# STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A57353a6ab17683b1 ## Record - **Collection:** Court rules - **Document type:** Court rule ## Text STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE NOTICE OF PROPOSED RULES CHANGES The Rules Committee has submitted its 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. 1 1 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. 2 2 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 3 3 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. 4 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. 4 5 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 6 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. 7 (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 8 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 9 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 10 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 11 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, 12 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 13 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 14 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 15 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. 16 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 17 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 18 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, 19 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. 20 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. No 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 21 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 22 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. 23 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). 24 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 (c) Compensation (d) Chair and Vice Chair (e) [Executive Secretary] [Executive Counsel and Director] (f) Removal of Commission Members 25 (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 (c) Individuals Ineligible for Appointment as an Attorney 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 (c) Collection and Disbursement (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 (c) Public Proceedings and Records (d) Required Disclosures by Bar Counsel (e) Required Disclosures by Clerk of the Court of Appeals (f) Permitted Disclosures 26 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 (c) Reinstatement Proceedings (d) Judgment (e) Enforcement DIVISION 2. Rule 19-711. ADMINISTRATIVE PROCEEDINGS COMPLAINT; INVESTIGATION BY BAR COUNSEL (a) Who May Initiate (b) Review of Complaint (c) Notice to Attorney (d) Time for Completing Investigation Rule 19-712. INVESTIGATIVE SUBPOENA (a) Approval and Issuance (b) Contents (c) Service (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 27 (b) Action by Commission (c) Termination Dismissal Accompanied by Warning Letter of 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 (c) Terms of Agreement (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 (c) Response (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 (c) Action by Commission (d) Effect of Disapproval (e) Effect of Permanent Retired Status (f) Extension Rule 19-718. STATEMENT OF CHARGES (a) Filing (b) Content (c) Service; Peer Review 28 Rule 19-719. PEER REVIEW PANEL (a) Appointment (b) Composition of Panel (c) Panel Chair (d) Removal and Recusal of Members (e) Quorum Rule 19-720. PEER REVIEW PROCESS (a) Purpose (b) Scheduling of Meeting; Notice to Attorney (c) Meeting (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 (c) Motion to Amend Order Designating Judge Rule 19-723. SERVICE OF PETITION AND ORDER (a) Generally (b) Alternative Service Rule 19-724. ANSWER (a) Timing (b) Content and Scope (c) Failure to Answer Rule 19-725. PLEADINGS; MOTIONS; AMENDMENTS; MOTIONS 29 (a) Pleadings (b) Amendments (c) Motions Rule 19-726. DISCOVERY (a) Discovery from Bar Counsel (b) Exculpatory Information (c) Witnesses (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 (c) Burdens of Proof (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 (c) Response (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 (c) Caption (d) Show Cause Order; Service (e) Response to Petition (f) Order Directing Audit 30 (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 (c) Service (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 (c) Action by the Court of Appeals (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 (c) Inventory (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 (c) Procedure (d) Order of the Court of Appeals (e) Duty of Clerk 31 (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 (c) Consent to Placement on Transfer to Disability Inactive 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 (c) Show Cause Order (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 (c) Petition Upon Conviction in Court of Appeals for 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 32 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 (c) Action by Commission (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 (c) Disposition (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 (c) Affirmative Duties of Attorney (d) Duties of Bar Counsel (e) Conditions on Reinstatement (f) Responsibility of Affiliated Attorneys 33 (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 (c) Duties of Bar Counsel (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 (c) Petition for Reinstatement (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 (c) Petition for Reinstatement (d) Information for Bar Counsel (e) Response to Petition (f) Disposition (g) Further Proceedings (h) Criteria for Reinstatement (i) Subsequent Petitions 34 (j) Conditions to Reinstatement (k) Effective Date of Reinstatement Order (l) Duties of Clerk (m) Motion to Vacate Reinstatement DIVISION 7. Rule 19-761. REGISTER OF ATTORNEYS; NOTICES DUTIES OF CLERK OF COURT OF APPEALS UPON ATTORNEY’S SUSPENSION, TERMINATION, OR REINSTATEMENT (a) Register of Attorneys (b) Notice (c) Notice Upon Request (d) Form of Notice 35 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 36 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 37 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. 38 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 39 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 40 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. 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 41 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. 42 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. 43 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 44 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: 45 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 46 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 47 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. 48 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 49 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; 50 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 51 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. 52 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 53 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. Of the number of members determined for each circuit, one-third shall be residents of that circuit who are not attorneys and the remainder shall be attorneys who maintain offices for the practice of law within that circuit. (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. 54 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 55 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 56 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. 57 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 58 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). 59 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 60 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; 61 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.” 62 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” 63 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 64 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 65 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 66 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 67 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 68 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. 69 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. In addition, the Clerk shall comply with Rule 19-761 upon entry of each order of the Court by which an attorney is disbarred, suspended, reinstated, or transferred to disability inactive status. (f) Permitted Disclosures (1) Written Waiver of Attorney If the attorney has signed a written waiver of confidentiality, the Commission or Bar Counsel may disclose information to the extent permitted by the waiver. 70 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. 71 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. 72 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 73 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 74 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. 75 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 76 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). 77 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. 79 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. 80 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; 81 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. On motion, the Court may review the action of the Clerk. (e) Enforcement Rule 8-611 applies to proceedings under this Chapter. 82 RULE 19-709 Source: This Rule is in part derived from former 16-761 (2016) and is in part new. 83 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: 84 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 85 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. 86 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 87 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 b [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Amd%3A57353a6ab17683b1. Public record. Not legal advice.