STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

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NOTICE OF PROPOSED RULES CHANGES

The Rules Committee has submitted its Two Hundred and

Nineteenth Report to the Supreme Court of Maryland, recommending

proposed new Rule 9-204.3 and amendments to current Rules 1-202,

2-202, 2-422, 2-433, 2-501, 2-504, 2-507, 2-541, 3-202, 3-731,

4-504, 4-329, 7-112, 9-208, 9-202, 9-211, 10-105, 10-106, 14503, 16-302, 16-307, 16-914, 18-407, 18-412, 18-421, 18-422, 18423, 18-424, 18-426, 18-431, 18-433, 18-437, 18-441, 18-422, 19103, 19-218, 19-301.7, 19-304.2, 19-304.4, 19-305.5, 19-505, 19605, 19-751, and 19-752.

The Committee’s Two Hundred and Nineteenth 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

September 25, 2023 any written comments they may wish to make to

rules@mdcourts.gov or:

Sandra F. Haines, Esquire

Reporter, Rules Committee

Judiciary A-POD

580 Taylor Avenue

Annapolis, Maryland

21401

Gregory Hilton

Clerk

Supreme Court of Maryland

THE SUPREME COURT OF MARYLAND

STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

Hon. ALAN M. WILNER, Chair

Hon. DOUGLAS R.M. NAZARIAN, Vice Chair

SANDRA F. HAINES, Reporter

COLBY L. SCHMIDT, Deputy Reporter

HEATHER COBUN, Assistant Reporter

MEREDITH A. DRUMMOND, Assistant Reporter

Judiciary A-POD

580 Taylor Avenue

Annapolis, Maryland 21401

(410) 260-3630

EMAIL:

rules@mdcourts.gov

August 24, 2023

The Honorable Matthew J. Fader,

Chief Justice

The Honorable Shirley M. Watts

The Honorable Michele D. Hotten

The Honorable Brynja M. Booth

The Honorable Jonathan Biran

The Honorable Steven B. Gould

The Honorable Angela M. Eaves,

Justices

The Supreme Court of Maryland

Robert C. Murphy Courts of Appeal Building

Annapolis, Maryland 21401

Your Honors:

The Rules Committee submits this, its Two Hundred and

Nineteenth Report, and recommends that the Court adopt the new

Rule and amendments to existing Rules transmitted with this

Report.

There are eight categories of proposed Rules changes, as

follows:

•

CATEGORY 1: Discovery;

CATEGORY 2: Peace Orders;

CATEGORY 3: Magistrates;

CATEGORY 4: Guardianships;

CATEGORY 5: Title 18 Rules;

CATEGORY 6: Title 19 Rules (Md. Attorneys Rules of

Professional Conduct);

CATEGORY 7: Other Title 19 Rules (Bar Admission,

Special Authorization, Reinstatement); and

CATEGORY 8: Miscellaneous.

CATEGORY ONE (Rules 2-422, 2-433, 2-504, and 2-501)

Rule 2-422, which deals with the discovery of documents,

electronically stored information, and property from a party, is

amended to add a new subsection to section (b) that limits the

number of requests that can be made under the Rule to 30, unless

otherwise agreed by the parties or ordered by the court. That

is consistent with a provision in Md. U.S. Dist. Ct. Rule 104.

Currently, there is no limit on the number of requests that can

be made under Rule 2-422, and the Committee was advised of

situations in which more than 150 requests were made. A

stylistic change is made in section (c) of the Rule.

Rule 2-433 deals with sanctions for discovery violations.

Section (b), which is regarded as a “safe harbor” Rule,

precludes, absent “exceptional circumstances,” the imposition of

sanctions for failing to provide electronically stored

information that is no longer available as a result of the

routine good faith operations of an electronic information

system.

The Committee was advised that section (b) is no longer

“functional,” that it has not been used since its adoption in

2008, and that the parallel Federal Rule of Civil Procedure was

amended in 2015. Current section (b) is rewritten and a

Committee note is added to explain some limitations on the duty

to preserve material. Style and typographical errors in

sections (d) and (f) are corrected.

Rule 2-504, which deals with scheduling orders, is amended

to add language to subsection (b)(1)(D) clarifying what actions

may not occur after the discovery completion date. New

subsection (b)(1)(E) requires a scheduling order to contain a

date not less than 35 days before the date set for completion of

discovery, after which certain discovery requests may not be

served. A new Committee note is added to explain that that

section does not alter a party’s obligation to supplement

discovery responses. An amendment to Rule 2-501 (a) is a

conforming one.

CATEGORY TWO (Rules 3-202, 3-731, 2-202, and 7-112)

Rule 3-202 deals with the capacity to file an action in the

District Court. A new subsection (b)(2) is added to permit

either parent or a guardian of a minor child to sue for a peace

order on behalf of the child. A conforming amendment is made to

subsection (b)(1).

Rule 3-731 is amended to require that a petition for such a

peace order filed by a non-custodial parent be served on the

custodial parent. Note the explanatory Reporter’s note.

Stylistic changes are made to Rule 2-202.

Rule 7-112 is amended to ensure that a de novo appeal of a

peace order petition originally filed by a non-custodial parent

or guardian is not dismissed because the individual would not

have the capacity to file on behalf of the minor in the circuit

court.

CATEGORY THREE (Rules 9-208 and 2-541)

These two Rules deal with magistrates. Rule 2-541 is the

more general Rule; Rule 9-208 deals with family law actions.

The changes to those Rules concerning service were suggested by

the County Administrative Judges to reconcile the service

provisions with Rule 20-205 (c).

As the Reporter’s note to Rule 2-541 explains, the

amendments to that Rule are intended to clarify the process for

serving proposed orders and exceptions. Proposed amendments to

section (e) make clear that it is the clerk, not the magistrate,

who is responsible for serving the magistrate’s recommendations

and proposed orders and it is with the clerk to whom an

intention to file exceptions shall be filed. Failure to file

notice of that intention will constitute a waiver. If a timely

notice is filed, the court may not enter a judgment until the

time for filing exceptions has expired. Other sections of the

Rule are reorganized for clarity.

The revisions to Rule 9-208 parallel the changes to Rule 2541 and are explained in the Reporter’s note to that Rule.

CATEGORY FOUR (Rules 10-105, 16-914, and 10-106)

These Rules deal with guardianships. The amendments to

Rule 10-105 clarify that an “interested party” is a party to the

action and has access to case records, but the court may

restrict that access for good cause following notice and the

opportunity for a hearing. The basis for that change is set

forth in the Reporter’s Note to the Rule.

Rule 16-914 is amended to add to a Committee Note that

parties to the action have access to the case records unless the

court orders otherwise. The Committee note already provides that

the guardian, as a party, has that access and may share case

records with a third person in order to perform the guardian’s

duties.

Rule 10-106, which deals with attorneys for minors or

disabled persons, is amended to permit attorneys other than

those under contract with the Department of Human Services or

serving pro bono, to accept and be paid the same fee as a

contractual attorney. The need for this amendment is explained

in the Reporter’s Note to the Rule. Stylistic amendments are

also made to a Committee Note.

CATEGORY FIVE (Title 18 Rules)

Category Five comprises amendments to Rules 18-407, 18-412,

18-421, 18-422, 18-423, 18-424, 18-426, 18-431, 18-433, 18-437,

18-441, and 18-442. They all relate to Judicial Disability

proceedings.

Two amendments are made to Rule 18-407, both clarifying the

information that the Judicial Disabilities Commission may supply

to other officials or agencies. See subsection (b)(4) and the

Committee Note to that subsection. An amendment to Rule 18-412

(d), which deals with the Judicial Inquiry Board, permits the

Board, in the conduct of ordinary business, to include a member

whose term on the Board has expired until a replacement for that

member has been appointed.

Rule 18-421 (b), which deals with complaints filed against

a judge, clarifies the standard that Investigative Counsel is to

apply in determining whether the allegations made against the

judge suffice to constitute a cognizable basis for a complaint.

Rule 18-422, which deals with investigations made by

Investigative Counsel, permits judges to request prompt notice

of the opening of a file pertaining to them. An amendment to

subsection (a)(4)(E) provides that service of that notice is

complete upon mailing, in accordance with Rule 1-321.

Rule 18-423 deals with proceedings before the Inquiry Board

and the Commission. Amendments to subsections (b)(2)(C) and

(f)(3)(B) permit the Board to refer or remand a matter to

Inquiry Board for the purpose of convening a peer review panel.

Rule 18-424 deals with “further investigation.” An

amendment to section (c) permits the Chair of the Inquiry Board

or the Chair of the Commission, upon an application by

Investigative Counsel, to extend the time for completing a

further investigation.

Rule 18-426 deals with conditional diversion agreements.

Section (b) requires Investigative Counsel or some other person

to monitor compliance with the agreement. A conforming

amendment to section (e) recognizes that the monitor may be

someone other than Investigative Counsel.

Rule 18-431 deals with the filing of charges. A new

section (h) requires that all pretrial motions and motions to

dismiss must be resolved by the Commission prior to a hearing on

the charges.

Rule 18-433 deals with discovery. A proposed Committee

Note to section (a) clarifies that a judge’s failure to

cooperate in discovery may warrant an amendment to the charges

in accordance with Rule 18-431 (g).

Rule 18-437 deals with judicial disability proceedings in

the Supreme Court. An amendment to section (b) clarifies that a

judge may not file motions in this Court in lieu of filing

exceptions. If no exceptions are filed, the Court may treat the

Commission’s findings of facts and conclusions of law as

established.

Rule 18-441 deals with cases of alleged or apparent

disability or impairment. Amendments to section (f) are

intended to make the Rule applicable to disciplinary matters at

the investigatory stage.

Rule 18-442 deals with interim suspensions and

administrative leave. Identical amendments are made with

respect to both of those situations (1) allowing the Court to

act on its own initiative, and (2) permitting it to act when

sufficient information is received that demonstrates that the

continued service of the judge poses an immediate and

substantial threat of serious harm to the public, to any person,

to the judge, or to the erosion of public confidence.

CATEGORY SIX (Rules 19-301.7, 19-304.4, 19-304.2, and 19-305.5)

Rule 19-301.7 is a conflict of interest Rule for attorneys.

Comment [5] warns of conflicts that may arise in the midst of a

representation for various reasons. The amendments clarify that

the problem is of apparent conflicts and allow the attorney to

avoid withdrawal from the matter only if each conflicted client

provides a signed waiver after having been provided informed

consent confirmed in writing.

Rule 19-304.4 requires attorneys to respect the rights of

third persons. The proposed amendment in a new section (c),

requires that, in communicating with third persons, an attorney

representing a client may not seek information relating to the

matter that the attorney knows or reasonably should know is

protected from disclosure by statute or established evidentiary

privilege unless the privilege has been waived. Attached to

that provision is a new Committee note and a new Comment [4].

The Reporter’s note provides some historical context.

Rule 19-304.2 deals with communications with persons

represented by an attorney. The amendment clarifies that

consent of an organization’s attorney is not required for

communication with a former employee and updates a reference in

Comment [6].

Rule 19-305.5 deals with multi-jurisdictional practice of

law and permits an attorney admitted in another State to provide

legal services in Maryland to the attorney’s employer or that

are authorized under Federal law. The amendment would allow

such an attorney to establish an office or continuous presence

in Maryland to provide those services and services that

exclusively involve the law of another jurisdiction in which the

attorney is licensed to practice. The American Bar Association

(“ABA”) currently has an active Rule 5.5 Working Group

considering possible amendments to the Model Rule. The Rules

Committee anticipates that additional amendments will be

considered after the ABA House of Delegates addresses revisions

to Model Rule 5.5. See the Reporter’s note to the Rule for more

information.

CATEGORY SEVEN (Rules 19-103, 19-218, 19-505, 19-605, 19-751,

and 19-752)

Rule 19-103 deals with the manner in which character

committees are reimbursed for their expenses. The current Rule

requires the State Board of Law Examiners to remit to the

committees a sum to defray “some of” the investigation expenses.

The amendment requires that the Board reimburse the committees

for their “actual” expenses incurred in conducting

investigations and a reasonable sum for administrative support

to the extent the committee chooses to obtain such

administrative support.

Rule 19-218 permits out-of-State attorneys to participate

in legal services programs in Maryland. The amendment modifies

the definition of “legal services program” to include a “program

offering free legal services” and not just a clinic offering

pro bono legal services.

Rule 19-505 requires the State Court Administrator to post

on the Judiciary’s website a list of the grantees and other

entities that serve low-income individuals. The amendment adds

that information regarding pro bono opportunities in court-based

legal services programs also be posted.

Rule 19-605 (b)(2) exempts attorneys on inactive/retired

status representing clients without compensation from having to

contribute to the Client Protection Fund or the Disciplinary

Fund. The amendment extends that exemption to practice in a

clinic or program offering free legal services and operating in

a courthouse facility.

Rule 19-751 deals with reinstatement of an attorney after a

suspension of six months or less. The amendment requires, as a

condition to reinstatement, that the attorney pay all

outstanding assessments owed to the Client Protection Fund or

the Disciplinary Fund. The same condition is added to Rule 19752, which deals with attorneys who have been disbarred,

suspended indefinitely or for a fixed period longer than six

months, transferred to disability inactive status, or had

resigned.

CATEGORY EIGHT (Rules 1-202, 4-504, 4-329, 9-211, 9-202, 2-507,

9-204.3, 16-302, 16-307, and 14-503)

Rule 1-202 is amended to correct a capitalization error.

Rule 4-504 is amended to update the language in a crossreference.

Rule 4-329 is amended to conform to the language in a 2023

statute and to correct a misspelling.

Rule 9-211 is amended to delete the requirement that a

post-divorce motion to restore a former name be served on any

party, unless ordered by the court.

Rule 9-202 is amended to delete references to a limited

divorce, which will be prospectively abolished effective October

1, 2023 by 2023 Md. Laws, Chapters 645 and 646 and to add the

requirement in cases under the Rule that a party provide an email address if not represented by an attorney.

Rule 2-507 is amended to delete a reference to an action

for limited divorce.

Rule 9-204.3 is a new Rule to implement 2023 Md. Laws,

Chapters 760 and 761 that seek to prevent the abduction of

children. Conforming amendments are made to Rules 16-302 (b)

and 16-307.

Rule 14-503 deals with actions to foreclose the right of

redemption in tax sale cases. If the property is located in a

municipal corporation, the amendment requires that a copy of the

complaint be mailed to the registered agent of that municipal

corporation.

For the further guidance of the Court and the public,

following the proposed new Rule and the proposed amendments to

each existing Rule 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:sdm

cc: Gregory Hilton, Clerk

RULE 2-422

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 400 - DISCOVERY

AMEND Rule 2-422 by creating new subsection (b)(1) with the

language of current section (b), by creating new subsection

(b)(2) limiting the number of requests by a party, and by making

a stylistic change, as follows:

Rule 2-422.

DISCOVERY OF DOCUMENTS, ELECTRONICALLY STORED

INFORMATION, AND PROPERTY – FROM PARTY

(a)

Scope

Any Subject to section (b) of this Rule, any party may

serve one or more requests to any other party (1) as to items

that are in the possession, custody, or control of the party

upon whom the request is served, to produce and permit the party

making the request, or someone acting on the party's behalf, to

inspect, copy, test or sample designated documents or

electronically stored information (including writings, drawings,

graphs, charts, photographs, sound recordings, images, and other

data or data compilations stored in any medium from which

information can be obtained, translated, if necessary, by the

respondent through detection devices into reasonably usable

form) or to inspect and copy, test, or sample any designated

RULE 2-422

tangible things which constitute or contain matters within the

scope of Rule 2-402 (a); or (2) to permit entry upon designated

land or other property in the possession or control of the party

upon whom the request is served for the purpose of inspection,

measuring, surveying, photographing, testing, or sampling the

property or any designated object or operation on the property,

within the scope of Rule 2-402 (a).

Cross reference: For inspection of property of a nonparty in an

action pending in this State and for discovery under the

Maryland Uniform Interstate Depositions and Discovery Act that

is not in conjunction with a deposition, see Rule 2-422.1.

(b)

Request

(1) Content

A request shall set forth the items to be inspected,

either by individual item or by category; describe each item and

category with reasonable particularity; and specify a reasonable

time, place, and manner of making the inspection and performing

the related acts.

The request may specify the form in which

electronically stored information is to be produced.

(2) Number

Unless otherwise ordered by the court or agreed upon by

the parties, a party may not serve upon any other party, at one

time or cumulatively, more than 30 requests pursuant to this

Rule, including all parts and sub-parts.

(c)

Response

RULE 2-422

The party to whom a request is directed shall serve a

written response within 30 days after service of the request or

within 15 days after the date on which that party's initial

pleading or motion is required, whichever is later.

