SUPREME COURT STANDING COMMITTEE

Court rules

Ask Donna

What actually matters in this document.

Text

ON RULES OF PRACTICE AND PROCEDURE

Minutes of a meeting of the Rules Committee held in Rooms

132-133 of the Maryland Judicial Center, 187 Harry S. Truman

Parkway, Annapolis, Maryland on Friday, November 15, 2024.

Members present:

Hon. Alan M. Wilner, Chair

Hon. Douglas R.M. Nazarian, Vice

Chair

Hon. Tiffany Anderson

James M. Brault, Esq.

Jamar R. Brown, Esq.

Hon. Yvette M. Bryant

Julia Doyle, Esq.

Monica Garcia Harms, Esq.

Arthur J. Horne, Jr., Esq.

Hon. Karen R. Ketterman

Dawne D. Lindsey, Clerk

Bruce L. Marcus, Esq.

Stephen S. McCloskey, Esq.

Kathleen Meredith, Esq.

Judy Rupp, State Court

Administrator

Gregory K. Wells, Esq.

Hon. Dorothy J. Wilson

Brian Zavin, Esq.

In attendance:

Sandra F. Haines, Esq., Reporter

Colby L. Schmidt, Esq., Deputy Reporter

Heather Cobun, Esq., Assistant Reporter

Meredith A. Drummond, Esq., Assistant Reporter

Hon. Matthew Fader, Chief Justice, Supreme Court of Maryland

Elizabeth Ashford, Esq., Public Justice Center

Derek Bayne, Esq., Commission on Judicial Disabilities

Tanya Bernstein, Esq., Commission on Judicial Disabilities

Katherine Davis, Esq., Director, Maryland Pro Bono Resource

Center

Thomas DeGonia, Esq., Bar Counsel

Tamara Dowd, Esq., Commission on Judicial Disabilities

Hon. James Eyler

Kendra Jolivet, Esq., Commission on Judicial Disabilities

Marianne Lee, Esq., Executive Counsel and Director, Attorney

Grievance Commission

Lisa Mannisi, Esq., Civil and Criminal Case Administrator, Anne

Arundel County Circuit Court

Hon. John P. Morrissey, Chief Judge, District Court of Maryland

Pamela Ortiz, Esq., Director, Access to Justice

Gillian Tonkin, Esq., Staff Attorney to Chief Judge, District

Court

Rachel Konieczny, The Daily Record

Zafar Shah, Esq., Assistant Advocacy Director for Tenant Right

to Counsel, Maryland Legal Aid

The Chair convened the meeting.

He announced that the

meeting will be his final one as Chair of the Rules Committee.

He said that he informed the Supreme Court last month that he

would be resigning from the Rules Committee, the Judicial

Council, and the Major Projects Committee.

The Chair said that it has been a pleasure and a privilege

to serve on the Committee for at least 28 years.

He said that

the work is interesting and creative; he expressed his gratitude

for the intelligence, dedication, and friendship of the

Committee members and staff.

He noted that the public may not

often be aware of the work of the Committee but called it a

special group of people who serve the public well.

He informed

the Committee that he plans to spend time reading books at two

elementary schools in Baltimore County.

The Chair concluded by saying that he has asked Vice Chair

Judge Nazarian to preside over the remainder of the meeting.

The Committee applauded the Chair and thanked him for his

service.

Chief Justice Fader addressed the Chair and the Committee.

He said that he wanted to attend on behalf of the Supreme Court

and make remarks.

He informed the Committee that the Chair has

“lived a life of service that very few can match,” a large

portion of which was spent with the Maryland Judiciary.

The

Chair served on the Court of Special Appeals – now the Appellate

Court – from 1977 to 1996, including six years as Chief Judge of

that Court.

He was then a judge on the Court of Appeals – now

the Supreme Court – from 1996 until 2007.

The Chief Justice

added that the Chair then engaged in almost an additional full

career of service since reaching the mandatory retirement age of

70.

Prior to his time on the bench, the Chair was an Assistant

Attorney General and then Chief Legislative Officer to Gov.

Marvin Mandel.

The Chief Justice stated that the Chair served

on countless committees and work groups, including the Rules

Committee, during his years of service.

The Chief Justice said that the Supreme Court relies

heavily on the Committee to vet Rules proposals and sift through

public comments.

He noted that the Chair is a driving force

behind the excellence of the Committee.

He acknowledged sadness

at the news of the Chair’s resignation but added that he cannot

take issue with the decision given his lengthy career in public

service.

Chief Judge Morrissey remarked that when he became District

Court Chief Judge in June 2014, he was entering the role with

one month to implement the Appointed Attorneys Program

necessitated by DeWolfe v. Richmond, 434 Md. 444 (2013).

said that his predecessor, Judge Ben C. Clyburn, informed him

that one of his first calls should be to Judge Wilner and the

Rules Committee.

Judge Morrissey said that the Chair’s service

on the Major Projects Committee has involved a major time

commitment sitting through hours-long meetings and providing

insight when the work of that Committee intersects with that of

the Rules Committee.

Judge Morrissey said that he was

presenting the Chair with a District Court challenge coin to

thank him for his service.

He explained that the Chair must

have the coin with him when he sees Judge Morrissey or else he

must pay for lunch.

Judge Nazarian remarked that there is nobody who has

devoted more of themselves or of their professional life to the

work of the Committee.

He added that no current member of the

Committee has served under any other Chair.

He said that

“institutional memory” is a term that comes up when someone

retires or moves on from a position; however, he said that the

term does not adequately capture the way that the Chair has

lived the history of the law of the State.

He said that the

Committee serves a function that relatively few people

understand but everyone in the room knows that the Chair’s

retirement is well-earned.

The Reporter addressed the Chair and said that, on behalf

of the staff, it has been an honor and privilege to work with

him.

She presented him with a card and small gift from the

Committee staff.

Mr. Marcus said that serving on the Rules Committee under

the Chair’s leadership has been one of the greatest experiences

of his career.

He informed the Chair that his career has been

“iconic” and that he has been a beacon for everyone he has

touched.

He continued that the Chair modeled collegiality and

every virtue a lawyer and citizen of the State could want.

Mr.

Marcus said that there is a Yiddish term, “menschkeit,” which

describes a person who is good to the soul.

He stated that the

term applies to the Chair, who he said cannot appreciate the

impact he has had.

He concluded by congratulating the Chair on

one of the finest careers of anyone in Maryland.

Judge Bryant said that it is a sad day but also a happy day

because the Chair has more than earned his retirement from the

Committee.

She thanked him for everything he has taught her,

adding that he is a guide but also steps back and allows the

Committee members to learn how to do the work themselves.

She

noted that this will be key as they move forward in his absence.

The Reporter advised that the meeting was being recorded

for the purpose of assisting with the preparation of meeting

minutes and that speaking will be treated as consent to being

recorded.

She informed the Committee that the Rules Orders for

the 222nd and 223rd Reports, which were heard across three open

meetings, have all been signed and posted.

She also called for

a motion to approve the minutes for the October 10, 2024

meeting, which were circulated prior to the meeting for review.

A motion to approve the minutes was made, seconded, and approved

by consensus.

Agenda Item 1. Consideration of new Preamble to the Maryland

Rules and proposed amendments to Rule 18-101.2 (Promoting

Confidence in the Judiciary [ABA Rule 1.2]) and Rule 18-201.2

(Promoting Confidence in the Judiciary).

Mr. Marcus informed the Committee that Agenda Item 1

addresses an issue that was previously discussed by the

Committee; proposals were submitted to the Supreme Court as part

of the 221st Report.

He said that the focus is on implicit bias,

something that most people can describe and would agree can

negatively impact the fairness of court proceedings.

Mr. Marcus

explained that the Supreme Court is grappling with what to do

when behavior or speech appears to manifest inappropriate bias

in a judicial proceeding, particularly when it is a bias that is

subconscious.

Mr. Marcus said that the American Psychological Association

defines “implicit bias” as “a negative attitude of which one is

not consciously aware against a specific group.”

He noted that

the concept of the bias being “unconscious” is what makes it

particularly difficult to address in a Rule.

On remand, the

Supreme Court wanted the Committee to consider how to prohibit

unconscious behavior, particularly in Title 18 which can lead to

sanctions against judges.

He said that the Court also expressed

interest in making an aspirational statement about keeping all

judicial proceedings and interactions with the public fair and

free of bias.

Mr. Marcus explained that to address this

request, staff proposed creating a “Preamble” to the Maryland

Rules which would encourage reflection and awareness of bias.

Mr. Marcus presented a new Preamble to the Maryland Rules

for consideration.

MARYLAND RULES OF PROCEDURE

PREAMBLE

ADD a Preamble to the Maryland Rules, as

follows:

PREAMBLE

The mission of the Maryland Judiciary is to

provide fair, efficient, and effective justice for all

persons who come before it. The Judiciary is

committed to ensuring the integrity and impartiality of

the judicial system and to providing court interactions

free of impermissible bias and the appearance of such

bias. In all court interactions, each judge, judicial

officer, employee, and agent acting on behalf of the

Maryland Judiciary should refrain from engaging in

conduct that exhibits actual or implicit bias based on

race, sex, gender, religion, national origin, ethnicity,

disability, age, sexual orientation, marital status,

socioeconomic status, or political affiliation – whether

directed toward counsel, court staff, witnesses,

parties, jurors, or any other individual – and should

take action to prevent others from engaging in such

conduct.

The Preamble was accompanied by the following Reporter’s

note:

Proposed amendments to Rule 18-101.2 address

a concern raised by the Committee on Equal Justice

Rules Review Subcommittee (“the EJC Report”). The

suggestion in the EJC Report was to add Committee

notes to the Rules in Title 4 reminding judges “of the

risk of implicit bias.” The Rules Committee discussed

and ultimately recommended a new Title 1 Rule (Rule

1-342) and amendments to two Rules in the Code of

Judicial Conduct (Rules 18-102.3 and 18-202.3). Rule

1-342 contained a general reminder to judicial

personnel (1) of the need to be aware of how

participants in judicial proceedings and members of

the public may construe the manner in which judicial

statements or decisions are expressed and enforced

and (2) to avoid making statements or taking actions

that others may feel indicate a bias that is not

intended. The two Title 18 Rules were amended to add

discussion of implicit bias to the Comments.

