel, the Rules Committee proposes adding

to Rule 19-703 (b) the authority of Bar Counsel to consult with

the State and local bar associations, public and private support

groups, and other appropriate persons in an effort to identify

programs or services that can serve as a resource to assist

attorneys who may come before Bar Counsel, AGC, or the Court and

be considered when recommending or determining an appropriate

disposition of a complaint made against an attorney.

The Rules Committee regards this as an important addition

to the overall function of the disciplinary process. Attorneys

are subject to the same stresses that plague people generally in

our complex and increasingly divisive society, plus some that may

be peculiar to the practice of law. An attorney’s daily work

often involves dealing with people in conflict, special and

strict ethical commands, constant and sometimes very short

deadlines, and, for solo practitioners or attorneys in small

firms, all the requirements of running a business operation.

Attorneys are not immune from emotional crises in their lives or

addictions or lapses of good judgment that can bring them before

Bar Counsel, AGC, and ultimately the Court.

The Committee was advised that there are support groups of

one kind or another that are available to assist attorneys in

dealing with those kinds of issues. The proposed amendment

allows Bar Counsel to identify those groups and services that may

offer options to Bar Counsel, AGC, the attorney at risk, and the

Court in dealing with certain kinds of complaints - options that

are therapeutic and restorative more than punitive. The Court’s

attention is drawn as well to the Committee Note following

subsection (b)(13).

(2) Current Rule 19-715 permits AGC, on a recommendation

by Bar Counsel, to dismiss a complaint accompanied by a

“warning,” but only if the attorney does not object. If the

attorney objects, AGC may not issue the warning. A proposed

amendment substitutes for the “warning” two options: dismissal

accompanied by a letter of cautionary advice, similar to what

the Court approved in the JDC Rules, which AGC may issue without

regard to any objection by the attorney, and a dismissal

accompanied by an admonition, which the attorney can preclude by

objecting. That is closer to the current dismissal with a

warning.

Either of those dispositions would be based on a conclusion

by AGC that the attorney’s misconduct was not sufficiently

serious to warrant formal discipline and, with the letter, is

not likely to be repeated. The cautionary advice is appropriate

when the attorney had not previously been sanctioned or received

a previous warning, admonition, or cautionary advice. In the

vernacular, it is “we recommend that you be more careful,” as

opposed to “don’t do that again, and we mean it.”

Neither constitutes discipline. One difference between the

two is that the fact that a letter of cautionary advice was sent

is not disclosed to the complainant, but the fact that an

admonition was issued (but not the admonition itself) is

disclosed to the complainant, and the facts underlying the

admonition may be disclosed in a subsequent proceeding against

the attorney when relevant to a complaint alleging similar

conduct.

(3)

Rule 19-726, dealing with discovery, is rewritten to

provide greater specificity as to what must be disclosed by Bar

Counsel and the attorney. As was done recently with the JDC

Rules, the Rule would require that all exculpatory information

possessed by Bar Counsel be disclosed. Subsection (d)(2)

provides that the assertion by the attorney of the existence of

a mental or physical condition or an addiction as a defense to a

charge against the attorney constitutes a waiver of the

attorney’s medical privilege and permits Bar Counsel to obtain,

by subpoena or other legitimate means, medical and psychological

records of the attorney relevant to issues presented in the

case. A similar provision appears in the JDC Rules. See Rule

18-441 (f).

Proposed new section (e) brings before the Court a change

that was presented in the Committee’s 195th Report but on which

the Court deferred action, namely that AGC may not be subject to

an organizational designee deposition pursuant to Rule 2-412 (d)

in an attorney disciplinary matter. See Rules Order entered

April 9, 2018. Technically, that proposal is still pending

before the Court, but, to provide a more transparent record, the

Committee has presented it again for the Court’s consideration.

That provision was recommended by AGC, but there was

opposition to it. AGC’s position, which the Rules Committee

found persuasive, was that, during the discovery phase, when

such a deposition might be noted, AGC, as an entity, has little

knowledge of the underlying facts. It is Bar Counsel who has

conducted the investigation and, ordinarily, nothing of

substance has yet been presented to AGC. There was no objection

by AGC to the attorney deposing a member of AGC if the attorney

believes that the member may have relevant disclosable

information but contended that the Commission itself should not

be put to appointing a designee to be deposed on its behalf.

Because some attorneys are noting AGC organizational depositions

in disciplinary cases, this is an issue that, at some point,

will need to be resolved by the Court.

(4) Amendments are proposed to Rule 19-731, dealing with

audits of an attorney’s accounts and records, to set forth a

procedure for enforcing a court order authorizing such an audit.

(5)

An amendment is proposed to Rule 19-732, which allows

injunctive relief when an attorney, through misconduct or

incapacity, poses an immediate threat of substantial injury to

particular persons or the public. A new section (d) deals with

the situation in which the attorney, by reason of disability or

impairment, is unable to assist his or her defense. It allows a

circuit court to appoint an attorney or a guardian ad litem for

the attorney at risk. Similar provisions are proposed for Rule

19-739, which deals with the transfer of a disciplinary case to

one for disability inactive status. A similar provision appears

in the JDC Rules. See Rule 18-441 (d).

(6) An amendment is proposed to Rule 19-738 to provide a

procedure for the temporary suspension of an attorney in a

reciprocal discipline case.

(7) A new section (d) is proposed to Rule 19-740 to codify

in the Rule a procedure when the Court orders the suspension of

an attorney but suspends the execution of that Order and places

the attorney on probation subject to such conditions as the

Court may impose. A similar Rule was recently adopted for

judges. See Rule 18-438.

(8) At the request of Bar Counsel, the Committee proposes

to add to Rule 19-752, dealing with petitions for reinstatement,

a provision prohibiting an attorney from filing more than three

such petitions absent leave of Court. When a petition for

reinstatement is filed, Bar Counsel must conduct an

investigation and respond to the petition and is concerned about

the burden of having to do that repeatedly when previous

petitions have been denied.

(9) Conforming amendments were made to the following

Rules: Rule 18-428 (Retirement as a Disposition), Rule 19-305.4

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

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

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

(Obligation of Attorneys), Rule 19-606 (Enforcement of

Obligations), Rule 19-802 (Registration), and Rule 20-405

(Appellate Review).

Category 3 consists of a rewriting of Rule 5-702,

conforming amendments to Rules 5-803 and 5-901, and a rewriting

of Rule 5-902.

The rewriting of Rule 5-702 is intended to codify the

Court’s decision in Rochkind v. Stevenson, 471 Md. 1 (2020),

which overruled Reed v. State, 283 Md. 374 (1978) and adopted

the principles enunciated in Daubert v. Merrell Pharmaceuticals,

Inc., 509 U.S. 579 (1993). The Committee proposes adopting the

language of Fed. Rule 702 and adding, as section (b), the

factors a trial court must consider in determining the

reliability of anticipated expert testimony. Those factors are

taken from the Rochkind and Daubert Opinions.

The Committee proposes to add a Committee Note recommending

that, in considering those factors, the trial court also should

take into account the potential impact they may have on people

of color and members of underserved or other disadvantaged

communities, mainly whether, in a given case, a Daubert analysis

may unfairly deny a party of the benefit of expert testimony

critical to the party’s chance of success. That concern was

raised by the Dissent in Rochkind and, although the Majority did

not believe that that concern sufficed to bar the Court from

judicially adopting the Daubert approach to determining the

reliability of proposed expert testimony, the Committee did not

see the Court’s decision as precluding a trial court from

considering whether strict application of the Daubert factors

would, in fact, have a disparate and harmful impact upon a

member of a disadvantaged community in a particular case. The

Committee did not intend to suggest that a trial judge could

ignore the Court’s holding in Rochkind.

The rewriting of Rule 5-902 in part is stylistic but

conforms paragraph 12 to Fed. R. Evid. 902 (12) and adds new

paragraphs (13) and (14) to match the addition of those

paragraphs to the Federal Rule.

Category 4 consists of amendments to Rules 19-702, 18-405,

18-409.1, 18-411, 18-433, 18-437, 18-438, and 19-102. The

purpose of all of these amendments, some of which are merely

conforming amendments, is to change the official job titles of

the Executive Secretary to the Commission on Judicial

Disabilities, the Executive Secretary to the Attorney Grievance

Commission, and the Secretary to the State Board of Law to

Examiners to be more consistent with the actual duties of those

officials. Those changes were approved by the respective

agencies and the Administrative Office of the Courts.

Category 5 consists of amendments to Rule 16-919 to clarify

the authority and responsibility of judicial officials when

asked to create new judicial records from existing electronic

databases or to reformat existing judicial records, when that is

not necessary for any judicial function. The amendments were

recommended by the State Court Administrator.

The current Rule permits the custodian to deny such a

request if granting it would impose a significant operational

burden on the court or other judicial unit or agency that cannot

be overcome merely by requiring the requester to prepay any

additional cost of granting the request. A new subsection

(e)(1)(C)(v) permits a denial of the request if it is a repeated

one by the same or affiliated person for the same records that

were previously provided or that was properly denied. New

subsections (e)(2)(E) and (F) would require the custodian to

consider whether there is any practicable way to narrow the

request to make it manageable and to confer with the requester

in that regard.

Category 6 consists of amendments to Rules 1-326 and 20-109

to clarify the right of an attorney who enters an appearance for

a victim or victim’s representative in a criminal or juvenile

delinquency case to notice of all proceedings in the case and to

access all case records in the case that are not under seal,

shielded by the Rules in Title 16, Chapter 900, or subject to a

protective order.

Category 7 consists of new Rules 10-801, 10-802, and 10803. These Rules deal with the situation in which some or all of

a decedent’s assets are in a trust that was revocable by the

decedent at the time of the decedent’s death. They are intended

to implement two statutes – 2015 Md. Laws, Chapter 100 and 2019

Md. Laws, Chapter 435.

Rule 10-801 requires the trustee (1) to inform the personal

representative of the decedent’s estate of the existence of the

trust within 30 days after the trustee acquires notice of the

opening of the estate and (2) to give notice of the trust to the

decedent’s spouse within 60 days after the trustee acquires

knowledge of the decedent’s death. Those timely notices are

important for purposes of the receipt and payment of claims and

for implementing a spouse’s election to claim a statutory share

of the estate.

Rule 10-802 further implements the 2015 law by clarifying

the procedure for receiving and paying claims when an estate has

been opened and when an estate has not been opened. Rule 10-803

implements the 2019 law that makes the assets of a trust that is

revocable upon the death of the settlor part of the augmented

estate for purposes of calculating the value of the estate

subject to election by a surviving spouse.

Category 8 consists of amendments to Rules 2-801, 16-302,

16-803, 2-504, and 2-504.1, and new Rules 2-807 and 16-309. All

of these changes are for the purpose of putting in place certain

procedures that will allow jury trials in civil cases to be

conducted by remote electronic means during and in the immediate

aftermath of a public emergency such as we have been facing in

the past year, when the normal procedures cannot be implemented.

Hopefully, there will never again be a need for these Rules,

but, if such a need should arise, the Committee believes it will

be useful to have these Rules in place.

The term of art used in these Rules is the increasingly

common one of “virtual jury trials,” although these trials will

be real, not virtual, ones. See the new definition proposed in

Rule 2-801 (h).

The basic procedure is set forth in new Rule 2-807, one

critically important aspect of which is that virtual jury trials

are to be “a procedure of last resort.” See the Committee Note

that follows section (b) of the Rule. Virtual jury trials are

limited to cases arising during a public emergency where (1) the

parties agree to that procedure, or (2) the case falls within a

category of cases that the county administrative judge, in the

court’s case management plan, has found suitable for a virtual

jury trial. The amendment to Rule 16-302 requires the case

management plan to include such categories.

Section (c) of Rule 2-807 provides for a scheduling

conference to consider any objections to a virtual jury trial

and a pretrial conference to deal with such things as (1)

assuring the ability of the parties, attorneys, and witnesses to

participate electronically, and (2) the handling of exhibits and

other matters. Section (d) requires that subpoenas issued in a

virtual jury trial case alert the recipient to that fact and

provide instructions on how the recipient may respond to the

subpoena. Section (e) deals with matters involving the jurors –

jury selection, instructions, juror’s notes, their review of the

evidence, deliberations, taking the verdict, communications with

the court, and the use of electronic devices. Section (f) deals

with the electronic devices that may be used by the

participants. Section (g) prohibits persons from recording,

downloading, or transmitting audio, video, or still images of

the proceeding.

New Rule 16-309 and the amendments to Rules 16-302, 16-803,

2-504, and 2-504.1 largely implement Rule 2-807. Rule 16-309

requires the county jury plan to inform prospective jurors that

they may be called to participate in a virtual jury trial and

what that may require of them. Some jurors may be unable to

participate remotely. Rather than simply excuse them, which

could have a negative impact on the diversity of the venire,

sections (b) and (c) require the court to create the ability of

such jurors to participate safely from the court facility, with

appropriate assistance of designated court personnel.

For the further guidance of the Court and the public,

following the proposed new Rules and the proposed amendments to

each of the existing Rules is a Reporter’s note describing in

further detail the reasons for the proposals. We caution that

the Reporter’s notes are not part of the Rules, have not been

debated or approved by the Committee, and are not to be regarded

as any kind of official comment or interpretation. They are

included solely to assist the Court in understanding some of the

reasons for the proposed changes.

Respectfully Submitted,

/s/

Alan M. Wilner

Chair

AMW:cls

Cc:

Suzanne C. Johnson, Clerk

RULE 4-345

MARYLAND RULES OF PROCEDURE

TITLE 4 – CRIMINAL CAUSES

CHAPTER 300 – TRIAL AND SENTENCING

AMEND Rule 4-345 by adding an exception to the five-year

limitation on the court’s revisory power set forth in section

(e); by transferring the language of a Committee note following

section (e) to new subsection (f)(1) and a cross reference

following subsection (f)(1); by adding a Committee note after

subsection (f)(1); by adding new subsection (f)(2), permitting a

circuit court, under certain circumstances to modify a sentence

by reason of length of confinement or age; by adding new

subsection (g)(1), providing for where a motion or petition

shall be filed; by adding new subsection (g)(2) requiring an

attachment to a petition filed pursuant to subsection (f)(2); by

adding new subsection (g)(3) requiring a petition by a pro se

petitioner to be forwarded to the local Office of the Public

Defender; by adding new subsection (g)(3) providing for service

of a motion or petition filed under the Rule and permitting the

State’s Attorney to file a response within 30 days after

service; by re-lettering current subsections (e)(2) and (e)(3)

as subsections (g)(5) and (g)(6), respectively, and adding

clarifying language to the subsections; by adding new subsection

(h)(1) permitting the court to dismiss a petition filed under

RULE 4-345

subsection (f)(2) without a hearing under certain circumstances;

by adding a Committee note following subsection (h)(1)

clarifying that the court may hold a hearing to determine if a

petitioner is eligible for relief under subsection (f)(2); by

adding new subsection (h)(2) requiring the presence of a

defendant seeking relief under subsection (f)(2) at a hearing,

with exceptions, and permitting defendants seeking all other

relief to waive the right to be present at the hearing; by

transferring the provisions of section (f) to subsections (h)(2)

and (h)(3), with certain modifications; by deleting the phrase

“in open court” from subsection (h)(3); by deleting the word

“ordinarily” from subsection (h)(3); by adding new subsection

(h)(4) listing factors for the court to consider in determining

whether to grant relief; and by making stylistic changes, as

follows:

Rule 4-345.