The

response shall state, with respect to each item or category,

that (1) inspection and related activities will be permitted as

requested, (2) the request is refused, or (3) the request for

production in a particular form is refused.

each refusal shall be fully stated.

The grounds for

If the refusal relates to

part of an item or category, the part shall be specified.

If a

refusal relates to the form in which electronically stored

information is requested to be produced (or if no form was

specified in the request), the responding party shall state the

form in which it would produce the information.

Cross reference: See Rule 2-402 (b)(1) for a list of factors

used by the court to determine the reasonableness of discovery

requests and (b)(2) concerning the assessment of the costs of

discovery.

...

REPORTER’S NOTE

The Rules Committee was contacted by a practitioner

regarding a proposed change to Rule 2-422 governing the

discovery of documents, electronically stored information, and

property from a party. The Rule currently permits service of

one or more requests to produce items in the possession,

custody, or control of a party or to permit entry on the land or

other property in the possession or control of the party. The

RULE 2-422

Rule, however, contains no limit on the number of permitted

requests. The attorney informed the Committee that, because of

the unlimited scope, the Rule may be subject to abuse. She

noted her involvement in cases where the number of requests to a

party have exceeded 150. She advised that, in the United States

District Court for the District of Maryland, Rule 104 limits the

number of requests for production to no more than 30.

Proposed amendments to Rule 2-422 limit the number of

requests for production by a party unless otherwise ordered by

the court or agreed upon by the parties. New subsection (b)(1),

regarding the content of a request for production, is created

with the current language of section (b). New subsection (b)(2)

sets forth the limit on requests for production, permitting no

more than 30 requests.

A stylistic change is made in section (c).

RULE 2-433

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 400 - DISCOVERY

AMEND Rule 2-433 by replacing current section (b) with new

section (b), by adding a Committee note following section (b),

and by making stylistic changes, as follows:

Rule 2-433.

(a)

SANCTIONS

For Certain Failures of Discovery

Upon a motion filed under Rule 2-432 (a), the court, if

it finds a failure of discovery, may enter such orders in regard

to the failure as are just, including one or more of the

following:

(1) An order that the matters sought to be discovered, or

any other designated facts shall be taken to be established for

the purpose of the action in accordance with the claim of the

party obtaining the order;

(2) An order refusing to allow the failing party to support

or oppose designated claims or defenses, or prohibiting that

party from introducing designated matters in evidence; or

(3) An order striking out pleadings or parts thereof, or

staying further proceeding until the discovery is provided, or

dismissing the action or any part thereof, or entering a

RULE 2-433

judgment by default that includes a determination as to

liability and all relief sought by the moving party against the

failing party if the court is satisfied that it has personal

jurisdiction over that party.

If, in order to enable the court

to enter default judgment, it is necessary to take an account or

to determine the amount of damages or to establish the truth of

any averment by evidence or to make an investigation of any

matter, the court may rely on affidavits, conduct hearings or

order references as appropriate, and, if requested, shall

preserve to the plaintiff the right of trial by jury.

Instead of any of those orders or in addition thereto, the

court, after opportunity for hearing, shall require the failing

party or the attorney advising the failure to act or both of

them to pay the reasonable costs and expenses, including

attorneys' fees, caused by the failure, unless the court finds

that the failure was substantially justified or that other

circumstances make an award of costs and expenses unjust.

(b)

For Loss of Electronically Stored Information

Absent exceptional circumstances, a court may not impose

sanctions under these Rules on a party for failing to provide

electronically stored information that is no longer available as

a result of the routine, good-faith operations of an electronic

information system.

(b)

Failure to Preserve Electronically Stored Information

RULE 2-433

If electronically stored information that should have

been preserved in the reasonable anticipation or conduct of

litigation is lost because a party failed to take reasonable

steps to preserve it and the information cannot be restored or

replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the

information, may order measures no greater than necessary to

cure the prejudice; or

(2) only upon finding that the party acted with the intent

to deprive another party of the information’s use in the

litigation, may (A) presume that the lost information was

unfavorable to the party, (B) in a jury trial, instruct the jury

that it may or must presume that the information was unfavorable

to the party, or (C) dismiss the action or enter a default

judgment.

Committee note: Section (b) of this Rule applies only to

electronically stored information. Its application is limited

to parties and it does not apply to non-party subpoenas. Under

this section, the duty to preserve information arises when

litigation is reasonably anticipated or commenced. See Rule 2101 (a). While section (b) of this Rule does not define the

scope or limits of the duty to preserve, when the duty arises,

the duty under this section is limited to “reasonable steps.”

No sanction may be imposed if the court determines that

secondary evidence reasonably can restore or replace the

information that was not preserved. Subsection (b)(1) of this

Rule applies where conduct was not intentional. Subsection

(b)(2) of this Rule applies to intentional conduct. Section (b)

is modeled after Fed. R. Civ. P. 37 (e), as amended in 2015.

(c)

For Failure to Comply With Order Compelling Discovery

RULE 2-433

If a person fails to obey an order compelling discovery,

the court, upon motion of a party and reasonable notice to other

parties and all persons affected, may enter such orders in

regard to the failure as are just, including one or more of the

orders set forth in section (a) of this Rule.

If justice cannot

otherwise be achieved, the court may enter an order in

compliance with Rule 15-206 treating the failure to obey the

order as a contempt.

(d)

Award of Costs and Expenses, Including Attorneys' Fees

If a motion filed under Rule 2-403, 2-432, or 2-434 is

granted, the court, after opportunity for hearing, shall require

(1) the party or deponent whose conduct necessitated the motion,

(2) the party or the attorney advising the conduct, or (3) both

of them to pay to the moving party the reasonable costs and

expenses incurred in obtaining the order, including attorneys'

fees, unless the court finds that the opposition to the motion

was substantially justified or that other circumstances make an

award of expenses unjust.

If the motion is denied, the court, after opportunity for

hearing, shall require the (1) the moving party, (2) the

attorney advising the motion, or (3) both of them to pay to the

party or deponent who opposed the motion the reasonable costs

and expenses incurred in opposing the motion, including

attorneys' fees, unless the court finds that the making of the

RULE 2-433

motion was substantially justified or that other circumstances

make an award of expenses unjust.

If the motion is granted in part and denied in part, the

court may apportion the reasonable costs and expenses incurred

in relation to the motion among the parties and persons in a

just manner.

(e) Statement Regarding Costs and Expenses, Including

Attorneys' Fees

If a motion or a response to a motion contains a request

for an award of costs and expenses, including attorneys' fees,

the request shall (1) include, or (2) be separately supported

by, a verified statement in conformance with Rule 1-341 (b).

With the approval of the court, the party requesting the award

may defer the filing of the supporting statement until 15 days

after the court determines the party's entitlement to costs and

expenses, including attorneys' fees.

(f) Response to Request

Within 15 days after the filing of a statement in support

of a request for an award of costs, expenses, or attorneys'

fees, a party against whom the award in is sought may file a

response.

(g)

Guidelines

In determining an award of attorneys' fees and related

expenses in excess of $500 under this Rule, the court may

RULE 2-433

consider the Guidelines Regarding Compensable and Noncompensable Attorneys' Fees and Related Expenses contained in an

Appendix to these Rules.

Source: This Rule is derived as follows:

Section (a) is derived from former Rule 422 c 1 and 2.

Section (b) is new and is derived from the 2006 version of Fed.

R. Civ. P. 37 (f) 2015 version of Fed. R. Civ. P. 37 (e).

Section (c) is derived from former Rule 422 b.

Section (d) is derived from the 1980 version of Fed. R. Civ. P.

37 (a) (4) and former Rule 422 a 5, 6 and 7.

Section (e) is new.

Section (f) is new.

Section (g) is new.

REPORTER’S NOTE

Proposed amendments to Rule 2-433 were presented to the

Rules Committee by an attorney to address concerns regarding

Maryland’s “safe harbor” Rule. Current section (b) of Rule 2433 prohibits a court, absent exceptional circumstances, from

sanctioning a party for failing to provide electronically stored

information when the information is unavailable as the result of

the routine, good faith operations of an electronic information

system. The attorney advised the Committee that Rule 2-433 (b)

no longer is functioning. He explained that the current “safe

harbor” provision offers little protection, has not been used

since its adoption in 2008, and lacks clarity. Amendments to

Rule 2-433 can clarify the culpability required to support

sanctions when electronically stored information is lost. The

attorney informed the Committee that the “safe harbor” provision

of the parallel federal rule was amended in 2015 and suggested

similar changes to Rule 2-433.

The deletion of current section (b) of Rule 2-433 is

proposed. A new section (b), derived from the 2015 amendments

to Federal Rule of Civil Procedure 37 (e), addresses the failure

to preserve electronically stored information. The new section

sets forth appropriate sanctions when information that should

have been preserved in reasonable anticipation or conduct of

litigation and cannot be restored or replaced through other

discovery is lost because a party failed to take reasonable

RULE 2-433

preservation steps. Subsection (b)(1) permits the court to

order measures to cure the prejudice when the loss of

information prejudices another party. Subsection (b)(2) sets

forth specific sanctions that may be ordered, including

presumptions, jury instructions, dismissals, or default

judgments, upon a finding that a party acted to deprive another

party of the information intentionally.

A proposed Committee note following section (b) reiterates

that the section applies only to electronically stored

information requested from parties. The Committee note

highlights the duty to preserve information, emphasizes that

sanctions are not imposed if the lost information can be

restored or replaced with secondary evidence, and clarifies the

different sanctions for intentional and unintentional conduct.

Stylistic changes are made in sections (d) and (f).

RULE 2-504

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 500 - TRIAL

AMEND Rule 2-504 by clarifying the actions that may not

occur after completion of discovery in subsection (b)(1)(D), by

adding new subsection (b)(1)(E), by adding a Committee note

following new subsection (b)(1)(E), and by re-lettering

subsequent subsections, as follows:

Rule 2-504.

(a)

SCHEDULING ORDER

Order Required

(1) Unless otherwise ordered by the County Administrative

Judge for one or more specified categories of actions, the court

shall enter a scheduling order in every civil action, whether or

not the court orders a scheduling conference pursuant to Rule 2504.1.

(2) The County Administrative Judge shall prescribe the

general format of scheduling orders to be entered pursuant to

this Rule.

A copy of the prescribed format shall be furnished

to the Chief Judge of the Court of Appeals.

(3) Unless the court orders a scheduling conference pursuant

to Rule 2-504.1, the scheduling order shall be entered as soon

as practicable, but no later than 30 days after an answer is

RULE 2-504

filed by any defendant.

If the court orders a scheduling

conference, the scheduling order shall be entered promptly after

conclusion of the conference.

(b)

Contents of Scheduling Order

(1) Required

A scheduling order shall contain:

(A) an assignment of the action to an appropriate

scheduling category of a differentiated case management system

established pursuant to Rule 16-302;

(B) one or more dates by which each party shall identify

each person whom the party expects to call as an expert witness

at trial, including all information specified in Rule 2-402

(g)(1);

notice required by Rule 2-504.3 (b) concerning computergenerated evidence;

(D) a date by which all discovery must be completed, after

which no deposition or other discovery may be had, except by

leave of court on a showing of good cause or by written consent

of all parties;

(E) a date, not less than 35 days before the date for

completion of discovery pursuant to subsection (b)(1)(D) of this

Rule, after which no interrogatories, requests for admission,

RULE 2-504

requests for production or inspection, or motions for physical

or mental examination may be served;

Committee note: The dates set forth pursuant to subsections

(b)(1)(D) and (E) of this Rule are not intended to alter a

party’s obligation to supplement promptly discovery responses as

required by Rule 2-401 (e).

(E)(F) a date by which all dispositive motions must be

filed, which shall be no earlier than 15 days after the date by

which all discovery must be completed;

Cross reference: See Rule 2-501 (a), which provides that after

the date by which all dispositive motions are to be filed, a

motion for summary judgment may be filed only with the

permission of the court.

(F)(G) a date by which any additional parties must be

joined;

(G)(H) a date by which amendments to the pleadings are

allowed as of right; and

(H)(I) any other matter resolved at a scheduling

conference held pursuant to Rule 2-504.1.

(2) Permitted

A scheduling order also may contain:

(A) any limitations on discovery otherwise permitted under

these rules, including reasonable limitations on the number of

interrogatories, depositions, and other forms of discovery;

(B) the resolution of any disputes existing between the

parties relating to discovery;

RULE 2-504

available and appropriate form of alternative dispute

resolution, including a requirement that individuals with

authority to settle be present or readily available for

consultation during the alternative dispute resolution

proceeding, provided that the referral or direction conforms to

the limitations of Rule 2-504.1 (e);

(D) an order designating or providing for the designation

of a neutral expert to be called as the court's witness;

(E) in an action involving child custody or child access,

an order appointing child's counsel in accordance with Rule 9205.1;

(F) a further scheduling conference or pretrial conference

date;

(G) provisions for discovery of electronically stored

information;

(H) a process by which the parties may assert claims of

privilege or of protection after production;

(I) procedures and requirements the court finds necessary

when any proceedings in the action will be conducted by remote

electronic participation pursuant to Title 2, Chapter 800 of

these Rules; and

(J) any other matter pertinent to the management of the

action.

RULE 2-504

The scheduling order controls the subsequent course of the

action but shall be modified by the court to prevent injustice.

Cross reference: See Rule 5-706 for authority of the court to

appoint expert witnesses.

Source: This Rule is in part new and in part derived as follows:

Subsection (b)(2)(G) is new and is derived from the 2006 version

of Fed. R. Civ. P. 16(b)(5).

Subsection (b)(2)(H) is new and is derived from the 2006 version

of Fed. R. Civ. P. 16(b)(6).

REPORTER’S NOTE

A practitioner contacted the Rules Committee regarding

issues with Rule 2-504. The attorney noted that current Rule 2504 provides that scheduling orders state a date for the close

of discovery. However, the close of discovery is undefined,

creating arguments from attorneys in circuit court about whether

the close of discovery refers to a last date to send discovery

requests or a last date to respond to requests. The

practitioner noted that the District of Columbia requires

scheduling orders to state an end date for sending both requests

and responses. See D.C. Super. Ct. R. Civ. P. 16. The

practitioner suggested that that Maryland Rule be amended to

include similar clarifying language.

Subsection (b)(1) of Rule 2-504 lists the required

components of a scheduling order. A proposed amendment to

subsection (b)(1)(D) clarifies that no depositions or other

discovery may be had, except by leave of court on a showing of

good cause or by written consent of all parties, after the

discovery completion date in the scheduling order. New

subsection (b)(1)(E) requires that a scheduling order include a

date after which no discovery requests may be served. The date

must be not less than 35 days before the date for completion of

discovery. A Committee note after the new subsection highlights

that the dates in the scheduling order do not alter a party’s

obligation to supplement discovery responses. The subsequent

subsections are re-lettered accordingly.

RULE 2-501

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 500 - TRIAL

AMEND Rule 2-501 by updating a reference in section (a) and

making a stylistic change, as follows:

Rule 2-501.

(a)

MOTION FOR SUMMARY JUDGMENT

Motion

Any party may file a written motion for summary judgment

on all or part of an action on the ground that there is no

genuine dispute as to any material fact and that the party is

entitled to judgment as a matter of law.

The motion shall be

supported by affidavit if it is (1) filed before the day on

which the adverse party's initial pleading or motion is filed or

(2) based on facts not contained in the record.

A motion for

summary judgment may not be filed: (A) after any evidence is

received at trial on the merits, or (B) unless permission of the

court is granted, after the deadline for dispositive motions

specified in the scheduling order entered pursuant to Rule 2504(b)(1)(E)(b)(1)(F).

...

RULE 2-501

REPORTER’S NOTE

A conforming amendment is proposed to Rule 2-501 to update

a reference in section (a) to Rule 2-504. Amendments are

proposed to Rule 2-504 also, resulting in re-lettered

subsections.

Rule 3-202

MARYLAND RULES OF PROCEDURE

TITLE 3 – CIVIL PROCEDURE – DISTRICT COURT

CHAPTER 200 – PARTIES

AMEND Rule 3-202 by creating new subsection (b)(1) with the

language of current section (b), with stylistic changes, and by

adding new subsection (b)(2) concerning a peace order filed on

behalf of a minor, as follows:

Rule 3-202.

(a)

CAPACITY

Generally

Applicable substantive law governs the capacity to sue or

be sued of an individual, a corporation, a person acting in a

representative capacity, an association, or any other entity.

(b)

Suits by Individuals Under Disability

(1) Generally

An individual under disability to sue may sue by a

guardian or other like fiduciary or, if none, by next friend,

subject to any order of court for the protection of the

individual under disability.