The Supreme Court considered the proposals at

an open meeting on the 221st Report on March 19,

2024. After discussion, the Court remanded the Rules

to the Committee for further study. The Court

instructed the Committee, on remand, to relocate the

substance of Rule 1-342 to Rules 18-101.2 and 18201.2 – with reconsideration of the language used in

light of the Court’s discussion – and to consider

developing a Title 1 Rule that serves as an aspirational

policy statement for the Judiciary.

To address the second part of the Court’s

directive, the Attorneys & Judges Subcommittee

recommends adding a “Preamble” to the Maryland

Rules derived from the Judiciary’s mission statement

and the language previously included in the proposed

new Rule 1-342. The Preamble sets forth the

aspirational goal of the courts to avoid actual or

implicit bias. The attributes that bias may be based

on are derived from Rules 18-102.3 and 18-202.3.

By not locating the provision in Title 1, the

Preamble signals that it is separate from the Maryland

Rules, which “‘are not guides to the practice of law but

precise rubrics “established to promote the orderly and

efficient administration of justice and [that they] are to

be read and followed.”’” e.g., Isen v. Phoenix Assurance

Co., 259 Md. 564, 570 (1970) (Johnson v. State, 355

Md. 420, 447 (1999)).

Mr. Marcus said that the Preamble is a mission statement

and an admonishment to those representing the Maryland Judiciary

to be cognizant of how their actions and words are perceived.

Judge Nazarian commented that the idea of the Preamble is that

it is not a Rule itself, which addresses some of the Court’s

concerns.

By contrast, the two Title 18 Rules, which will be

discussed next, are intended to be enforceable provisions of the

Code of Judicial Conduct.

Judge Bryant remarked that she does not have an issue with

the idea of a Preamble, however she has concerns about the last

clause, which reads, “and should take action to prevent others

from engaging in such conduct.”

She explained that the

provision encourages peers to regulate one another and, in

certain environments, that troubles her.

“should” be changed to “may.”

She suggested that

Judge Nazarian said that he

appreciates Judge Bryant’s comment.

He pointed out that the

mission set forth in the Preamble may be intended to cause some

discomfort.

Judge Bryant responded that she is less concerned

with discomfort and more concerned with outright conflict in the

workplace over coworkers policing each other’s words and

behaviors.

Chief Judge Morrissey pointed out that judges have a

general duty to control conduct in their courtrooms.

However,

he agreed that the provision might be overly broad if it could

lead to regulating speech by members of the public.

Mr. Wells said that he agreed with Judge Bryant’s concern

and suggested the provision be changed to “encourage” taking

action to prevent others from manifesting bias.

He said that

this would be in line with the aspirational nature of the

Preamble.

Judge Bryant said that she also has concerns about

the word “prevent.”

She asked how someone could take action to

prevent another individual from having biased thoughts.

She

said she would support changing the clause to “are encouraged to

take action to discourage others from engaging in such conduct.”

Mr. Wells suggested “refrain from” instead of “prevent.”

Assistant Reporter Cobun asked how the last sentence would read.

Judge Bryant said, taking Mr. Well’s suggestion, the end of the

sentence would state “and are encouraged to take action to

discourage/dissuade others from engaging in such conduct.”

She

said that she is open to either “discourage” or “dissuade.”

Mr.

Wells said that he likes “discourage.”

Mr. Horne remarked that if the Preamble is intended to be

aspirational, that clause can be removed as it is the only

portion that compels an affirmative action on the part of the

reader.

Judge Nazarian responded that the Judiciary may want

people to take affirmative action to prevent bias.

Mr. Wells

added that the Court should want to encourage staff and

employees to have conversations about implicit and explicit

bias.

Ms. Doyle commented that the Code of Judicial Conduct has

directives for judges to control conduct before them.

She added

that the Preamble might not be the appropriate location for the

provision.

Mr. Wells told the Committee that when he began practicing,

it was not uncommon for him to walk into a courthouse, dressed

in a suit, and be asked if he was a defendant looking for his

attorney.

He said that the last clause in the proposed Preamble

might encourage conversations when employees witness

interactions like the one that he described.

Judge Bryant

reiterated that she was more comfortable with changing the

clause to “are encouraged to take action to discourage others

from engaging in such conduct.”

Judge Anderson asked what “action” the Committee envisions

a Judiciary employee taking.

She asked if someone should stop a

court proceeding, raise the issue with an employee’s supervisor,

or even protest outside the courthouse?

Judge Bryant asked Mr.

Marcus if the Subcommittee engaged in that discussion.

Mr.

Marcus responded that the Subcommittee did not discuss that

issue.

Ms. Cobun informed the Committee that the language was

derived, in part, from the California Rules of Court Standards

of Judicial Administration Standard 10.20.

Judge Wilson suggested that the appropriateness of the

action will depend on several factors.

She noted that, in the

Judiciary human resources policies, there are standards of

conduct and required training on bias and how to respond.

She

said that the proposed phrasing gives broad enough discretion to

allow an individual to determine an appropriate response when

there appears to be an incident of bias.

Mr. Wells pointed out

that the intention of changing “should” to “are encouraged to”

is to remove any obligation to act.

circumstances will vary.

He agreed that the

Mr. Brault pointed out that the clause

is vague, particularly regarding who the “others” are.

Judge

Nazarian asked whether the reworded clause should be further

amended to refer to “appropriate action.”

Judge Bryant moved to amend the final clause of the

Preamble to read “are encouraged to take action to discourage

others from engaging in such conduct.”

She clarified that her

motion does not include “appropriate action.”

The motion was

seconded and approved by consensus.

Mr. Brown questioned why the scope of the Preamble is

limited to Judiciary employees and not all individuals.

Mr.

Marcus responded that there are specific Rules for attorneys and

for judges, but this Preamble goes to the broader Judiciary as a

mission statement.

Mr. Brown also asked why the phrase

“impermissible bias” was chosen.

Mr. Marcus responded that

everyone has biases, which could be as innocuous as preferring

the Ravens over the Commanders.

He explained that the focus of

the Judiciary is on bias that impacts the fairness of court

proceedings.

Mr. Brown suggested striking the word

“impermissible.”

Judge Bryant commented that something she teaches to new

judges in family law cases is that they must be cognizant of

their biases.

She said that she tells judges they can feel how

they feel, i.e., have opinions about family structure, but must

recognize that the knee-jerk feeling is rooted in bias and must

be set aside.

She said that if she holds a biased thought, that

thought cannot be policed.

But as a judge, she cannot bring

that opinion into how she treats parties or cases.

Mr. Brown replied that he liked Mr. Marcus’s explanation

that it is about bias “that interferes with the fair

administration of justice.”

A motion to strike “impermissible

bias” and replace it with the phrase “bias that interferes with

the fair administration of justice” was made, seconded, and

approved by consensus.

Judge Nazarian called for a motion to approve the Preamble,

as amended.

The motion was made, seconded, and approved by

consensus.

Mr. Marcus presented Rule 18-101.2, Promoting Confidence in

the Judiciary [ABA Rule 1.2], and Rule 18-201.2, Promoting

Confidence in the Judiciary, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 100 – MARYLAND CODE OF JUDICIAL

CONDUCT

RULES GOVERNING INTEGRITY AND THE

AVOIDANCE OF IMPROPRIETY

AMEND Rule 18-101.2 by adding new section (d)

pertaining to avoiding the perception of bias, by adding

“or bias” to Comment 1, by adding to Comment 4

encouragement to participate in education and to

participate in activities that promote awareness of

biases, by adding new Comment 6, and by

renumbering current Comment 6 as Comment 7, as

follows:

Rule 18-101.2. PROMOTING CONFIDENCE IN THE

JUDICIARY (ABA RULE 1.2)

(a) Promoting Public Confidence

A judge shall act at all times in a manner that

promotes public confidence in the independence,

integrity, and impartiality of the judiciary.

(b) Avoiding Perception of Impropriety

A judge shall avoid conduct that would create in

reasonable minds a perception of impropriety.

A judge shall avoid conduct that would create in

reasonable minds a perception that the judge is acting

with bias based on race, sex, gender, religion, national

origin, ethnicity, disability, age, sexual orientation,

marital status, socioeconomic status, or political

affiliation.

COMMENT

[1] Public confidence in the judiciary is eroded

by improper conduct and conduct that creates the

appearance of impropriety or bias. This principle

applies to both the professional and personal conduct

of a judge.

[2] A judge should expect to be the subject of

public scrutiny that might be viewed as burdensome if

applied to other individuals and must accept the

restrictions imposed by this Code.

[3] Conduct that compromises or appears to

compromise the independence, integrity, and

impartiality of a judge undermines public confidence

in the judiciary. Because it is not practicable to list all

such conduct, the Rule is necessarily cast in general

terms.

[4] Judges should participate in activities,

including training and other educational

opportunities, that promote ethical conduct among

judges and attorneys, support professionalism within

the judiciary and the legal profession, encourage

increased awareness of actual and implicit biases, and

promote access to justice for all.

[5] Actual improprieties include violations of law,

Court Rules, and this Code. The test for appearance of

impropriety is whether the conduct would create in

reasonable minds a perception that the judge's ability

to carry out judicial responsibilities with competence,

impartiality, and integrity is impaired.

[6] Members of the public interacting with the

judiciary should be treated fairly and impartially both

in fact and in appearance. Judges should be mindful

that bias may be explicit but also may be implicit,

meaning behavior that is largely influenced by

subconscious associations and judgments that the

conscious brain is not capable of processing. If a

judge is alerted that the judge’s conduct could cause a

reasonable person to question the judge’s impartiality

or otherwise suggest impermissible bias on the part of

the court, the judge should evaluate the conduct and,

if necessary, take reasonable and lawful steps to

correct the conduct.

[6][7] A judge should initiate and participate in

community outreach activities for the purpose of

promoting public understanding of and confidence in

the administration of justice. In conducting such

activities, the judge must act in a manner consistent

with this Code.

Source: This Rule is derived from former Rule 1.2 of

Rule 16-813 (2016).