(a)

SENTENCING – REVISORY POWER OF COURT

Illegal Sentence

The court may correct an illegal sentence at any time.

(b)

Fraud, Mistake, or Irregularity

The court has revisory power over a sentence in case of

fraud, mistake, or irregularity.

(c)

Correction of Mistake in Announcement

RULE 4-345

The court may correct an evident mistake in the

announcement of a sentence if the correction is made on the

record before the defendant leaves the courtroom following the

sentencing proceeding.

Cross reference: See State v. Brown, 464 Md. 237 (2019),

concerning an evident mistake in the announcement of a sentence.

(d)

Desertion and Non-Support Cases

At any time before expiration of the sentence in a case

involving desertion and non-support of spouse, children, or

destitute parents, the court may modify, reduce, or vacate the

sentence or place the defendant on probation under the terms and

conditions the court imposes.

(e)

Modification Upon Motion – Generally

(1) Generally

Upon a motion filed within 90 days after imposition of a

sentence (A)(1) in the District Court, if an appeal has not been

perfected or has been dismissed, and (B)(2) in a circuit court,

whether or not an appeal has been filed, the court has revisory

power over the sentence except that it may not increase the

sentence and, unless the court finds the special circumstances

set forth in subsection (f)(1) or (f)(2) of the Rule, it may not

revise the sentence after the expiration of five years from the

date the sentence originally was imposed on the defendant. and

it may not increase the sentence.

RULE 4-345

Cross reference: Rule 7-112 (b).

Committee note: The court at any time may commit a defendant

who is found to have a drug or alcohol dependency to a treatment

program in the Maryland Department of Health if the defendant

voluntarily agrees to participate in the treatment, even if the

defendant did not timely file a motion for modification or

timely filed a motion for modification that was denied. See

Code, Health--General Article, § 8-507.

(f)

Modification in Special Circumstances

(1) Commitment for Drug or Alcohol Dependency Treatment

The court at any time may commit a defendant who is

found to have a drug or alcohol dependency to a treatment

program in the Maryland Department of Health if the defendant

voluntarily agrees to participate in the treatment, even if the

defendant did not timely file a motion for modification or

timely filed a motion for modification that was denied.

Cross Reference:

See Code, Health—General Article, § 8-507.

Committee note: In order to implement a commitment under

section (f)(1), the court must suspend all of the sentence

except the time served and place the defendant on supervised

probation, a condition of which is the successful completion of

the commitment.

(2) Modification by Reason of Length of Confinement and Age

(A) Subsection (f)(2) of this Rule applies to a defendant

who was sentenced to an aggregate unsuspended term of

imprisonment of more than 15 years and (i) committed the last

offense for which that sentence or any part of it was imposed

before reaching the age of 25 and has served the greater of 15

years or sixty percent of that sentence, or (ii) has served at

RULE 4-345

least 15 years of that sentence and has reached 60 years of age.

For purposes of this subsection only, a life sentence or an

aggregate unsuspended sentence of more than 40 years shall be

regarded as a sentence for 40 years.

A defendant who meets the

criteria of this paragraph is an eligible petitioner under

subsection (f)(2).

(B) Upon a petition filed by an eligible petitioner and

compliance with the requirements of sections (g) and (h) of this

Rule, the court may modify, reduce, or vacate the sentence or

place the defendant on probation under the terms and conditions

the court imposes.

Failure to have filed a timely motion under

section (e) of this Rule, or a previous grant or denial of a

motion under that section, shall not bar relief under this

subsection.

(g)

Procedure

(1) Where Filed

A motion or petition filed under this Rule shall be

filed in the circuit court that entered the sentence sought to

be modified. If an aggregate sentence consists of two or more

sentences imposed by different courts and the petitioner seeks

relief from the aggregate sentence, separate petitions must be

filed with each court.

A court has revisory power under this

Rule only with respect to a sentence that it imposed.

(2) Attachment

RULE 4-345

A petition seeking relief under subsection (f)(2) of

this Rule shall be accompanied by a certified copy of the

petitioner’s Institutional Adjustment Record.

(3) Notice to Public Defender

If a petitioner seeking relief under subsection (f)(2) of

this Rule is self-represented, the clerk promptly shall forward

a copy of the petition to the local county or district Office of

the Public Defender.

(4) Service; Response

The motion or petition shall be served on the State’s

Attorney for the county.

The State’s Attorney may file a

response within 30 days after service of the motion or petition.

(5) Notice to Victims

Whether or not the States’s Attorney files a response,

The the State's Attorney shall give notice to each victim and

victim's representative who has filed a Crime Victim

Notification Request form pursuant to Code, Criminal Procedure

Article, § 11-104 or who has submitted a written request to the

State's Attorney to be notified of subsequent proceedings as

provided under Code, Criminal Procedure Article, § 11-503 that

states (A) that a motion or petition to modify, vacate, or

reduce a sentence has been filed; (B) that the motion or

petition has been denied without a hearing or the date, time,

and location of the hearing; and (C) if a hearing is to be held,

RULE 4-345

that each victim or victim's representative may attend and

testify.

(6) Inquiry by Court

Except as provided in subsection (h)(1), Before before

considering a motion or petition under this Rule, the court

shall inquire if a victim or victim's representative is present.

If one is present, the court shall allow the victim or victim's

representative to be heard as allowed by law. If a victim or

victim's representative is not present and the case is one in

which there was a victim, the court shall inquire of the State's

Attorney on the record regarding any justification for the

victim or victim's representative not being present, as set

forth in Code, Criminal Procedure Article, § 11-403 (e). If no

justification is asserted or the court is not satisfied by an

asserted justification, the court may postpone the hearing.

(f)(h)

Open Court Hearing

(1) Dismissal without a Hearing

The court shall dismiss a petition filed under

subsection (f)(2) without a hearing if the court finds in a

written order filed in the record that the petitioner does not

qualify as an eligible petitioner.

The court may dismiss a

petition filed under subsection (f)(2) if, during the preceding

six years, a motion or petition under this Rule was denied after

a hearing.

RULE 4-345

Committee note: The court may hold a hearing on a petition

filed under subsection (f)(2) if there is insufficient

information to allow the court to determine whether the

petitioner qualifies as an eligible petitioner.

(2) Presence of Defendant

A petitioner seeking relief under subsection (f)(2) of

this Rule may not waive the right to be present at a hearing

unless the petitioner is not capable of appearing and

effectively participating at the hearing.

A defendant seeking

relief under any other section of this Rule may waive the right

to be present at the hearing.

(3) Hearing Requirement

The court may modify, reduce, correct, or vacate a

sentence only on the record in open court, after hearing from

the defendant, the State, and from each victim or victim's

representative who requests an opportunity to be heard.

The

defendant may waive the right to be present at the hearing.

hearing shall be held on a motion or petition to modify or

reduce the sentence until the court determines that the notice

requirements in subsection (e)(2)(g)(5) of this Rule have been

satisfied. If the court grants the motion or petition, the court

ordinarily shall prepare and file or dictate into the record a

statement setting forth the reasons on which the ruling is

based.

(4) Factors Relevant to Granting Relief on a Petition

RULE 4-345

In determining whether to grant relief under subsection

(f)(2) of this Rule, the court shall consider (A) the

Institutional Adjustment Record of the petitioner filed with the

petition; (B) the petitioner’s plans for housing, education, and

employment if released; (C) whether, if the petitioner is

released, there is a reasonable likelihood that the petitioner

will be a danger to a victim, another person, or the community;

(D) if the petitioner is to be released on probation, any

conditions recommended by the Division of Parole and Probation,

the State’s Attorney, or a victim and (E) any other factor the

court deems relevant.

Cross reference: See Code, Criminal Law Article, § 5-609.1

regarding an application to modify a mandatory minimum sentence

imposed for certain drug offenses prior to October 1, 2017, and

for procedures relating thereto.

Source: This Rule is derived in part from former Rule 774 and

M.D.R. 774, and is in part new.

REPORTER’S NOTE

Proposed amendments to Rule 4-345 allow an incarcerated

individual serving a lengthy sentence to ask the trial court to

exercise its revisory power after a significant portion of the

sentence has been served. The trial court’s revisory power over

its sentences is separate and distinct from powers of the

Executive Branch to parole and pardon (see State v. Schlick, 465

Md. 566, n. 4 (2019)).

With certain exceptions, Rule 4-345 (e) currently restricts

the time to revise a sentence to five years from the date the

sentence was originally imposed. The Rules Committee has been

advised that research has shown that individuals who committed

serious crimes and served significant portions of long sentences

can be safely released, either due to maturation while

RULE 4-345

incarcerated, if he or she was a young offender, or by “aging

out” of criminality as an older inmate.

Proposed amendments to section (e) add an exception to the

five-year restriction for special circumstances under

subsections (f)(1) and (f)(2).

The Committee note following section (e) is deleted, and

its text is moved to new subsection (f)(1).

New subsection (f)(1) provides for commitment to an

approved treatment program if a defendant is found to have a

drug or alcohol dependency. The text of the subsection and a

cross reference are taken verbatim from the current Committee

note following section (e).

New subsection (f)(2)(A) permits an individual to petition

for modification of an aggregate unsuspended sentence of more

than 15 years if the petitioner was younger than 25 years of age

at the time of the offense(s) and has served the greater or 15

years or 60 percent of the aggregate sentence or if the

petitioner is at least 60 years old and has served at least 15

years of the aggregate sentence. Under this subsection, a life

sentence and a sentence of more than 40 years are each to be

regarded as a sentence of 40 years. A defendant who meets the

criteria of subsection (f)(2)(A) is an “eligible petitioner”

under subsection (f)(2)(B).

New subsection (f)(2)(B) authorizes the court to modify,

reduce, or vacate the sentence or place an “eligible petitioner”

on probation if the requirements of sections (g) and (h) are

met. Failure to file a timely motion for modification within 90

days after imposition of a sentence, as required by section (e),

or the grant or denial of a motion that had been so filed, does

not bar relief on a petition filed under subsection (f)(2).

New section (g) outlines the procedure for motions filed

pursuant to section (e) and petitions filed pursuant to

subsection (f)(2). If modification of an aggregate sentence is

sought, a petition must be filed in each circuit court that

entered a sentence that is part of the aggregate. A petition

seeking relief under subsection (f)(2) must include a certified

copy of the petitioner’s institutional adjustment record as an

attachment. If the petitioner is pro se, a copy of the petition

is forwarded by the clerk to the local Office of the Public

Defender. A copy of a petition or motion must also be served on

the State’s Attorney for the county.

RULE 4-345

Subsection (g)(5) contains provisions currently located in

subsection (e)(2) pertaining to notification to victims. The

language is amended to clarify that the State’s Attorney must

notify each victim whether or not the State files an answer to

the motion or petition.

Subsection (g)(6) contains the text of current subsection

(e)(3) but creates an exception if the court dismisses a

petition pursuant to new subsection (h)(1).

Subsection (h)(1) requires the court to dismiss a petition

filed under subsection (f)(2) by written order without a hearing

if the court finds that the petitioner does not qualify for

relief. The court may also dismiss a petition filed under

subsection (f)(2) if, during the previous six years, a motion or

petition under the Rule was denied after a hearing. A Committee

note following subsection (h)(1) clarifies that the court may

hold a hearing to determine if a petitioner is eligible for

relief.

Subsection (h)(2) requires a petitioner seeking relief

under subsection (f)(2) to be present for the hearing, with an

exception for an individual who is not capable of appearing and

participating. A defendant seeking relief under any other

section may waive the right to be present.

Subsection (h)(3) contains the text of current section (f),

with several amendments. The portion of the subsection

governing the defendant’s waiver of the right to be present has

been moved to subsection (h)(2).

Subsection (h)(4) contains factors the court must consider

in determining whether to grant relief under subsection (f)(2).

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

TABLE OF CONTENTS

DIVISION 1.

Rule 19-701.

GENERAL PROVISIONS

DEFINITIONS

(a) Address of Record

(a)(b) Attorney

(b)(c) Circuit

(c)(d) Client Protection Fund

(d)(e) Commission

(e)(f) Conditional Diversion Agreement

(g) Complainant

(h) Disability

(i) Disability Inactive Status

(f)(j) Disbarment

(k) E-mail Address of Record

(l) Impairment; Impaired

(g)(m) Incapacity

(h)(n) Office for the Practice of Law

(i)(o) Petition for Disciplinary or Remedial Action

(j)(p) Professional Misconduct

(k)(q) Reinstatement

(l)(r) Serious Crime

(m)(s) State

(n)(t) Statement of Charges

(o)(u) Suspension

(p) Warning

Rule 19-702.

ATTORNEY GRIEVANCE COMMISSION

(a) Creation and Composition

(b) Term

(d) Chair and Vice Chair

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

(f) Removal of Commission Members

(g) Quorum

(h) Powers and Duties

(i) Effect of Chair’s Decisions

Rule 19-703.

BAR COUNSEL

(a) Appointment

(b) Powers and Duties

Rule 19-704.

PEER REVIEW COMMITTEE

(a) Creation

(b) Composition

Member

(d) Individuals Ineligible for Appointment as a NonAttorney Member

(e) Procedure for Appointment

(f) Term

(g) Chair and Vice Chair

(h) Compensation

(i) Removal

Rule 19-705.

DISCIPLINARY FUND

(a) Establishment; Nature

(b) Payment by Attorneys

(d) Audit

(e) Enforcement

Rule 19-706.

SANCTIONS AND REMEDIES

(a) For Professional Misconduct

(b) For Incapacity

Rule 19-707.

CONFIDENTIALITY

(a) Peer Review Meetings Proceedings

(b) Other Confidential Material

(d) Required Disclosures by Bar Counsel

(e) Required Disclosures by Clerk of the Court of Appeals

(f) Permitted Disclosures

Rule 19-708.

SERVICE OF PAPERS ON ATTORNEY

(a) Statement of Charges Original Process

(b) Service of Other Papers

Rule 19-709.

COSTS

(a) Generally

(b) Costs Defined

(d) Judgment

(e) Enforcement

DIVISION 2.

Rule 19-711.

ADMINISTRATIVE PROCEEDINGS

COMPLAINT; INVESTIGATION BY BAR COUNSEL

(a) Who May Initiate

(b) Review of Complaint

(d) Time for Completing Investigation

Rule 19-712.

INVESTIGATIVE SUBPOENA

(a) Approval and Issuance

(b) Contents

(g)(d) Recording of Statements

(d)(e) Objection

(e)(f) Enforcement

(f)(g) Confidentiality

(h) Petition for Disciplinary or Remedial Action

Rule 19-713.

PERPETUATION OF EVIDENCE BEFORE PETITION FOR

DISCIPLINARY OR REMEDIAL ACTION

Rule 19-714.

ACTION BY BAR COUNSEL UPON COMPLETION OF

INVESTIGATION

Rule 19-715.

DISMISSAL OF COMPLAINT; TERMINATION DISMISSAL OF

DISCIPLINARY OR REMEDIAL PROCEEDING

(a) Recommendation by Bar Counsel or Peer Review Panel

(b) Action by Commission

Cautionary Advice or Letter of Admonition

(d) Disclosure of Termination or Warning Dismissal; Letter

of Cautionary Advice; Letter of Admonition

Rule 19-716.