When Except as provided in

subsection (b)(2) of this Rule, when a minor is in the sole

custody of one of it’s the minor’s parents, that parent has the

exclusive right to sue on behalf of the minor for a period of

one year following the accrual of the cause of action, and if.

Rule 3-202

If the custodial parent fails to institute suit within the one

year one-year period, any person interested in the minor shall

have the right to institute suit on behalf of the minor as next

friend upon first mailing notice to the last known address of

the custodial parent.

(2) Peace Order Filed on Behalf of a Minor

Notwithstanding the provisions in subsection (b)(1) of

this Rule, a parent, whether or not the custodial parent, or the

minor’s guardian may petition the court for a peace order on

behalf of a minor child within the time permitted by Code,

Courts Article, § 3-1503.

(c)

Settlement of Suits on Behalf of Minors

(1) Generally

Subject to subsection (c)(2) of this Rule, a next friend

who files an action for the benefit of a minor may settle the

claim on behalf of the minor.

(2) Approval of Court

(A) If the next friend is the only living parent of the

minor, the settlement need not be approved by a court.

(B) If the next friend is not the only living parent of

the minor, the settlement must be approved (i) by each living

parent of the minor, or (ii) after a reasonable attempt at

notice to each living parent and an opportunity for a hearing,

by a court.

Rule 3-202

settlement must be approved by a court.

(D) A motion for court approval shall be filed in the

court where the action is pending.

Cross reference: For settlement of suits on behalf of minors,

see Code, Courts Article, § 6-405. For settlement of a claim

not in suit asserted by a parent or person in loco parentis

under a liability insurance policy, see Code, Insurance Article,

§ 19-113.

(d)

Suits Against Individuals Under Disability

In a suit against an individual under disability, the

guardian or other like fiduciary, if any, shall defend the

action.

The court shall order any guardian or other fiduciary

in its jurisdiction who fails to comply with this section to

defend the individual as required.

If there is no such guardian

or other fiduciary, the court shall appoint an attorney to

represent and defend the individual.

Source: This Rule is derived as follows:

Section (a) is new.

Section (b) is derived in part from former M.D.R. 205 c and d

and is in part new.

Section (c) is new.

Section (d) is derived from former M.D.R. 205 e.

REPORTER’S NOTE

The Rules Committee was recently alerted to a potential

issue concerning peace and protective orders for minor child

victims. In certain circumstances, the alleged abuse may not

qualify as “child abuse” and the child may not qualify as a

“person eligible for relief” under the protective order statute.

Rule 3-202

See Code, Family Law Article, § 4-501. In such situations, a

peace order would need to be sought instead of a protective

order. For example, a child may report to the non-custodial

parent that a new significant other of the custodial parent

threatened the child. However, the peace order statutes do not

contain any express authority for another individual to file a

petition on behalf of a minor. As a result, Rule 3-202

concerning capacity governs who may file a suit on behalf of a

minor in the District Court. The current Rule requires a noncustodial parent to wait one year before filing if the custodial

parent does not file. However, pursuant to Code, Courts

Article, § 3-1503, a peace order petition must be filed within

30 days after the relevant act occurred.

To address this issue, the Domestic Violence and Peace

Order Subcommittee of the Judicial Council’s Domestic Law

Committee drafted proposed amendments to Rule 3-202. The Rules

Committee reviewed and updated the proposed amendments.

Proposed amendments to Rule 3-202 create subsection (b)(1)

with the language of current section (b) to address generally

the filing of suits by an individual under disability. Several

stylistic amendments are made to the subsection.

Proposed new subsection (b)(2) addresses the filing of a

peace order request on behalf of a minor. The subsection notes

that notwithstanding the provisions of subsection (b)(1), a

parent, whether or not the custodial parent, or a guardian may

petition for a peace order on behalf of a minor.

Rule 3-731

MARYLAND RULES OF PROCEDURE

TITLE 3 – CIVIL PROCEDURE – DISTRICT COURT

CHAPTER 700 – SPECIAL PROCEEDINGS

AMEND Rule 3-731 by adding new section (c) concerning

service of peace orders, by re-lettering former section (c) as

new section (d), and by making stylistic changes, as follows:

Rule 3-731.

(a)

PEACE ORDERS

Generally

Proceedings for a peace order are governed by Code,

Courts Article, Title 3, Subtitle 15.

(b)

Form of Petition

A petition for relief under the statute shall be

substantially in the form approved by the State Court

Administrator and the Chief Justice of the Supreme Court, posted

on the Judiciary website, and available in the offices of the

clerks of the District Court.

(c)

Service

(1) Generally

Service of an interim, temporary, or final peace order

shall be made in accordance with Code, Courts Article, § 31503.1, § 3-1504, or § 3-1505, as applicable.

(2) Service on Custodial Parent

Rule 3-731

In addition to the service required by subsection (c)(1)

of this Rule, if a petition is filed by a non-custodial parent

on behalf of a minor pursuant to Rule 3-202 (c), service of a

temporary or final peace order shall be made in the same manner

on the custodial parent.

If a petition is filed by a guardian

on behalf of a minor pursuant to Rule 3-202 (c), service of a

temporary or final peace order shall be made on each parent in

the same manner required by subsection (c)(1).

(d)

Modification; Rescission; Extension

Upon the filing of a motion, a judge may modify, rescind,

or extend a peace order.

Modification, rescission, and

extension of peace orders are governed by Code, Courts and

Judicial Proceedings Article, § 3-1506(a).

If a motion to

extend a final peace order is filed before the original

expiration date of the peace order, and the hearing is not held

by that date, the peace order shall be automatically extended

until the hearing is held.

The motion shall be presented to a

judge forthwith.

Committee note: Although Code, Courts and Judicial Proceedings

Article, § 3-1506(a) automatically extends a peace order under

certain circumstances, judges are encouraged to issue an order

even when the automatic extension is applicable.

Source: This Rule is new.

Rule 3-731

REPORTER’S NOTE

Proposed amendments to Rule 3-731 address concerns about

the ability of a non-custodial parent or a guardian to file a

petition for a peace order on behalf of a minor. For further

discussion, see the Reporter’s note to Rule 3-202. Rule 3-731

is amended to ensure that a custodial parent is informed if a

non-custodial parent files a peace order petition on behalf of

the minor child and that each parent is informed if a guardian

files a peace order petition on behalf of the minor.

Proposed amendments to Rule 3-731 add new section (c)

addressing service of peace orders. Subsection (c)(1) concerns

service generally and cites to the relevant statutory sections.

Code, Courts Article, § 3-1503.1 requires that an interim peace

order be served on the respondent by a law enforcement officer.

Unless the respondent was previously served with an interim

peace order, § 3-1504 requires that a temporary peace order be

served by a law enforcement officer. § 3-1505 requires service

of a final peace order to be in open court or by first-class

mail.

The Rules Committee debated the benefits and drawbacks of

different methods of service on a parent when the petition is

filed by either a non-custodial parent or a guardian. Although

personal service by a law enforcement officer may require more

resources and potentially delay proceedings if service is

difficult to obtain, the Committee determined that these

concerns were outweighed by the importance of ensuring that the

custodial parent receives timely actual notice of the proceeding

concerning the minor. Accordingly, subsection (c)(2) provides

that if a petition is filed by a non-custodial parent on behalf

of a minor, a custodial parent should be served with a temporary

or final peace order in the same manner as described in

subsection (c)(1). Similarly, if a petition is filed by a

guardian on behalf of a minor, each parent is required to be

served in the same manner.

Rule 2-202

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 200 – PARTIES

AMEND Rule 2-202 by making stylistic changes in section

(b), as follows:

Rule 2-202.

(a)

CAPACITY

Generally

Applicable substantive law governs the capacity to sue or

be sued of an individual, a corporation, a person acting in a

representative capacity, an association, or any other entity.

(b)

Suits by Individuals Under Disability

An individual under disability to sue may sue by a

guardian or other like fiduciary or, if none, by next friend,

subject to any order of court for the protection of the

individual under disability.

When a minor is in the sole

custody of one of it’s the minor’s parents, that parent has the

exclusive right to sue on behalf of the minor for a period of

one year following the accrual of the cause of action, and if.

If the custodial parent fails to institute suit within the one

year one-year period, any person interested in the minor shall

have the right to institute suit on behalf of the minor as next

Rule 2-202

friend upon first mailing notice to the last known address of

the custodial parent.

(c)

Settlement of Suits on Behalf of Minors

(1) Generally

Subject to subsection (c)(2) of this Rule, a next friend

who files an action for the benefit of a minor may settle the

claim on behalf of the minor.

(2) Approval of Court

(A) If the next friend is the only living parent of the

minor, the settlement need not be approved by a court.

(B) If the next friend is not the only living parent of

the minor, the settlement must be approved (i) by each living

parent of the minor, or (ii) after a reasonable attempt at

notice to each living parent and an opportunity for a hearing,

by a court.

settlement must be approved by a court.

(D) A motion for court approval shall be filed in the

court where the action is pending.

Cross reference: For settlement of suits on behalf of minors,

see Code, Courts Article, § 6-405. For settlement of a claim

not in suit asserted by a parent or person in loco parentis

under a liability insurance policy, see Code, Insurance Article,

§ 19-113.

(d)

Suits Against Individuals Under Disability

Rule 2-202

In a suit against an individual under disability, the

guardian or other like fiduciary, if any, shall defend the

action.

The court shall order any guardian or other fiduciary

in its jurisdiction who fails to comply with this section to

defend the individual as required.

If there is no such guardian

or other fiduciary, the court shall appoint an attorney to

represent and defend the individual.

Source: This Rule is derived as follows:

Section (a) is new.

Section (b) is derived from former Rule 205 c and d.

Section (c) is new.

Section (d) is derived from former Rule 205 e 1 and 2.

REPORTER’S NOTE

202.

Stylistic amendments are proposed in section (b) of Rule 2-

Rule 7-112

MARYLAND RULES OF PROCEDURE

TITLE 7 – APPELLATE AND OTHER JUDICIAL REVIEW IN CIRCUIT COURT

CHAPTER 100 – APPEALS FROM THE DISTRICT COURT TO THE CIRCUIT

COURT

AMEND Rule 7-112 by adding language to subsection (d)(1),

as follows:

Rule 7-112.

APPEALS HEARD DE NOVO

. . .

(d)

Procedure in Circuit Court

(1) The form and sufficiency of pleadings and the capacity

requirements in an appeal to be heard de novo are governed by

the rules applicable in the District Court.

A charging document

may be amended pursuant to Rule 4-204.

(2) If the action in the District Court was tried under Rule

3-701, there shall be no pretrial discovery under Chapter 400 of

Title 2, the circuit court shall conduct the trial de novo in an

informal manner, and Title 5 of these rules does not apply to

the proceedings.

(3) Except as otherwise provided in this section, the appeal

shall proceed in accordance with the rules governing cases

instituted in the circuit court.

Rule 7-112

Cross reference: See Rule 2-327 concerning the waiver of a jury

trial on appeal from certain judgments entered in the District

Court in civil actions.

. . .

REPORTER’S NOTE

Proposed amendments to Rule 3-202 address concerns about

the capacity requirements for filing a peace order petition on

behalf of a minor. For more information, see the Reporter’s

note to Rule 3-202.

Peace order requests are filed in the District Court or in

Juvenile Court, under certain circumstances. To ensure that a

de novo appeal of a peace order petition originally filed by a

non-custodial parent or guardian on behalf of a minor is not

dismissed because the individual would not have the capacity to

file suit in the circuit court on behalf of the minor, a

proposed amendment to Rule 7-112 (d)(1) clarifies that the

capacity requirements of a de novo appeal are governed by the

applicable Rules of the District Court.

RULE 9-208

MARYLAND RULES OF PROCEDURE

TITLE 9 – FAMILY LAW ACTIONS

CHAPTER 200 – DIVORCE, ANNULMENT, ALIMONY, CHILD SUPPORT, AND

CHILD CUSTODY

AMEND Rule 9-208 by adding and deleting certain language in

subsection (e)(1) to clarify the service of a magistrate’s

recommendations and proposed order; by adding a Committee note

after subsection (e)(1); by updating an internal reference in

section (f); by deleting current section (h); by re-lettering

current section (i) as section (h); by updating a cross

reference after re-lettered section (h); by adding new section

(i) using the language of current section (h), with a stylistic

change; and by making stylistic changes, as follows:

Rule 9-208.

(a)

REFERRAL OF MATTERS TO STANDING MAGISTRATES

Referral

(1) As of Course

If a court has a full-time or part-time standing

magistrate for domestic relations matters and a hearing has been

requested or is required by law, the following matters arising

under this Chapter shall be referred to the standing magistrate

as of course, unless, in a specific case, the court directs that

the matter be heard by a judge:

RULE 9-208

(A) uncontested divorce, annulment, or alimony;

(B) alimony pendente lite;

(D) support of dependents;

(E) preliminary or pendente lite possession or use of the

family home or family-use personal property;

(F) subject to Rule 9-205, pendente lite custody of or

visitation with children or modification of an existing order or

judgment as to custody or visitation;

(G) subject to Rule 9-205 as to child access disputes,

constructive civil contempt by reason of noncompliance with an

order or judgment relating to custody of or visitation with a

minor child, the payment of alimony or support, or the

possession or use of the family home or family-use personal

property, following service of a show cause order upon the

person alleged to be in contempt;

(H) modification of an existing order or judgment as to

the payment of alimony or support or as to the possession or use

of the family home or family-use personal property;

(I) counsel fees and assessment of court costs in any

matter referred to a magistrate under this Rule;

(J) stay of an earnings withholding order; and

RULE 9-208

(K) such other matters arising under this Chapter and set

forth in the court's case management plan filed pursuant to Rule

16-302 (b).

Cross reference:

See Rule 16-807.

Committee note: Examples of matters that a court may include in

its case management plan for referral to a standing magistrate

under subsection (a)(1)(K) of this Rule include scheduling

conferences, settlement conferences, uncontested matters in

addition to the uncontested matters listed in subsection

(a)(1)(A) of this Rule, and the application of methods of

alternative dispute resolution.

(2) By Order on Agreement of the Parties

By agreement of the parties, any other matter or issue

arising under this Chapter may be referred to the magistrate by

order of the court.

(b)

Powers

Subject to the provisions of an order referring a matter

or issue to a magistrate, the magistrate has the power to

regulate all proceedings in the hearing, including the power to:

(1) direct the issuance of a subpoena to compel the

attendance of witnesses and the production of documents or other

tangible things;

(2) administer oaths to witnesses;

(3) rule on the admissibility of evidence;

(4) examine witnesses;

(5) convene, continue, and adjourn the hearing, as required;

RULE 9-208

(6) recommend contempt proceedings or other sanctions to the

court; and

(7) recommend findings of fact and conclusions of law.

(c)

Hearing

(1) Notice

A written notice of the time and place of the hearing

shall be sent to all parties.

(2) Attendance of Witnesses

A party may procure by subpoena the attendance of

witnesses and the production of documents or other tangible

things at the hearing.

(3) Record

All proceedings before a magistrate shall be recorded

either stenographically or electronically, unless the making of

the record is waived in writing by all parties.

A waiver of the

making of a record is also a waiver of the right to file

exceptions that would require review of the record for their

determination.

(d)

Contempt Proceedings; Referral for De Novo Hearing

If, at any time during a hearing on a party's alleged

constructive civil contempt, the magistrate concludes that there

are reasonable grounds to believe that the party is in contempt

and that incarceration may be an appropriate sanction, the

magistrate shall (1) set a de novo hearing before a judge of the

RULE 9-208

circuit court, (2) cause the alleged contemnor to be served with

a summons to that hearing, and (3) terminate the magistrate's

hearing without making a recommendation.

If the alleged

contemnor is not represented by an attorney, the date of the

hearing before the judge shall be at least 20 days after the

date of the magistrate's hearing and, before the magistrate

terminates the magistrate's hearing, the magistrate shall advise

the alleged contemnor on the record of the contents of the

notice set forth in Rule 15-206 (c)(2).

(e)

Findings and Recommendations

(1) Generally

Except as otherwise provided in section (d) of this

Rule, the magistrate shall prepare written recommendations,

which shall include a brief statement of the magistrate's

findings and shall be accompanied by a proposed order.

The

magistrate shall notify each party provide notice of the

recommendations and contents of the proposed order to each

party, either (A) on the record at the conclusion of the hearing

or by written notice served pursuant to Rule 1-321 (B) within

ten days after the conclusion of the hearing in a matter

referred pursuant to subsection (a)(1) of this Rule or within 30

days after the conclusion of the hearing in a matter referred

pursuant to subsection (a)(2) of this Rule, by filing the

written recommendations and proposed order with the clerk, who

RULE 9-208

promptly shall serve the recommendations and proposed order on

each party as provided by Rule 20-205 in MDEC counties or Rule

1-321 in Baltimore City until it becomes an MDEC county.