Rule 18-101.2 was accompanied by the following Reporter’s

note:

Proposed amendments to Rule 18-101.2 address

a concern raised by the Committee on Equal Justice

Rules Review Subcommittee (“the EJC Report”). The

suggestion in the EJC Report was to add Committee

notes to the Rules in Title 4 reminding judges “of the

risk of implicit bias.” The Rules Committee discussed

and ultimately recommended a new Title 1 Rule (Rule

1-342) and amendments to two Rules in the Code of

Judicial Conduct (Rules 18-102.3 and 18-202.3). Rule

1-342 contained a general reminder to judicial

personnel (1) of the need to be aware of how

participants in judicial proceedings and members of

the public may construe the manner in which judicial

statements or decisions are expressed and enforced

and (2) to avoid making statements or taking actions

that others may feel indicate a bias that is not

intended. The two Title 18 Rules were amended to add

discussion of implicit bias to the Comments.

The Supreme Court considered the proposals at

an open meeting on the 221st Report on March 19,

2024. After discussion, the Court remanded the Rules

to the Committee for further study. The Court

instructed the Committee, on remand, to relocate the

substance of Rule 1-342 to Rules 18-101.2 and 18201.2 – with reconsideration of the language used in

light of the Court’s discussion – and to consider

developing a Title 1 Rule that serves as an aspirational

policy statement for the Judiciary.

The proposed amendment to Rule 18-101.2 is

modeled after the existing provisions in the Rule but

adds an admonishment that judges must avoid

conduct that would create in reasonable minds a

perception of bias based on the enumerated traits. A

new Comment 6 provides guidance to the judge who is

alerted to the potential for an appearance of bias. It is

derived in part from Belton v. State, 483 Md. 523

(2023), and in part from the Supreme Court’s

comments at the open meeting on the 221st Report.

Additional amendments to the Comments add

“or bias” to Comment 1 and expand Comment 4 to

reference educational opportunities and encourage

increased awareness of bias.

MARYLAND RULES OF PROCEDURE

TITLE 18 – JUDGES AND JUDICIAL APPOINTEES

CHAPTER 200 – MARYLAND CODE OF CONDUCT

FOR JUDICIAL APPOINTEES

RULES GOVERNING INTEGRITY AND THE

AVOIDANCE OF IMPROPRIETY

AMEND Rule 18-201.2 by adding taglines to

sections (a) and (b), by adding new section (d)

pertaining to avoiding the perception of bias, by adding

“or bias” to Comment 1, by adding to Comment 4

encouragement to participate in education and to

participate in activities that promote awareness of

biases, by adding new Comment 6, by renumbering

current Comment 6 as Comment 7, as follows:

Rule 18-201.2. PROMOTING CONFIDENCE IN THE

JUDICIARY

(a) Promoting Public Confidence

A judicial appointee shall act at all times in a

manner that promotes public confidence in the

independence, integrity, and impartiality of the

judiciary.

(b) Avoiding Perception of Impropriety

A judicial appointee shall avoid conduct that

would create in reasonable minds a perception of

impropriety.

A judicial appointee shall avoid conduct that

would create in reasonable minds a perception that

the judge is acting with bias based on race, sex,

gender, religion, national origin, ethnicity, disability,

age, sexual orientation, marital status, socioeconomic

status, or political affiliation.

COMMENT

[1] Public confidence in the judiciary is eroded

by improper conduct and conduct that creates the

appearance of impropriety or bias. This principle

applies to both the professional and personal conduct

of a judicial appointee.

[2] A judicial appointee should expect to be the

subject of public scrutiny that might be viewed as

burdensome if applied to other citizens, and must

accept the restrictions imposed by this Code.

[3] Conduct that compromises or appears to

compromise the independence, integrity, and

impartiality of a judicial appointee undermines public

confidence in the judiciary. Because it is not

practicable to list all such conduct, the Rule is

necessarily cast in general terms.

[4] Judicial appointees should participate in

activities, including training and other educational

opportunities, that promote ethical conduct among

judicial appointees and attorneys, support

professionalism within the judiciary and the legal

profession, encourage increased awareness of actual

and implicit biases, and promote access to justice for

all.

[5] Actual improprieties include violations of law,

Court Rules, and this Code. The test for appearance of

impropriety is whether the conduct would create in

reasonable minds a perception that the judicial

appointee's ability to carry out the responsibilities of

the judicial appointee's position with competence,

impartiality, and integrity is impaired.

[6] Members of the public interacting with the

judiciary should be treated fairly and impartially both

in fact and in appearance. Judicial appointees should

be mindful that bias may be explicit but also may be

implicit, meaning behavior that is largely influenced by

subconscious associations and judgments that the

conscious brain is not capable of processing. If a

judicial appointee is alerted that the judicial

appointee’s conduct could cause a reasonable person

to question the judicial appointee’s impartiality or

otherwise suggest impermissible bias on the part of

the court, the judicial appointee should evaluate the

conduct and, if necessary, take reasonable and lawful

steps to correct the conduct.

[6][7] A judicial appointee should, where

appropriate, initiate and participate in community

outreach activities for the purpose of promoting public

understanding of and confidence in the administration

of justice. In conducting such activities, the judicial

appointee must act in a manner consistent with this

Code.

Source: This Rule is derived from former Rule 1.2 of

Rule 16-814 (2016).

Rule 18-201.2 was accompanied by the following Reporter’s

note:

Proposed amendments to Rule 18-201.2 address

a concern raised by the Committee on Equal Justice

Rules Review Subcommittee (“the EJC Report”). See

the Reporter’s note to Rule 18-102.2.

Mr. Marcus informed the Committee that Rules 18-102.2 and

18-201.2 are companion Rules for judges and judicial appointees,

respectively.

Both Rules are part of the Supreme Court’s remand

from the 221st Report.

He explained that new section (c) in each

Rule adds a provision instructing judges and judicial appointees

to “avoid conduct that would create in reasonable minds a

perception that the judge is acting with bias.”

Comment 4 is

updated to encourage the judge or appointee to participate in

educational opportunities, including those that encourage

awareness of actual and implicit biases.

New Comment 6 provides

additional guidance to judges and appointees regarding awareness

of their biases and what to do if alerted to a possible bias.

Mr. Marcus noted that the Chair suggested adding “without

prompting” to the second sentence of Comment 6.

The sentence

defines “implicit bias” as “behavior that is largely influenced

by subconscious associations and judgments that the conscious

brain is not capable of processing.”

The Chair pointed out

that, if prompted, the Rule expects the judge or appointee to

consider the possible biases reflected in the judge or

appointee’s conduct.

Judge Ketterman suggested striking “that the conscious

brain is not capable of processing” from Comment 6.

She said

that the phrase “subconscious associations and judgments”

already captures this notion.

source of the definition.

Judge Bryant asked about the

Ms. Cobun responded that the

definition was drawn from a footnote in Belton v. State, 483 Md.

523 (2023).

She explained that the definition was selected

because the Supreme Court referenced it in that case to explain

implicit bias.

The Chair commented that it struck him as

internally inconsistent to ask a judge to correct language or

behavior that reflects a bias about which the judge is unaware.

He added that if the judge is made aware of the possibility of

bias, the judge can then process and respond.

Judge Nazarian remarked that striking the phrase “that the

conscious brain is not capable of processing” avoids this

discussion.

Ms. Meredith moved to delete the phrase.

The

motion was seconded and approved by consensus.

Judge Bryant asked whether “impermissible” should be

stricken from the last sentence of Comment 6 for consistency

with the amendment made to the Preamble.

The Reporter commented

that section (c) of both Rules lists the types of impermissible

biases – race, sex, gender, religion, national origin,

ethnicity, disability, age, sexual orientation, marital status,

socioeconomic status, or political affiliation – and the Comment

expands on that.

Mr. Brown responded that, in the context of

these Rules, he did not have a problem with the phrase

“impermissible bias.”

There was no motion to strike

“impermissible.”

There being no further motion to amend Rules 18-101.2 and

18-201.2, they were approved as amended.

Agenda Item 2. Consideration of proposed amendments to Rule 19737 (Reciprocal Discipline or Inactive Status) and Rule 19-738

(Discipline on Conviction of Crime).

Mr. Marcus presented Rule 19-737, Reciprocal Discipline or

Inactive Status, and Rule 19-738, Discipline on Conviction of

Crime, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS,

RESIGNATION

SPECIAL PROCEEDINGS

AMEND Rule 19-737 by adding “service of” to

subsection (d)(1), as follows:

Rule 19-737. RECIPROCAL DISCIPLINE OR INACTIVE

STATUS

(a) Duty of Attorney

An attorney who in another jurisdiction (1) is

disbarred, suspended, or otherwise disciplined, (2)

resigns from the bar while disciplinary or remedial

action is threatened or pending in that jurisdiction, (3)

is transferred to disability inactive status or an

equivalent status in that jurisdiction, or (4) is subject

to a remedial order entered in that jurisdiction shall

inform Bar Counsel promptly of the discipline,

resignation, inactive status, or remedial order.

(b) Petition in Supreme Court

Upon receiving and verifying information from

any source that in another jurisdiction an attorney has

been disciplined or transferred to disability inactive

status, or an equivalent status, or is subject to a

remedial order entered in that jurisdiction, Bar

Counsel may file a Petition for Disciplinary or

Remedial Action in the Supreme Court pursuant to

Rule 19-721 (a)(2). A certified copy of the disciplinary

or remedial order shall be attached to the Petition.

When a petition and certified copy of a

disciplinary or remedial order have been filed, the

Supreme Court shall order that Bar Counsel and the

attorney, within the time specified in the order, show

cause in writing based upon any of the grounds set

forth in section (e) of this Rule why corresponding

discipline or inactive status, or a corresponding

remedial order, should or should not be imposed or

entered. A copy of the petition, attachment, and show

cause order shall be served in accordance with Rule

19-723.

(d) Temporary Suspension of Attorney

(1) Show Cause Order

When the petition and disciplinary or remedial

order demonstrate that an attorney has been disbarred

or suspended, is currently suspended from practice

pending a final order of a court in another jurisdiction,

or has been transferred to disability inactive status

based on incapacity in another jurisdiction, the

Supreme Court shall order that the attorney, within 15

days from the date of service of the order, show cause

in writing why the attorney should not be suspended

from the practice of law or transferred to disability

inactive status immediately until the further order of

the Supreme Court. The show cause order shall be

served in accordance with Rule 19-723.