CONDITIONAL DIVERSION AGREEMENT

(a) When Appropriate

(b) Voluntary Nature of Agreement; Effect of Rejection or

Disapproval

(d) Submission to Commission

(e) Action by Commission

(f) Effect of Agreement

(g) Amendment of Agreement

(h) Revocation of Agreement

(i) Satisfaction of Agreement

(j) Confidentiality

Rule 19-717.

REPRIMAND BY COMMISSION

(a) Scope

(b) Offer

(d) Submission to Commission

(e) Action by Commission

(f) Effect of Rejection or Disapproval

(g) Effect of Reprimand

Rule 19-717.1.

PERMANENT RETIRED STATUS

(a) Purpose

(b) Criteria

(d) Effect of Disapproval

(e) Effect of Permanent Retired Status

(f) Extension

Rule 19-718.

STATEMENT OF CHARGES

(a) Filing

(b) Content

Rule 19-719.

PEER REVIEW PANEL

(a) Appointment

(b) Composition of Panel

(d) Removal and Recusal of Members

(e) Quorum

Rule 19-720.

PEER REVIEW PROCESS

(a) Purpose

(b) Scheduling of Meeting; Notice to Attorney

(d) Ex Parte Communications

(e) Recommendation of Panel

(f) Action by Commission

DIVISION 3.

Rule 19-721.

PROCEEDINGS ON PETITION FOR DISCIPLINARY

OR REMEDIAL ACTION

PETITION FOR DISCIPLINARY OR REMEDIAL ACTION

(a) Commencement of Action

(b) Form of Petition

Rule 19-722.

ORDER DESIGNATING JUDGE AND CLERK

(a) Order

(b) Service Transmittal of Record; Summons

Rule 19-723.

SERVICE OF PETITION AND ORDER

(a) Generally

(b) Alternative Service

Rule 19-724.

ANSWER

(a) Timing

(b) Content and Scope

Rule 19-725.

PLEADINGS; MOTIONS; AMENDMENTS; MOTIONS

(a) Pleadings

(b) Amendments

Rule 19-726.

DISCOVERY

(a) Discovery from Bar Counsel

(b) Exculpatory Information

(d) Other Discovery from the Attorney

(e) Depositions

(f) Continuing Duty to Disclose

(g) Motions

Rule 19-727.

JUDICIAL HEARING

(a) Evidence and Procedure Generally

(b) Certain Evidence Allowed

(d) Time for Completion

(d)(e) Findings and Conclusions

(e) Time for Completion

(f) Transcript

(g) Transmittal of Record

Rule 19-728.

POST-HEARING PROCEEDINGS

(a) Notice of the Filing of the Record

(b) Exceptions; Recommendations; Statement of Costs

(d) Form

(e) Proceedings in Court of Appeals

DIVISION 4.

Rule 19-731.

SPECIAL PROCEEDINGS

AUDIT OF ATTORNEY ACCOUNTS AND RECORDS

(a) Action for Audit

(b) Petition

(d) Show Cause Order; Service

(e) Response to Petition

(f) Order Directing Audit

(g) Finality of Order

(h) Duty of Clerk to Preserve Confidentiality

(i) Cost of Audit

(j) Remedy Not Exclusive

(k) Sanctions for Violations

(l) Other Disciplinary Proceedings

Rule 19-732.

INJUNCTION; EXPEDITED ACTION

(a) Authority to Seek Injunction

(b) Parties

(d) Inability to Defend

(c)(e) Effect of Investigation or Disciplinary or Remedial

Proceeding

(d)(f) Order Granting Injunction

(e)(g) Service on Financial Institution

(f)(h) Expedited Disciplinary or Remedial Action

Rule 19-733.

REFERRAL FROM CHILD SUPPORT ADMINISTRATION

(a) Referral

(b) Show Cause Order

(d) Presumptive Effect of Referral

(e) Termination of Suspension

(f) Other Disciplinary Proceedings

Rule 19-734.

CONSERVATOR OF CLIENT MATTERS

(a) Appointment; When Authorized

(b) Petition; Service; Order

(d) Disposition of Files

(e) Sale of Law Practice

(f) Compensation

(g) Confidentiality

Rule 19-735.

RESIGNATION OF ATTORNEY

(a) Application

(b) When Attorney May Not Resign

(d) Order of the Court of Appeals

(e) Duty of Clerk

(f) Effect of Resignation

(g) Motion to Vacate

Rule 19-736.

CONSENT TO DISCIPLINE OR TRANSFER TO DISABILITY

INACTIVE STATUS

(a) General Requirement

(b) Consent to Discipline for Misconduct

Status

(d) Duty of Clerk

(e) Effect of Denial

Rule 19-737.

RECIPROCAL DISCIPLINE OR INACTIVE STATUS

(a) Duty of Attorney

(b) Petition in Court of Appeals

(d) Temporary Suspension of Attorney

(e) Exceptional Circumstances

(f) Action by Court of Appeals

(g) Conclusive Effect of Adjudication

(h) Effect of Stay in Other Jurisdiction

(i) Duties of Clerk of Court of Appeals

Rule 19-738.

DISCIPLINE ON CONVICTION OF CRIME

(a) Definition

(b) Duty of Attorney

Disciplinary or Remedial Action

(d) Show Cause Order

(d)(e) Temporary Suspension of Attorney

(f) Termination of Temporary Suspension

(g) Action by the Court of Appeals

(h) Time for Holding a Hearing

(e) Petition When Imposition of Sentence is Delayed

(f) Statement of Charges

(g) Further Proceedings

(h) Right to Earlier Hearing

(i) Conclusive Effect of Final Conviction

(f)(j) Statement of Charges

(j)(k) Duties of Clerk of Court of Appeals

Rule 19-739.

SUMMARY PLACEMENT ON TRANSFER TO DISABILITY

INACTIVE STATUS

(a) Purpose

(a)(b) Grounds for Transfer

(b)(c) Procedure

(c)(d) Order of the Court of Appeals

(e) Effect of Denial

(d)(f) Effect on Disciplinary or Remedial Proceeding

(e)(g) Termination of Disability Inactive Status

(h) Inability to Defend

(i) Costs

(f)(j) Duties of Clerk of Court of Appeals

DIVISION 5.

Rule 19-740.

DISPOSITION BY COURT OF APPEALS

PERMANENT RETIRED STATUS

(a) Purpose

(b) Criteria

(d) Effect of Disapproval

(e) Effect of Permanent Retired Status

(f) Extension

Rule 19-741 19-740.

DISPOSITION – GENERALLY

(a) Oral Argument

(b) Review by Court of Appeals

(d) Decision

(e) Effective Date of Order

Rule 19-742 19-741.

ORDER OF DISBARMENT OR SUSPENSION, ORDER

ACCEPTING RESIGNATION

(a) Duties of Clerk

(b) Effect of Order

(d) Duties of Bar Counsel

(e) Conditions on Reinstatement

(f) Responsibility of Affiliated Attorneys

(g) Non-Admitted Attorney

(h) Modification of Order

(i) Sanctions for Violations

Rule 19-743 19-742.

ORDER OF REPRIMAND

(a) Accompanying Requirements

(b) Content of Order

Rule 19-744 19-743.

PLACEMENT ON ORDER OF TRANSFER TO

DISABILITY INACTIVE STATUS

(a) Effect of Order

(b) Duties of Clerk

(d) Conditions on Reinstatement

(e) Other Provisions of Rule 19-742 19-741

DIVISION 6.

Rule 19-751.

REINSTATEMENT

REINSTATEMENT – SUSPENSION SIX MONTHS OR LESS

(a) Scope of Rule

(b) Reinstatement Not Automatic

(d) Review by Bar Counsel

(e) Action by Court of Appeals

(f) Effective Date of Reinstatement Order

(g) Duties of Clerk

(h) Motion to Vacate Reinstatement

Rule 19-752.

REINSTATEMENT – OTHER SUSPENSION; DISBARMENT;

DISABILITY INACTIVE STATUS; RESIGNATION

(a) Scope of Rule

(b) Reinstatement Not Automatic

(d) Information for Bar Counsel

(e) Response to Petition

(f) Disposition

(g) Further Proceedings

(h) Criteria for Reinstatement

(i) Subsequent Petitions

(j) Conditions to Reinstatement

(k) Effective Date of Reinstatement Order

(l) Duties of Clerk

(m) Motion to Vacate Reinstatement

DIVISION 7.

Rule 19-761.

DUTIES OF CLERK OF COURT OF APPEALS UPON

ATTORNEY’S SUSPENSION, TERMINATION, OR

REINSTATEMENT

(a) Register of Attorneys

(b) Notice

(d) Form of Notice

RULE 19-701

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-701 by adding new definitions as sections

(a), (f), (g), (i), and (j); by deleting the definitions in

existing sections (e) and (p); by re-lettering existing sections

(a), (b), (c), (d), (f), (g), (i), (j), (k), (l), (m), (n), and

(o) respectively as proposed sections (b), (c), (d), (e), (h),

(k), (l), (m), (n), (o), (p), (q), (r), and (s); and by

modifying the definitions in proposed sections (k), (l), and

(p), as follows:

Rule 19-701.

DEFINITIONS

In this Chapter, the following definitions apply except as

otherwise expressly provided or as necessary implication

requires:

(a)

Address of Record

“Address of Record” means the address maintained by the

attorney with the Attorney Information System in accordance with

Rule 19-802.

(a)(b)

Attorney

RULE 19-701

“Attorney” means an individual admitted by the Court of

Appeals to practice law in this State.

For purposes of

discipline or inactive status, the term also includes (1) an

individual not admitted by the Court of Appeals but who engages

in the practice of law in this State, holds himself or herself

out as practicing law in this State, or who has the obligation

of supervision or control over another attorney who engages in

the practice of law in this State, and (2) an individual who is

seeking reinstatement pursuant to Rules 19-751 or 19-752

following the imposition of discipline or inactive status.

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

Attorneys' Rules of Professional Conduct.

(b)(c)

Circuit

“Circuit” means Appellate Judicial Circuit.

(c)(d)

Client Protection Fund

“Client Protection Fund” means the Client Protection Fund

of the Bar of Maryland created by Code, Business and Occupations

and Professions Article, § 10-311 and administered pursuant to

Rule 19-604.

(d)(e)

Commission

“Commission” means the Attorney Grievance Commission of

Maryland.

(e)(f)

Conditional Diversion Agreement

RULE 19-701

“Conditional diversion agreement” means the agreement

provided for in Rule 19-716.

(g)

Complainant

“Complainant” means a person who has filed a written

allegation of misconduct or incapacity.

(h)

Disability

“Disability” means a mental or physical condition that

seriously interferes with the performance of an attorney’s

duties, and is, or is likely to become, permanent.

(i)

Disability Inactive Status

“Disability inactive status” means a status determined

pursuant to Rule 19-739.

(f)(j)

Disbarment

“Disbarment” means the unconditional termination of any

privilege to practice law in this State pursuant to Rule 19-742

19-741 and, when applied to an attorney not admitted by the

Court of Appeals to practice law, means the unconditional

exclusion from the admission to or the exercise of any privilege

to practice law in this State.

(k)

E-mail Address of Record

“E-mail Address of Record” means the e-mail address(es)

maintained by the attorney with the Attorney Information System

in accordance with Rule 19-802.

RULE 19-701

(l)

Impairment; Impaired

“Impairment” or “Impaired” means a mental or physical

disability, including an addiction, that seriously interferes

with the performance of an attorney’s duties but may be

remediable and, if remedied, is not likely to become permanent.

(g)(m)

Incapacity

“Incapacity” means the inability to render adequate legal

service by reason of mental or physical illness or infirmity, or

addiction to or dependence upon alcohol or one or more drugs or

other intoxicants a disability or impairment.

(h)(n)

Office for the Practice of Law

“Office for the practice of law” means an office a

location in which an attorney usually devotes a substantial part

of the attorney's time to the practice of law during ordinary

business hours in the traditional work week.

(i)(o)

Petition for Disciplinary or Remedial Action

“Petition for disciplinary or remedial action” means the

petition filed by Bar Counsel pursuant to Rule 19-721.

(j)(p)

Professional Misconduct

“Professional misconduct” or “misconduct” has the meaning

set forth in Rule 19-308.4 (8.4) of the Maryland Attorneys’

Rules of Professional Conduct in Chapter 300 of this Title.

term includes the knowing failure to respond to a request for

The

RULE 19-701

information authorized by this Chapter without asserting, in

writing, a privilege or other basis for such failure.

(k)(q)

Reinstatement

“Reinstatement” means the termination of disbarment,

resignation, suspension, inactive status, or any exclusion to

practice law in this State pursuant to an Order entered under

Rule 19-751 or 19-752.

(l)(r)

Serious Crime

“Serious crime” means (1) a felony under Maryland law;

(2) a crime committed in another state or under federal law that

would have been a felony under Maryland law had the crime been

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

crime under federal law or the law of any state that is

punishable by imprisonment for three years or more, or (4) any

crime, a necessary element of which, as determined by the

statutory or common law definition of the crime, involves

interference with the administration of justice, false swearing,

misrepresentation, fraud, deceit, bribery, extortion,

misappropriation, theft, or an attempt, conspiracy, or

solicitation of another to commit a serious crime.

(m)(s)

State

RULE 19-701

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

commonwealth of the United States or (2) the District of

Columbia.

(n)(t)

Statement of Charges

“Statement of charges” means the document filed by Bar

Counsel pursuant to Rule 19-718.

(o)(u)

Suspension

“Suspension” means the temporary termination of the

privilege to practice law, either for a fixed period or

indefinitely and, when applied to an attorney not admitted by

the Court of Appeals to practice law, means the temporary or

indefinite exclusion from the admission to or the exercise of

any privilege to practice law in this State.

(p)

Warning

“Warning” means a notice that warns an attorney about

future misconduct.

Source: This Rule is derived from former Rule 16-701 (2016).

Source: This Rule is derived as follows:

Sections (a), (g), (h), (i), (k), and (l) are new.

Sections (b), (c), (d), (e), (f), (j), (o), (p), (q), (s), (t),

and (u) are derived from former Rule 16-701 (2016).

Sections (m), (n), and (r) are derived in part from former Rule

16-701 (2016) and are in part new.

REPORTER’S NOTE

RULE 19-701

Six new definitions are proposed to be added to Rule 19701, two existing definitions are amended, and one definition,

“warning,” is deleted as it is replaced with a letter of

admonition or a letter of cautionary advice.

A new definition, “address of record,” is added as section

(a).

A new definition, “complainant,” is added as section (g).

A new definition, “disability,” is added as section (h).

A new definition, “disability inactive status,” is added as

section (i) and is tied to the procedures set forth in the

proposed amendments to Rule 19-739.

A new definition, “e-mail address of record,” is added as

section (k).

A new definition, “impairment; impaired,” is added as

section (l).

The definition “incapacity” in section (m) is revised so

that it more broadly refers to any “disability or impairment.”

The definition “serious crime” in section (r) is revised to

add new subsection (r)(4) to include any crime that touches on

honesty or interferes with the administration of justice.

The definition “warning” has been deleted, as the

disposition formerly referred to as a warning has been replaced

in Rule 19-715 with two new dispositions: 1) a letter of

admonition; and 2) a letter of cautionary advice.

RULE 19-702

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-702 by adding language to subsection (h)(6)

clarifying the authority of the Attorney Grievance Commission to

appoint special counsel and making stylistic changes; by

deleting language in subsection (h)(7) requiring that a Peer

Review Committee member must be removed for cause and replacing

it with new language that permits a Peer Review Committee member

to be removed for any reason; by deleting language from

subsection (h)(9) pertaining to “a warning” and replacing it

with new language “a letter of cautionary advice or a letter of

admonition;” by adding language to subsection (h)(11) permitting

the Attorney Grievance Commission to delegate authority to the

chair to grant or deny requests from Bar Counsel for subpoenas;

and by deleting the date “September 1” from subsection (h)(14)

and replacing it with “October 15,” as follows:

Rule 19-702.