If the

parties were notified by the magistrate on the record, the

magistrate shall file the written recommendations and proposed

order with the clerk promptly after the hearing. The clerk shall

make a docket entry notation of the date and method of

notification.

In a matter referred pursuant to subsection

(a)(1) of this Rule, the written notice shall be given within

ten days after the conclusion of the hearing.

In a matter

referred pursuant to subsection (a)(2) of this Rule, the written

notice shall be given within 30 days after the conclusion of the

hearing.

Promptly after notifying the parties, the magistrate

shall file the recommendations and proposed order with the

court.

Committee note: Rule 20-205 (c) requires that the clerk in a

MDEC county serve certain individuals, including persons

entitled to service who are not registered users of MDEC, in the

manner set forth in Rule 1-321.

(2) Supplementary Report

The magistrate may issue a supplementary report and

recommendations on the magistrate's own initiative before the

court enters an order or judgment.

A party may file exceptions

to new matters contained in the supplementary report and

recommendations in accordance with section (f) of this Rule.

RULE 9-208

(f)

Exceptions

Within ten days after recommendations are placed on the

record or served pursuant to section (e) subsection (e)(1)(B) of

this Rule, a party may file exceptions with the clerk.

Within

that period or within ten days after service of the first

exceptions, whichever is later, any other party may file

exceptions.

Exceptions shall be in writing and shall set forth

the asserted error with particularity.

Any matter not

specifically set forth in the exceptions is waived unless the

court finds that justice requires otherwise.

(g)

Requirements for Excepting Party

At the time the exceptions are filed, the excepting party

shall do one of the following: (1) order a transcript of so much

of the testimony as is necessary to rule on the exceptions, make

an agreement for payment to ensure preparation of the

transcript, and file a certificate of compliance stating that

the transcript has been ordered and the agreement has been made;

(2) file a certification that no transcript is necessary to rule

on the exceptions; (3) file an agreed statement of facts in lieu

of the transcript; or (4) file an affidavit of indigency and

motion requesting that the court accept an electronic recording

of the proceedings as the transcript.

Within ten days after the

entry of an order denying a motion under subsection (g)(4) of

this section Rule, the excepting party shall comply with

RULE 9-208

subsection (g)(1) of this Rule.

The transcript shall be filed

within 30 days after compliance with subsection (g)(1) of this

Rule or within such longer time, not exceeding 60 days after the

exceptions are filed, as the magistrate may allow.

For good

cause shown, the court may shorten or extend the time for the

filing of the transcript.

The excepting party shall serve a

copy of the transcript on the other party.

The court may

dismiss the exceptions of a party who has not complied with this

section.

Cross reference: For the shortening or extension of time

requirements, see Rule 1-204.

(h)

Entry of Orders

(1) In General

Except as provided in subsections (2) and (3) of this

section,

(A) the court shall not direct the entry of an order or

judgment based upon the magistrate's recommendations until the

expiration of the time for filing exceptions, and, if exceptions

are timely filed, until the court rules on the exceptions; and

(B) if exceptions are not timely filed, the court may

direct the entry of the order or judgment as recommended by the

magistrate.

(2) Immediate Orders

RULE 9-208

This subsection does not apply to the entry of orders in

contempt proceedings.

If a magistrate finds that extraordinary

circumstances exist and recommends that an order be entered

immediately, the court shall review the file and any exhibits

and the magistrate's findings and recommendations and shall

afford the parties an opportunity for oral argument.

The court

may accept, reject, or modify the magistrate's recommendations

and issue an immediate order.

An order entered under this

subsection remains subject to a later determination by the court

on exceptions.

(3) Contempt Orders

(A) On Recommendation by the Magistrate

On the recommendation by the magistrate that an

individual be found in contempt, the court may hold a hearing

and direct the entry of an order at any time.

The order may not

include a sanction of incarceration.

(B) Following a De Novo Hearing

Upon a referral from the magistrate pursuant to

section (d) of this Rule, the court shall hold a de novo hearing

and enter any appropriate order.

(i)(h)

Hearing on Exceptions

(1) Generally

The court may decide exceptions without a hearing,

unless a request for a hearing is filed with the exceptions or

RULE 9-208

by an opposing party within ten days after service of the

exceptions.

The exceptions shall be decided on the evidence

presented to the magistrate unless: (A) the excepting party sets

forth with particularity the additional evidence to be offered

and the reasons why the evidence was not offered before the

magistrate, and (B) the court determines that the additional

evidence should be considered.

If additional evidence is to be

considered, the court may remand the matter to the magistrate to

hear and consider the additional evidence or conduct a de novo

hearing.

(2) When Hearing to Be Held

A hearing on exceptions, if timely requested, shall be

held within 60 days after the filing of the exceptions unless

the parties otherwise agree in writing.

If a transcript cannot

be completed in time for the scheduled hearing and the parties

cannot agree to an extension of time or to a statement of facts,

the court may use the electronic recording in lieu of the

transcript at the hearing or continue the hearing until the

transcript is completed.

Cross reference: See, Code, Family Law Article, § 10-131 10133, prescribing certain time limits when a stay of an earnings

withholding order is requested.

(i)

Entry of Orders

(1) In General

RULE 9-208

Except as provided in subsections (i)(2) and (i)(3) of

this Rule:

(A) the court shall not direct the entry of an order or

judgment based upon the magistrate's recommendations until the

expiration of the time for filing exceptions and, if exceptions

are timely filed, until the court rules on the exceptions; and

(B) if exceptions are not timely filed, the court may

direct the entry of the order or judgment as recommended by the

magistrate.

(2) Immediate Orders

This subsection does not apply to the entry of orders in

contempt proceedings.

If a magistrate finds that extraordinary

circumstances exist and recommends that an order be entered

immediately, the court shall review the file, any exhibits, and

the magistrate's findings and recommendations and shall afford

the parties an opportunity for oral argument.

After the

opportunity for oral argument has been provided, the court may

accept, reject, or modify the magistrate's recommendations and

issue an immediate order.

An order entered under this

subsection remains subject to a later determination by the court

on exceptions.

(3) Contempt Orders

(A) On Recommendation by the Magistrate

RULE 9-208

On the recommendation by the magistrate that an

individual be found in contempt, the court may hold a hearing

and direct the entry of an order at any time.

The order may not

include a sanction of incarceration.

(B) Following a De Novo Hearing

Upon a referral from the magistrate pursuant to

section (d) of this Rule, the court shall hold a de novo hearing

and enter any appropriate order.

Source: This Rule is derived in part from Rule 2-541 and former

Rule S74A and is in part new.

REPORTER’S NOTE

Rule 9-208 addresses the referral of matters to magistrates

in family law actions. Several amendments are proposed to Rule

9-208 to address stylistic and substantive concerns with the

Rule.

Section (e) addresses the findings and recommendations of a

magistrate, including service of those recommendations. The

Rules Committee received a request from the County

Administrative Judges to amend Rule 9-208 (e)(1) and Rule 2-541

(e)(3) to reconcile the service provisions with Rule 20-205 (c)

concerning the electronic service of magistrates’

recommendations and reports. Rule 9-208 (e)(1) currently

states, “The magistrate shall notify each party of the

recommendations, either on the record at the conclusion of the

hearing or by written notice served pursuant to Rule 1-321.”

The current language contemplates that magistrates are

responsible for service instead of clerks. However, in MDEC

jurisdictions, Rule 20-205 (c) explicitly states, “The clerk is

responsible for serving writs, notices, official communications,

court orders, and other dispositions, in the manner set forth in

Rule 1-321...” Proposed amendments to subsection (e)(1) clarify

that the clerk, not the magistrate, is responsible for serving

the recommendations and proposed order as provided by Rule 2042

RULE 9-208

205 in MDEC counties or Rule 1-321 in Baltimore City. New

language requires the clerk to note on the docket the date and

method of notification of the recommendations.

Additional language in subsection (e)(1) clarifies when

written recommendations and a proposed order shall be filed

after a hearing and when service of the written documents must

occur. A proposed Committee note following the subsection

highlights that Rule 20-205 (c) requires service in the manner

set forth in Rule 1-321 for certain individuals, even in a MDEC

county.

A proposed amendment in section (f) updates the current

reference to section (e) to new subsection (e)(1)(B).

Additional stylistic changes are proposed to Rule 9-208.

Current section (h) concerning entry of orders is deleted,

current section (i) is re-lettered as section (h), and the

content of current section (h), with a stylistic change, is

added as new section (i). A cross reference after new section

(h) is updated also.

Stylistic changes are also made throughout section (g).

RULE 2-541

MARYLAND RULES OF PROCEDURE

TITLE 2 – CIVIL PROCEDURE – CIRCUIT COURT

CHAPTER 500 - TRIAL

AMEND Rule 2-541 by adding taglines to subsections (b)(1)

and (b)(2); by clarifying the tagline of section (e); by

replacing the current tagline of subsection (e)(1); by adding

and deleting certain language in subsection (e)(1) to clarify

the service of a magistrate’s recommendations and proposed

order; by adding a Committee note after subsection (e)(1); by

creating new subsection (e)(2) with language in current

subsection (e)(1), with some additions and deletions; by

creating new subsection (e)(3) with language in current

subsection (e)(1), with some additions and deletions; by

renumbering current subsection (e)(2) as (e)(4), adding language

to the tagline, and making a stylistic change; by renumbering

current subsection (e)(3) as (e)(5), adding language to clarify

the tagline, deleting the current language of the subsection,

and adding language to clarify the service of a magistrate’s

report; by adding a Committee note at the end of section (e); by

deleting current section (f); by re-lettering current sections

(g) and (h) as (f) and (g), respectively; and by adding new

section (h) using the language of current section (f), with

stylistic changes, as follows:

RULE 2-541

Rule 2-541.

(a)

MAGISTRATES

Appointment--Compensation

The appointment and compensation of standing and special

magistrates shall be governed by Rule 16-807.

(b)

Referral of Cases

(1) Domestic Relations Matters

Referral of domestic relations matters to a magistrate

shall be in accordance with Rule 9-208 and shall proceed only in

accordance with that Rule.

(2) Other Matters

On motion of any party or on its own initiative, the

court, by order, may refer to a magistrate any other matter or

issue not triable of right before a jury.

(c)

Powers

Subject to the provisions of any order of reference, a

magistrate has the power to regulate all proceedings in the

hearing, including the powers to:

(1) Direct the issuance of a subpoena to compel the

attendance of witnesses and the production of documents or other

tangible things;

(2) Administer oaths to witnesses;

(3) Rule upon the admissibility of evidence;

RULE 2-541

(4) Examine witnesses;

(5) Convene, continue, and adjourn the hearing, as required;

(6) Recommend contempt proceedings or other sanctions to the

court; and

(7) Recommend findings of fact and conclusions of law.

(d)

Hearing

(1) Notice

The magistrate shall fix the time and place for the

hearing and shall send written notice to all parties.

(2) Attendance of Witnesses

A party may procure by subpoena the attendance of

witnesses and the production of documents or other tangible

things at the hearing.

(3) Record

All proceedings before a magistrate shall be recorded

either stenographically or by an electronic recording device,

unless the making of a record is waived in writing by all

parties.

A waiver of the making of a record is also a waiver of

the right to file any exceptions that would require review of

the record for their determination.

(e)

Recommendations and Report

(1) When Filed Notification of Recommendations

The magistrate shall notify each party of the proposed

recommendation recommendations and contents of the proposed

RULE 2-541

order, either orally (A) on the record at the conclusion of the

hearing or (B) thereafter by written notice served pursuant to

Rule 1-321 in writing filed with the clerk, who shall serve the

recommendations and proposed order on each party as provided by

Rule 20-205 in MDEC counties or Rule 1-321 in Baltimore City

until it becomes an MDEC county.

The clerk shall make a docket

entry notation of the date and method of the notification.

Committee note: Rule 20-205 (c) requires that the clerk in a

MDEC county serve certain individuals, including persons

entitled to service who are not registered users of MDEC, in the

manner set forth in Rule 1-321.

(2) Notice of Intent to File Exceptions

Within five days from an oral notice or from service of

a written notice of the recommendations pursuant to subsection

(e)(1) of this Rule, a party intending to file exceptions shall

file a notice of intent to do so and within that time shall

deliver a copy to the magistrate with the clerk.

The clerk

promptly shall notify the magistrate of the filing and make a

docket entry of the date and method of the notification.

The

failure to file a timely notice of intent to file exceptions is

a waiver of the right to file exceptions.

(3) Filing of Report

If Only the recommendations in the form of a proposed

order or judgment need be filed unless the court has directed

the magistrate to file a report or if a notice of intent to file

RULE 2-541

exceptions is filed. If the court directed that a report be

filed, the magistrate shall file a written report with the

recommendation recommendations.

recommendation need be filed.

Otherwise, only the

The If a notice of intent to file

exceptions is filed, the report shall be filed within 30 days

after the notice of intent to file exceptions is filed or within

such other time as the court directs.

The failure to file and

deliver a timely notice is a waiver of the right to file

exceptions.

(2)(4) Contents of Report

Unless otherwise ordered, the report shall include

findings of fact and conclusions of law and a recommendation

recommendations in the form of a proposed order or judgment, and

shall be accompanied by the original exhibits.

A transcript of

the proceedings before the magistrate need not be prepared prior

to the report unless the magistrate directs, but, if prepared,

shall be filed with the report.

(3)(5) Service of Report

The magistrate shall serve a copy of the recommendation

and any written report on each party pursuant to Rule 1-321.

Unless service has been made in open court pursuant to

subsection (e)(1) of this Rule, the clerk shall serve a copy of

any written report, together with the recommendations in the

form of a proposed order or judgment, on each party as provided

RULE 2-541

by Rule 20-205 in MDEC counties or Rule 1-321 in Baltimore City

until it becomes an MDEC county.

Committee note: Rule 20-205 (c) requires that the clerk in a

MDEC county serve certain individuals, including persons

entitled to service who are not registered users of MDEC, in the

manner set forth in Rule 1-321.

(f)

Entry of Order

(1) The court shall not direct the entry of an order or

judgment based upon the magistrate's recommendations until the

expiration of the time for filing exceptions, and, if exceptions

are timely filed, until the court rules on the exceptions.

(2) If exceptions are not timely filed, the court may direct

the entry of the order or judgment as recommended by the

magistrate.

(g)(f)

Exceptions

(1) How Taken

Within ten days after the filing of the magistrate's

written report, a party may file exceptions with the clerk.

Within that period or within three days after service of the

first exceptions, whichever is later, any other party may file

exceptions.

Exceptions shall be in writing and shall set forth

the asserted error with particularity.

Any matter not

specifically set forth in the exceptions is waived unless the

court finds that justice requires otherwise.

(2) Transcript

RULE 2-541

Unless a transcript has already been filed, a party who

has filed exceptions shall cause to be prepared and transmitted

to the court a transcript of so much of the testimony as is

necessary to rule on the exceptions.

The transcript shall be

ordered at the time the exceptions are filed, and the transcript

shall be filed within 30 days thereafter or within such longer

time, not exceeding 60 days after the exceptions are filed, as

the magistrate may allow.

The court may further extend the time

for the filing of the transcript for good cause shown.

The

excepting party shall serve a copy of the transcript on the

other party.

Instead of a transcript, the parties may agree to

a statement of facts or the court by order may accept an

electronic recording of the proceedings as the transcript.

The

court may dismiss the exceptions of a party who has not complied

with this section.

(h)(g) Hearing on Exceptions

The court may decide exceptions without a hearing, unless

a hearing is requested with the exceptions or by an opposing

party within five days after service of the exceptions.

The

exceptions shall be decided on the evidence presented to the

magistrate unless: (1) the excepting party sets forth with

particularity the additional evidence to be offered and the

reasons why the evidence was not offered before the magistrate,

and (2) the court determines that the additional evidence should

RULE 2-541

be considered.

If additional evidence is to be considered, the

court may remand the matter to the magistrate to hear the

additional evidence and to make appropriate findings or

conclusions, or the court may hear and consider the additional

evidence or conduct a de novo hearing.

(h)

Entry of Order or Judgment

(1) When Notice of Intent to File Exceptions Filed

If a notice of intent to file exceptions was timely

filed, the court shall not enter an order or judgment until the

expiration of the time for filing exceptions, and, if exceptions

are timely filed, until the court rules on the exceptions.

(2) When No Timely Notice of Intent to File Exceptions or

Exceptions Filed

If no notice of intent to file exceptions was timely

filed, or if no exceptions were timely filed after the filing of

a notice of intent to file exceptions, the court may enter an

appropriate order or judgment.

Source: This Rule is derived as follows:

Section (a) is new.

Section (b) is derived in part from former Rule 596 c.

Section (c) is derived in part from former Rule 596 d.

