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Court postpones vote on Rules Committee report

ANNAPOLIS — The state’s top court has once again postponed the adoption of a rule to re-codify a controversial $5 assessment the Maryland Judiciary charges attorneys for its new Professionalism Center.

The Court of Appeals approved the assessment on a 5-2 vote in March, rejecting an argument that the action was unconstitutional. The assessment was adopted as Rule 16-407, effective May 1.

Now, however, the committee has proposed re-numbering the rule, verbatim, as Rule 16-706. The change is part of the committee’s 178th Report, which includes a massive reorganization of the rules governing practice and procedure.

The court was expected to vote on the 178th Report on July 2 but rescheduled the vote for this week.

However, Judge Sally D. Adkins, one of the dissenters in March, moved to table the discussion at Tuesday’s meeting.

Adkins, whose motion passed without objection, said Chief Judge Mary Ellen Barbera — who joined the court in 2008 but only became chief on July 6 — might want more time to consider the proposed report.

Barbera, who presided over Tuesday’s session, sat silently.

No new date was set for a vote.

The second postponement drew praise and hope from attorney George W. Liebmann, a staunch opponent of the $5 assessment.

The postponement “provides more time to make people aware of what is going on,” said Liebmann, of Liebmann and Shively P.A. in Baltimore.

He added that the delay will enable Barbera, who voted for the assessment in March, to review what he called a flawed process in which attorneys were not consulted before the $5 charge came before the high court.

Liebmann said the assessment violates the free speech rights of attorneys by compelling them to support a center designed to host forums on topics they might oppose.

For example, the center’s first major event will be a symposium in fall 2014, which is expected to include discussions on whether continuing legal education should be mandatory for Maryland lawyers and whether indigent Marylanders have a right to free counsel in civil cases.

Beyond that, the Court of Appeals — as a neutral forum — should not be a funding mechanism for the Maryland Professionalism Center Inc. and the controversial issues it will consider, he said.

“It’s just not the kind of thing that a court should be engaged in,” Liebmann added.

Since its March vote, the court lost former Chief Judge Robert M. Bell — who supported the assessment — as he was forced into retirement on July 6 upon reaching the age of 70.

At the court’s July 2 session, it chose to put off discussion of the 178th Report in light of Bell’s imminent retirement.

On July 3, Gov. Martin O’Malley announced his selection of Barbera as the new chief judge, and of Court of Special Appeals Judge Shirley M. Watts to replace Bell on the high court.

Bell supported the assessment; Watts’ position on it is not publicly known.

Judge Robert N. McDonald dissented in March. He said the Judiciary’s $5 assessment violates the Maryland Constitution’s requirement that public fees gain legislative approval or assent before being assessed.

“It may be that the court is simply taking an ‘aggressive’ position on its prerogatives for the benevolent purpose of improving the legal profession and, ultimately, our system of justice,” McDonald wrote in his March 11 dissent. “If so, that would be a mistake, in my view, for an institution that is the final word on whether others have faithfully adhered to the state constitution. A high court often best asserts its constitutional powers in recognizing the limitations of those powers under the constitution it construes.”

Adkins did not issue a written dissent.

According to a legislative analysis, the $5 is being “redirected” from the annual $20 assessment of the Client Protection Fund of the Bar of Maryland, which attorneys must pay as a condition of practicing law in the state. The Client Protection Fund reimburses clients whose money has been stolen from them by their lawyers.

The annual assessments were mailed to attorneys in July and reflect the $5 fee. Payment is due by the end of August.

While the fall 2014 symposium will be its first major event, the Annapolis-based Maryland Professionalism Center’s day-to-day focus is on holding events and courses promoting ethical and civil behavior by lawyers, judges and court personnel.

Court of Appeals Judge Lynne A. Battaglia, who chairs the center’s board, said in a statement last May that the facility is “an independent, self-sustaining organization [that] can focus on training opportunities and long-term goals to promote ongoing, improved professionalism within the Maryland bench and bar.”

Battaglia also chaired the center’s predecessor, the Judiciary’s Commission on Professionalism.

This post was changed on Aug. 15, 2013, to correct the status of Rule 16-407 and the anticipated time period of the first symposium at the Maryland Professionalism Center.