(a)

ATTORNEY GRIEVANCE COMMISSION

Creation and Composition

There is an Attorney Grievance Commission which shall

consist of 12 members appointed by the Court of Appeals.

Nine

RULE 19-702

members shall be attorneys and three members shall not be

attorneys.

(b)

Term

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

member is three years.

The terms of the members shall be

staggered so that the terms of three attorney members and one

non-attorney member expire each year.

(c)

Compensation

A member of the Commission may not receive compensation

for serving in that capacity but is entitled to reimbursement

for expenses reasonably incurred in the performance of official

duties in accordance with standard State travel regulations.

(d)

Chair and Vice Chair

The Court of Appeals shall designate one attorney member

as the Chair of the Commission and one attorney member as the

Vice Chair.

In the absence or disability of the Chair or upon

an express delegation of authority by the Chair, the Vice Chair

shall have the authority and perform the duties of the Chair.

(e)

[Executive Secretary] or [Executive Counsel and Director]

The Commission may select an attorney as [Executive

Secretary] or [Executive Counsel and Director].

The [Executive

Secretary] or [Executive Counsel and Director] shall serve at

the pleasure of the Commission and receive the compensation set

RULE 19-702

forth in the budget of the Commission.

As directed by the

Commission, the [Executive Secretary] or [Executive Counsel and

Director] shall (1) receive documents that are filed with the

Commission and maintain the records of the Commission, (2)

prepare the agenda of meetings of the Commission and before each

meeting send to each Commission member a copy of the agenda and

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

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

Committee, and (5) have such other administrative powers and

duties assigned by the Commission.

(f)

Removal of Commission Members

The Court of Appeals may remove a member of the

Commission at any time.

(g)

Quorum

The presence of seven members of the Commission

constitutes a quorum for the transaction of business.

The

concurrence of seven members is required for all actions taken

by the Commission other than adjournment of a meeting for lack

of a quorum.

(h)

Powers and Duties

The Commission has the powers and duties to:

RULE 19-702

(1) recommend to the Court of Appeals the adoption of

procedural and administrative guidelines and policies consistent

with these Rules;

(2) employ and prescribe the compensation of the [Executive

Secretary] or [Executive Counsel and Director];

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

Counsel;

(4) supervise the activities of Bar Counsel;

(5) authorize Bar Counsel to employ attorneys,

investigators, and staff personnel and to prescribe their

compensation;

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

particular matter, or delegate to the Chair of the Commission

the authority to appoint special counsel;

(7) appoint members of the Peer Review Committee, designate

the Chair and one or more Vice Chairs, and remove any member for

cause at any time;

(8) employ and prescribe the compensation of personnel to

assist the Chair of the Peer Review Committee;

(9) exercise the authority granted in the Rules in this

Chapter with respect to the approval or disapproval of (A) the

dismissal of a complaint or Statement of Charges, (B) the

termination of a complaint with or without a warning a letter of

RULE 19-702

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

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

Petition for Disciplinary or Remedial Action;

(10) grant or deny any requests for extensions of time

permitted under the Rules of this Chapter or delegate to the

Chair of the Commission the authority to grant or deny such

requests;

(11) authorize the issuance of subpoenas in accordance with

these Rules or delegate to the Chair of the Commission the

authority to grant or deny such authorizations;

(12) perform the duties required by Title 19, Chapter 400

(Attorney Trust Accounts);

(13) administer the Disciplinary Fund;

(14) submit not later than September 1 October 15 of each

year a report to the Court of Appeals accounting for the

Disciplinary Fund, evaluating the effectiveness of the

disciplinary system, and recommending any changes; and

(15) submit annually to the State Court Administrator for

review and approval by the Court of Appeals a proposed budget

for the disciplinary system.

(i)

Effect of Chair's Decisions

When a request for action under this Chapter is subject to

the approval of the Chair of the Commission, the Chair's

RULE 19-702

approval of the request is final and shall be reported to the

Commission.

If the Chair denies the request or refers it to the

Commission for action, the Commission shall act upon the request

at its next meeting.

Source:

This Rule is derived from former Rule 16-711 (2016).

REPORTER’S NOTE

Subsection (h)(6) of Rule 19-702 is proposed to be amended

to clarify that the Attorney Grievance Commission has authority

to appoint special counsel. The Commission is also permitted to

delegate this authority to the Chair of the Commission.

Subsection (h)(7) is amended to permit the Commission to

remove a member of a peer review panel for any reason.

Previously, the Commission was required to show cause prior to

removing a member of a peer review panel.

Subsection (h)(9) is amended to replace the term “warning”

with “letter of cautionary advice” and “letter of admonition” as

these dispositions are described in the proposed amendments to

Rule 19-715.

Subsection (h)(11) is amended to permit the Commission to

delegate authority to the Chair of the Commission to grant or

deny requests from Bar Counsel for subpoenas.

Subsection (h)(14) is amended to extend the deadline to

file the yearly report with the Court of Appeals accounting for

the Disciplinary Fund from September 1 to October 15.

RULE 19-703

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-703 by adding a conforming amendment to

subsection (b)(3) to include a reference to a letter of

admonition and by making stylistic changes; by adding new

subsection (b)(13) permitting Bar Counsel to seek help for

attorneys in certain situations such as issues with substance

abuse, mental health, or practice management; and by renumbering

former subsection (b)(13) as subsection (b)(14), as follows:

Rule 19-703.

(a)

BAR COUNSEL

Appointment

Subject to approval by the Court of Appeals, the

Commission shall appoint an attorney as Bar Counsel.

Before

appointing Bar Counsel, the Commission shall notify bar

associations and the general public of the vacancy and consider

any recommendations that are timely submitted.

Bar Counsel

shall serve at the pleasure of the Commission and shall receive

the compensation set forth in the budget of the Commission.

(b)

Powers and Duties

RULE 19-703

Subject to the supervision and approval, if required, of

the Commission, Bar Counsel has the powers and duties to:

(1) investigate professional misconduct or incapacity on the

part of an attorney;

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

(3) enter into and implement Conditional Diversion

Agreements, issue notices, and administer recommend warnings

letters of cautionary advice or letters of admonition, and

propose reprimands;

(4) file statements of charges, participate in proceedings

before Peer Review Panels, and prosecute all disciplinary and

remedial proceedings;

(5) file and prosecute petitions for disciplinary and

remedial actions in the name of the Commission;

(6) monitor and enforce compliance with all disciplinary and

remedial orders of the Court of Appeals;

(7) investigate petitions for reinstatement and applications

for resignation from the practice of law and represent the

Commission in those proceedings;

(8) initiate, intervene in, and prosecute actions to enjoin

the unauthorized practice of law;

RULE 19-703

(9) employ attorneys, investigators, and staff personnel as

authorized by the Commission at the compensation set forth in

the Commission's budget;

(10) discharge any employee;

(11) maintain dockets and records of all papers filed in

disciplinary or remedial proceedings;

(12) make reports to the Commission;

(13) consult with the State and local bar associations,

public and private support groups, and other appropriate persons

in an effort to identify programs or services that can (A) serve

as a resource to assist attorneys who may come before Bar

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

considered when recommending or determining an appropriate

disposition of complaints or charges against those attorneys.

Those resources may include (A) treatment for emotional

distress, mental disorders or disability, or dependence on

alcohol, drugs, or other intoxicants, (B) assistance in law

office management, including mentoring, accounting, bookkeeping,

financial, and other professional assistance relevant to the

handling of client or third-party funds, calendaring events and

time deadlines, and other professional or business requirements

related to the practice of law, and (C) monitoring services when

RULE 19-703

required by Bar Counsel, the Commission, or the Court of

Appeals; and

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

or the Commission to create or fund any of these programs or

services or to require or recommend their use in any particular

case. The Rules Committee is advised that programs and services

of this kind do exist or can be created. The Committee believes

that identifying those that are reliable and available may

permit a more effective disposition in particular cases by Bar

Counsel, the Commission, and the Court of Appeals.

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

this Chapter, and the Rules in Title 19, Chapter 400 (Attorney

Trust Accounts).

Source: This Rule is derived in part from former Rule 16-712

(2016) and is in part new.

REPORTER’S NOTE

Subsection (b)(3) of Rule 19-703 is proposed to be amended

to conform to the proposed amendments to Rule 19-715 in which a

“warning” is replaced with a “letter of admonition” and a

“letter of cautionary advice.”

New subsection (b)(13) is proposed at the request of

several attorneys and with the consent of Bar Counsel. This

subsection permits Bar Counsel to seek help for attorneys rather

than pursue discipline in certain situations such as issues with

substance abuse, mental health, or practice management. This

would be accomplished by consulting with the State and local bar

associations, public and private support groups, and other

appropriate persons and agencies that may serve as a resource to

assist attorneys who may come before Bar Counsel, the Attorney

Grievance Commission, or the Court and be considered when

recommending or determining an appropriate resolution of a

complaint made against an attorney.

RULE 19-704

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-704 by replacing the language “statement of

charges” in subsection (c)(4) with the language “docketed

complaint;” by deleting language in section (e) requiring the

Attorney Grievance Commission to cause a certain notice to be

provided to attorneys once a year and adding certain language

requiring a certain notice to be posted on the Commission’s

website; by adding language to section (f) that specifies the

Attorney Grievance Commission may reappoint members of the Peer

Review Panel; and by deleting language in section (i) requiring

a Peer Review Committee member to be removed “for cause” and

adding language permitting the Commission to remove a Peer

Review Committee member “at any time,” as follows:

Rule 19-704.

(a)

PEER REVIEW COMMITTEE

Creation

There is a Peer Review Committee, the members of which

are appointed to serve on Peer Review Panels pursuant to Rule

19-719.

(b)

Composition

RULE 19-704

The Peer Review Committee consists of the number of

individuals in each circuit that the Commission determines is

necessary to conduct the volume of peer review proceedings.

the number of members determined for each circuit, one-third

shall be residents of that circuit who are not attorneys and the

remainder shall be attorneys who maintain offices for the

practice of law within that circuit.

(c)

Individuals Ineligible for Appointment as an Attorney

Member

The Commission may not appoint as an attorney member to

the Peer Review Committee an individual who:

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

in Maryland;

(2) has not actively and lawfully engaged in the practice of

law in Maryland for at least five years;

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

(4) is the subject of a pending statement of charges

docketed complaint or petition for disciplinary or remedial

action; or

(5) was ever disbarred or suspended by the Court of Appeals

or by a disciplinary body or court of the United States or any

state.

RULE 19-704

(d)

Individuals Ineligible for Appointment as a Non-attorney

Member

The Commission may not appoint as a non-attorney member

to the Peer Review Committee an individual who:

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

has not been reversed or vacated; or

(2) is the complainant in a pending matter against an

attorney under the Rules in this Chapter.

(e)

Procedure for Appointment

Before appointing members of the Peer Review Committee,

the Commission shall notify bar associations and the general

public in the appropriate circuit and consider any applications

and recommendations that are timely submitted.

The Commission

shall prepare a brief notice informing attorneys how they may

apply to serve on the Peer Review Committee and deliver the

notice to the Trustees of the Client Protection Fund of the Bar

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

notice to each attorney who is required to pay an annual fee to

the Fund post the notice on the Commission’s website.

(f)

Term

The term of each member is two years.

The Commission may

extend the term of any member assigned to a Peer Review Panel

RULE 19-704

until the completion of a pending matter.

A member may be

reappointed by the Commission.

(g)

Chair and Vice Chair

The Commission shall designate one attorney member of the

Peer Review Committee as Chair and one or more attorney members

as Vice Chairs.

In the absence or disability of the Chair or

upon express delegation of authority by the Chair, the Vice

Chair shall have the authority and perform the duties of the

Chair.

(h)

Compensation

A member of the Peer Review Committee may not receive

compensation for serving in that capacity but is entitled to

reimbursement for expenses reasonably incurred in the

performance of official duties in accordance with standard State

travel regulations.

(i)

Removal

The Commission may remove a member of the Peer Review

Committee for cause at any time.

Source:

This Rule is derived from former Rule 16-713 (2016).

REPORTER’S NOTE

Subsection (c)(4) of Rule 19-704 is proposed to be amended

so that an attorney may not serve on a peer review committee if

that attorney has a “docketed complaint” pending against the

RULE 19-704

attorney. The language was changed from “pending statement of

charges.” A complaint is docketed at a further point during the

Attorney Grievance process than a statement of charges, and in

some cases, a statement of charges is as far as a proceeding

under this Chapter of the Rules progresses. This change would

permit more attorneys to be eligible to sit on a peer review

panel than are currently permitted.

Section (e) is amended to permit the Attorney Grievance

Commission to post the notice required in this section on the

Commission’s website rather than sending the notice to each

attorney in the State who is required to pay the Client

Protection Fund assessment.

Section (f) is amended to clarify that the Attorney

Grievance Commission may reappoint members of the Peer Review

Committee.

Section (i) is amended so that the Commission may remove a

Peer Review Committee member at any time instead of for cause.

RULE 19-705

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-705 by adding new language to section (a)

concerning sources of income to the Disciplinary Fund and by

making stylistic changes, as follows:

Rule 19-705.

(a)

DISCIPLINARY FUND

Establishment; Nature

There is a Disciplinary Fund.

The Fund is created and

administered pursuant to the Constitutional authority of the

Court of Appeals to regulate the practice of law in the State of

Maryland and to implement and enforce the Maryland Attorneys'

Rules of Professional Conduct adopted by the Court.

The Fund

consists entirely of contributions made by attorneys pursuant to

section (b) of this Rule, and income from those contributions,

and costs recovered pursuant to law or court order.

It is

dedicated entirely to the purposes established by the Rules in

this Title.

(b)

Payment by Attorneys

As a condition precedent to the practice of law, each

attorney shall pay annually an amount prescribed by the Court of

RULE 19-705

Appeals.

The amount shall be in addition to and paid by the

same date as other sums required to be paid to the Client

Protection Fund pursuant to Rule 19-605.

(c)

Collection and Disbursement

The treasurer of the Client Protection Fund of the Bar of

Maryland shall collect and remit to the Commission the sums paid

by attorneys to the Disciplinary Fund.

(d)

Audit

The Commission shall direct annually an independent audit

of the Disciplinary Fund.

The expense of the audit shall be

paid out of the Fund.

(e)

Enforcement

Enforcement of payment of annual assessments of attorneys

pursuant to this Rule is governed by the provisions of Rule 19606.

Source:

This Rule is derived from former Rule 16-714 (2016).

REPORTER’S NOTE

Rule 19-705 is proposed to be amended by adding new

language to section (a) indicating that one of the sources of

income to the Disciplinary Fund is costs recovered pursuant to

law or court order. Stylistic changes are also made to section

(a).

RULE 19-706

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-706 by adding new subsection (a)(3) to permit

probation as a sanction; by renumbering former subsection (a)(3)

through (a)(5) as subsections (a)(4) through (a)(6)

respectively; by deleting certain language and adding certain

language to subsection (a)(6) permitting a complaint to be

dismissed with a letter of cautionary advice or letter of

admonition; by making stylistic changes to subsection (a)(6); by

adding new subsection (a)(7) establishing a possible sanction of

placement on permanent retired status; by deleting the language

“placement on” in subsection (b)(1) and adding new language

“transfer to disability” to the same subsection; and by deleting

certain language in subsection (b)(3) pertaining to termination

of a proceeding and adding new language pertaining to placement

on permanent retirement status, as follows:

Rule 19-706.