Subsections (6) and (7) are new but are consistent with former

Rule 596 f 1 and g 2.

Section (d) is in part new and in part derived from former Rule

596 e.

Section (e) is in part new and in part derived from former Rule

596 f.

Section (f) is new.

RULE 2-541

Section (g) (f) is derived from former Rule 596 h 1, 2, 3, 4 and

7 except that subsection 3 (b) of section h of the former Rule

is replaced.

Section (h) (g) is derived from former Rule 596 h 5 and 6.

Section (h) is new.

REPORTER’S NOTE

Rule 2-541 contains provisions regarding magistrates in

circuit court. Proposed amendments to Rule 2-541 aim to improve

the organization of the Rule and address certain substantive

concerns.

Taglines are added to subsections (b)(1) and (b)(2) to

clarify the content of each subsection. Language is also added

to the current tagline of section (e) to clarify the topic of

the section.

Proposed amendments to subsection (e)(1) clarify that the

clerk, not the magistrate, is responsible for serving the

recommendations and proposed order as provided by Rule 20-205 in

MDEC counties or Rule 1-321 in Baltimore City. For further

discussion, see the Reporter’s note to Rule 9-208.

A proposed Committee note following subsection (e)(1)

highlights that Rule 20-205 (c) requires service in the manner

set forth in Rule 1-321 for certain individuals, even in a MDEC

county.

New subsections (e)(2) and (e)(3) are created with the

current language of subsection (e)(1), with certain statements

re-organized or updated stylistically. Additional language is

also added to delete the requirement that the party deliver a

copy of a notice of intent to file exceptions to the magistrate.

Instead, subsection (e)(2) now requires the notice to be filed

with the clerk, who will promptly notify the magistrate and make

a docket entry with the date and method of the notification.

Current subsection (e)(2) is renumbered as subsection

(e)(4) and the tagline is updated for clarity. A stylistic

change is proposed in the subsection. Current subsection (e)(3)

is renumbered as subsection (e)(5). The tagline is updated and

the language of the subsection is replaced to provide that the

clerk, not the magistrate, shall complete service of the report.

RULE 2-541

A proposed Committee note following the subsection again

highlights the service provisions of Rule 20-205 (c).

Current section (f) concerning entry of an order is deleted

and, with some additions and stylistic changes, is moved to new

section (h). Current sections (g) and (h) are re-lettered as

sections (f) and (g), respectively.

RULE 10-105

MARYLAND RULES OF PROCEDURE

TITLE 10 – GUARDIANS AND OTHER FIDUCIARIES

CHAPTER 100 – GENERAL PROVISIONS

AMEND Rule 10-105 by adding language to the name of the

Rule, by creating new subsections (a)(1) and (a)(2) with the

language of current sections (a) and (b), by making stylistic

changes in subsection (a)(1), and by adding new section (b) and

a subsequent cross reference related to access to case records,

as follows:

Rule 10-105.

INTERESTED PERSONS - WAIVER OF NOTICE AND ACCESS

TO CASE RECORDS

(a)

Waiver of Notice

(1) Method of Waiver

An interested person other than a minor or disabled

person may waive the right to any or all notices other than

original notice by filing a signed waiver.

A minor or disabled

person may waive the right to any or all notices other than

original notice by a waiver signed and filed by his or her the

attorney for the minor or disabled person, which shall not be

effective until approved by the court.

(b)(2) Revocation

RULE 10-105

A waiver of notice may be revoked at any time by the

filing of a revocation, which shall be effective from the date

filed.

(b)

Access to Case Records

(1) Party Access

Subject to subsection (b)(2) of this Rule, an interested

person is a party to the action and has access to case records

in the action.

(2) Restriction on Access

The court may restrict an interested person’s access to

case records for good cause, after notice and opportunity for a

hearing.

Cross reference:

See Rule 16-914 (e).

Source: This Rule is derived from former Rule R70 f and Rule 6126 and is in part new.

REPORTER’S NOTE

Proposed amendments to Rule 10-105 clarify that an

interested person is a “party” to the action. The Rules

Committee was informed that interested persons in guardianship

cases are not always provided the same remote access to case

records as the petitioner or the respondent, despite having

standing in the action.

In guardianship actions, an interested person has standing

to participate in the proceeding, including by opposing the

petition, by obtaining discovery, or by requesting the testimony

of the certifying physician or psychologist. See In re Lee, 132

Md. App. 696 (2000). Other case types that involve “interested

persons” do not always have similar participation in the action.

RULE 10-105

Due to the unique nature of guardianship proceedings, proposed

amendments seek to clarify that interested persons are parties,

ensuring that interested persons can appropriately access the

file otherwise shielded from the public by Rule 16-914 (e).

Proposed amendments to Rule 10-105 update the name of the

Rule to reflect its broader application. Stylistic amendments

add a new tagline to section (a) and create new subsections

(a)(1) and (a)(2) with the current language of the Rule.

Stylistic changes are made in subsection (a)(1) also.

Proposed amendments to Rule 10-105 add new section (b) to

address an interested person’s access to case records. New

subsection (b)(1) states clearly that an interested person is a

party to the action. New subsection (b)(2) sets forth

appropriate court action to limit an interested person’s access

to case records. The language requires good cause, as well as

notice and an opportunity for a hearing, before access is

restricted. For example, a guardianship proceeding may reveal

that an adult child of an alleged disabled person has been

misusing or stealing the funds of the alleged disabled person.

Because the child is an interested person in the case by

statute, the interested person cannot be removed from the case.

However, future access to the financial records and accounts by

the child may prove detrimental to the interests of the alleged

disabled person. Accordingly, proposed amendments to Rule 10105 enable a court to restrict an interested person’s access to

the file to protect sensitive information in case records.

RULE 16-914

MARYLAND RULES OF PROCEDURE

TITLE 16 – COURT ADMINISTRATION

CHAPTER 900 – ACCESS TO JUDICIAL RECORDS

DIVISION 2 – LIMITATIONS ON ACCESS

AMEND Rule 16-914 by deleting and adding language to the

Committee note following section (e), as follows:

Rule 16-914.

CASE RECORDS – REQUIRED DENIAL OF INSPECTION –

CERTAIN CATEGORIES

Except as otherwise provided by law, court order, or the Rules

in this Chapter, the custodian shall deny inspection of:

...

(e)

Except for docket entries and orders entered under Rule

10-108, papers and submissions filed in guardianship actions or

proceedings under Title 10, Chapter 200, 300, 400, or 700 of the

Maryland Rules.

Committee note: Most filings in guardianship actions are likely

to be permeated with financial, medical, or psychological

information regarding the minor or disabled person that

ordinarily would be sealed or shielded under other Rules.

Rather than require custodians to pore through those documents

to redact that kind of information, this Rule shields the

documents themselves subject to Rule 16-934, which permits the

court, on a motion and for good cause, to permit inspection of

case records that otherwise are not subject to inspection.

There may be circumstances in which that should be allowed.

Parties to the action have access to the case records unless the

court orders otherwise. See Rule 10-105 (b). The guardian, of

course, will have as a party, has access to the case records and

may need to share some of them with third persons in order to

RULE 16-914

perform his or her the duties, and this of the guardian. This

Rule is not intended to impede the guardian from doing so.

Public access to the docket entries and to orders entered under

Rule 10-108 will allow others to be informed of the guardianship

and to seek additional access pursuant to Rule 16-934.

...

REPORTER’S NOTE

Rule 16-914 sets forth certain categories of case records

for which the custodian shall deny access. Section (e) provides

for the shielding of case records in guardianship actions,

except for docket entries and orders entered under Rule 10-108.

A Committee note after the section provides additional

information, clarifying that the guardian will have access to

case records and may need to share records with third parties to

perform the guardian’s duties.

Proposed amendments to the Committee note after section (e)

add a sentence clarifying that parties have access to the case

records and a citation to Rule 10-105 (b). Stylistic changes

are also made in the Committee note.

RULE 10-106

MARYLAND RULES OF PROCEDURE

TITLE 10 – GUARDIANS AND OTHER FIDUCIARIES

CHAPTER 100 – GENERAL PROVISIONS

AMEND Rule 10-106 by adding a reference to Code, Estates

and Trusts Article, § 13-211 to subsection (b)(2) and to the

cross reference following subsection (c)(1); by adding language

to subsection (c)(2) citing a fee agreement pursuant to Code,

Estates and Trusts Article, § 13-211(b)(3)(ii); and by making

stylistic changes, as follows:

Rule 10-106. ATTORNEY FOR MINOR OR DISABLED PERSON

(a)

Authority and Duty to Appoint

(1) Minor Persons

Upon the filing of a petition for guardianship of the

person, the property, or both, of a minor who is not represented

by an attorney, the court may appoint an attorney for the minor.

Committee note: Appointment of an attorney for a minor is

discretionary because, in many cases involving minors, the

guardian is a parent or other close family member and the

circumstances do not indicate a need for an attorney for the

minor. The court should scrutinize the petition, however, for

circumstances that may warrant the appointment of an attorney

for the minor.

(2) Alleged Disabled Persons

Upon the filing of a petition for guardianship of the

person, the property, or both, of an alleged disabled person who

RULE 10-106

is not represented by an attorney of the alleged disabled

person's own choice, the court shall promptly appoint an

attorney for the alleged disabled person.

Cross reference: See Code, Estates and Trusts Article, §§ 13211(b) and 13-705(d). See also Rule 19-301.14 of the Maryland

Attorneys' Rules of Professional Conduct with respect to the

attorney's role and obligations.

Committee note: This Rule applies to the appointment and

payment of an attorney for a minor or alleged disabled person in

proceedings to establish a guardianship for the minor or alleged

disabled person, or their property, or both. Attorneys may be

appointed in other capacities in guardianship proceedings - as

an investigator pursuant to Rule 10-106.2 or as a guardian

pursuant to Rule 10-108.

(b)

Eligibility for Appointment

(1) To be eligible for appointment, an attorney shall:

(A) be a member in good standing of the Maryland Bar;

(B) provide evidence satisfactory to the court of

financial responsibility; and

Committee note: Methods of complying with subsection (b)(1)(B)

include maintaining appropriate insurance, providing an

attestation of financial circumstances, or filing a bond.

trained in aspects of guardianship law and practice in

conformance with the Maryland Guidelines for Attorneys

Representing Minors and Alleged Disabled Persons In Guardianship

Proceedings attached as an Appendix to the Rules in this Title.

(2) Exercise of Discretion

RULE 10-106

Except in an action in which the selection of a courtappointed attorney is governed by Code, Estates and Trusts

Article, § 13-211(b)(3) or § 13-705(d)(2), the court should

fairly distribute appointments among eligible attorneys, taking

into account the attorney's relevant experience and availability

and the complexity of the case.

(c)

Fees

(1) Generally

The court shall order payment of reasonable and

necessary fees of an appointed attorney.

Fees may be paid from

the estate of the alleged disabled person or as the court

otherwise directs.

To the extent the estate is insufficient,

the fee of an attorney for an alleged disabled person shall be

paid by the State.

Cross reference: See Code, Estates and Trusts Article, §§ 13211(b)(2) and 13-705 (d)(1), requiring the State to pay a

reasonable attorneys' fee where the alleged disabled person is

indigent. There is no similar statutory requirement with

respect to attorneys appointed for a minor.

(2) Determination of Fee

Unless the attorney has agreed to serve on a pro bono

basis, or is serving under a contract with the Department of

Human Services, or has agreed to accept the same fee as an

attorney under contract pursuant to Code, Estates and Trusts

Article, § 13-211(b)(3)(ii), the court, in determining the

reasonableness of the attorney's fee, shall apply the factors

RULE 10-106

set forth in Rule 2-703 (f)(3) and in the Guidelines Regarding

Compensable and Non-Compensable Attorneys' Fees and Related

Expenses, contained in an Appendix to the Rules in Title 2,

Chapter 700.

(3) Disabled Person - Security for Payment of Fee

(A) Except as provided in subsection (c)(3)(B) of this

Rule, in a proceeding for guardianship of the person, the

property, or both, of an alleged disabled person, upon the

appointment of an attorney for an alleged disabled person, the

court may require the deposit of an appropriate sum into the

court registry or the appointed attorney's escrow account within

30 days after the order of appointment, subject to further order

of the court.

(B) The court shall not exercise its authority under

subsection (c)(3)(A) of this Rule if payment for the services of

the appointed attorney is the responsibility of (i) a government

agency paying benefits to the alleged disabled person, (ii) a

local Department of Social Services, or (iii) an agency eligible

to serve as the guardian of the alleged disabled person under

Code, Estates and Trusts Article, § 13-707.

Cross reference:

(d)(1).

(d)

See Code, Estates and Trusts Article, § 13-705

Termination or Continuation of Appointment

(1) Generally

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If no appeal is taken from a judgment dismissing the

petition or appointing a guardian other than a public guardian,

the attorney's appointment shall terminate automatically upon

expiration of the time for filing an appeal unless the court

orders otherwise.

(2) Other Reason for Termination

A court-appointed attorney who perceives a present or

impending conflict of interest or other inability to continue

serving as attorney for the minor or disabled person shall

immediately notify the court in writing and request that the

court take appropriate action with respect to the appointment.

(3) Representation if Public Guardian Appointed

If a public guardian has been appointed for a disabled

person, the court shall either continue the attorney's

appointment or appoint another attorney to represent the

disabled person before the Adult Public Guardianship Review

Board.

Cross reference:

Code, Family Law Article, § 14-404(c)(2).

(4) Appointment After Establishment of Guardianship

Nothing in this section precludes a court from

appointing, reappointing, or continuing the appointment of an

attorney for a minor or disabled person after a guardianship has

been established if the court finds that such appointment or

continuation is in the best interest of the minor or disabled

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person.

An order of appointment after a guardianship has been

established shall state the scope of the representation and may

include specific duties the attorney is directed to perform.

(e)

Reports and Statements

The court may not require an attorney for a minor or an

alleged disabled person to file an investigative report, but may

require the attorney to file a pre-hearing statement pursuant to

Rule 10-106.1.

Committee note: An attorney for a minor or alleged disabled

person, whether employed privately or appointed by the court, is

an advocate for his or her the attorney’s client, not an

independent investigator, and needs to be mindful of the

attorney-client privilege and an attorney's responsibilities

under Rule 19-301.14 (1.14). It is a conflict of interest for

the attorney to be both an advocate and an investigator

appointed pursuant to Rule 10-106.2. See section 1.2 of the

Maryland Guidelines for Attorneys Representing Minors and

Alleged Disabled Persons in Guardianship Proceedings.

Cross reference:

See Code, Courts Article, § 9-108.

Source: This Rule is derived in part from former Rules R76 and

V71 and is in part new.

REPORTER’S NOTE

Pursuant to Chapters 628/629, 2022 Laws of Maryland (HB

990/SB 694), effective October 1, 2023, Code, Estates and Trusts

Article, § 13-211 has been amended to provide that the State is

required to pay a reasonable attorney’s fee to an attorney

representing an indigent alleged disabled person in a case

involving guardianship of the property. In cases where the

State must pay the attorney’s fees, the court is required to

appoint an attorney who contracted with the Department of Human

Services or who agrees to accept the same fee as an attorney

under contract with the Department. Before the addition of this

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language to Code, Estates and Trusts Article, § 13-211

concerning petitions for guardianship of the property, similar

provisions regarding payment of attorney’s fees by the State

were included in § 13-705 concerning petitions for guardianship

of the person only.

The Rules already provide for the appointment of an

attorney for the disabled person in cases involving guardianship

of the person, property, or both. Rule 10-106 (c)(1) provides

that attorney’s fees for representation of the alleged disabled

person are to be paid by the State to the extent the

guardianship estate is insufficient. Proposed amendments to

Rule 10-106 update references in the Rule to account for amended

Code, Estates and Trusts Article, § 13-211.

Rule 10-106 (b)(2) requires a court to fairly distribute

appointment among eligible attorneys “[e]xcept in an action in

which the selection of a court-appointed attorney is governed by

Code, Estates and Trusts Article, § 13-705(d)(2).” § 13705(d)(2) concerns guardianships of the person. Proposed

amendments add § 13-211(b)(3), containing the parallel

provisions for guardianship of the property cases, to Rule 10106 (b)(2). Similarly, a reference to § 13-211(b)(2) is added

to the cross reference after subsection (c)(1) because new

statutory language requires the State to pay a reasonable

attorney’s fee where the alleged disabled person is indigent in

cases involving guardianship of the property.