(2) Temporary Suspension or Disability Inactive

Status

Upon consideration of the petition and any

answer to the order to show cause, the Supreme Court

may enter an order: (A) immediately suspending the

attorney from the practice of law, pending further

order of the Court, (B) immediately transferring the

attorney to disability inactive status, pending further

order of the Court, or (C) containing any other

appropriate provisions. The provisions of Rules 19-741

or 19-743, as applicable, apply to an order under this

section.

(3) Termination of Temporary Suspension or

Disability Inactive Status

On notification by Bar Counsel that the

disciplinary or remedial order has been reversed or

vacated in the other jurisdiction, the Supreme Court

shall vacate the order of temporary suspension or

disability inactive status, unless other grounds exist

for the suspension to remain in effect.

(e) Exceptional Circumstances

Reciprocal discipline shall not be ordered if Bar

Counsel or the attorney demonstrates by clear and

convincing evidence that:

(1) the procedure was so lacking in notice or

opportunity to be heard as to constitute a deprivation

of due process;

(2) there was such infirmity of proof establishing the

misconduct as to give rise to a clear conviction that

the Court, consistent with its duty, cannot accept as

final the determination of misconduct;

(3) the imposition of corresponding discipline would

result in grave injustice;

(4) the conduct established does not constitute

misconduct in this State or it warrants substantially

different discipline in this State; or

(5) the reason for inactive status no longer exists.

(f) Action by Supreme Court

Upon consideration of the petition and any

answer to the order to show cause, the Supreme Court

may: (1) immediately impose corresponding discipline

or inactive status, or enter a corresponding remedial

order; (2) enter an order designating a judge pursuant

to Rule 19-722 to hold a hearing in accordance with

Rule 19-727; or (3) enter any other appropriate order.

The provisions of Rules 19-741 or 19-743, as

applicable, apply to an order under this section that

disbars or suspends an attorney or that transfers the

attorney to disability inactive status.

(g) Conclusive Effect of Adjudication

Except as provided in subsections (e)(1) and (e)(2)

of this Rule, a final adjudication in a disciplinary or

remedial proceeding by another court, agency, or

tribunal that an attorney has been guilty of

professional misconduct or is incapacitated is

conclusive evidence of that misconduct or incapacity

in any proceeding under this Chapter. The

introduction of such evidence does not preclude the

Commission or Bar Counsel from introducing

additional evidence or preclude the attorney from

introducing evidence or otherwise showing cause why

no discipline or lesser discipline should be imposed.

(h) Effect of Stay in Other Jurisdiction

If the other jurisdiction has stayed the discipline,

inactive status, or remedial order, any proceedings

under this Rule shall be deferred until the stay is no

longer operative and the discipline, inactive status, or

remedial order becomes effective.

(i) Duties of Clerk of Supreme Court

The applicable provisions of Rule 19-761 apply

when an order is entered under this Rule.

Source: This Rule is derived in part from former Rule

16-773 (2016) and is in part new.

Rule 19-737 was accompanied by the following Reporter’s

note:

The Attorneys and Judges subcommittee

proposes that subsection (d)(1) of this Rule be

amended to clarify that the time in which the

attorney’s response to a show cause order under this

subsection is due begins to run from the time of

service of the show cause order and not the date of

issuance of the order. It is anticipated that this will

result in less show cause orders being re-issued due to

lack of timely service and will allow the attorney more

time to respond to the show cause order than

sometimes happens under the current version of this

Rule.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS,

RESIGNATION

SPECIAL PROCEEDINGS

AMEND Rule 19-738 by adding “service of” to

section (d), as follows:

Rule 19-738. DISCIPLINE ON CONVICTION OF CRIME

(a) Definition

In this Rule, “conviction” includes (1) a judgment

entered upon acceptance by the court of a plea of

guilty, conditional plea of guilty, or nolo contendere

and (2) a criminal matter in which a probation before

judgment is entered by the trial court, regardless of

whether the probation before judgment is predicated

upon a plea of guilty, a conditional plea of guilty, or a

plea of nolo contendere or upon a finding of guilt by a

trier of fact after a trial on the merits.

(b) Duty of Attorney

An attorney charged with a serious crime in this

State or any other jurisdiction shall promptly inform

Bar Counsel in writing of (1) the filing of the charge, (2)

any finding or verdict of guilty on such charge, (3) the

entry of a judgment of conviction or a probation before

judgment on such charge, and (4) the final disposition

of the charge in each court that exercised jurisdiction

over the charge.

Cross reference: Rule 19-701 (t).

(1) Petition Upon Conviction

(A) Upon receiving and verifying information from

any source that an attorney has been convicted of a

serious crime, Bar Counsel may file a Petition for

Disciplinary or Remedial Action pursuant to Rule 19721 (a)(2). The petition may be filed whether an appeal

or any other post-conviction proceeding is pending.

(B) Contents

The petition shall allege the fact of the

conviction and include a request that the attorney be

suspended immediately from the practice of law. A

certified copy of the judgment of conviction or a

certified copy of the transcript reflecting the conviction

shall be attached to the petition and shall be prima

facie evidence of the fact that the attorney was

convicted of the crime charged.

(2) Petition When Imposition of Sentence is Delayed

(A) Generally

Upon receiving and verifying information from

any source that an attorney has been found guilty of a

serious crime but that sentencing has been delayed for

a period of more than 30 days, Bar Counsel may file a

Petition for Disciplinary or Remedial Action pursuant

to Rule 19-721 (a)(2). The petition may be filed whether

or not a motion for new trial or other relief is pending.

(B) Contents

The petition shall allege the finding of guilt and

the delay in sentencing and request that the attorney

be suspended immediately from the practice of law

pending the imposition of sentence and entry of a

judgment of conviction. Bar Counsel shall attach to

the petition a certified copy of the docket reflecting the

finding of guilt or a certified copy of the transcript

reflecting the finding of guilt, which shall be prima

facie evidence that the attorney was found guilty of the

crime charged.

Upon the imposition of sentence and entry of a

judgment of conviction, Bar Counsel shall inform the

Supreme Court and attach a certified copy of the

judgment of conviction or a certified copy of the

transcript reflecting the conviction.

(d) Show Cause Order

When the petition demonstrates that an attorney

has been found guilty or convicted of a serious crime,

the Supreme Court shall order that the attorney,

within 15 days from the date of service of the order,

show cause in writing why the attorney should not be

suspended immediately from the practice of law until

the further order of the Supreme Court.

(e) Temporary Suspension of Attorney

Upon consideration of the petition and the answer

to the order to show cause, the Supreme Court may

enter an order immediately suspending the attorney

from the practice of law, pending further order of the

Court, or enter an order containing any other

appropriate provisions. The provisions of Rules 19-741

and 19-743, as applicable, apply to an order

suspending an attorney under this section.

Cross reference: Rule 19-741.

(f) Termination of Temporary Suspension

On notification by Bar Counsel or the attorney

that the conviction was reversed, the Supreme Court

shall vacate the order of temporary suspension, unless

other grounds exist for the suspension to remain in

effect.

(g) Action by the Supreme Court

When a petition filed pursuant to section (c) of

this Rule alleges the conviction of a serious crime and

the attorney denies the conviction or intends to

present evidence in support of a disposition other than

disbarment, the Supreme Court may (1) immediately

suspend the attorney, (2) enter an order designating a

judge pursuant to Rule 19-722 to hold a hearing in

accordance with Rule 19-727, or (3) enter any other

appropriate order. The provisions of Rules 19-741 and

19-743 apply to an order under this section that

disbars or suspends an attorney or that places the

attorney on inactive status.

(h) Time for Holding a Hearing

If, pursuant to section (g) of this Rule, the Court

designates a judge to hold a hearing, the hearing shall

be scheduled as follows:

(1) No Appeal of Conviction

If the attorney does not appeal the conviction,

the hearing shall be held within a reasonable time

after the time for appeal has expired.

(2) Appeal of Conviction

If the attorney appeals the conviction, the

hearing shall be delayed, except as provided in section

(h)(4) of this Rule, until the completion of appellate

review.

(A) If, after completion of appellate review, the

conviction is reversed or vacated, the judge to whom

the action is assigned shall either dismiss the petition

or hear the action on the basis of evidence other than

the conviction.

(B) If, after the completion of appellate review, the

conviction is not reversed or vacated, the hearing shall

be held within a reasonable time after the mandate is

issued.

(3) Effect of Incarceration

If the attorney is incarcerated as a result of the

conviction, the hearing shall be delayed until the

termination of incarceration unless the attorney

requests an earlier hearing and makes all

arrangements (including financial arrangements) to

attend the hearing or waives the right to attend.

(4) Right to Earlier Hearing

If the hearing on the petition has been delayed

under subsection (h)(2) of this Rule and the attorney

has been suspended from the practice of law under

section (e) of this Rule, the attorney may request that

the judge to whom the action is assigned hold an

earlier hearing, at which the conviction shall be

considered a final judgment.

(i) Conclusive Effect of Final Conviction

In any proceeding under this Chapter, a final

judgment of any court of record convicting an attorney

of a crime, whether the conviction resulted from

acceptance by the court of a plea of guilty or nolo

contendere, or a verdict after trial, is conclusive

evidence of the attorney's guilt of that crime. As used

in this Rule, “final judgment” means a judgment as to

which all rights to direct appellate review have been

exhausted. The introduction of the judgment does not

preclude the Commission or Bar Counsel from

introducing additional evidence or the attorney from

introducing evidence or otherwise showing cause why

a disposition other than disbarment should be

entered.

(j) Statement of Charges

If the Supreme Court denies or dismisses a

petition filed under section (c) of this Rule, Bar

Counsel may file a Statement of Charges under Rule

19-718.

(k) Duties of Clerk of Supreme Court. The applicable

provisions of Rule 19-761 apply when an order is

entered under this Rule.

Source: This Rule is derived in part from former Rule

16-771 (2016) and is in part new.