(a)

SANCTIONS AND REMEDIES

For Professional Misconduct

RULE 19-706

An attorney who is found to have committed professional

misconduct is subject to one or more of the following sanctions

and remedies:

(1) disbarment by the Court of Appeals;

(2) suspension, for a fixed period or indefinitely, by the

Court of Appeals;

(3) probation under terms and conditions as specified by the

Court of Appeals;

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

attorney's consent, by the Commission;

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

Conditional Diversion Agreement; and

(5)(6) termination of a disciplinary proceeding with or

without a warning dismissal of the complaint with or without a

letter of cautionary advice or, with the attorney’s consent, a

letter of admonition; or

(7) placement on permanent retired status.

(b)

For Incapacity

An attorney who is found to have an incapacity is subject

to the following:

(1) placement on transfer to disability inactive status,

subject to further order of the Court of Appeals;

RULE 19-706

(2) conditional diversion in accordance with a Conditional

Diversion Agreement; or

(3) termination of a remedial proceeding placement on

permanent retired status.

Source: This Rule is derived in part from former Rule 16-721

(2016) and is in part new.

REPORTER’S NOTE

Proposed new Subsection (a)(3) is added to Rule 19-706 to

permit probation as a sanction.

Former subsections (a)(3) through (a)(5) are renumbered as

subsections (a)(4) through (a)(6) respectively.

Subsection (a)(6) is amended to conform to the replacement

of a “warning” with either a letter of “cautionary advice” or a

“letter of admonition” as set forth in Rule 19-715. Stylistic

changes are also made to this subsection.

New subsection (a)(7) is added, establishing a new remedy

of placement on permanent retired status.

Subsection (b)(1) is amended by replacing the term

“placement on” with “transfer to disability.”

Subsection (b)(3) is amended by replacing the language

“termination of a proceeding” with the language “placement on

permanent retired status.”

RULE 19-707

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-707 by changing the tagline of section (a)

from “Peer Review Meetings” to “Peer Review Proceedings;” by

changing the tagline of subsection (a)(1) from “Confidentiality”

to “Generally;” by adding language to subsection (a)(1)

providing that all records and proceedings of a Peer Review

Panel are confidential; by making stylistic changes and adding

certain language to subsection (a)(1); by adding the word

“following” before “records and proceedings” and deleting

certain language in section (b); by removing the subsection

numbers in the first paragraph of section (b); by adding

language to section (b) clarifying that the listed records and

proceedings may not be disclosed by any member of the Peer

Review Committee or an agent of the complainant; by renumbering

the subsections of section (b); by deleting former subsection

(b)(2)(B); by replacing a reference to subsection (b)(2)(D) in a

Committee note with a reference to subsection (b)(3); by adding

new language “a circuit court, and the Court of Appeals” to

subsection (b)(3); by adding the word “prior” before “warning”

in subsection (b)(4); by replacing the date of “October 1, 2020”

RULE 19-707

with “July 1, 2021” in subsection (b)(4); by adding language to

subsection (b)(4) concerning the permitted disclosures of

certain information about prior warnings issued by the

Commission; by deleting a reference to Rule 19-715 (d) in

subsection (b)(4); by adding new subsections (b)(5) and (b)(6)

pertaining to the contents of letters of admonition and letters

of cautionary advice issued by the Commission; by adding

language to subsection (b)(7) explaining permitted disclosures

by Bar Counsel to the complainant concerning the issuance of a

reprimand as provided in Rule 19-716 (c)(3)(A)(ix); by adding

new subsection (b)(9) pertaining to a motion filed pursuant to

Rule 19-712 (f) or (h); by adding the phrase “the final order

in” before “proceedings in the Court of appeals” in subsection

(b)(10); by replacing a reference to subsection (b)(2)(H) in

subsection (c)(1) with a reference to subsection (b)(10); by

adding a reference to Rule 19-716 in subsection (c)(3); by

adding certain language to subsection (c)(4); by deleting the

reference to the Clerk of the Court of Appeals in subsection

(d)(2); by adding the word “disability” before the words

“inactive status” twice in subsection (e); by adding the word

“written” before “request” in subsection (f)(3); by separating

subsection (f)(4) into additional subsections; by replacing the

phrase “requesting entity” in subsection (f)(4) with the

RULE 19-707

language “members or staff of the entity who require the

information in order for the entity to perform its authorized

function;” by adding new subsection (f)(4)(ii) pertaining to

permitted disclosures to entities by Bar Counsel with the

approval of the Chair of the Commission; by adding the word

“possible” before “criminal activity” in subsection (f)(8); by

adding language to subsection (f)(9) expanding the other

disciplinary authorities to which disclosures may be made; by

adding new subsection (f)(10) addressing permitted disclosures

to a representative of a Lawyer Assistance Program or the

appropriate Department of Human Services or department of social

services; by adding a Committee note after new subsection

(f)(10) clarifying the intent of the subsection; by adding new

subsection (f)(11) pertaining to permitted disclosures in

response to a Petition for Reinstatement or a Petition for

Resignation filed by an attorney; and by renumbering subsection

(f)(10) to conform to the addition of new subsections, as

follows:

Rule 19-707.

(a)

CONFIDENTIALITY

Peer Review Meetings Proceedings

(1) Confidentiality Generally

RULE 19-707

All records and proceedings of a Peer Review Panel,

including all communications, whether written or oral, and all

non-criminal conduct, made or occurring at a meeting of a peer

review panel, are confidential and not open to public disclosure

or inspection.

Except as otherwise expressly permitted in this

Rule, individuals present at the meeting of the panel shall

maintain that confidentiality and may not disclose or be

compelled to disclose such communications or conduct in any

judicial, administrative, or other proceeding.

(2) Privilege

Communications and conduct that are confidential under

this Rule are privileged and are not subject to discovery, but

information that is otherwise admissible or subject to discovery

does not become inadmissible or protected from disclosure solely

by reason of its use or occurrence at a peer review meeting.

(b)

Other Confidential Material

Except as otherwise provided in this Rule, the following

records and proceedings listed in this section and the contents

of those records and proceedings are (1) confidential and not

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

Counsel, the staff and investigators of the Office of Bar

Counsel, any member of the Commission, the staff of the

Commission, any member of the Peer Review Committee, any

RULE 19-707

attorney involved in the proceeding, or, in any civil action or

proceeding, by the complainant or an attorney for or agent of

the complainant:

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

including the existence and content of any complaint or

response, until Bar Counsel files a petition for disciplinary or

remedial action pursuant to Rule 19-721;

(B) the records and proceedings of a Peer Review Panel;

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

order;

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

Counsel reprimand pursuant to the Attorney Disciplinary Rules in

effect prior to July 1, 2001, but the fact that a private or Bar

Counsel reprimand was issued and the facts underlying the

reprimand may be disclosed to a Peer Review Panel, a circuit

court, and the Court of Appeals in a proceeding against the

attorney alleging similar misconduct;

Committee note: Disclosure under subsection (b)(2)(D) (b)(3) of

this Rule is not dependent upon a finding of relevance under

Rule 19-720 (c)(1).

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

Commission pursuant to the Attorney Disciplinary Rules in effect

prior to October July 1, 2020 2021, but the fact that a warning

was issued and the facts underlying the warning may be disclosed

RULE 19-707

to a Peer Review Panel, a circuit court, and the Court of

Appeals in a subsequent proceeding against the attorney when

relevant to a complaint alleging similar conduct by the attorney

as provided in Rule 19-715 (d);

(5) the contents of a letter of admonition issued by the

Commission as provided in Rule 19-714;

(6) the contents of a letter of cautionary advice issued by

the Commission as provided in Rule 19-714;

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

provided in Rule 19-716 (j)(2), except that Bar Counsel may

disclose to the complainant, when applicable, the fact that,

upon successful completion of the Conditional Diversion

Agreement, the Commission will issue a reprimand to the attorney

as provided in Rule 19-716 (c)(3)(A)(ix);

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

matters that are confidential under this Rule;

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

records and proceedings on that motion;

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

solely on the alleged incapacity of an attorney and records and

proceedings, other than the final order in proceedings in the

Court of Appeals, on that petition; and

RULE 19-707

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

filed pursuant to Rule 19-731 and records and proceedings, other

than proceedings in the Court of Appeals, on that petition.

(c)

Public Proceedings and Records

The following records and proceedings are public and open

to inspection:

(1) except as otherwise provided in subsection (b)(2)(H)

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

Action, all proceedings on that petition, and all documents or

other items admitted into evidence at any hearing on the

petition;

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

to discipline and an order that disbars, suspends, or reprimands

the attorney by consent;

(3) a reprimand issued by the Commission pursuant to Rule

19-716 or Rule 19-717; and

(4) except as otherwise provided by order of the Court of

Appeals, all filings and proceedings under this Chapter in the

Court of Appeals.

(d)

Required Disclosures by Bar Counsel

(1) Reprimand by Commission

If an attorney is reprimanded by the Commission, Bar

Counsel shall notify the Clerk of the Court of Appeals.

RULE 19-707

(2) Conviction of a Serious Crime

If Bar Counsel has received and verified information

that an attorney has been convicted of a serious crime, Bar

Counsel shall notify the Commission and the Clerk of the Court

of Appeals.

(e)

Required Disclosures by Clerk of the Court of Appeals

If an attorney resigns or is reprimanded, convicted of a

serious crime, or, by order of the Court of Appeals, disbarred,

suspended, reinstated, or transferred to disability inactive

status, the Clerk of the Court of Appeals of Maryland shall

notify the National Lawyer Regulatory Data Bank of the American

Bar Association and the disciplinary authority of every other

jurisdiction in which the attorney is admitted to practice.

addition, the Clerk shall comply with Rule 19-761 upon entry of

each order of the Court by which an attorney is disbarred,

suspended, reinstated, or transferred to disability inactive

status.

(f)

Permitted Disclosures

(1) Written Waiver of Attorney

If the attorney has signed a written waiver of

confidentiality, the Commission or Bar Counsel may disclose

information to the extent permitted by the waiver.

RULE 19-707

(2) To Investigate a Complaint; Prepare a Defense to a

Complaint; Prepare for a Hearing

The parties to a disciplinary or remedial action may use

confidential information other than the records and proceedings

of a Peer Review Panel to the extent reasonably necessary to

investigate a complaint, prepare a defense to a complaint, or

prepare for a public hearing in the action but shall preserve

the confidentiality of the information in all other respects.

(3) Communications With Complainant

Upon written request of a complainant, Bar Counsel may

disclose to the complainant the status of an investigation and

of any disciplinary or remedial proceedings resulting from

information from the complainant.

(4) Requests by Authorities

(i) Upon receiving a request that complies with this

subsection, the Commission or Bar Counsel may disclose the

pendency, subject matter, status, and disposition of

disciplinary or remedial proceedings involving an attorney or

former attorney that did not result in dismissal of a complaint.

The request must be made in writing by a judicial nominating

commission, a bar admission authority, the President of the

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

General Assembly of Maryland or of the United States Congress.

RULE 19-707

The requesting entity must represent that it is considering the

nomination, appointment, confirmation, approval, or admission to

practice of the attorney or former attorney, and that the

information will be treated as confidential and without the

consent of the attorney will not be copied or disclosed to

anyone other than the requesting entity members or staff of the

entity who require the information in order for the entity to

perform its authorized function.

(ii) With the approval of the Chair of the Commission, Bar

Counsel may disclose the pendency, subject matter, status, and

disposition of disciplinary or remedial proceedings involving an

attorney or former attorney that did not result in dismissal of

a complaint to a judicial nominating commission, a bar admission

authority, the President of the United States, the Governor of a

state, or a committee of the General Assembly of Maryland or of

the United States Congress.

Bar Counsel must obtain a statement

from the entity that it is considering the nomination,

appointment, confirmation, approval, or admission to practice of

the attorney or former attorney, and that the information will

be treated as confidential and without the consent of the

attorney will not be copied or disclosed to anyone other than

the members or staff of the entity who require the information

in order for the entity to perform its authorized function.

RULE 19-707

(5) Request by Client Protection Fund

Upon written request by the Client Protection Fund, Bar

Counsel or the Commission may permit an authorized officer of

the Fund to review and copy specific records relating to an

attorney that are relevant to a claim pending before the Fund.

Unless the Court orders otherwise, the Fund shall maintain the

confidentiality of any records it has reviewed or copied.

(6) Explanatory Statements

The Chair of the Commission may issue a brief

explanatory statement necessary to correct any public

misperception about actual or possible proceedings.

(7) Court Order or Grand Jury Subpoena

Bar Counsel shall comply with an order of a court or a

subpoena issued by a duly constituted grand jury of this State

or the United States to produce records and disclose

confidential information concerning the attorney.

(8) Law Enforcement Officials

With the approval of the Chair of the Commission, Bar

Counsel may provide to law enforcement and prosecuting officials

information involving possible criminal activity.

(9) Other Disciplinary Authorities

With the approval of the Chair of the Commission, Bar

Counsel may provide to the disciplinary authority of any other

RULE 19-707

jurisdiction in which an attorney is admitted to practice,

maintains a location for the practice of law, or engages in the

unauthorized practice of law, records and other confidential

information concerning the attorney.

(10) Lawyer Assistance; Adult Protective Services

Bar Counsel may disclose the existence of a complaint

to a representative of a Lawyer Assistance Program sponsored by

a state or local bar association or the appropriate Department

of Human Services or department of social services regarding the

lawyer's potential need for treatment for substance abuse or a

mental health issue.

Disclosure under this rule shall be

limited to the existence of the complaint and the issues of

concern and shall not reveal the nature or details of the

complaint unless such disclosure is necessary.

Committee Note: This subsection is intended to allow Bar

Counsel to disclose the existence of a complaint to a lawyer

assistance program when necessary to assist the attorney in

receiving appropriate services for substance abuse or mental

health problems revealed or implicit from the complaint or

through an investigation by Bar Counsel. It is not intended to

permit Bar Counsel to act on confidential information reported

by a lawyer assistance program to Bar Counsel absent a signed

waiver or consent by the attorney. Bar Counsel may not act on

any such information unless accompanied by a signed waiver or

consent by the attorney. This does not preclude Bar Counsel

from using or considering that kind of information lawfully

obtained from other sources.

(11) Bar Counsel may disclose the pendency, subject matter,

status, and disposition of disciplinary or remedial proceedings

RULE 19-707

involving an attorney or former attorney that did not result in

dismissal of a complaint in response to a Petition for

Reinstatement or a Petition for Resignation filed by an

attorney.

(10)(12) Summarized Information

In order to improve the administration of justice, the

Commission and Bar Counsel may publish reports and summaries of

confidential investigations, charges, and disciplinary or

remedial proceedings, provided that the identity of attorneys,

complainants, and witnesses is not revealed.

Source: This Rule is derived in part from former Rule 16-723

(2016) and is in part new.

REPORTER’S NOTE

Rule 19-707 concerns the confidentiality of records and

proceedings in attorney discipline matters. Proposed amendments

update the taglines of section (a) and subsection (a)(1). New

language in subsection (a)(1) indicates that the confidentiality

provisions apply not only to documents considered

communications, but to all records and proceedings of a Peer

Review Panel. Additional stylistic amendments are proposed in

subsection (a)(1).

