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Chief Judge Bell seeks veto of Md. subpoena-copying bill

Steve Lash//Daily Record Legal Affairs Writer//May 15, 2011

Chief Judge Bell seeks veto of Md. subpoena-copying bill

By Steve Lash

//Daily Record Legal Affairs Writer

//May 15, 2011

Maryland’s top judge is urging Gov. Martin O’Malley to veto legislation that would allow attorneys to photocopy subpoena forms signed and sealed by circuit court clerks, saying the ability to produce an unlimited number of valid summonses without court oversight could cause “profound” damage and abuse of the judicial system.

House Bill 22 would permit an attorney to create “as many subpoenas as he or she desires, whenever he or she desires,” Chief Judge Robert M. Bell stated in his veto request to O’Malley.

But Del. Michael D. Smigiel Sr., the chief sponsor of HB 22, said Friday the governor should sign the measure because “all it does is save the taxpayers money” by shifting the cost of reproducing the form to the attorney who wants it.

Currently, attorneys can obtain blank, stamped subpoena forms from each jurisdiction’s clerk’s office on request, which they can then take back to their offices and store for later use. Since the forms differ from jurisdiction to jurisdiction, litigators routinely keep several of each on hand to avoid running out.

Only Baltimore County Circuit Court hands out one subpoena and instructs the lawyer to make photocopies, according to Irwin R. Kramer, a Reisterstown litigator who testified in favor of HB 22.

“If attorneys can be entrusted as officers of the court with blank stamped subpoenas, they can be trusted to push buttons on a photocopy machine,” said Kramer, of Kramer & Connolly. “It’s a waste to have a clerk sit there with a rubber stamp. It is a waste of money.”

At present, “the taxpayer is essentially printing forms for lawyers,” Kramer said.

While printing costs were not quantified in the bill’s fiscal note, “whatever it does cost, it’s an expense that’s not necessary,” Kramer added.

Under the Maryland Constitution, the governor has until Thursday to sign the measure, veto it or let it become law without his signature.

The bill, which failed to get out of committee in 2009, met with overwhelming support this year. It passed the House unanimously after amendments, while the Senate vote was 43 to 2.

As amended, the bill would allow only lawyers to photocopy subpoena forms. Non-attorneys representing themselves would still need to get their subpoena forms directly from the clerk’s office.

In his veto request, Bell told the governor the measure would undermine the ability of clerks to monitor to whom they give subpoena forms and to control the number they issue.

“The significance of the clerk’s role in the subpoena process is underscored by recalling what a subpoena is: a court order, which if not obeyed, subjects the recipient to body attachment, contempt, fine and even imprisonment,” Bell wrote in his April 25 letter to the governor. “It is not something to be taken lightly. The ability to photocopy invites abuse, not only by attorneys, but by anyone who manages to gain access to an original of a signed and sealed blank subpoena.”

Smigiel criticized that contention.

“Every lawyer in this state should be insulted by the position taken by the Judiciary that as officers of the court you’re not trustworthy enough to use the subpoenas in a way that is professional,” the Upper Shore Republican said Friday. “No attorney I know is going to risk their law license … on falsely issuing a subpoena.”

O’Malley has not yet decided what he will do, spokesman Shaun Adamec said Friday.

“It’s one of the [bills] that is under consideration and he is still reviewing it,” Adamec said.

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