Rule 19-738 was accompanied by the following Reporter’s

note:

The Attorneys and Judges subcommittee

proposes that section (d) of this Rule be amended to

clarify that the time in which the attorney’s response

to a show cause order under this subsection is due

begins to run from the time of service of the show

cause order and not the date of issuance of the order.

It is anticipated that this will result in less show cause

orders being re-issued due to lack of timely service and

will allow the attorney more time to respond to the

show cause order than sometimes happens under the

current version of this Rule.

Mr. Marcus informed the Committee that the proposed

amendments to Rules 19-737 and 19-738 were requested by Greg

Hilton, Clerk of the Supreme Court.

The amendments clarify the

time for an attorney to respond to a show cause order issued by

the Supreme Court pertaining to reciprocal discipline or

discipline on conviction of a crime.

He said that the Rules

permit the attorney 15 days to respond to a show cause order

issued by the Court.

It was explained to the Attorneys & Judges

Subcommittee that the Rules do not specify whether the 15 days

to respond runs from the issuance of the order or service of the

order, which causes confusion.

The Subcommittee recommends, at

Mr. Hilton’s request, that the 15 days run from the date of

service of the show cause order.

Mr. Marcus said that this

amendment relieves the Court of the burden of reissuing show

cause orders and gives the attorney and the Court clear guidance

regarding the time for a response.

There being no motion to amend or reject the proposed

amendments to Rules 19-737 and 19-738, they were approved as

presented.

Agenda Item 3. Consideration of proposed amendments to Rule 19752 (Reinstatement – Other Suspension; Disbarment; Disability

Inactive Status; Resignation)

Mr. Marcus presented Rule 19-752, Reinstatement – Other

Suspension; Disbarment; Disability Inactive Status; Resignation,

for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 700 – DISCIPLINE, INACTIVE STATUS,

RESIGNATION

AMEND Rule 19-752 by changing “may” to

“shall” in subsection (e)(1) and by adding new

subsection (e)(3), as follows:

Rule 19-752. REINSTATEMENT – OTHER

SUSPENSION; DISBARMENT; DISABILITY INACTIVE

STATUS; RESIGNATION

...

(e) Response to Petition

(1) Generally

Within 30 days after service of the petition, Bar

Counsel shall file and serve on the attorney a

response. Except as provided in subsection (d)(2) of

this Rule, the response shall admit or deny the

averments in the petition in accordance with Rule 2323 (c). The response may shall include Bar Counsel's

recommendations in support of or opposition to the

petition and with respect to any conditions to

reinstatement.

(2) Consent

If Bar Counsel is satisfied that the attorney has

complied fully with the provisions of Rule 19-741 and

any requirements or conditions in the order of

suspension or disbarment, and there are no known

complaints or disciplinary proceedings pending against

the attorney, the response may be in the form of a

consent to the reinstatement.

(3) Extension

Upon written request by Bar Counsel filed within

the time for filing a response, the Court may grant an

extension for a specified period.

...

Rule 19-752 was accompanied by the following Reporter’s

note:

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”). The

EJC Report contains several recommendations for

consideration by the Rules Committee.

During a listening session for the EJC Report,

an attorney raised concerns about certain aspects of

Rule 19-752 concerning the process for reinstatement.

Although it appears that the suggestions regarding

Rule 19-752 were outside the scope of the EJC Report

and were therefore not addressed in the body of the

Report, a memorandum on the topic was prepared and

included in the Appendices of the EJC Report.

Accordingly, the suggestions concerning Rule 19-752

were forwarded to the Attorneys and Judges

Subcommittee for consideration.

Rule 19-752 (e) sets forth requirements for Bar

Counsel’s response to a petition for reinstatement.

Section (e) provides that the response “may include

Bar Counsel's recommendations in support of or

opposition to the petition and with respect to any

conditions to reinstatement.”

The listening sessions conducted for the EJC

Report suggested that there were at least some

instances where petitioners were unable to discern

from Bar Counsel’s response the reasoning for Bar

Counsel’s support of or opposition to reinstatement.

To address this concern, the proposed amendment to

section (e) changes “may” to “shall,” making it clear

that Bar Counsel is required to provide the reasoning

behind their support or opposition.

Rule 19-752 contains no provisions concerning

a request by Bar Counsel for an extension of time to

respond. The memorandum from the EJC Report

suggested that the Rule be amended to clarify that

good cause must be shown in a request for an

extension.

In light of the concerns raised, proposed new

subsection (e)(3) addresses Bar Counsel’s requests for

an extension. The new language clarifies that Bar

Counsel may request an extension by written request

filed within the time for filing a response. The Court

may grant an extension for a specified period.

Mr. Marcus informed the Committee that the proposed

amendments to Rule 19-752 adjust the procedure for applying for

reinstatement after a disbarment, disability, etc.

The Rule

includes a detailed list of items that must be included with a

petition for reinstatement.

The Report and Recommendations of

the Committee on Equal Justice Rules Review Subcommittee (“the

EJC Report”) suggested that the process may in certain ways

perpetuate bias.

Mr. Marcus explained that subsection (e)(1) of the Rule

requires Bar Counsel to file a response to the petition so that

the Court knows Bar Counsel’s position.

Subsection (e)(1) also

provides that Bar Counsel’s response “may include

recommendations in support of or opposition to the petition and

with respect to any conditions to reinstatement.”

The Rule also

requires Bar Counsel to admit or deny all of the averments in

the petition – which can involve a significant volume of

information that must be verified – within 30 days of the filing

of the petition.

Mr. Marcus informed the Committee that the EJC Report

raised the issue of whether Bar Counsel should be required to

state the reasons for a recommendation for or against

reinstatement.

The concern, raised at a listening session, was

that some petitioners found it difficult to discern why Bar

Counsel made a recommendation.

There was also discussion at the

listening session about the timeliness of Bar Counsel’s

response.

Bar Counsel Thomas DeGonia informed the Committee that

reinstatement proceedings are often years in the making and

involve significant requests for information from the

petitioner.

He said that petitioning for reinstatement can be

tantamount to a reapplication in terms of the level of

documentation required.

He noted that usually the process

involves working with the petitioner and the petitioner’s

attorney and asking follow-up questions for more information.

Mr. DeGonia said that, in his experience, his office

doesn’t “hide the ball” with the reasons for a recommendation.

He said that when his office files an objection, the reasons are

provided.

Regarding timeliness of responses, he explained that

when it appears that his office will require more than 30 days

to respond, he usually works with the petitioner’s counsel to

file a joint consent to extend the time or, if needed, he files

a motion.

Mr. Marcus explained that the proposed amendments to the

Rule change the “may” to a “shall” in section (e), requiring Bar

Counsel to provide the recommendations behind support or

opposition to reinstatement.

Additionally, new subsection

(e)(3) permits Bar Counsel to request an extension.

Ms. Meredith commented that the adjustment of “may” to

“shall” does not fully address the concerns in the EJC Report.

She pointed out that the Rule now reads, “The response shall

include Bar Counsel’s recommendations in support of or

opposition to the petition and with respect to any conditions to

reinstatement.”

She said that requiring the “recommendations”

does not necessarily require the “reasoning” behind the

recommendations.

Mr. DeGonia said that he would not oppose

adding “and reasoning” to address that concern.

Ms. Meredith

moved to add “and reasoning” to subsection (e)(1).

The motion

was seconded and approved by consensus.

There being no further motion to amend or reject the

proposed amendments to Rule 19-752, they were approved as

amended.

Agenda Item 4. Consideration of proposed amendments to Rule 19504 (Pro Bono Attorney) and Rule 19-607 (Dishonored Checks).

Mr. Marcus presented Rule 19-504, Pro Bono Attorney, and

Rule 19-607, Dishonored Checks, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 500 – PRO BONO LEGAL SERVICES

AMEND Rule 19-504 by updating a reference in

sections (a) and (b), as follows:

Rule 19-504. PRO BONO ATTORNEY

(a) Definition

As used in this Rule, “pro bono attorney” means

an attorney who is authorized by Rule 19-215 19-218

or Rule 19-605 (a)(2) (b)(2) to represent clients, without

compensation other than reimbursement of reasonable

and necessary expenses, and whose practice is limited

to providing such representation. “Pro bono attorney”

does not include (1) an active member of the Maryland

Bar in good standing or (2) an attorney whose

certificate of authorization to practice under Rule 19215 19-218 permits the attorney to receive

compensation for the practice of law under that Rule.

Cross reference: For the professional responsibility of

an active member of the Maryland Bar to render pro

bono publico legal service, see Rule 19-306.1 (6.1) (Pro

Bono Publico Service) of the Maryland Attorneys' Rules

of Professional Conduct.

(b) Authorization to Practice as a Pro Bono Attorney

To practice as a pro bono attorney, an out-ofstate attorney shall comply with Rule 19-215 19-218

and a retired/inactive member of the Maryland Bar

shall comply with Rule 19-605 (a)(2) (b)(2).

...

Rule 19-504 was accompanied by the following Reporter’s

note:

Proposed changes to Rule 19-504 are

housekeeping amendments. The references to Rule

19-605 (a)(2) in Rule 19-504 were not updated after

Rule 19-605 was restructured in 2018. Accordingly,

amendments are proposed to update the references to

Rule 19-605 in Rule 19-504 (a) and (b).

MARYLAND RULES OF PROCEDURE

TITLE 19 – ATTORNEYS

CHAPTER 600 – CLIENT PROTECTION FUND

AMEND Rule 19-607 by updating a reference in

subsection (d)(1), as follows:

Rule 19-607. DISHONORED CHECKS

...

(1) Notice by Treasurer

The treasurer of the Fund promptly, but not

more often than once each calendar quarter, shall

submit to the Supreme Court a proposed interim

Temporary Suspension Order stating the name and

account number of each attorney who remains in

default of payment for a dishonored check and related

charges.

(2) Entry and Service of Order

The Supreme Court shall enter an Interim

Temporary Suspension Order prohibiting the practice

of law in the State by each attorney as to whom the

Court is satisfied that the treasurer has made

reasonable efforts to give notice concerning the

dishonored check. The treasurer shall mail by first

class mail a copy of the interim Temporary Suspension

Order to each attorney named in the order at the

attorney's last address as it appears on the records of

the trustees. The mailing by the treasurer of the copy

constitutes service of the order on the attorney.