Section (b) lists the various records and proceedings that

are considered confidential, are not open for inspection, and

are not to be disclosed. Stylistic amendments are proposed, and

additional language clarifies that the records and proceedings

may not be disclosed by any member of the Peer Review Committee

or an agent of the complainant. Due to stylistic changes and

new proposed subsections, subsections (b)(2)(A) through (I) are

renumbered.

RULE 19-707

Proposed amendments in section (b) create a detailed list

of the records and proceedings included within the section’s

confidentiality provisions. Former subsection (b)(2)(B) is

deleted because amended subsection (a)(1) addresses the

confidentiality of the records and proceedings of a Peer Review

Panel. A reference to subsection (b)(2)(D) is updated to

reference subsection (b)(3) in a Committee note after subsection

(b)(3). Amendments to subsection (b)(3) and (b)(4) address

disclosure to a Peer Review Panel, a circuit court, and the

Court of Appeals of the existence of a prior warning issued

pursuant to the Attorney Disciplinary Rules and the underlying

facts of the warning when relevant to a complaint alleging

similar conduct by the attorney. New subsections (b)(5), (b)(6)

and (b)(9) expand the list of confidential records and

proceedings to include letters of admonition, letters of

cautionary advice, and motions filed pursuant to Rule 19-712 (f)

or (h), respectively. Proposed amendments to subsection (b)(7)

permit disclosure to a complainant that the Commission will

issue a reprimand upon successful completion of a Conditional

Diversion Agreement. The addition of language to subsection

(b)(10) provides that, in regard to a Petition for Disciplinary

or Remedial Action based solely on the alleged incapacity of an

attorney, only the final order in proceedings in the Court of

Appeals is excluded from these confidentiality provisions.

Section (c) lists the records and proceedings considered

public in attorney discipline matters. A reference in

subsection (c)(1) to former subsection (b)(2)(H) is replaced

with a reference to subsection (b)(10) to conform with proposed

amendments. A reference to Rule 19-716 is proposed in

subsection (c)(3). Language added to subsection (c)(4)

clarifies that all filings in the Court of Appeals under this

Chapter, not just the proceedings, are public.

A deletion in subsection (d)(2) provides that Bar Counsel

is no longer required to notify the Clerk of the Court of

Appeals upon receipt of verified information that an attorney

has been convicted of a serious crime.

Section (e) is amended to use the phrase “transferred to

disability inactive status” rather than having an attorney

“placed on inactive status.”

Subsection (f)(3) permits disclosure by Bar Counsel to a

complainant of the status of an investigation and of any

RULE 19-707

disciplinary or remedial proceedings resulting from the

complaint upon the written request of a complainant.

Subsection (f)(4) concerns permitted disclosures to

authorities. Proposed amendments separate (f)(4) into

additional subsections. Subsection (f)(4)(i) maintains the

original language of subsection (f)(4), with additional language

clarifying the limitations of copying or disclosing the

information without the consent of the attorney. New subsection

(f)(4)(ii) addresses disclosures to entities with the approval

of the Chair of the Commission, requiring a statement from the

entity containing specific assertions.

The addition of language in subsections (f)(8) and (f)(9)

expands permitted disclosures, including providing information

about possible criminal activity to law enforcement and

prosecuting officials and providing records and other

confidential information to the disciplinary authority of any

other jurisdiction where an attorney maintains a location for

the practice of law or engages in unauthorized practice of law.

When considering these Rules, the Subcommittee considered

the importance of substance abuse and mental health treatment

for attorneys. New subsection (f)(10) permits Bar Counsel to

disclose the existence of a complaint to a representative of a

Lawyer Assistance Program or the appropriate Department of Human

Services or department of social services regarding the lawyer’s

need for substance abuse or mental health treatment. As the

proposed Committee note explains, this new section permits

disclosure in an effort to help attorneys receive appropriate

services and does not, without a waiver or consent from the

attorney, enable Bar Counsel to pursue discipline based on the

receipt of confidential information from a lawyer assistance

program.

New subsection (f)(11) permits certain disclosures to

enable Bar Counsel to properly respond to a Petition for

Reinstatement or a Petition for Resignation filed by an

attorney.

Former subsection (f)(10) is renumbered as (f)(12).

RULE 19-708

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

GENERAL PROVISIONS

AMEND Rule 19-708 by changing the tagline from “Statement

of Charges” to “Original Process;” by adding certain language to

section (a); by deleting certain language in section (a)

permitting service of original process on the Client Protection

Fund; by adding language to section (b) permitting an attorney

to be served with non-original process via all e-mail addresses

on record for that attorney in the AIS system pursuant to Rule

19-802; by deleting language in the Committee note following

section (b) pertaining to the service of papers on the Client

Protection Fund; by adding language to the Committee note

pertaining to the use of e-mail addresses contained in the AIS

database for service of other papers; and by adding a reference

to Rule 19-718 in the cross reference after section (b), as

follows:

Rule 19-708.

(a)

SERVICE OF PAPERS ON ATTORNEY

Statement of Charges Original Process

A copy of a Statement of Charges filed pursuant to Rule

19-718 and a petition filed pursuant to Rule 19-718 Rules 1978

RULE 19-708

721, 19-733, 19-737, or 19-738 shall be served on an attorney in

the manner prescribed by Rule 2-121.

If after reasonable

efforts the attorney cannot be served personally, service may be

made upon the employee designated by the Client Protection Fund

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

attorney's agent for receipt of service.

The Fund's employee

shall send, by both certified mail and ordinary mail, a copy of

the papers so served to the attorney at the address maintained

in the Fund's records and to any other address provided by Bar

Counsel.

(b)

Service of Other Papers

Except as otherwise provided in this Chapter, other notices

and papers may be served on an attorney in the manner provided

by Rule 1-321 for service of papers after an original pleading

or by e-mail to all e-mail addresses of record maintained by the

attorney with the Attorney Information System in accordance with

Rule 19-802.

Committee note: The attorney's address contained in the records

of the Client Protection Fund of the Bar of Maryland may be the

attorney's last known address. Mailing address(es) and e-mail

address(es) maintained by AIS may be relied upon by Bar Counsel

and the Commission as the attorney’s current information in

accordance with Rule 19-802 (e).

Cross reference: See Rule 19-718 concerning service of a

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

Petition for Disciplinary or Remedial Action.

RULE 19-708

Source: This Rule is derived in part from former Rule 16-724

(2016) and is in part new.

REPORTER’S NOTE

The tagline of Rule 19-708 is proposed to be amended to

include petitions as well as a statement of charges.

Section (a) is amended to remove the requirement for

service of original process on the Client Protection Fund.

Section (b) is amended to permit an attorney to be served

with non-original process via all e-mail addresses on record for

that attorney in the AIS system pursuant to Rule 19-802.

The Committee note following section (b) is amended by

deleting language pertaining to the service of papers on the

Client Protection Fund and replacing it with language permitting

the use of e-mail addresses contained in the AIS database for

service of papers other than original process.

The cross reference following section (b) is amended by

adding a reference to Rule 19-718.

RULE 19-709

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 1.

Rule 19-709.

(a)

GENERAL PROVISIONS

COSTS

Generally

Except as provided in section (c) of this Rule, and

unless the Court of Appeals orders otherwise, the prevailing

party in proceedings under this Chapter is entitled to

reasonable and necessary costs.

By order, the Court may

allocate costs among the parties.

(b)

Costs Defined

Costs include:

(1) court costs;

(2) reasonable and necessary fees and expenses paid to an

expert witness who testified in the proceeding before the

circuit court judge;

(3) reasonable and necessary travel expenses of a witness

who is not an expert witness;

(4) reasonable and necessary costs of a transcript of

proceedings before the circuit court judge;

RULE 19-709

(5) reasonable and necessary fees and expenses paid to a

court reporter or reporting service for attendance at a

deposition and for preparing a transcript, audio recording, or

audio-video recording of the deposition; and

(6) other reasonable and necessary expenses, excluding

attorneys' fees, incurred in investigating the claims and in

prosecuting or defending against the petition for disciplinary

or remedial action before the circuit court judge and in the

Court of Appeals.

(c)

Reinstatement Proceedings

In proceedings for reinstatement under Rules 19-751 or

19-752, the attorney shall pay all court costs and costs of

investigation and other proceedings on the petition, including

the costs of physical and mental examinations, transcripts, and

other reasonable expenditures necessary to evaluate the

petition.

(d)

Judgment

Costs of proceedings under this Chapter, including the

costs of all transcripts, shall be assessed by the Clerk of the

Court of Appeals and included in the order as a judgment.

motion, the Court may review the action of the Clerk.

(e)

Enforcement

Rule 8-611 applies to proceedings under this Chapter.

RULE 19-709

Source: This Rule is in part derived from former 16-761 (2016)

and is in part new.

RULE 19-711

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-711 by deleting the word “individual” in

sections (a) and (b) and replacing it with the word “person;” by

deleting the word “address” in section (a) and subsection (c)(1)

and replacing with the words “contact information;” by deleting

certain language in subsection (b)(3) and adding certain

language requiring that an investigation, in order to proceed,

must find a substantial basis that an attorney committed

misconduct or is incapacitated; by adding new subsection (b)(4)

and renumbering former subsection (b)(4) as subsection (b)(5);

by deleting “six months” from subsection (b)(5) and replacing it

with “90 days;” by adding certain language to subsection (b)(5)

expanding the reference to subsection (b)(3) to include

subsection (b)(1); by renumbering the reference to subsection

(b)(4) to subsection (b)(5) in subsection (b)(3) and subsection

(d)(1); by deleting the reference to section (b) from the

reference to Rule 19-108 in section (c); and by deleting the

number “90” from subsection (d)(1) and replacing it with “120,”

as follows:

RULE 19-711

Rule 19-711.

(a)

COMPLAINT; INVESTIGATION BY BAR COUNSEL

Who May Initiate

Bar Counsel may file a complaint on Bar Counsel's own

initiative, based on information from any source.

Any other

individual person also may file a complaint with Bar Counsel.

Any communication to Bar Counsel that (1) is in writing, (2)

alleges that an attorney has engaged in professional misconduct

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

information of the individual person making the communication,

and (4) states facts which, if true, would constitute

professional misconduct by or demonstrate an incapacity of an

attorney constitutes a complaint.

(b)

Review of Complaint

(1) Bar Counsel shall make an inquiry concerning every

complaint that is not facially frivolous, unfounded, or

duplicative.

(2) If Bar Counsel concludes that a complaint is without

merit, does not allege facts which, if true, would demonstrate

either professional misconduct or incapacity, or is duplicative,

Bar Counsel shall decline the complaint and notify the

complainant.

Bar Counsel also may decline a complaint submitted

by an individual person who provides information about an

attorney derived from published news reports or third party

RULE 19-711

sources where the complainant appears to have no personal

knowledge of the information being submitted.

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

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

ordinarily shall obtain a written response from the attorney who

is the subject of a complaint and consider other appropriate

information to assist in evaluating the merits of the complaint.

If Bar Counsel determines based upon such evaluation that an

insufficient basis exists to demonstrate misconduct or

incapacity or that the overall circumstances do not warrant

investigation, Bar Counsel may close the file without approval

of the Commission.

Otherwise, subject to subsection (b)(4)

(b)(5) of this Rule, Bar Counsel shall (A) docket the complaint,

(B) notify the complainant and explain in writing the procedures

for investigating and processing the complaint, (C) comply with

the notice requirement of section (c) of this Rule, and (D)

conduct an investigation to determine whether reasonable grounds

exist to support the allegations of the complaint there exists a

substantial basis to conclude the attorney committed

professional misconduct or is incapacitated.

(4)

If a complaint is declined or closed by Bar Counsel,

allegations made in the complaint may not be used in any

disciplinary proceeding against the attorney.

If additional

RULE 19-711

information becomes known to Bar Counsel regarding a complaint

that was declined or closed before docketing, the earlier

allegations may be reopened.

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

listing a complaint on the docket of active investigations

maintained by Bar Counsel, rather than on a docket maintained by

the clerk of a court. Before determining whether a complaint is

frivolous or unfounded, Bar Counsel may contact the attorney and

obtain an informal response to the allegations.

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

action involving material allegations against the attorney

substantially similar or related to those alleged in the

complaint is pending in any court of record in the United

States, or that substantially similar or related allegations

presently are under investigation by a law enforcement,

regulatory, or disciplinary agency, Bar Counsel, with the

approval of the Commission, may defer action on the complaint

pending a determination of those allegations in the pending

action or investigation.

Bar Counsel shall notify the

complainant of that decision and, during the period of the

deferral, shall report to the Commission, at least every six

months 90 days, the status of the other action or investigation.

The Commission, at any time, may direct Bar Counsel to proceed

in accordance with subsection (b)(1) or (3) of this Rule.

(c)

Notice to Attorney

RULE 19-711

(1) Except as otherwise provided in this section, Bar

Counsel shall notify the attorney who is the subject of the

complaint that Bar Counsel is undertaking an investigation to

determine whether the attorney has engaged in professional

misconduct or is incapacitated.

The notice shall be given

before the conclusion of the investigation and shall include the

name and address contact information of the complainant and the

general nature of the professional misconduct or incapacity

under investigation.

As part of the notice, Bar Counsel may

demand that the attorney provide information and records that

Bar Counsel deems appropriate and relevant to the investigation.

The notice shall state the time within which the attorney shall

provide the information and any other information that the

attorney may wish to present.

The notice shall be served on the

attorney in accordance with Rule 19-708 (b).

(2) Bar Counsel need not give notice of investigation to an

attorney if, with the approval of the Commission, Bar Counsel

proceeds under Rule 19-737, 19-738, or 19-739.

(d)

Time for Completing Investigation

(1) Generally

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

unless the time is extended pursuant to subsection (d)(2) of

RULE 19-711

this Rule, Bar Counsel shall complete an investigation within 90

120 days after docketing the complaint.

(2) Extension

(A) Upon written request by Bar Counsel and a finding of

good cause by the Commission, the Commission may grant an

extension for a specified period.

Upon a separate request by

Bar Counsel and a finding of good cause, the Commission may

renew an extension for a specified period.

(B) The Commission may not grant or renew an extension, at

any one time, of more than 60 days unless it finds specific good

cause for a longer extension.

Counsel shall provide the Commission with a status report at

least every 60 days.

(3) Sanction

For failure to comply with the time requirements of

section (d) of this Rule, the Commission may take any action

appropriate under the circumstances, including dismissal of the

complaint and termination of the investigation.

Source: This Rule is derived in part from former Rule 16-731

(2016) and is in part new.

REPORTER’S NOTE

RULE 19-711

Section (a) of Rule 19-711 is proposed to be amended by

replacing the word “individual” with “person.”

Subsection (a)(3) is amended by replacing the word

“address” with “contact information” and by replacing the word

“individual” with “person.”

Subsection (b)(2) is amended by replacing the word

“individual” with “person.”

Subsection (b)(3) is amended by changing the reference to

subsection (b)(4) to subsection (b)(5).

Subsection (b)(3)(D) is amended to change the standard that

an investigation must meet in order to proceed from “reasonable

grounds exit to support the allegations of the complaint” to a

substantial basis exists that an attorney committed misconduct

or is incapacitated.