Rule 10-106 (c)(2) states considerations for the court in

determining the reasonableness of attorney’s fees, “[u]nless the

attorney has agreed to serve on a pro bono basis or is serving

under a contract with the Department of Human Services.” Code,

Estates and Trusts Article, § 13-211 creates an additional

situation where the court does not need to determine the

reasonableness of the attorney’s fees. § 13-211(b)(3)(ii)

permits a previously appointed attorney to maintain the

attorney’s appearance in a case when an alleged disabled person

is indigent if the attorney agrees to accept the same fee as an

attorney under contract with the Department of Human Services

and if the court does not find a conflict of interest.

Accordingly, a reference to § 13-211(b)(3)(ii) is added to Rule

10-106 (c)(2). Conforming stylistic changes are made to the

subsection.

Stylistic changes are proposed in the Committee note

following section (e).

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MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 1 – GENERAL PROVISIONS

AMEND Rule 18-407 by adding “possible” to the tagline and

text of subsection (b)(4) pertaining to criminal activity, by

adding a Committee note following subsection (b)(4) pertaining

to potential misconduct discovered during an investigation by

the Commission, by adding a cross reference following subsection

(b)(4) regarding an attorney’s duty to report, and by making

stylistic changes, as follows:

Rule 18-407.

(a)

CONFIDENTIALITY

Generally

Except as otherwise expressly provided by these Rules,

proceedings and information relating to a complaint or charges

shall be open to the public or confidential and not open to the

public, as follows:

(1) Judge's Address and Identifying Information

The judge's current home address and personal

identifying information not otherwise public shall remain

confidential at all stages of proceedings under these Rules.

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Any other address of record shall be open to the public if the

charges and proceedings are open to the public.

(2) Complaints; Investigations; Disposition Without Charges

Except as otherwise required by Rules 18-425, 18-426,

and 18-427, all proceedings under Rules 18-421, 18-428, and 18441 shall be confidential.

(3) Upon Resignation, Voluntary Retirement, Filing of a

Response, or Expiration of the Time for Filing a Response

Charges alleging sanctionable conduct and all subsequent

proceedings before the Commission on those charges shall be open

to the public upon the first to occur of (A) the resignation or

voluntary retirement of the judge, (B) the filing of a response

by the judge to the charges, or (C) expiration of the time for

filing a response.

Charges alleging disability or impairment

and all proceedings before the Commission on them shall be

confidential.

(4) Work Product, Proceedings, and Deliberations

Except to the extent admitted into evidence before the

Commission, the following matters shall be confidential: (A)

Investigative Counsel's work product and, subject to Rules 18422 (b)(3)(A), 18-424 (d)(3) and 18-433 (c), reports prepared by

Investigative Counsel not submitted to the Commission; (B)

proceedings before the Board, including any peer review

proceeding; (C) any materials reviewed by the Board during its

RULE 18-407

proceedings that were not submitted to the Commission; (D)

deliberations of the Board and Commission; and (E) records of

the Board's and Commission's deliberations.

(5) Proceedings in the Supreme Court

Unless otherwise ordered by the Supreme Court, the

record of Commission proceedings filed with that Court and any

proceedings before that Court on charges of sanctionable conduct

shall be open to the public.

The record of Commission

proceedings filed with that Court and any proceedings before

that Court on charges of disability or impairment shall be

confidential.

An order of retirement by the Court shall be

public.

(b)

Permitted Release of Information by Commission

(1) Written Waiver

The Commission may release confidential information upon

receipt of a written waiver by the subject judge, except that

those matters listed in subsection (a)(4) of this Rule shall

remain confidential notwithstanding a waiver by the judge.

(2) Explanatory Statement

The Commission may issue a brief explanatory statement

necessary to correct any inaccurate or misleading information

from any source about the Commission's process or procedures.

(3) To Chief Justice of the Supreme Court

RULE 18-407

(A) Upon request by the Chief Justice of the Supreme

Court, the Commission shall disclose to the Chief Justice:

(i) whether a complaint is pending against the judge who

is the subject of the request; and

(ii) the disposition of each complaint that has been

filed against the judge within the preceding five years.

(B) The Chief Justice may disclose this information to the

incumbent justices of the Supreme Court in connection with the

exercise of any administrative matter over which the Court has

jurisdiction.

Each justice who receives information pursuant to

subsection (b)(3) of this Rule shall maintain the applicable

level of confidentiality of the information otherwise required

by the Rules in this Chapter.

(4) Information Involving Possible Criminal Activity,

Health, Safety, and Certain Ethical Concerns

The Commission may provide (A) information involving

possible criminal activity, including information requested by

subpoena from a grand jury, to applicable law enforcement and

prosecuting officials, (B) information regarding health and

safety concerns to applicable health agencies and law

enforcement officials, and to any individual who is the subject

of or may be affected by any such health or safety concern, and

disposition of the matter involving the subject judge,

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information to Bar Counsel pertaining to conduct that may

constitute a violation of the Maryland Attorneys' Rules of

Professional Conduct that raises a substantial question as to

the judge's honesty, trustworthiness, or fitness as an attorney

in other respects.

Committee note: Nothing in this Rule prohibits the Commission

from reporting to Bar Counsel potential professional misconduct

on the part of attorneys that is discovered during the course of

an investigation conducted by the Commission. Subject to the

assertion of a lawful privilege, filing objections, or motions

for protective order or to quash, the Commission shall provide

responsive information pursuant to a subpoena from a grand jury

to the appropriate law enforcement and prosecutorial officials.

Cross reference: See Rule 19-308.3 (8.3), concerning an

attorney’s duty to report violations of the Maryland Attorney’s

Rules of Professional conduct.

(5) Finding of Disability or Impairment

The Commission may disclose any final disposition

imposed against a judge related to charges of disability or

impairment to the applicable administrative judge or Chief

Justice or Judge of the disabled or impaired judge's court or,

if the disabled or impaired judge is a recalled senior judge, to

the Supreme Court.

(6) Nominations; Appointments; Approvals

(A) Permitted Disclosures

Upon a written application made by a judicial

nominating commission, a Bar Admission authority, the President

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

RULE 18-407

district, or possession of the United States, or a committee of

the General Assembly of Maryland or of the United States Senate

which asserts that the applicant is considering the nomination,

appointment, confirmation, or approval of a judge or former

judge, the Commission shall disclose to the applicant:

(i) Information about any completed proceedings that did

not result either in dismissal of the complaint or in a

conditional diversion agreement that has been satisfied; and

(ii) Whether a complaint against the judge is pending.

Committee note: A reprimand issued by the Commission is

disclosed under subsection (b)(6)(A)(i) of this Rule. An

unsatisfied conditional diversion agreement is disclosed under

subsection (b)(6)(A)(ii) of this Rule as a pending complaint

against the judge.

(B) Restrictions

Unless the judge waives the restrictions set forth in

this subsection, when the Commission furnishes information to an

applicant under this section, the Commission shall furnish only

one copy of the material, which shall be furnished under seal.

As a condition to receiving the material, the applicant shall

agree that (i) the applicant will not copy the material or

permit it to be copied; (ii) when inspection of the material has

been completed, the applicant will seal and return the material

to the Commission; and (iii) the applicant will not disclose the

contents of the material or any information contained in it to

anyone other than another member of the applicant.

RULE 18-407

The Commission shall send the judge a copy of all

documents disclosed under this subsection.

Cross reference: For the powers of the Commission in an

investigation or proceeding under Md. Const., Art. IV, § 4B, see

Code, Courts Article, §§ 13-401 through 13-403.

(c)

Statistical or Annual Report

The Commission may include in a publicly available

statistical or annual report the number of complaints received,

investigations undertaken, and dispositions made within each

category of disposition during a fiscal or calendar year,

provided that, if a disposition has not been made public, the

identity of the judge involved is not disclosed or readily

discernible.

Source: This Rule is in part derived from former Rule 18-409

(2018) and is in part new.

REPORTER’S NOTE

The Rules Committee proposes revising subsection (b)(4) of

this Rule so that it applies to “possible criminal activity” and

not merely “criminal activity.” The Commission on Judicial

Disabilities is concerned that, without the addition of the word

“possible” to this subsection, this provision could be

interpreted strictly to apply only in instances where a trier of

fact has determined that a judge is guilty of a crime, and not

be applied generally to a judge’s behavior which may be criminal

in nature.

A new Committee note and cross reference are proposed

following section (b) to clarify that the Commission may refer

RULE 18-407

an attorney’s conduct to Bar Counsel and that the Commission

will cooperate with grand jury subpoenas.

RULE 18-412

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 2 – STRUCTURE

AMEND Rule 18-412 by adding new subsection (d)(3)

pertaining to continuing service of a Judicial Inquiry Board

member after expiration of the member’s term and by making

stylistic changes, as follows:

Rule 18-412.

(a)

JUDICIAL INQUIRY BOARD

Appointment; Composition; Qualifications; Terms

(1) Appointment; Composition

(A) The Supreme Court shall appoint a Judicial Inquiry

Board consisting of two judges, two attorneys, and three public

members who are not attorneys or judges.

No individual may

serve on the Commission and the Board concurrently.

(B) The composition of the Board shall reflect the racial,

gender, and geographical diversity of the population of

Maryland.

(2) Qualifications

(A) All members shall be residents of the State of

Maryland;.

RULE 18-412

(B) The judicial members shall be current active judges of

the State of Maryland;.

law in Maryland;, (ii) engaged in the practice of law in

Maryland for a minimum of seven years;, and (iii) not be a judge

of any court;.

(D) The public members shall not be (i) active or retired

judges;, (ii) admitted to practice law in Maryland;, or (iii)

persons who have a financial relationship with or receive

compensation from a judge or person admitted to practice law in

Maryland;.

(3) Terms

(A) Subject to subsection (d)(2) of this Rule, the term of

each member is four years, commencing on July 1.

A member may

not serve for more than two full terms or more than a total of

ten years if appointed to fill a vacancy.

(B) Membership automatically terminates on the date that

(i) a member ceases to be a resident of Maryland; (ii) any

judicial member ceases to be an active judge; (iii) an attorney

member becomes a judge or is disbarred or suspended; or (iv) a

public member becomes a judge, is admitted to practice law in

Maryland, or has a financial relationship with or receives

compensation from a judge or person admitted to practice law in

Maryland.

RULE 18-412

(b)

Compensation

A member of the Board 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.

(c)

Chair and Vice Chair

The Supreme Court shall designate a judicial member of

the Board to serve as Chair of the Board and the other judicial

member to serve as Vice Chair.

The Vice Chair shall perform the

duties of the Chair whenever the Chair is disqualified or

otherwise unable to act.

(d)

Recusal, Removal, or Replacement

(1) A member of the Board may not participate as a member in

any discussion or recommendation in which (A) the member is a

complainant, (B) the member's disability, impairment, or

sanctionable conduct is in issue, (C) the member's partiality

reasonably might be questioned, (D) the member has personal

knowledge of disputed material evidentiary facts involved in the

discussion or recommendation, or (E) the recusal of a judicial

member otherwise would be required by the Maryland Code of

Judicial Conduct.

(2) The Supreme Court may remove or replace members of the

Board at any time, and may temporarily replace a member of the

RULE 18-412

Board with a former member of the Board or Commission for

purposes of maintaining a quorum.

(3) Following the expiration of a member’s term other than

pursuant to subsection (a)(3)(B) of this Rule, the Board may

conduct business in the ordinary course with that member

continuing to serve, until such time as a replacement is

appointed.

(e)

Quorum

The presence of a majority of the members of the Board

constitutes a quorum for the transaction of business, so long as

at least one judge, one attorney, and one public member are

present.

A member of the Board may be physically present or

present by telephone, video, or other electronic conferencing.

Other than adjournment of a meeting for lack of a quorum, no

action may be taken by the Board without the concurrence of a

majority of the members of the Board.

(f)

Records

Subject to a retention schedule approved by the Chief

Justice of the Supreme Court, the Board shall keep a record of

all documents filed with the Board and all proceedings conducted

by the Board concerning a judge.

Source:

This Rule is derived from former Rule 18-403 (2018).

RULE 18-412

REPORTER’S NOTE

The Rules Committee proposes adding new subsection (d)(3)

to this Rule to add continuity of service provisions for Board

members. The Rules in Chapter 400 already provide continuity of

service for Commission members, and this revision would treat

both organizations consistently in this area.

RULE 18-421

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 3 – ADMINISTRATIVE PROCEDURE

AMEND Rule 18-421 by clarifying the language in section (b)

pertaining to allegations that do not constitute a basis for a

cognizable complaint, by deleting a portion of the Committee

note following section (b) and adding language to the end of the

Committee note pertaining to the basis for Investigative

Counsel’s conclusion regarding a complaint, and by making

stylistic changes, as follows:

Rule 18-421.

(a)

COMPLAINTS; PROCEDURE ON RECEIPT

Referral to Investigative Counsel

The Commission shall refer all complaints and other

written allegations of disability, impairment, or misconduct

against a judge to Investigative Counsel.

(b)

Allegations that Fail to Allege Disability, Impairment,

or Sanctionable Conduct

If Investigative Counsel concludes that the allegations

presented, liberally construed, even if proved, would fail to

allege facts which, if true, would constitute a disability,

impairment, or sanctionable conduct, and therefore do not

RULE 18-421

constitute a cognizable basis for a complaint, as defined in

Rule 18-402 (h), Investigative Counsel shall notify the

Complainant complainant and the Commission, in writing, that the

allegations presented were considered and found not to be a

cognizable constitute a meritorious complaint that should be

pursued and the reasons for that conclusion.

Committee note: Section (b) of this Rule does not preclude

Investigative Counsel from communicating with the complainant or

making an inquiry under section (f) of this Rule in order to

clarify general or ambiguous allegations that may suggest a

disability, impairment, or sanctionable conduct. Outright

dismissal is justified when the allegations, on their face,

complain only of conduct that clearly does not constitute, a

disability, impairment, or sanctionable conduct or are not under

oath. Investigative Counsel’s conclusion under this section may

be based on a finding that the allegations presented are

facially frivolous or otherwise factually unfounded, or, even if

true, fail to establish a disability, impairment, or

sanctionable conduct on the part of the judge, or is duplicative

of an existing complaint against the judge being pursued by

Investigative Counsel.

(c)

Written Allegation of Disability, Impairment, or

Sanctionable Conduct Not Under Oath

(1) Except as provided by section (f) of this Rule, the

Commission may not act upon a written allegation of disability,

impairment, or misconduct, unless it is a complaint.

If a

written allegation, liberally construed, alleges facts

indicating that a judge may have a disability or impairment or

may have committed sanctionable conduct but is not under oath or

supported by an affidavit, Investigative Counsel, if possible,

shall (A) inform the complainant that the Commission acts only

RULE 18-421

upon complaints under oath or supported by an affidavit, (B)

provide the complainant with an appropriate form of affidavit,

and (C) inform the complainant that unless a complaint under

oath or supported by an affidavit is filed within 30 days after

the date of the notice, the matter may be dismissed.

(2) If, after Investigative Counsel has given the notice

provided for in subsection (c)(1) of this Rule or has been

unable to do so, the complainant fails to file a timely

complaint under oath or supported by an affidavit, Investigative

Counsel may dismiss the matter and notify the complainant and

the Commission, in writing, that a written allegation of

disability, impairment, or misconduct was filed and dismissed

and the reasons for the dismissal.

(d)

Stale Complaints

(1) Subject to subsection (d)(3) of this Rule, if a

complaint alleges acts or omissions that all occurred more than

three years prior to the date the complaint was filed,

Investigative Counsel, after notice to the judge, if the judge

has requested notice pursuant to Rule 18-422 (a)(4)(A), may make

a recommendation to the Board whether, in light of the

staleness, there is good cause to investigate the complaint.

(2) If the Board concludes that there is no good cause for

any further investigation, it shall direct that the complaint be

dismissed.

If the Board concludes otherwise, it shall direct

RULE 18-421

Investigative Counsel to proceed in accordance with section (e)

of this Rule.

In making that determination, the Board shall

weigh any prejudice to the judge against the seriousness of the

conduct alleged in the complaint.

(3) Subsections (d)(1) and (d)(2) of this Rule do not apply

to complaints that allege criminal conduct which, upon

conviction, would subject the judge to imprisonment for more

than eighteen months.

Committee note: In contrast to dismissal of a complaint under

Rule 18-423 (f)(3), which requires action by the Commission,

Investigative Counsel may dismiss an allegation of disability,

impairment, or sanctionable conduct under this Rule when, for

the reasons noted, the allegation fails to constitute a

complaint. Subject to sections (c) and (f) of this Rule, if

there is no cognizable complaint, there is no basis for

conducting an investigation.

(e)

Opening File on Receipt of Complaint

Subject to section (f) of this Rule, Investigative

Counsel shall docket each properly filed complaint by opening a

numbered file on the complaint and promptly in writing (1)

acknowledging receipt of the complaint and (2) explaining to the

complainant the procedure for investigating and processing the

complaint.