(d) Payment; Termination or Replacement of Interim

Order

(1) Procedure Upon Payment

Upon payment of the full amount due by the

attorney, the trustees and the Court shall follow the

procedure set forth in Rule 19-605 (a)(4) 19-606 (c).

(2) If No Payment

If the full amount due is not paid by the time the

Court enters its next Temporary Suspension Order

under Rule 19-606 and, as a result, the attorney is

included in that order, the interim order shall

terminate and be replaced by the Temporary

Suspension Order.

Source: This Rule is derived from former Rule 16811.7 (2016).

Rule 19-607 was accompanied by the following Reporter’s

note:

A housekeeping amendment is proposed to Rule

19-607. Rule 19-607 addresses the procedure when a

check to the Client Protection Fund is dishonored. If

payment is not timely made after notice to the

attorney, an Interim Temporary Suspension Order

shall be entered by the Supreme Court of Maryland.

Rule 19-607 (d)(1) addresses the procedure when an

attorney then makes the required payment to the

Client Protection Fund.

When Rule 19-607 was adopted in 2016,

subsection (d)(1) contained the same language as the

current version of the Rule, including a reference to

Rule 19-605. However, it appears that this initial

reference to Rule 19-605 (a)(4) was a typographical

error. In 2016, Rule 19-605 (a)(4) addressed methods

of payment, not a process for the trustees and Court to

follow.

Earlier versions of Rule 19-607, formerly Rule

16-811.7, referenced the procedure set forth in former

Rule 19-811.6 (e). The text of former Rule 19-811.6

(e), setting forth the procedure for terminating a

Temporary Suspension Order, now appears in Rule

19-606 (c).

Accordingly, the reference in Rule 19-607 (d)(1)

has been updated to refer to Rule 19-606 (c),

describing the procedure by which the Court or

trustees terminate a Temporary Suspension Order.

Mr. Marcus explained that the proposed amendments to Rules

19-504 and 19-607 are housekeeping amendments to correct

internal references.

There being no motion to amend or reject

the proposed amendments, they were approved as presented.

Agenda Item 5. Consideration of proposed amendments to Rule 4262 (Discovery in District Court) and Rule 4-263 (Discovery in

Circuit Court).

Mr. Marcus presented Rule 4-262, Discovery in District

Court, and Rule 4-263, Discovery in Circuit Court, for

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 4 – CRIMINAL CAUSES

CHAPTER 200 – PRETRIAL PROCEDURES

AMEND Rule 4-262 by ... adding new

subsection (d)(5)(C) pertaining to facial recognition

technology ... as follows:

Rule 4-262. DISCOVERY IN DISTRICT COURT

···

(d) Disclosure by the State's Attorney

(1) Without Request

Without the necessity of a request, the State's

Attorney shall provide to the defense:

(1) Exculpatory Information

all All material or information in any form,

whether or not admissible, that tends to exculpate the

defendant or negate or mitigate the defendant's guilt or

punishment as to the offense charged;

(2) Impeachment Information

and all All material or information in any form,

whether or not admissible, that tends to impeach a

State's witness.;

Cross reference: See Brady v. Maryland, 373 U.S. 83

(1963); Kyles v. Whitley, 514 U.S. 419 (1995); Giglio v.

U.S., 405 U.S. 150 (1972); U.S. v. Agurs, 427 U.S. 97

(1976); Thomas v. State, 372 Md. 342 (2002);

Goldsmith v. State, 337 Md. 112 (1995); and Lyba v.

State, 321 Md. 564 (1991).

(2) On Request

On written request of the defense, the State's

Attorney shall provide to the defense:

(A)(3) Statements of Defendant and Co-defendant

All written and all oral statements of the

defendant and of any co-defendant that relate to the

offense charged and all material and information,

including documents and recordings, that relate to the

acquisition of such statements;

(B)(4) Written Statements, Identity, and Telephone

Numbers of State's Witnesses

As to each State's witness the State's Attorney

intends to call to prove the State's case in chief or to

rebut alibi testimony: (i)(A) the name of the witness;

(ii)(B) except as provided under Code, Criminal

Procedure Article, § 11-205 or Rule 16-934, the

address and, if known to the State's Attorney, the

telephone number of the witness, and (iii)(C) the

statements of the witness relating to the offense

charged that are in a writing signed or adopted by the

witness or are in a police or investigative report;

(C)(5) Searches, Seizures, Surveillance, and Pretrial

Identification

All relevant material or information regarding:

(i)(A) specific searches and seizures,

eavesdropping, or electronic surveillance including

wiretaps; and

(ii)(B) pretrial identification of the defendant by a

State's witness including, if the pretrial identification

involved participation by personnel from a law

enforcement agency, (i) a copy of or an electronic link

to the written policies relating to eyewitness

identification required by Code, Public Safety Article,

§§ 3-506 and 3-506.1, and (ii) documents or other

evidence indicating compliance or non-compliance

with the requirements of Code, Public Safety Article, §§

3-506 and 3-506.1; and

accordance with Code, Criminal Procedure Article,

§ 2-504;

Committee note: In addition to disclosure of a pretrial

identification of a defendant by a State's witness, in

some cases, disclosure of a pretrial identification of a

co-defendant by a State's witness also may be

required. See Green v. State, 456 Md. 97 (2017).

(D)(6) Reports or Statements of Experts

As to each State's witness the State's Attorney

intends to call to testify as an expert witness other

than at a preliminary hearing:

(i)(A) the expert's name and address, the subject

matter on which the expert is expected to testify, the

substance of the expert's findings and opinions, and a

summary of the grounds for each opinion;

(ii)(B) the opportunity to inspect and copy all

written reports or statements made in connection with

the action by the expert, including the results of any

physical or mental examination, scientific test,

experiment, or comparison; and

(iii)(C) the substance of any oral report and

conclusion by the expert;

(E)(7) Evidence for Use at Trial

The opportunity to inspect, copy, and

photograph all documents, computer-generated

evidence as defined in Rule 2-504.3 (a), recordings,

photographs, or other tangible things that the State's

Attorney intends to use at a hearing or at trial; and

(F)(8) Property of the Defendant

The opportunity to inspect, copy, and

photograph all items obtained from or belonging to the

defendant, whether or not the State's Attorney intends

to use the item at a hearing or at trial.

···

Rule 4-262 was accompanied by the following Reporter’s

note:

The Rules Committee at its October 10, 2024

meeting approved certain amendments to Rule 4-262,

including making mandatory certain disclosures

previously available only on request. The Committee

also discussed the addition of a reference to Code,

Criminal Procedure Article, § 2-504 to the subsection

governing pretrial identification. The issue was

referred to the Criminal Rules Subcommittee for

consideration. The Subcommittee determined that the

reference was appropriate and that there are no other

similar statutes that should be incorporated.

Proposed amendments to Rule 4-262 implement

Chapters 808/809, 2024 Laws of Maryland (SB

182/HB338), add a new subtitle to the Criminal

Procedure Article governing the use of facial

recognition technology. Code, Criminal Procedure

Article, § 2-504 requires that the State disclose in

discovery certain information if facial recognition

technology was used in an investigation. New

subsection (d)(5)(C) explicitly incorporates this

mandatory disclosure.

MARYLAND RULES OF PROCEDURE

TITLE 4 – CRIMINAL CAUSES

CHAPTER 200 – PRETRIAL PROCEDURES

AMEND Rule 4-263 by ... adding new

subsection (d)(7)(C) pertaining to facial recognition

technology ... as follows:

Rule 4-263. DISCOVERY IN CIRCUIT COURT

···

(d) Disclosure by the State's Attorney

Without the necessity of a request, the State's

Attorney shall provide to the defense:

(1) Statements

All written and all oral statements of the

defendant and of any co-defendant that relate to the

offense charged and all material and information,

including documents and recordings, that relate to the

acquisition of such statements;

(2) Criminal Record

Prior criminal convictions, pending charges, and

probationary status of the defendant and of any codefendant;

(3) State's Witnesses

As to each State's witness the State's Attorney

intends to call to prove the State's case in chief or to

rebut alibi testimony: (A) the name of the witness; (B)

except as provided under Code, Criminal Procedure

Article, § 11-205 or Rule 16-912 (b), the address and,

if known to the State's Attorney, the telephone number

of the witness; and (C) all written statements of the

witness that relate to the offense charged;

(4) Prior Conduct

All evidence of other crimes, wrongs, or acts

committed by the defendant that the State's Attorney

intends to offer at a hearing or at trial pursuant to

Rule 5-404 (b);

(5) Exculpatory Information

All material or information in any form, whether

or not admissible, that tends to exculpate the

defendant or negate or mitigate the defendant's guilt or

punishment as to the offense charged;

(6) Impeachment Information

All material or information in any form, whether

or not admissible, that tends to impeach a State's

witness, including:

(A) evidence of prior conduct to show the character

of the witness for untruthfulness pursuant to Rule 5608 (b);

(B) a relationship between the State's Attorney and

the witness, including the nature and circumstances

of any agreement, understanding, or representation

that may constitute an inducement for the cooperation

or testimony of the witness;

Cross reference: For the requirement to disclose a

“benefit” to an “in-custody witness,” see Code, Courts

Article, § 10-924.

probationary status that may be used to impeach the

witness, but the State's Attorney is not required to

investigate the criminal record of the witness unless

the State's Attorney knows or has reason to believe

that the witness has a criminal record;

(D) an oral statement of the witness, not otherwise

memorialized, that is materially inconsistent with

another statement made by the witness or with a

statement made by another witness;

(E) a medical or psychiatric condition or addiction

of the witness that may impair the witness's ability to

testify truthfully or accurately, but the State's Attorney

is not required to inquire into a witness's medical,

psychiatric, or addiction history or status unless the

State's Attorney has information that reasonably

would lead to a belief that an inquiry would result in

discovering a condition that may impair the witness's

ability to testify truthfully or accurately;

(F) the fact that the witness has taken but did not

pass a polygraph examination; and

(G) the failure of the witness to identify the

defendant or a co-defendant;

Cross reference: See Brady v. Maryland, 373 U.S. 83

(1963); Kyles v. Whitley, 514 U.S. 419 (1995); Giglio v.