New subsection (b)(4) is added, which specifies that

allegations made in a complaint that is declined or closed by

Bar Counsel may not be used in any disciplinary proceeding

against the attorney. This does not preclude Bar Counsel from

being able to reopen a closed investigation if additional

information is discovered by Bar Counsel.

Subsection (b)(5) is amended to amend the time that Bar

Counsel must report to the Attorney Grievance Commission during

a deferral from every six months to every 90 days. The

reference to subsection (b)(3) is also expanded to include

subsection (b)(1).

Subsection (c)(1) is amended by replacing the word

“address” with “contact information” and by removing subsection

(b) from the reference to Rule 19-708.

Subsection (d)(1) is amended by changing the reference to

subsection (b)(4) with a reference to subsection (b)(5). The

time in which Bar Counsel must complete an investigation after a

complaint is docketed is changed from 90 days to 120 days.

RULE 19-712

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-712 by making stylistic changes to section

(a); by deleting certain language from subsection (a)(1)(A); by

adding certain language to subsection (a)(1)(A); by adding

subsection (a)(1)(B) pertaining to subpoena to compel an

attorney to submit to a mental or physical examination; by

adding certain language to subsection (a)(2); by adding certain

language to subsection (a)(2)(A); by making stylistic changes to

section (b); by adding new subsection (b)(2) pertaining to the

requirements necessary in a subpoena to compel an attorney to

submit to a mental or physical evaluation; by making stylistic

changes to section (c); by deleting certain language from

section (c) pertaining to service pursuant to Rule 19-708 (b);

by adding certain language to subsection (c)(1); by adding

certain language to the cross reference following subsection

(c)(1) pertaining to Rule 19-411 (b); by adding new subsection

(c)(2) pertaining to alternative service; by re-lettering former

section (g) as new section (d); by deleting certain language

from section (d); by adding certain language to section (d); by

re-lettering former section (d) as new section € pertaining to

RULE 19-712

objections to subpoenas; by deleting former section € and

replacing it with new section (f) pertaining to the enforcement

of subpoenas; by re-lettering former section (f) as new section

(g); by adding certain language to section (g) clarifying that a

circuit court is referenced in this section and not the Court of

Appeals; and by adding new section (h) pertaining to the

procedures that govern a petition for disciplinary or remedial

action after an attorney is found to be in contempt, as follows:

Rule 19-712.

(a)

INVESTIGATIVE SUBPOENA

Approval and Issuance

(1) The Chair of the Commission may authorize Bar Counsel to

issue a subpoena to (A) compel attendance of witnesses and the

production of the person to whom it is directed to attend, give

testimony, and produce designated documents, electronically

stored information, or other tangible things at a time and place

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

submit to a mental or physical examination by a suitably

licensed or certified examiner.

(2) The Chair of the Commission may authorize a subpoena if

the Chair finds that (A) the subpoena is necessary to and in

furtherance of an investigation being conducted by Bar Counsel

pursuant to Rule 19-711, 19-735, 19-751, or 19-752 or (B) the

RULE 19-712

subpoena has been requested by a disciplinary authority of

another jurisdiction pursuant to the law of that jurisdiction

for use in a disciplinary or remedial proceeding in that

jurisdiction to determine alleged professional misconduct or

incapacity of an attorney subject to the jurisdiction of that

disciplinary authority.

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

(b)

Contents

(1) A subpoena shall comply with the requirements of Rule 2510 (c), except that to the extent practicable, a subpoena shall

not identify the attorney under investigation.

A subpoena to

compel attendance of a witness shall include or be accompanied

by a notice that the witness (1) has the right to consult with

an attorney with respect to the assertion of a privilege or any

other matter pertaining to the subpoena and (2) may file a

motion for judicial relief under Rule 2-510.

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

or physical examination shall specify the time and place,

manner, conditions, and scope of the examination and the person

or persons by whom it is to be made.

(c)

Service

Except for service upon an attorney in accordance with

Rule 19-708 (b), a

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(1) Generally

A subpoena shall be served in accordance with Rule 2-510

(d).

Promptly after service of a subpoena on a person other

than the attorney under investigation and in addition to giving

any other notice required by law, Bar Counsel shall serve a copy

of the subpoena on the attorney under investigation.

Cross reference: For examples of other notice required by law,

see Code, Financial Institutions Article, § 1-304, concerning

notice to depositors of subpoenas for financial records; Code,

Health General Article, § 4-306 concerning disclosure of medical

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

notice of a request for issuance of compulsory process seeking

medical records related to mental health services. See also

Rule 19-411 (b), concerning notices required in connection with

IOLTA accounts.

(2) Alternative Service

If after reasonable efforts the attorney cannot be

served personally, service may be made on the attorney by

sending by e-mail to all e-mail addresses of record maintained

by the attorney with the Attorney Information System in

accordance with Rule 19-802.

(g)(d)

Recording of Statements

All statements testimony by the subpoenaed witness shall

be under oath and shall be contemporaneously recorded

stenographically or electronically by electronic audio or audiovideo recording.

(d)(e)

Objection

RULE 19-712

The person served with the subpoena or the attorney under

investigation may file a motion in the circuit court for the

county in which the subpoena was served for any order permitted

by Rule 2-510 (e).

The motion shall be filed promptly and,

whenever practicable, at or before the time specified in the

subpoena for compliance.

(e)(f)

Enforcement

(1) Order enforcing compliance

(A) If (i) the person served with a subpoena fails to file

a timely motion under section (e) or the court denies such a

motion, and (ii) the person fails to comply with the subpoena,

Bar Counsel may file a motion in the circuit court for the

county in which the subpoena was served for an order to enforce

compliance with the subpoena.

(B) Papers filed in the circuit court pursuant to this

subsection shall be sealed upon filing and shall be open to

inspection only by order of the court.

A hearing before the

court shall be on the record and shall be conducted outside of

the presence of all individuals other than Bar Counsel, the

attorney, the judge, and those individuals whose presence the

court deems necessary.

Any transcript or recording of the

proceedings shall be sealed.

(2) Petition for contempt

RULE 19-712

If a person willfully fails to comply with an order

issued under subsection (f)(1), Bar Counsel may file a petition

for contempt pursuant to Rule 15-206 or for a body attachment

pursuant to Rule 2-510 (j).

(3) Other sanctions

If the person is the attorney who is the subject of the

investigation, Bar Counsel may, in addition, (A) with the

approval of the Chair of the Commission, file with the Court of

Appeals a petition to suspend the attorney from practicing law

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

of charges pursuant to Rule 19-718 for violation of Rule 19308.1.

The attorney may file a response to a petition for

suspension within 15 days after service of the petition.

The

Court may decide the issue on the papers filed or shall hold an

expedited hearing on the petition.

(f)(g)

Confidentiality

Any paper filed in the circuit court with respect to a

subpoena shall be sealed upon filing and shall be open to

inspection only by order of the court.

A hearing before the

court on any motion shall be on the record and shall be

conducted out of the presence of all individuals other than Bar

Counsel, the attorney, and those individuals whose presence the

court deems necessary.

RULE 19-712

(h)

Petition for Disciplinary or Remedial Action

(1) Generally

If the circuit court makes a finding of contempt

pursuant to Rule 15-206, Bar Counsel, with the approval of the

Chair of the Commission, may file a Petition for Disciplinary or

Remedial Action in the Court of Appeals pursuant to Rule 19-721

(a)(1).

A certified copy of the order of contempt shall be

attached to the Petition, and a copy of the Petition and order

shall be served on the attorney in accordance with Rule 19-723.

(2) Show Cause Order

When a petition and certified copy of an order of

contempt have been filed, the Court of Appeals shall order that

the attorney, within 15 days from the date of the order, show

cause in writing why the attorney should not be suspended

immediately from the practice of law until the further order of

the Court of Appeals.

(3) Action by the Court of Appeals

Upon consideration of the petition and any answer to the

order to show cause, the Court of Appeals may enter an order (1)

immediately suspending the attorney from the practice of law,

(2) designating a judge pursuant to Rule 19-722 to hold a

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

other appropriate provisions.

The provisions of Rules 19-741

RULE 19-712

and 19-743 apply to an order under this section that suspends an

attorney.

(4) Presumptive Effect of Order of Contempt

A finding of contempt is presumptive evidence that the

attorney is in contempt of court, but the introduction of such

evidence does not preclude Bar Counsel or the attorney from

introducing additional evidence or otherwise showing cause why

no suspension should be imposed.

(5) Termination of Suspension

On notification by Bar Counsel that the attorney has

purged the contempt, the Court of Appeals shall order the

attorney reinstated to the practice of law, unless other grounds

exists for the suspension to remain in effect.

(6) Other Disciplinary Proceedings

Proceedings under this Rule shall not preclude the use

of the facts underlying the order of contempt when relevant to a

pending or subsequent disciplinary proceeding against the

attorney.

Source: This Rule is derived from former Rule 16-732 (2016).

Source: This Rule is derived as follows:

Sections (a), (b), and (c) are derived in part from former Rule

16-732 (2016) and are in part new.

Sections (d), (e), and (g) are derived from former Rule 16-732

(2016).

Sections (f) and (h) are new.

RULE 19-712

REPORTER’S NOTE

Proposed stylistic changes are made to section (a) of Rule

19-712. Subsection (a)(1)(A) is amended and new subsection

(a)(1)(B) is added to clarify the permissible uses of the

Attorney Grievance Commission’s subpoena power, which includes

the ability to compel an attorney to submit to a mental or

physical examination. Subsection (a)(2) is amended to indicate

that the Chair of the Commission may authorize a subpoena

pursuant to Rules 19-711, 19-735, 19-751, or 19-752.

Stylistic changes are made to section (b). New subsection

(b)(2) is added pertaining to the requirements necessary in a

subpoena to compel an attorney to submit to a mental or physical

evaluation.

Stylistic changes are made to section (c). Section (c) and

subsection (c)(1) are amended so that all subpoenas are now

served in accordance with Rule 2-510 (d), the former language

pertaining to attorneys being served pursuant to Rule 19-708 (b)

is deleted. The cross reference following subsection (c)(1) is

amended by adding a reference to Rule 19-411 (b). New

subsection (c)(2) is added, permitting alternative service.

Former section (g) is re-lettered as new section (d).

Section (d) is amended by changing the word “statements” to

“testimony” and by replacing the word “electronically” with the

words “electronic audio or audio-video recording.”

Former section (d) is re-lettered as new section (e).

additional changes are made to this section.

Former section (e) is deleted and replaced in its entirety

with new section (f) pertaining to the enforcement of subpoenas.

Subsection (f)(1)(A) permits Bar Counsel to file a motion to

enforce a subpoena in the circuit court where the subpoena was

issued, and permits a circuit court to issue an order to enforce

compliance. Subsection (f)(1)(B) requires any papers filed

pursuant to subsection (f)(1)(A) to be sealed, and also requires

any hearing in the circuit court to be conducted outside of the

presence of all individuals other than Bar Counsel, the

attorney, and any individuals deemed necessary for the

proceedings by the Court. Subsection (f)(2) permits Bar Counsel

to file a petition for contempt if a person willfully fails to

comply with an order issued pursuant to subsection (f)(1)(A).

RULE 19-712

Subsection (f)(3) permits Bar Counsel to seek, with the consent

of the Chair of the Commission, additional sanctions against an

attorney for non-compliance, including a suspension or statement

of charges.

Former section (f) is re-lettered as new section (g).

Section (g) is amended to clarify that a circuit court is

referenced in this section and not the Court of Appeals.

New section (h) is added, pertaining to the procedures that

govern a petition for disciplinary or remedial action after an

attorney is found to be in contempt pursuant to Rule 15-206.

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RULE 19-713

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

Rule 19-713.

ADMINISTRATIVE PROCEEDINGS

PERPETUATION OF EVIDENCE BEFORE PETITION FOR

DISCIPLINARY OR REMEDIAL ACTION

Before a Petition for Disciplinary or Remedial Action is

filed, Bar Counsel or an attorney who is or may be the subject

of an investigation by Bar Counsel may perpetuate testimony or

other evidence relevant to a claim or defense that may be

asserted in the expected action.

The perpetuation of evidence

shall be governed by Rule 2-404 and the issuance of subpoenas

and protective orders shall be governed by Rules 2-510 and 2403.

The Commission shall perform the functions that the court

performs under those Rules.

Source:

This Rule is derived from former Rule 16-733 (2016).

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RULE 19-714

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-714 by deleting certain language from section

(a) and adding language permitting Bar Counsel to recommend a

letter of cautionary advice or letter of admonition; by adding

new section (d), permitting Bar Counsel to recommend that an

attorney be placed on permanent retired status in certain

situations; by re-lettering former sections (d) and (e) as

sections (e) and (f), respectively; and by adding a reference to

Rule 19-741 to section (f), as follows:

Rule 19-714.

ACTION BY BAR COUNSEL UPON COMPLETION OF

INVESTIGATION

Upon completion of an investigation, Bar Counsel shall:

(a)

recommend to the Commission dismissal of the complaint or

termination of the proceeding without disciplinary or remedial

action, with or without a warning a letter of cautionary advice

or a letter of admonition, in accordance with Rule 19-715;

(b)

recommend to the Commission approval of a Conditional

Diversion Agreement in accordance with Rule 19-716;

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RULE 19-714

(c)

recommend to the Commission a reprimand in accordance

with Rule 19-717;

(d)

recommend to the Commission that the attorney be placed

on permanent retired status in accordance with Rule 19-717.1;

(d)(e)

file with the Commission a Statement of Charges in

accordance with Rule 19-718;

(e)(f)

recommend to the Commission the immediate filing of a

Petition for Disciplinary or Remedial Action, with or without

collateral remedial proceedings, in accordance with Rules 19737, 19-738, or 19-739, or 19-741.

Source: This Rule is derived in part from former Rule 16-734

(2016) and is in part new.

REPORTER’S NOTE

Section (a) of Rule 19-714 is proposed to be amended to

replace the term “warning” with “letter of cautionary advice”

and “letter of admonition” as these dispositions are described

in the proposed amendments to Rule 19-715.

New section (d) is added to this Rule, permitting Bar

Counsel to recommend to the Commission that an attorney be

placed on permanent retired status pursuant to Rule 19-716.

Sections (d) and (e) are re-lettered as sections (e) and (f),

respectively.

Section (f) is amended by adding a reference to Rule 19741.