(f) Inquiry

Upon receiving information from any source indicating that

a judge may have a disability or impairment or may have

committed sanctionable conduct, Investigative Counsel may make

RULE 18-421

an inquiry.

An inquiry may include obtaining additional

information from a complainant and any potential witnesses,

reviewing public records, obtaining transcripts of court

proceedings, and communicating informally with the judge.

Following the inquiry, Investigative Counsel shall (1) conclude

the inquiry and dismiss any complaint in conformity with section

(b) of this Rule or (2) open a file, proceed as if a complaint

had been properly filed, and undertake an investigation in

accordance with Rule 18-422.

Source: This Rule is derived from former Rule 18-404 (a)

through (d) (2018).

REPORTER’S NOTE

The Rules Committee proposes amending section (b) of this

Rule to clarify the criteria for determining that a complaint

against a judge does not constitute a cognizable claim. The

Committee note following section (b) is also revised to clarify

that Investigative Counsel may decline to investigate a claim

determined to be facially frivolous, otherwise factually

unfounded, or duplicative.

A stylistic change is made in subsection (d)(1).

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MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 3 – ADMINISTRATIVE PROCEDURE

AMEND Rule 18-422 by adding to subsection (a)(4)(E) a

statement that service is complete upon mailing, by replacing

gendered pronouns with non-gender specific language in the

Committee note following subsection (b)(3)(C), and by making a

stylistic change in subsection (b)(2)(B), as follows:

Rule 18-422.

INVESTIGATION BY INVESTIGATIVE COUNSEL

(a) Conduct of Investigation

(1) Duty to Conduct; Notice to Board and Commission

If a complaint is not dismissed in accordance with Rule

18-421, Investigative Counsel shall conduct an investigation to

determine whether there are reasonable grounds to believe that

the judge may have a disability or impairment or may have

committed sanctionable conduct.

Investigative Counsel shall

inform the Board and the Commission promptly that the

investigation is being undertaken.

(2) Investigative Subpoena

The issuance of an investigative subpoena is governed by

Rule 18-409.1 (a).

RULE 18-422

Cross reference:

See Code, Courts Article, §§ 13-401--403.

(3) Grant of Immunity

Upon application by Investigative Counsel and for good

cause, the Commission may grant immunity to any person from

prosecution, or from any penalty or forfeiture, for or on

account of any transaction, matter, or thing concerning which

that person testifies or produces evidence, documentary or

otherwise.

Cross reference: See Md. Const., Art. IV § 4B (a)(1)(ii) and

Code, Courts Article, § 13-403.

Committee note: The need for a grant of immunity in order to

compel the production of evidence may arise at any stage.

Placing a reference to it here is not intended to preclude an

application to the Commission in a later stage of the

proceeding.

(4) Notice to Judge

(A) Upon Opening of File

Judges may request the Commission to inform them in

writing promptly upon the opening of a file pertaining to them

pursuant to Rule 18-421 (e) or (f).

writing.

The request shall be in

If such a request is received, Investigative Counsel

shall comply with that request unless the Board authorizes a

delay in providing the notice upon a finding that there is a

reasonable possibility that immediate notice may jeopardize an

investigation by Investigative Counsel or cause harm to any

RULE 18-422

person.

The notice shall be accompanied by a copy of the

complaint.

(B) Upon Service of Investigative Subpoena

Upon service of an investigative subpoena pursuant to

Rule 18-409.1, Investigative Counsel shall (i) serve a copy of

the subpoena upon the judge under investigation as required

under Rule 18-409.1 (a)(3) and (ii) unless notice was given to

the judge pursuant to subsection (a)(4)(A) of this Rule, include

that notice with a copy of the subpoena.

Subject to subsection (a)(4)(F) of this Rule, unless

notice has been given to the judge pursuant to subsection

(a)(4)(A) or (B) of this Rule, it shall be given before

conclusion of the investigation.

(D) Content

Investigative Counsel's notification to the judge

shall be in writing and shall state: (i) that Investigative

Counsel has undertaken an investigation into whether the judge

has a disability or impairment or has committed sanctionable

conduct; (ii) whether the investigation was undertaken on

Investigative Counsel's initiative or on a complaint; (iii) if

the investigation was undertaken on a complaint, the name of the

person who filed the complaint and the contents of the

complaint; (iv) the nature of the alleged disability,

RULE 18-422

impairment, or sanctionable conduct under investigation; and (v)

the judge's rights under subsection (a)(5) of this Rule.

(E) Service

The notice shall be given by first class mail or and

by certified mail requesting “Restricted Delivery--show to whom,

date, address of delivery” and shall be addressed to the judge

at the judge's address of record.

Service shall be complete

upon mailing in accordance with Rule 1-321.

(F) Exception

Notice shall not be given under this Rule if

Investigative Counsel determines, prior to the conclusion of the

investigation, that the recommendation of Investigative Counsel

will be dismissal of the complaint without a letter of

cautionary advice and the judge had not been given notice of the

opening of the file pursuant to subsection (a)(4)(A) or (B) of

this Rule.

Committee note: If, pursuant to subsection (a)(4)(A) or (B) of

this Rule, the judge had received notice of the opening of a

file, the judge also must be given notice that the complaint was

dismissed or that any inquiry by Investigative Counsel pursuant

to Rule 18-421 (f) was terminated.

(5) Opportunity of Judge to Respond

Upon the issuance of notice pursuant to subsection

(a)(4) of this Rule, Investigative Counsel shall afford the

judge a reasonable opportunity prior to concluding the

investigation to present such information as the judge chooses

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and shall give due consideration to the judge's response before

concluding the investigation.

(6) Time for Completion

Investigative Counsel shall complete an investigation

within 90 days after the investigation is commenced.

Upon

application by Investigative Counsel within the 90-day period

and for good cause, the Board, with the approval of the Chair of

the Commission, may extend the time for completing the

investigation for a reasonable period.

An order extending the

time for good cause shall be in writing and shall articulate the

basis of the good cause.

The Commission may dismiss any

complaint and terminate the investigation for failure to comply

with the time requirements of this section.

(b)

Report and Recommendation by Investigative Counsel

(1) Duty to Make

Upon completion of an investigation, Investigative

Counsel shall make a report of the results of the investigation

in the form that the Commission requires.

(2) Contents

(A) The report shall be in three distinct parts.

(B) Part 1 shall contain a statement of relevant factual

information obtained by Investigative Counsel and shall include,

in the body of the report or as attachments to it, (i) recorded

witness statements and summaries of unrecorded witness

RULE 18-422

statements, and (ii) any response or other information provided

by the judge pursuant to subsection (a)(5) of this Rule.

or evaluation of the material in Part 1 and legal conclusions

drawn therefrom, which are in the nature of Investigative

Counsel's work product.

(D) Part 3 shall contain Investigative Counsel's

recommendations, including a statement that the investigation

indicates probable sanctionable conduct, probable impairment,

probable disability, any of them, or none of them, together with

one of the following recommendations, as appropriate:

(i) dismissal of any complaint, without a letter of

cautionary advice;

(ii) dismissal of any complaint, with a letter of

cautionary advice;

(iii) a conditional diversion agreement;

(iv) a reprimand;

(v) the filing of charges; or

(vi) retirement of the judge based upon a finding of

disability.

(3) Recipients of Report

(A) In addition to complying with subsection (b)(3)(B) or

Parts 1 and 3 of the report on the judge if the subject judge is

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a judge to whom notification of the investigation is required

under subsection (a)(4)(A), (B), or (C) of this Rule.

(B) If the recommendation is dismissal of the complaint

without a letter of cautionary advice, Parts 1 and 3 of the

report and recommendation shall be made to the Commission.

Upon

receipt of the recommendation, the Commission shall proceed in

accordance with Rule 18-425.

to the Board.

Committee note: A complaint may be dismissed outright and

without a letter of cautionary advice for various reasons, at

different stages, and by different entities. Investigative

Counsel may dismiss a claim on his or her Investigative

Counsel’s own initiative, without opening a file, pursuant to

Rule 18-421 (b). In that instance, no notice need be given to

the judge. If Investigative Counsel opens a file pursuant to

Rule 18-421 (e) or (f) and performs an investigation under this

Rule, Investigative Counsel may recommend dismissal without a

letter of cautionary advice because, as a factual matter, there

is insufficient evidence of a disability, impairment, or

sanctionable conduct or because the complaint is stale. In that

situation, if the Commission, or, in the case of a stale

complaint, the Board adopts the recommendation, there is no need

for notice to the judge unless the judge has requested such

notice. If a matter other than a stale complaint proceeds to

the Board, the judge must receive notice, even if the ultimate

decision is to dismiss the complaint.

(c)

Records

Subject to a retention schedule approved by the Chief

Justice of the Supreme Court, Investigative Counsel shall keep a

record of the investigation.

Source: This Rule is in part derived from former Rule 18-404

(e) and (f) (2018) and is in part new.

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REPORTER’S NOTE

The Rules Committee proposes amending subsection (a)(4)(E)

of this Rule to clarify that service of a notice required by

section (a) is complete upon mailing. This provision mirrors

the service requirements in Rule 18-404 and ensures that the

service requirements in this Chapter are consistent.

In March 2023, the Judicial Council approved for

dissemination the Report and Recommendations of the Committee on

Equal Justice Rules Review Subcommittee (hereinafter “the EJC

Report”). One recommendation contained in the EJC Report was

for the Rules Committee to remove gendered pronouns from the

Rules. In the Committee note after subsection (b)(3)(C),

gendered pronouns “his or her” are replaced with “Investigative

Counsel’s.”

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MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 3 – ADMINISTRATIVE PROCEDURE

AMEND Rule 18-423 by adding new subsection (b)(2)(C)

permitting the Commission to make certain referrals for peer

review, by adding to subsection (f)(3)(B) a provision permitting

the Commission to remand a matter for peer review, by updating a

reference in subsection (f)(3)(E), and by making stylistic

changes, as follows:

Rule 18-423.

(a)

PROCEEDINGS BEFORE BOARD; REVIEW BY COMMISSION

Review of Investigative Counsel's Report

The Board shall review the reports and recommendations

made to the Board by Investigative Counsel and any matters

referred to it by the Commission pursuant to these Rules.

Cross reference:

(b)

See Rule 18-425 (a).

Informal Meeting with Judge; Peer Review

(1) Generally

The Board may meet informally with the judge.

(2) Peer Review

(A) As part of or in furtherance of that meeting, the

Chair of the Board, with the consent of the judge, may convene a

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peer review panel consisting of not more than two judges who

serve or have served on the same level of court upon which the

judge sits to confer with the judge about the complaint and

suggest options for the judge to consider.

The judges may be

incumbent judges or senior judges.

(B) The discussion may occur in person or by telephone or

other electronic conferencing but shall remain informal and

confidential.

The peer review panel (i) shall have no authority

to make any findings or recommendations, other than to the

judge; (ii) shall make no report to Investigative Counsel, the

Board, or the Commission; and (iii) may not testify regarding

the conference with the judge before the Commission or in any

court proceeding.

convene a peer review panel pursuant to subsection (b)(2) of

this Rule.

Committee note: The peer review panel is not intended as either

an arbitrator or a mediator but, as judicial colleagues, simply

to provide an honest and neutral appraisal for the judge to

consider.

(c)

Further Investigation

The Board may direct Investigative Counsel to make a

further investigation pursuant to Rule 18-424.

(d)

Board's Report to Commission

(1) Contents

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(A) After considering Investigative Counsel's report and

recommendation, the Board shall submit a report to the

Commission.

The Board shall include in its report the

recommendation made to the Board by Investigative Counsel.

Subject to subsection (d)(2) of this Rule, the report shall

include one of the following recommendations:

(i) dismissal of any complaint, without a letter of

cautionary advice pursuant to Rule 18-425 (a) and termination of

any investigation;

(ii) dismissal of any complaint, with a letter of

cautionary advice pursuant to Rules 18-425 (b) or 18-436;

(iii) a conditional diversion agreement pursuant to

Rules 18-426 or 18-436;

(iv) a reprimand pursuant to Rules 18-427 or 18-436;

(v) retirement of the judge pursuant to Rule 18-428; or

(vi) upon a determination of probable cause that the

judge has a disability or impairment or has committed

sanctionable conduct, the filing of charges pursuant to Rule 18431.

(B) The information transmitted by the Board to the

Commission shall be limited to a proffer of evidence that the

Board has determined would likely be admitted at a plenary

hearing before the Commission.

The Chair of the Board may

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consult with the Chair of the Commission in determining the

information to be transmitted to the Commission.

(2) Time for Submission of Report

(A) Generally

Unless the time is extended by the Chair of the

Commission for good cause, the Board shall submit the report

within 45 days after the date the Board received Investigative

Counsel's report and recommendation.

(B) Extension

Upon a written request by the Chair of the Board, the

Chair of the Commission may grant a reasonable extension of time

for submission of the report.

An order extending the time shall

be in writing and shall articulate the nature of the good cause.

If the Board fails to submit a report within the time

allowed, the Chair of the Commission shall direct Investigative

Counsel to create and submit a report that conforms to the

requirements of subsections (d)(1) and (2) of this Rule, subject

to Rule 18-422 (b)(2), and refer the matter to the Commission,

which may proceed, using the report as submitted by

Investigative Counsel in accordance with this provision.

(D) Copy to Investigative Counsel and Judge

Upon receiving the report and recommendation, the

Commission promptly shall transmit a copy of it, including any

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appendices or memoranda attached to it, to Investigative Counsel

and to the judge.

(e)

Filing of Response

Investigative Counsel and the judge may file with the

Commission a written response to the Board's report and

recommendation.

Unless the Chair of the Commission,

Investigative Counsel, and the judge agree to an extension, any

response shall be filed within 15 days after the date the

Commission transmitted copies of the report and recommendation

to Investigative Counsel and the judge if the recommendation is

a dismissal, with or without a letter of cautionary advice, and

within 30 days after that date in all other cases.

(f)

Action by Commission on Board Report and Recommendation

(1) Review

The Commission shall review the report and

recommendation and any timely filed responses.

(2) Appearance by Judge

Upon written request by the judge, with a copy to

Investigative Counsel, the Commission may permit the judge to

appear before the Commission on reasonable terms and conditions

established by the Commission.

Committee note: This review and any appearance by the judge is

not an evidentiary hearing. That is provided for in Rule 18-434

after charges have been filed. It is only for the Commission to

determine whether to direct that charges be filed against the

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judge or some other action set forth in subsection (f)(3) should

be taken.

(3) Disposition

Upon its review of the report and recommendation and any

timely filed responses and consideration of any evidence or

statement by the judge pursuant to subsection (f)(2) of this

Rule, the Commission shall:

(A) direct Investigative Counsel to conduct a further

investigation pursuant to Rule 18-424;

(B) remand the matter to the Board: (i) for further

consideration and direct the Board to file a supplemental report

within a specified period of time; or (ii) for the Board to

convene a peer review panel pursuant to section (b) of this Rule

if a peer review was not previously conducted;

without a letter of cautionary advice;

(D) enter a disposition pursuant to Rule 18-426, 18-427,

or 18-428;

(E) enter an appropriate disposition to which the judge

has filed a written consent in accordance with the Rules in this

Chapter, including a disposition under 18-435 18-436; or

(F) direct Investigative Counsel to file charges pursuant

to Rule 18-431.

Source: This Rule is derived in part from former Rule 18-404

(h) through (l) (2018) and is in part new.

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REPORTER’S NOTE

The Rules Committee proposes amending Rule 18-423 to permit

the Commission to direct the Board to convene a peer review

panel. Currently, only the Board may order a peer review panel

to be convened. The Commission believes, based on the success

of this program with the Board, that it would be beneficial to

extend this ability to the Commission.

Towards this end, new subsection (b)(2)(C) is proposed to

be amended to clarify that the Commission may direct the Board

to convene a peer review panel.

Subsection (f)(3)(B) is also amended to permit the

Commission to direct the Board to convene a peer review panel.

Stylistic changes are also proposed to this subsection.

A reference in subsection (f)(3)(B) is also updated.

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MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 3 – ADMINISTRATIVE PROCEDURE

AMEND Rule 18-424 by clarifying the procedure for

requesting an extension of time in section (c), as follows:

Rule 18-424.

(a)

FURTHER INVESTIGATION

Notice to Judge

Upon a directive for a further investigation by the Board

pursuant to Rule 18-423 (c) or by the Commission pursuant to

Rule 18-423 (f)(3), Investigative Counsel promptly shall (1)

provide the notice and opportunity to respond required by Rule

18-422 (a)(4) and (5) if such notice and opportunity have not

already been provided, and (2) notify the judge at the judge's

address of record that the Board or Commission has directed a

further investigation.

(b)

Investigative Subpoenas

The issuance of an investigative subpoena is governed by

Rule 18-409.1 (a).