U.S., 405 U.S. 150 (1972); U.S. v. Agurs, 427 U.S. 97

(1976); Thomas v. State, 372 Md. 342 (2002);

Goldsmith v. State, 337 Md. 112 (1995); and Lyba v.

State, 321 Md. 564 (1991).

(7) Searches, Seizures, Surveillance, and Pretrial

Identification

All relevant material or information regarding:

(A) specific searches and seizures, eavesdropping,

and electronic surveillance including wiretaps; and

(B) pretrial identification of the defendant by a

State's witness including, if the pretrial identification

involved participation by personnel from a law

enforcement agency, (i) a copy of or an electronic link

to the written policies relating to eyewitness

identification required by Code, Public Safety Article,

§§ 3-506 and 3-506.1, and (ii) documents or other

evidence indicating compliance or non-compliance

with the requirements of Code, Public Safety Article, §§

3-506 and 3-506.1; and

accordance with Code, Criminal Procedure Article,

§ 2-504;

Committee note: In addition to disclosure of a pretrial

identification of a defendant by a State's witness, in

some cases, disclosure of a pretrial identification of a

co-defendant by a State's witness also may be

required. See Green v. State, 456 Md. 97 (2017).

(8) Reports or Statements of Experts

As to each expert consulted by the State's

Attorney in connection with the action:

(A) the expert's name and address, the subject

matter of the consultation, the substance of the

expert's findings and opinions, and a summary of the

grounds for each opinion;

(B) the opportunity to inspect and copy all written

reports or statements made in connection with the

action by the expert, including the results of any

physical or mental examination, scientific test,

experiment, or comparison; and

conclusion by the expert;

(9) Evidence for Use at Trial

The opportunity to inspect, copy, and

photograph all documents, computer-generated

evidence as defined in Rule 2-504.3 (a), recordings,

photographs, or other tangible things that the State's

Attorney intends to use at a hearing or at trial; and

(10) Property of the Defendant

The opportunity to inspect, copy, and

photograph all items obtained from or belonging to the

defendant, whether or not the State's Attorney intends

to use the item at a hearing or at trial.; and

(11) In-custody Witness Testimony

If the State’s Attorney intends to introduce

testimony of an in-custody witness:

(A) any benefits an in-custody witness has received,

or expects to receive, in exchange for providing

testimony;

(B) the substance, time, and place of any statement

(i) allegedly made by a suspect or defendant to the incustody witness or (ii) made by an in-custody witness to

law enforcement implicating the suspect or defendant;

and

testified, provided that the testimony can be ascertained

through reasonable inquiry, and whether the in-custody

witness received a benefit in exchange for providing

testimony in those other cases.

Cross reference: See Rule 4-268 concerning pre-trial

hearings prior to the admission of in-custody witness

testimony.

···

Rule 4-263 was accompanied by the following Reporter’s

note:

The Rules Committee at its October 10, 2024

meeting approved certain amendments to Rule 4-263,

including adding a new provision governing use of incustody witness testimony. The Committee also

discussed the addition of a reference to Code, Criminal

Procedure Article, § 2-504 to the subsection governing

pretrial identification. The issue was referred to the

Criminal Rules Subcommittee for consideration. The

Subcommittee determined that the reference was

appropriate and that there are no other similar

statutes that should be incorporated.

Proposed amendments to Rule 4-263 implement

Chapters 808/809, 2024 Laws of Maryland (SB

182/HB338), add a new subtitle to the Criminal

Procedure Article governing the use of facial

recognition technology. Code, Criminal Procedure

Article, § 2-504 requires that the State disclose in

discovery certain information if facial recognition

technology was used in an investigation. New

subsection (d)(7)(C) explicitly incorporates this

mandatory disclosure.

Mr. Marcus informed the Committee that the proposed

amendments implement a new section of the Maryland Code

pertaining to use of facial recognition technology.

He reminded

the Committee that this possible change was briefly discussed

with other amendments to Rules 4-262 and 4-263 that were

considered at the October 10, 2024 meeting.

This specific issue

was referred to staff for further research and then sent to the

Criminal Rules Subcommittee.

Code, Criminal Procedure Article, § 2-504 requires certain

discovery disclosures if facial recognition technology is used

in a criminal investigation.

The proposed amendments add the

mandatory disclosures to the District Court and circuit court

discovery Rules.

Mr. Brown asked whether the phrase “in

accordance with” in new subsection (d)(5)(C) is the correct one.

The Committee agreed to refer the word choice to the Style

Subcommittee.

There being no motion to amend or reject the proposed

amendments to Rules 4-262 and 4-263, they were approved as

presented, subject to any changes recommended by the Style

Subcommittee.

Agenda Item 6. Consideration of proposed new Rule 15-1601

(Derivative Actions)

Ms. Doyle presented Rule 15-1601, Derivative Actions, for

consideration.

MARYLAND RULES OF PROCEDURE

TITLE 15 – OTHER SPECIAL PROCEEDINGS

CHAPTER 1600 – DERIVATIVE ACTIONS

ADD new Rule 15-1601, as follows:

Rule 15-1601. DERIVATIVE ACTIONS

(a) Applicability

This Rule applies to a derivative action against a

business entity to enforce a right that may be properly

asserted by that entity.

Cross reference: See Werbowsky v. Collomb, 362 Md.

581 (2001) pertaining to corporations; Plank v.

Cherneski, 469 Md. 548 (2020) and Code,

Corporations and Associations Article, Title 4A,

Subtitle 8 pertaining to limited liability companies;

and Code, Corporations and Associations Article, Title

10, Subtitle 10, pertaining to limited partnerships.

(b) Complaint

Notwithstanding the provisions of Rule 2-304, the

complaint shall state:

(1) facts supporting that the plaintiff is entitled to

bring each derivative cause of action on behalf of the

business entity nominal defendant;

(2) that the plaintiff was so entitled at the time of

the transaction or conduct complained of and at the

time the derivative action is brought, or that the

plaintiff’s entitlement devolved on the plaintiff by

operation of law; and

(3) with particularity, (A) the attempts, if any, of the

plaintiff to obtain the desired action from the business

entity, and, if known the reasons the desired action

was not obtained, or (B) the reasons for not making an

attempt to obtain the desired action.

Committee note: A court may consider the use of Rule

2-502 when appropriate. See Bender v. Schwartz, 172

Md. App. 648 (2007).

The derivative action may be maintained only if it

appears that, under applicable law, the plaintiff fairly

and adequately represents the interests of the

business entity in pursuing the derivative action.

(d) Settlement, Dismissal, and Compromise

Unless all equity holders consent to a proposed

settlement, voluntary dismissal, or compromise of the

derivative action, a derivative action may be settled,

voluntarily dismissed, or compromised only with the

court's approval, after notice of the proposed

settlement, voluntary dismissal, or compromise has

been given to all equity holders in the manner ordered

by the court and an opportunity for a hearing has

been provided. Unless specified by the court, the

consent may be either in writing or on the record in

open court.

(e) Fees and Costs

A court may award reasonable attorneys’ fees and

costs.

Cross reference: For the ability of the court to award

attorneys’ fees and costs, see Boland v. Boland, 423

Md. 296, 317 (2011) pertaining to corporations; Code,

Corporations and Associations Article, § 4A-804

pertaining to limited liability companies; and Code,

Corporations and Associations Article § 10-1004,

pertaining to limited partnerships.

Source: This Rule is new. It is derived in part from

Fed. R. Civ. P. 23.1.

Rule 15-1601 was accompanied by the following Reporter’s

note:

Proposed new Rule 15-1601 establishes a

procedure for filing, maintaining, and resolving

derivative actions. A derivative action generally is a

lawsuit brought by one or more shareholders of a

corporation or equity holders of another form of

business entity on behalf of a business entity against

the entity or its directors alleging a breach of duty and

seeking to protect the interests of the business entity.

Maryland does not have a statute or Rule setting forth

a procedure for this form of litigation, which has

unique features and requirements that litigants and

the court may overlook. A retired appellate judge

suggested that the Committee consider the creation of

a derivative actions Rule to provide guidance.

Section (a) sets forth the applicability of the

Rule. A cross reference identifies cases and statutes

pertaining to derivative actions against various

business entitles.

Section (b) states the pleading requirements to

establish standing and a cause of action. It is derived

from Fed. R. Civ. P. 23.1. A Committee note suggests

that the court may make use of Rule 2-502

(Separation of Questions for Decision by Court) and

cites to an Appellate Court case on that issue.

Section (c) requires the plaintiff to fairly and

adequately represent the interests of the business

entity to maintain the action.

Section (d) sets forth the circumstances and

notice requirements to settle, dismiss, or compromise

a derivative action. It is derived from Fed. R. Civ. P.

23.1.

Section (e) permits the court to award

reasonable attorneys’ fees and costs. A cross reference

following section (e) sets forth the case law and

statutory law on attorneys’ fees and costs in derivative

actions.

Ms. Doyle informed the Committee that the proposed new Rule

on derivative actions was suggested by senior Appellate Court

Judge James Eyler.

She asked Judge Eyler to address the

Committee to explain the proposal and answer questions.

Judge Eyler said that, when he was on the bench, he saw

derivative action cases and authored several opinions for the

Appellate Court on that area of law.

As a retired judge, he

said that he mediates disputes between business entities that

involve derivative action issues.

He explained that the

proliferation of limited liability companies has increased the

potential for derivative actions, and he believes that there is

a lack of understanding among the bar about how to pursue one.

He said that there is a Federal Rule on derivative actions and

many states, including Delaware, have their own.

Judge Eyler

said that he and Judge Ronald Rubin worked with Rules Committee

staff and the Maryland State Bar Association Business Law

Section to draft the proposed Rule.

Judge Eyler informed the Committee that the three main

attributes of a derivative action plaintiff are: (1) the

plaintiff’s standing and representative capacity, (2) proof that

a demand for the desired action was made and refused or that a

demand would have been futile, and (3) that the plaintiff is the

appropriate representative.

He commented that a corporate

attorney had suggested that section (e) clarify that attorney’s

fees and costs may be awarded only as permitted by law.

acknowledged that this was the intent of the Rule.

It is not

meant to create any new substantive rights.