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MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-715 by replacing the word “termination” with

the word “dismissal” and the word “terminate” with the word

“dismiss” throughout this Rule; by replacing the word “warning”

with the words “letter of cautionary advice or letter of

admonition” in subsection (a)(2)(A); by replacing the word

“warning” with the words “letter of cautionary advice or letter

of admonition” in subsection (a)(2)(B); by replacing the word

“warning” with the words “letter of cautionary advice or letter

of admonition” in section (b); by replacing the word “warning”

with the words “letter of cautionary advice or letter of

admonition” in the tagline of section (c); by making stylistic

changes to section (c); by replacing the word “warning” with the

words “letter of cautionary advice” and the word “warning” with

the word “letter” in subsection (c)(1)(A); by adding certain

language to subsection (c)(1)(A) to require that an attorney may

not have any prior discipline, warning, letter of cautionary

advice, or letter of admonition to be eligible; by replacing the

word “warning” with the words “letter of cautionary advice”

throughout subsection (c)(1)(B); by deleting certain language

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RULE 19-715

from subsection (c)(1)(B); by deleting former subsections

(c)(2)(A)(ii) and (c)(2)(A)(iii); by deleting former subsections

(c)(2)(B) and (c)(2)(C); by replacing the word “warning” with

the words “letter of cautionary advice” in the tagline of and in

subsection (c)(1)(C); by deleting certain language and adding

certain language to subsection (c)(1)(C); by adding new

subsection (c)(2), pertaining to letters of admonition; by

replacing the words “or Warning” with the words “Letter of

Cautionary Advice, Letter of Admonition” in the tagline of

section (d); by replacing the words “or Termination” with the

words “of Complaint or Proceedings” in the tagline of subsection

(d)(1); by adding a reference to subsection (d)(3) to subsection

(d)(1)(A); by replacing the word “warning” with “letter of

cautionary advice or letter of admonition” in subsection

(d)(1)(A); by replacing the word “Warning” with the words

“Letter of Cautionary Advice” in the tagline of subsection

(d)(2); by replacing the word “warning” with the words “letter

of cautionary advice” in subsection (d)(2)(A); by adding certain

language to subsection (d)(2)(A) pertaining to the content of

notice sent to the complainant; by replacing the first instance

of the word “warning” with the words “letter of cautionary

advice” in subsection (d)(2)(B); by replacing the second

instance of the word “warning” with “letter” in subsection

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RULE 19-715

(d)(2)(B); by deleting subsection (d)(2)(C); and by adding new

subsection (d)(3), as follows:

Rule 19-715.

DISMISSAL OF COMPLAINT; TERMINATION DISMISSAL OF

DISCIPLINARY OR REMEDIAL PROCEEDING

(a)

Recommendation by Bar Counsel or Peer Review Panel

Bar Counsel, upon completion of an investigation, or a

Peer Review Panel, after a meeting of the Panel, may recommend

to the Commission that:

(1) a complaint be dismissed because the evidence fails to

show that the attorney has engaged in professional misconduct or

is incapacitated; or

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

dismissed, with or without a warning letter of cautionary advice

or letter of admonition, because any professional misconduct on

the part of the attorney was not sufficiently serious to warrant

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

dismissed, without a warning a letter of cautionary advice or

letter of admonition, because any incapacity on the part of the

attorney is not sufficiently serious or long-lasting to warrant

remedial action or, if resolved, is not likely to recur.

(b)

Action by Commission

If satisfied with the recommendation of Bar Counsel or

the Peer Review Panel, the Commission shall dismiss the

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RULE 19-715

complaint or terminate dismiss the disciplinary or remedial

proceeding, as appropriate.

If the recommendation includes a

warning letter of cautionary advice or letter of admonition, the

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

(c)

Termination Dismissal Accompanied by Warning Letter of

Cautionary Advice or Letter of Admonition

(1) Letter of Cautionary Advice

(A) Recommendation by Bar Counsel or Peer Review Panel

Bar Counsel or the Peer Review Panel may recommend to

the Commission that the termination dismissal of a disciplinary

or remedial proceeding be accompanied by a warning letter of

cautionary advice upon their respective conclusion that such a

warning letter would be helpful to ensure that the conduct that

led to the proceeding is not repeated, the attorney has no prior

sanction, and the attorney has not received a prior warning,

letter of cautionary advice, or letter of admonition for similar

conduct by the attorney.

(2)(B) Action by Commission

(A)(i) If satisfied that termination dismissal of the

disciplinary or remedial proceeding should be accompanied by a

warning letter of cautionary advice, the Commission shall mail

to the attorney a notice that states (i)(1) that on or after 30

days from the date of the notice, the Commission intends to

terminate dismiss the disciplinary or remedial proceeding and

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RULE 19-715

accompany the termination dismissal with a warning letter of

cautionary advice.

(ii) the content of the proposed warning,

and (iii) that the attorney may reject the proposed warning by

filing a written rejection with the Commission no later than 25

days after the date of the notice.

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

Commission shall issue the warning when it dismisses the

disciplinary or remedial proceeding.

not be issued, but Bar Counsel or the Commission may take any

other action permitted under this Chapter.

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

Advice

A warning letter of cautionary advice does is not

constitute discipline.

(2) Letter of Admonition

(A) Recommendation by Bar Counsel or Peer Review Panel

Bar Counsel or the Peer Review Panel may recommend to

the Commission that the dismissal of a disciplinary or remedial

proceeding be accompanied by a letter of admonition upon their

respective conclusion that such a letter would be helpful to

ensure that the conduct that led to the proceeding is not

repeated.

(B) Action by Commission

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RULE 19-715

(i) If satisfied that dismissal of the disciplinary or

remedial proceeding should be accompanied by a letter of

admonition, the Commission shall mail to the attorney a notice

that states (a) that on or after 30 days from the date of the

notice, the Commission intends to dismiss the disciplinary or

remedial proceeding and accompany the dismissal with a letter of

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

admonition, and (c) that the attorney may reject the proposed

letter of admonition by filing a written rejection with the

Commission no later than 25 days after the date of the notice.

(ii) If the letter of admonition is not timely rejected,

the Commission shall issue the letter when it dismisses the

disciplinary or remedial proceeding.

(iii) If the letter of admonition is timely rejected,

the letter shall not be issued, but Bar Counsel or the

Commission may take any other action permitted under this

Chapter.

A letter of admonition is not discipline.

(d)

Disclosure of Termination or Warning Dismissal; Letter of

Cautionary Advice; Letter of Admonition

(1) Disclosure of Dismissal or Termination of Complaint or

Proceedings

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RULE 19-715

(A) Except as provided in subsections (d)(2) and (d)(3) of

this Rule, a dismissal or a termination of a complaint or

proceedings under this Rule, with or without a warning letter of

cautionary advice or letter of admonition, shall not be

disclosed by the Commission or Bar Counsel in response to any

request for information as to whether an attorney has been the

subject of a disciplinary or remedial proceeding.

(B) The nature and existence of a proceeding terminated

dismissed under this Rule, including any investigation by Bar

Counsel that led to the proceeding, need not be disclosed by an

attorney in response to a request for information as to whether

the attorney has been the subject of a disciplinary or remedial

proceeding.

(2) Disclosure of Warning Letter of Cautionary Advice

(A) The fact that a warning letter of cautionary advice

was issued in conjunction with the termination dismissal of a

complaint shall not be disclosed to the complainant.

The

complainant shall only be notified that the complaint was

dismissed.

(B) The fact that a warning letter of cautionary advice

was issued and the facts underlying the warning letter may be

disclosed in a subsequent proceeding against the attorney when

relevant to a complaint alleging similar conduct by the

attorney.

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RULE 19-715

rejected nor the contents of a warning that was not issued is

admissible into evidence in any judicial or administrative

proceeding.

(3) Disclosure of Letter of Admonition

(A) The fact that a letter of admonition was issued in

conjunction with the dismissal of a complaint shall be disclosed

to the complainant.

(B) The fact that a letter of admonition was issued and

the facts underlying the letter may be disclosed in a subsequent

proceeding against the attorney when relevant to a complaint

alleging similar conduct by the attorney.

proposed or rejected nor the contents of a letter of admonition

that was not issued is admissible into evidence in any judicial

or administrative proceeding.

Source: This Rule is derived in part from former Rule 16-735

(2016) and is in part new.

REPORTER’S NOTE

Current Rule 19-715 permits the Attorney Grievance

Commission, if recommended by Bar Counsel, to dismiss a

complaint with a “warning” sent to the attorney. This can only

occur with the consent of the attorney. If the attorney

objects, the Commission many not dispose of a disciplinary

matter in this fashion. The amendments proposed to this Rule

replace the current “warning” with two options: dismissal with a

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RULE 19-715

letter of cautionary advice, similar to what the Court approved

in the Judicial Discipline Rules, which the Commission may issue

without regard to any objection by the attorney, and a dismissal

accompanied by a letter of admonition, which can only be issued

with the consent of the attorney.

Either of the proposed new dispositions would be based on a

conclusion by the Commission that the attorney’s misconduct was

not sufficiently serious to warrant discipline and, with the

letter, is not likely to be repeated. The letter of cautionary

advice is appropriate when the attorney has not been previously

sanctioned or received a previous warning, admonition, or

cautionary advice.

Neither the letter of cautionary advice nor the letter of

admonition constitutes discipline. One difference between the

two is that it is not disclosed to the complainant if a letter

of cautionary advice is sent to the attorney. The complainant

is notified, however, if a letter of admonition is sent to the

attorney, and the facts underlying the admonition may be

disclosed during a subsequent disciplinary proceeding against

the attorney when they are relevant to the subsequent

proceeding.

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RULE 19-716

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS, RESIGNATION

DIVISION 2.

ADMINISTRATIVE PROCEEDINGS

AMEND Rule 19-716 by deleting and adding certain language

to section (a) concerning when a conditional diversion agreement

may be appropriate; by correcting a typo in subsection (a)(2);

by adding the word “available” to subsection (a)(3); by deleting

certain language from subsection (c)(3)(A)(ii) and adding new

language to this subsection clarifying which types of

individuals might be eligible for restitution; by making

stylistic changes to subsection (c)(3)(A)(ix); by making

stylistic changes to subsection (e)(2) which emphasize that the

Commission must take affirmative action to disprove an

agreement; and by correcting a typo in subsection (h)(1), as

follows:

Rule 19-716.

(a)

CONDITIONAL DIVERSION AGREEMENT

When Appropriate

Upon completing an investigation, Bar Counsel may agree

to a Conditional Diversion Agreement if Bar Counsel concludes

that: A Conditional Diversion Agreement may be appropriate and

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RULE 19-716

may be approved by the Commission when there is an agreement

between Bar Counsel and the attorney that:

(1) the attorney committed professional misconduct or is

incapacitated;

(2) the professional misconduct or incapacity was not the

result of any wilful willful or dishonest conduct and did not

involve conduct that could be the basis for an immediate

Petition for Disciplinary or Remedial Action pursuant to Rules

19-737, 19-738, or 19-739;

(3) the cause or basis of the professional misconduct or

incapacity is subject to remediation or resolution through

available alternative programs or mechanisms, including (A)

medical, psychological, or other professional treatment,

counseling, or assistance, (B) appropriate educational courses

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

dispute resolution programs; and

(4) the public interest and the welfare of the attorney's

clients and prospective clients will not be harmed if, instead

of the matter proceeding immediately with a disciplinary or

remedial proceeding, the attorney agrees to and complies with

specific measures that, if pursued, will remedy the immediate

problem and likely prevent any recurrence of it.

Committee note: Examples of conduct that may be susceptible to

conditional diversion include conduct arising from (A)

unfamiliarity with proper methods of law office management,

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RULE 19-716

record-keeping, or accounting, (B) unfamiliarity with particular

areas of law or legal procedure, (C) negligent management of

attorney trust accounts or other financial matters, (D)

negligent failure to maintain proper communication with clients,

(E) negligent failure to provide proper supervision of

employees, or (F) emotional stress or crisis or abuse of alcohol

or other drugs.

(b)

Voluntary Nature of Agreement; Effect of Rejection or

Disapproval

(1) Voluntary Nature

Neither Bar Counsel nor the attorney is under any

obligation to propose or enter into a Conditional Diversion

Agreement.

(2) Effect of Rejection or Disapproval

If a Conditional Diversion Agreement is proposed and

rejected or if a signed Agreement is not approved by the

Commission, Bar Counsel may take any other action permitted

under this Chapter.

Neither the fact that an Agreement was

proposed, rejected, or not approved nor the contents of the

Agreement may be admitted into evidence.

(c)

Terms of Agreement

(1) In Writing and Signed

A Conditional Diversion Agreement shall be in writing

and signed by Bar Counsel, the attorney, and any monitor

designated in the Agreement.

(2) Required Provisions

The agreement shall:

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

of this Rule;

(B) state that the attorney voluntarily consents to its

terms and promises to pay all expenses reasonably incurred in

connection with its performance and enforcement;

attorney (i) has engaged in conduct that constitutes

professional misconduct, or (ii) is currently incapacitated, and

a warranty that the attorney has not concealed from or

misrepresented to Bar Counsel any material fact pertaining to

the attorney's conduct or status as incapacitated or to the

Agreement;

(D) state the particular course of remedial action that

the attorney agrees to follow and a time for performance or

completion of that action;

(E) provide for a stay of any disciplinary or remedial

proceeding pending satisfactory performance by the attorney; and

(F) state that it is expressly conditioned on (i) the

attorney's not engaging in any further conduct that would

constitute professional misconduct, or, (ii) non-recurrence of

the nature or severity of the incapacity.

(3) Permissive Provisions

The agreement may:

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(A) provide for any program or corrective action

appropriate under the circumstances, including:

(i) mediation or binding arbitration of a fee dispute;

(ii) restitution to persons financially injured by the

attorney’s professional misconduct, to a client of unearned or

excessive fees, and to the Client Protection Fund for amounts

paid on claims arising from the attorney’s professional

misconduct; in a stipulated amount;

(iii) a public apology to designated persons;

(iv) assistance in law office management, including

temporary or continuing monitoring, mentoring, accounting,

bookkeeping, financial, or other professional assistance, and

completion of specific educational programs dealing with law

office management;

(v) completion of specific legal education courses or

curricula, including courses in legal ethics and professional

responsibility;

(vi) an agreement not to practice in specific areas of

the law (a) unless the attorney associates himself or herself

with one or more other attorneys who are proficient in those

areas, or (b) until the attorney has successfully completed a

designated course of study to improve the attorney's proficiency

in those areas;

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(vii) one or more specific courses of treatment for

emotional distress, mental disorder or disability, dependence on

alcohol, drugs, or other intoxicants;

(viii) a stipulated number of hours of pro bono legal

services; or

(ix) a reprimand to be issued upon the successful

termination of a Conditional Diversion Agreement.

If that

provision is included, The the text of the reprimand shall be

agreed upon and attached to the Agreement as a separate

document; and

Committee note: The text of the Conditional Diversion Agreement

must be separate from the text of the reprimand because the

contents of the Agreement are confidential, whereas the contents

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

(B) designate either a private monitor engaged at the

attorney's expense or Bar Counsel to supervise performance and

compliance with the terms and conditions of the agreement.

(4) If Monitor Designated

(A) If the agreement designates Bar Counsel or a private

monitor pursuant to subsection (c)(3)(B) of this Rule, the

agreement shall authorize Bar Counsel or the monitor to request

and receive all information and inspect any records necessary to

verify compliance.

(B) If a private monitor is designated, the agreement

shall specify the fees of the monitor and the method and

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frequency of payment of the fees and shall direct the monitor

promptly to report any violation or noncompliance to Bar

Counsel.

(d)

Submission to Commission

A Conditional Diversion Agreement is not effective until

approved by the Commission.

Upon signing the Agreement, Bar

Counsel and the attorney shall submit to the Commission the

Agreement, any explanatory material they believe relevant, and

any further information that the Commission requests.

(e)

Action by Commission

(1) Generally

After consideration, the Commission may:

(A) approve the Agreement if satisfied that it is

reasonable and in the public interest;

(B) disapprove the Agreement if not convinced that it is

reasonable and in the public interest; or

of approval.

(2) Upon Commission Recommendations

The parties may accept or reject the Commission's

proposed amendments.

If Bar Counsel and the attorney accept the

proposed amendments, they shall notify the Commission of the

acceptance, and the Commission shall approve the Agreement as

amended.

If either party rejects a proposed amendment, the

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Agreement shall be deemed Commission may disapproved disapprove

the Agreement by the Commission.

(f)

Effect of Agreement

Approval by the Commission of a Conditional Diversion

Agre

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