Cross reference: See Code, Courts Article, §§ 13-401--403.

(c)

Time for Completion of Investigation

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Investigative Counsel shall complete a further

investigation within the time specified by the Board or

Commission.

Upon application by Investigative Counsel to the

Board or Commission, whichever entity authorized the further

investigation, made within that period and served by first class

mail upon the judge or the judge's attorney of record, the Chair

of the Board or Commission, for good cause, may extend the time

for completing the further investigation for a specified

reasonable time.

An order extending the time for good cause

shall be in writing and shall articulate the basis of the good

cause.

The Commission may dismiss the complaint and terminate

the investigation for failure to complete the investigation

within the time allowed.

(d)

Report and Recommendation

(1) Duty to Make

Within the time for completing the further

investigation, Investigative Counsel shall make a report of the

results of the investigation to the Board or Commission,

whichever authorized the further investigation, in the form the

Commission requires.

(2) Contents

Unless the material already has been provided,

Investigative Counsel shall include in the report or attach to

it any response or other information provided by the judge

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pursuant to section (a) of this Rule or Rule 18-422 (a)(5).

The

report shall be in the form required by Rule 18-422 (b)(2) and

include a statement that the investigation indicates probable

disability, probable impairment, probable sanctionable conduct,

any of them, or none of them, together with one of the following

recommendations:

(A) dismissal of any complaint, without a letter of

cautionary advice;

(B) dismissal of any complaint, with a letter of

cautionary advice;

(D) a reprimand;

(E) the filing of charges; or

(F) retirement of the judge based upon a finding of

disability.

(3) Recipients

If the further investigation was directed by the Board,

Investigative Counsel shall send a copy of the entire report to

the Board and a copy of Parts 1 and 3 to the judge.

If the

further investigation was directed by the Commission, a copy of

Parts 1 and 3 shall be sent to the Commission and the judge.

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

former Rule 18-405 (2018).

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REPORTER’S NOTE

The Rules Committee proposes amending section (c) of this

Rule so that the procedures that pertain to Investigative

Counsel obtaining an extension of time to conduct an additional

investigation apply to both the Board and the Commission, rather

than just the Commission as the Rule is currently drafted. This

will conform the Rule to the current practice, as both the Board

and the Commission have the authority to direct Investigative

Counsel to conduct an additional investigation.

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MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 3 – ADMINISTRATIVE PROCEDURE

AMEND Rule 18-426 by replacing “Court of Appeals” with

“Supreme Court” in subsection (a)(2), by requiring notice from

the monitor in section (e) that the judge has satisfied

conditions of the agreement, and by making a stylistic change,

as follows:

Rule 18-426.

(a)

CONDITIONAL DIVERSION AGREEMENT

When Appropriate

The Commission and the judge may enter into a conditional

diversion agreement if, after an investigation by Investigative

Counsel:

(1) the Commission concludes (A) that any alleged

sanctionable conduct was not so serious, offensive, or repeated

as to justify the filing of charges or, if charges already had

been filed, the imposition of any immediate discipline, and (B)

that the appropriate disposition is for the judge to undergo

specific treatment, participate in one or more specified

educational or therapeutic programs, issue an apology to the

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complainant, or take other specific corrective or remedial

action; and

(2) the judge, in the agreement, (A) agrees to the specified

conditions, (B) waives the right to a hearing before the

Commission and subsequent proceedings before the Court of

Appeals Supreme Court, (C) agrees that the conditional diversion

agreement may be revoked for noncompliance in accordance with

the provisions of section (b) of this Rule, and (D) agrees that

the agreement may be admitted in any subsequent disciplinary

proceeding against the judge to the extent that it is relevant

to the allegations at issue or the sanction that may be imposed.

Committee Note note: A conditional diversion agreement may be

the most appropriate response to the situation set forth in

subsection (a)(1) where any sanctionable conduct was

predominantly the product of the judge's impairment, as it can

provide a meaningful opportunity for remedial assistance to the

judge who, by consenting to the agreement, recognizes it is

needed, as well as protection of the public. The judge is free,

of course, to reject an offer of a conditional diversion

agreement, in which event the Commission may deal with any

sanctionable conduct in other ways.

(b)

Compliance

The Commission shall direct Investigative Counsel or some

other person to monitor compliance with the conditions of the

agreement and may direct the judge to document compliance.

The

monitor shall give written notice to the judge of the nature of

any alleged failure to comply with a condition of the agreement.

If, after affording the judge at least 15 days to respond to the

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notice, the Commission finds that the judge has failed to

satisfy a material condition of the agreement, the Commission

may revoke the agreement and proceed with any other disposition

authorized by these Rules.

If, upon request of the judge, a

monitor other than Investigative Counsel is appointed, all

reasonable expenses of the monitor shall be assessed against the

judge.

(c)

Not a Form of Discipline

A conditional diversion agreement under this section

does not constitute discipline or a finding that sanctionable

conduct was committed.

(d)

Notice to Complainant; Confidentiality

The Commission shall notify the complainant that the

complaint has resulted in an agreement with the judge for

corrective or remedial action.

Except as permitted in Rule 18-

407, the terms of the agreement shall remain confidential and

not be disclosed to the complainant or any other person unless

the judge consents, in writing, to the disclosure.

(e)

Termination of Proceedings

Until the conditions of the agreement have been fully

satisfied, the complaint remains open.

Upon notification by

Investigative Counsel the monitor that the judge has satisfied

all conditions of the agreement, the Commission shall terminate

the proceedings.

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RULE 18-426

Source:

(2018).

This Rule is derived from former Rule 18-406 (c)

REPORTER’S NOTE

At the November 8, 2022 general election, the voters of

Maryland ratified a constitutional amendment changing the name

of the Court of Appeals to the Supreme Court of Maryland. The

name change took effect on December 14, 2022. In order to

conform this Rule with this constitutional amendment, “Court of

Appeals” is replaced with “Supreme Court” in subsection (a)(2).

The Rules Committee proposes amending section (e) of this

Rule so that the monitor of a conditional diversion agreement

and not Investigative Counsel is responsible for notifying the

Commission of the judge’s satisfaction of the conditions of a

conditional diversion agreement. This revision would streamline

the existing process and permit an independent third-party

monitor to directly report to the Commission in the event that

Investigative Counsel is not directly responsible for monitoring

compliance with a particular conditional diversion agreement.

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MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 5 – FILING OF CHARGES; PROCEEDINGS BEFORE COMMISSION

AMEND Rule 18-431 by adding new section (h) pertaining to

resolution of pretrial motions and motions to dismiss, as

follows:

Rule 18-431.

(a)

FILING OF CHARGES

Direction by Commission

After considering the report and recommendation of the

Board or Investigative Counsel submitted pursuant to Rule 18-423

and any timely filed response, and upon a finding by the

Commission of probable cause to believe that a judge has a

disability or impairment or has committed sanctionable conduct,

the Commission may direct Investigative Counsel to initiate

proceedings against the judge by filing with the Commission

charges that the judge has a disability or impairment or has

committed sanctionable conduct.

(b)

Content of Charges

The charges shall (1) state the nature of the alleged

disability, impairment, or sanctionable conduct, including each

Rule of the Maryland Code of Judicial Conduct allegedly violated

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by the judge, (2) allege the specific facts upon which the

charges are based, and (3) state that the judge has the right to

file a written response to the charges within 30 days after

service of the charges.

The charges shall be served upon the judge pursuant to

Rule 18-404.

A return of service of the charges shall be filed

with the Commission.

Upon service, the Commission shall notify

any complainant that charges have been filed against the judge.

Cross reference:

(d)

See Md. Const., Art. IV, § 4B(a).

Response

Within 30 days after service of the charges, the judge

may file with the Commission an original and 11 copies of a

written response or file a response electronically pursuant to

Rule 18-404.

(e)

Notice of Hearing

(1) Generally

Upon the filing of a response or, if no response is

filed upon expiration of the time for filing one, the Commission

shall schedule a hearing and notify the judge of the date, time,

and place of the hearing.

Unless the judge has agreed to an

earlier hearing date, the hearing shall not be held earlier than

60 days after the notice was sent.

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RULE 18-431

(2) Sanctionable Conduct

If the hearing is on a charge of sanctionable conduct,

the Commission also shall notify the complainant and post a

notice on the Judiciary website that is limited to (1) the name

of the judge, (2) the date, time, and place of the hearing, (3)

the charges that have been filed, and (4) any response from the

judge.

If the charges also contain allegations of disability or

impairment, any information related to those allegations shall

be governed by the provisions of subsection (e)(3) and shall not

be posted on the Judiciary website or otherwise made public.

(3) Disability or Impairment

If the hearing is on a charge of disability or

impairment, the Commission shall notify the complainant that

charges have been filed and a hearing date has been set, but all

other information, including the charges, any response from the

judge, and all proceedings before the Commission, shall be

confidential.

Cross reference: See Rule 18-407 (a)(3) concerning the time for

posting on the Judiciary website.

(f)

Extension of Time

The Commission may extend the time for filing a response

and for the commencement of a hearing.

(g)

Amendment

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RULE 18-431

At any time before the hearing, the Commission on request

may allow amendments to the charges or the response.

If an

amendment to the charges is made less than 30 days before the

scheduled hearing, the judge, upon request, shall be given a

reasonable time to respond to the amendment and to prepare and

present any defense.

(h)

Open Motions

All pretrial motions and motions to dismiss shall be

resolved by the Commission prior to the hearing.

Source: This Rule is derived in part from former Rule 18-407

(a) through (h) (2018) and is in part new.

REPORTER’S NOTE

The Rules Committee proposes amending this Rule by adding

new section (h), which requires that all open pretrial motions

and motions to dismiss be resolved by the Commission prior to

the commencement of the hearing before the Commission.

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MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 5 – FILING OF CHARGES; PROCEEDINGS BEFORE COMMISSION

AMEND Rule 18-433 by adding a Committee note following

subsection (a)(3) pertaining to charges based on failure to

cooperate in discovery and by making stylistic changes, as

follows:

Rule 18-433.

(a)

DISCOVERY

Generally

(1) Except as otherwise provided in this Rule, discovery is

governed by the relevant Rules in Title 2, Chapter 400.

(2) The Chair of the Commission, rather than a court, may

limit the scope of discovery, enter protective orders permitted

by Rule 2-403, and resolve other discovery issues.

Cross reference: For the issuance of subpoenas pertaining to

discovery proceedings, see Rule 18-409.1 (b).

(3) Investigative Counsel and the judge have the obligation

to respond to the other's discovery requests addressed to them.

Committee note: A judge’s failure to cooperate in discovery may

warrant an amendment to the charges in accordance with Rule 18431 (g).

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RULE 18-433

(4) Investigative Counsel, the Commission, and the judge

have a continuing duty to supplement information required to be

disclosed under this Rule.

(5) The Commission shall preclude a party from calling a

witness, other than a rebuttal witness, or otherwise presenting

evidence upon a finding, after the opportunity for a hearing if

one is requested, that (1) the witness or evidence was subject

to disclosure under this Rule, (2) the party, without

substantial justification, failed to disclose the witness or

evidence in a timely manner, and (3) the failure was prejudicial

to the other party.

For purposes of this Rule, the parties are

Investigative Counsel and the judge against whom charges have

been filed.

(b)

Open File

Upon request by the judge or the judge's attorney, at any

time after service of charges upon the judge, (1) the Executive

Counsel of the Commission shall allow the judge or attorney to

inspect and copy the entire Commission record, and (2)

Investigative Counsel shall (A) allow the judge or attorney to

inspect and copy all evidence accumulated during the

investigation and all material, information, and statements as

defined in Rule 2-402 (f), (B) provide summaries or reports of

all oral statements for which contemporaneously recorded

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RULE 18-433

substantially verbatim recitals do not exist, and (C) certify to

the judge in writing that, except for material that constitutes

attorney work product or that is subject to a lawful privilege

or protective order issued by the Commission, the material

disclosed constitutes the complete record of Investigative

Counsel as of the date of inspection.

(c)

Exculpatory Evidence

Whether as part of the disclosures pursuant to section

(b) of this Rule or otherwise, no later than 30 days prior to

the scheduled hearing, Investigative Counsel shall disclose to

the judge all statements or other evidence of which

Investigative Counsel is aware that (1) directly negates any

allegation in the charges, (2) would be admissible to impeach a

witness intended to be called by Investigative Counsel, or (3)

would be admissible to mitigate a permissible sanction.

This

obligation includes exculpatory information that is included in

Investigative Counsel's Report to the Board.

(d)

Witnesses

No later than 30 days prior to the scheduled hearing,

Investigative Counsel shall provide to the judge the names and

addresses of all persons, other than a rebuttal witness,

Investigative Counsel intends to call at the hearing.

No later

than 25 days prior to the scheduled hearing, the judge shall

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provide to Investigative Counsel the names and addresses of all

persons, other than a rebuttal witness, the judge intends to

call at the hearing.

Source: This Rule is in part derived from former Rule 18-407

(g) (2018) and is in part new.

REPORTER’S NOTE

The Rules Committee proposes amending this Rule by adding a

Committee note following subsection (a)(3) to clarify that a

judge’s failure to participate in discovery may subject the

judge to additional discipline under the Rules in this Chapter.

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MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 400 – JUDICIAL DISABILITIES AND DISCIPLINE

DIVISION 5 – FILING OF CHARGES; PROCEEDINGS BEFORE COMMISSION

AMEND Rule 18-437 by adding provisions in section (b)

prohibiting certain filings in the Supreme Court in lieu of

exceptions and stating the effect of a failure to file

exceptions, by replacing gendered pronouns with non-gender

specific language in subsection (f)(2), and by making a

stylistic change in subsection (f)(2), as follows:

Rule 18-437.

(a)

PROCEEDINGS IN SUPREME COURT

Expedited Consideration

Upon receiving the hearing record file pursuant to Rule

18-435, the Clerk of the Supreme Court shall docket the case for

expedited consideration.

(b)

Exceptions

The judge may except to the findings, conclusions, or

recommendation of the Commission by filing exceptions with the

Supreme Court within 30 days after service of the notice of

filing of the record and in accordance with Rule 20-405.

exceptions shall set forth with particularity all errors

allegedly committed by the Commission and the disposition

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sought.

A copy of the exceptions shall be served on the

Commission in accordance with Rules 1-321 and 1-323.

A judge

may not file motions or requests for relief in lieu of filing

exceptions.

Motions shall be resolved by the Commission in

accordance with Rule 18-431 (h).

If no exceptions are filed,

the Supreme Court may treat the findings of fact and conclusions

of law as established and proceed to disposition.

(c)

Response

The Commission shall file a response within 30 days after

service of the exceptions in accordance with Rule 20-405.

The

Commission shall be represented in the Supreme Court by its

Executive Counsel or such other attorney as the Commission may

appoint.

A copy of the response shall be served on the judge in

accordance with Rules 1-321 and 1-323.

(d)

Memoranda

If exceptions are timely filed, upon the filing of a

response or, if no response is filed, upon the expiration of the

time for filing it, the Court may set a schedule for filing

memoranda in support of or in opposition to the exceptions and

any response and shall set a date for a hearing.

(e)

Hearing

The hearing on exceptions shall be conducted in

accordance with Rule 8-522.

If no exceptions are timely filed

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or if the judge files with the Court a written waiver of the

judge's right to a hearing, the Court may decide the matter

without a hearing.

(f)

Disposition

(1) The Supreme Court may (A) impose the disposition

recommended by the Commission or any other disposition permitted

by law, including an order directing the judge to undergo

specified evaluations, participate meaningfully in specified

therapeutic, educational, or behavior modification programs, and

to make a written apology to specified persons or groups of

persons harmed by the judge's misconduct; (B) dismiss the

proceeding; or (C) remand for further proceedings as specified

in the order of remand.

(2) If the disposition includes a suspension of the judge

from his or her judge’s judicial duties, the order imposing the

suspension shall state the duration of the suspension, which may

be indefinite or for a fixed period, and whether the suspension

(A) is to be with or without compensation, (B) is to be served

on consecutive dates, (C) prohibits the judge from conducting

any official business during the period of suspension and may

establish establishes any parameters or conditions governing the

judge's presence in any courthouse location, and (D) is subject

to any conditions precedent to reinstatement.

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Committee note: A judge who has been suspended from the

performance of judicial duties does not cease to be a judge by

reason of the suspension and remains subject to the Code of

Judicial Conduct. Any violation of the Code of Judicial Conduct

during the period of suspension may subject the judge to

additional charges.

Cross reference: For rights and privileges of the judge after

disposition, see Md. Const., Art. IV, § 4B (b).

(g)

Order

The decision shall be evidenced by an order of the

Supreme Court, which shall be certified under the seal of the

Court by the Clerk.

An opinion shall accompany the

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