Mr. Marcus asked how the proposed amendment to section (e)

should read.

The Reporter suggested adding the phrase “as

permitted by law.”

Ms. Doyle pointed out that the cross

reference following the section provides the relevant statutes

and case law.

By consensus, the Committee approved the

amendment.

Judge Eyler also noted that many states distinguish small

businesses from other types in their derivative action Rules.

He explained that the proposed Maryland Rule instead chose to

address the different needs of a small ownership group compared

to numerous shareholders by imposing certain requirements unless

all stakeholders consent.

In a small business case, consent is

more achievable, and the court can dispense with some of the

procedures for resolving a derivative action.

Judge Bryant pointed out that Fed. R. Civ. P. 23.1 contains

a provision pertaining to collusion to confer jurisdiction on a

court that otherwise would lack it.

She asked why the proposed

Maryland Rule does not contain such a provision.

Judge Eyler

responded that this has not been an issue in Maryland and he did

not want to bog down the Rule.

He said that the proposed Rule

combines features of the Federal Rule and Delaware statutes and

Rules.

He added that the intent was to make practitioners and

courts more sensitive to the fact that there are differences

between direct actions and derivative actions.

The Reporter

asked if these cases usually end up in the Business and

Technology program for the circuit court where they are filed.

Judge Eyler responded in the affirmative.

Mr. Brault asked about the requirement in subsection (b)(2)

that the plaintiff be a shareholder, member, or partner at the

time of the complained conduct and when the derivative action is

brought; the Federal Rule only requires the former.

He said

that, in a small business, someone with standing could have left

or retired before the action is filed.

The Reporter responded

that the second clause, “or that the plaintiff’s entitlement

devolved on the plaintiff by operation of law,” may clarify this

point.

Mr. Brault also pointed out that the wording of section

(c), which requires that the plaintiff “fairly and adequately

represents the interests of the business entity in pursuing the

derivative action” slightly differs from the Federal Rule, which

requires the plaintiff to “fairly and adequately represent the

interests of shareholders or members who are similarly situated

in enforcing the right of the corporation or association.”

said that he had a case with Judge Rubin where a derivative

action was dismissed because it was determined that the

plaintiff was self-interested.

Assistant Reporter Cobun

responded that the phrasing was derived from Delaware Rule of

Chancery Court 23.1.

Ms. Doyle remarked that, prior to the meeting, Judge Eyler

had raised with her the notion of relocating the proposed new

Rule.

Judge Eyler explained that most state Rules and the

Federal Rules have a derivative action Rule immediately

following their Rule on class actions.

No motion to relocate

the Rule was made.

Mr. Brown pointed out that in subsection (b)(3), there

should be a comma after “if known.”

A motion to make that

amendment was made, seconded, and approved by consensus.

There being no further motion to amend or reject proposed

new Rule 15-1601, it was approved as amended.

Agenda Item 7. Consideration of proposed amendments to Rule 3711 (Landlord-Tenant Grantee Actions)

Judge Wilson presented Rule 3-711, Landlord-Tenant Grantee

Actions, for consideration.

MARYLAND RULES OF PROCEDURE

TITLE 3 – CIVIL PROCEDURE – DISTRICT COURT

CHAPTER 700 – SPECIAL PROCEEDINGS

AMEND Rule 3-711 by creating section (a)

consisting of the current language of the Rule and by

adding new section (b) pertaining to the required

notice of intent in an action for summary ejectment, as

follows:

Rule 3-711. LANDLORD-TENANT AND GRANTEE

ACTIONS

(a) Generally

Landlord-tenant and grantee actions shall be

governed by (1) the procedural provisions of all

applicable general statutes, public local laws, and

municipal and county ordinances, and (2) unless

inconsistent with the applicable laws, the rules of this

Title, except that no pretrial discovery under Chapter

400 of this Title shall be permitted in a grantee action,

or an action for summary ejectment, wrongful

detainer, or distress for rent, or an action involving

tenants holding over.

(b) Summary Ejectment – Required Notice of Intent

In an action for summary ejectment pursuant to

Code, Real Property Article, § 8-401, before filing a

complaint for summary ejectment, the landlord shall

provide to the tenant a written notice of the landlord’s

intent to file the complaint in accordance with Code,

Real Property Article, § 8-401 (c). The notice shall be

substantially in the form approved by the State Court

Administrator, as posted on the Judiciary website and

available in the offices of the clerks of the District

Court, including the portion of the form that provides

information pertaining to resources available to

tenants and landlords.

Source: This Rule is derived from former M.D.R. 1 b

and 401 a. Section (b) is new.

Rule 3-711 was accompanied by the following Reporter’s

note:

The proposed amendment to Rule 3-711

addresses a concern raised by the Access to Counsel

in Evictions Task Force (established by Chapter 746,

2021 Laws of Maryland (HB 18)). The law provides

that tenants are required to be notified of the ability to

speak with an attorney provided by a legal services

organization when facing an eviction proceeding. The

law requires a landlord contemplating filing a

complaint for summary ejectment pursuant to Code,

Real Property, § 8-401 to notify the tenant of the intent

to file 10 days in advance using a form developed by

the Judiciary.

The form notice was developed, but the Task

Force has observed that there are ongoing concerns

from service providers that landlords are not using the

court’s form. The Court Access Committee in the

Administrative Office of the Courts considered this

concern and recommended that Rule 3-711 be

amended to require the landlord to include a copy of

the notice provided to the tenant with the complaint

for summary ejectment. A similar provision was

proposed to be added to the statute, but it was

removed prior to the passage of Chapter 124, 2024

Laws of Maryland (HB 693).

The District Court Subcommittee discussed the

recommendation of the Task Force and the Court

Access Committee, but ultimately decided not to

recommend an additional requirement that the

legislature opted not to include in the governing

statute. The Subcommittee was informed that

landlord filers sometimes use their own version of the

form; however, a concern in those cases is that the

customized form may have omitted the information

contained on the Judiciary form that refers both

landlords and tenants to resources for mediation and

to the Maryland Court Help Center.

The Subcommittee recommends adding new

section (b) to Rule 3-711 requiring the use of a notice

“substantially in the form approved by the State Court

Administrator” as contemplated by the statute and

requiring that the notice include the information on

resources.

Judge Wilson said that the proposed amendment adds new

section (b) addressing a statutory requirement in eviction

cases.

She said that Code, Real Property Article, § 8-401

requires the notice to be “in a form created by the Maryland

Judiciary,” but the Access to Counsel in Evictions (“ACE”) Task

Force informed the District Court Subcommittee that landlords

sometimes use their own versions of the form.

These forms do

not include all the same information and resources, including

information about the ACE program.

Judge Wilson said that the Task Force requested that the

Rule be amended to require use of the Judiciary-made form and

require that the landlord attach a copy of the completed form to

the complaint for summary ejectment.

She informed the Committee

that the Subcommittee considered both requests and ultimately

decided against recommending requiring the landlord to attach a

copy of the notice to the complaint.

She explained that the

legislature considered adding a requirement to attach the notice

to the complaint in 2024 legislation (Chapter 124, 2024 Laws of

Maryland (HB 693)), but ultimately removed it from the final

bill.

Considering this, the Subcommittee chose not to recommend

adding the requirement by Rule.

Regarding requiring the use of the Judiciary’s form, Judge

Wilson said that the Subcommittee was informed by Chief Judge

Morrissey and by an attorney representing the Maryland MultiHousing Association that it is common for firms to take District

Court-generated forms and make their own formatted versions.

The Rules frequently use the phrase “substantially in the form”

to allow for this practice.

Judge Wilson said that the District

Court Subcommittee ultimately chose to recommend requiring the

use of a notice form “substantially in the form approved by the

State Court Administrator.”

The new provision also requires

that the form include the resources for landlords and tenants.

Ms. Meredith asked Judge Wilson for her response to the

comment letter submitted by the Public Justice Center (see

Appendix).

Judge Wilson said that the letter opposed allowing

use of a form “substantially similar to” the one developed by

the Judiciary.

She said that allowing substantial compliance by

the use of a form that may not look exactly identical to the

Judiciary’s version is in line with what the Committee usually

requires.

Chief Judge Morrissey informed the Committee that the

District Court is a forms-driven court and confirmed that many

law firms take the District Court forms, digitize them, and use

them in their own case management systems in a slightly

reformatted style.

He said that he receives complaints when the

District Court changes the forms because it requires the firms

to re-code their versions to comply.

He emphasized that the

District Court has always accepted substantial compliance in

forms.

He added that there is a group currently reviewing the

landlord notice form for clarity and word choice in

collaboration with advocates from the Public Justice Center and

other groups.

Judge Nazarian asked whether any other statutes

require using a form developed by the Judiciary.

Assistant

Reporter Cobun responded that in a quick search, she was unable

to find another statute using the same language.

Zafar Shah, of Maryland Legal Aid, addressed the Committee.

He said that the ACE attorneys see clients who received forms

that do not contain all the information required by the

Judiciary’s form.

compliance.

He argued that the statute requires strict

He said that landlords are using forms that do not

contain all of the information that the legislature wants to be

included.

He added that advocates do not want to have to debate

substantial compliance in court.

Katherine Davis, of the Maryland Pro Bono Resource Center,

addressed the Committee.

She said that she agrees with Mr. Shah

and added that allowing “substantial compliance” leads to

confusion.

She said that the program attorneys keep a laminated

copy of the official form to show to clients.

This can help

attorneys quickly determine if the landlord complied with the

notice requirement.

She said that attorneys do not want to

litigate whether a landlord’s version of the form is

“substantially” close enough to the Judiciary version.

Elizabeth Ashford, of the Public Justice Center, addressed

the Committee.

She said that she echoed the concerns previously

raised and informed the Committee that she sees clients who

received notices that are missing significant details.

Judge Nazarian said that he could not see how to get around

the wording of the statute, which seems to require strict

compliance with the Judiciary’s form.

agreed.

Mr. Brown said that he

A motion to strike “substantially” from Rule 3-711 (b)

was made, seconded, and approved by consensus.

There being no further motion to amend or reject the

proposed amendments to Rule 3-711, the Rule was approved as

amended.

There being no further business before the Committee, the

Vice Chair adjourned the meeting.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.