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Court repeals rule on added document for attorneys

Maryland’s top court Tuesday repealed a regulation that would have required attorneys, beginning Monday, to certify they have not included any litigant’s Social Security, taxpayer identification, bank account or medical account number in each document they file with the court.

The Court of Appeals’ vote to repeal was 6-1, with Judge Glenn T. Harrell Jr. the sole dissenter.

The controversial rule, 1-322.2, was intended to complement a regulation that since July 2013 has required attorneys to exclude or redact litigants’ personal information from court filings.

The high court’s vote for repeal followed strong, but belated, opposition from district and circuit court clerks who expressed concern about their duties under the rule — including the requirement that they reject any filing that does not include a Certificate of Exclusion of Personal Identifier Information.

“We’re obviously very pleased,” Cecil County Circuit Court Clerk Derrick W. Lowe said of the repeal.

Under the rule, numerous filings containing no personal information — such as when attorneys notify the court that they are representing a litigant — would have had to be returned if they did not include a certificate, Lowe added.

The repeal is “going to alleviate a lot of unnecessary paper from going back and forth” between clerks and attorneys for want of a certificate, he said. The rule “would have applied to so many different documents,” Lowe said.

The certificate requirement was scheduled to go into effect July 1, but — with just weeks to spare — clerks notified the chair of the Maryland Judiciary’s rules committee of their concern.

The chair, Alan M. Wilner, then asked the Court of Appeals to delay implementation of the rule so the committee could review it.

On June 17, the court stayed implementation until Sept. 1.

But at that June session, Harrell wondered aloud why the objecting clerks apparently had an “epiphany” just weeks before the scheduled implementation of a rule the court had approved 12 months earlier.

“Folks have had a year to come to grips with this,” Harrell said then.

Lowe said at the time that he and other clerks should have been more attuned to the rule’s requirements and come forward earlier.

“We dropped the ball on this,” Lowe said.

Two days later, on June 19, the Judiciary’s Standing Committee on Rules of Practice and Procedure met and voted to recommend that the court repeal the certificate requirement.

Before the high court’s vote for repeal, Wilner apologized to the judges for now requesting repeal of a certificate requirement the committee had recommended and that the court adopted just last summer.

“We really should have foreseen some of this, and we didn’t,” Wilner, a retired Court of Appeals judge, said of the belatedly expressed concerns.

But Harrell was less than forgiving.

“I don’t want to belabor it, but when it came to us [last year], everybody was in favor” of certification, Harrell said.

When Chief Judge Mary Ellen Barbera requested a voice vote minutes later, Harrell was the only judge to say, “Nay.”

The Court of Appeals had approved Rule 1-322.2 on July 2, 2013, the same day it adopted an amended rule, 1-322.1, which barred including the identifying numbers in filings.

As originally adopted in April 2013, Rule 1-322.1 also required redaction of birth dates. However, that requirement was lifted after the House of Ruth and family law advocates and attorneys raised concerns about its effect on protective orders and rulings related to child support.

The Administrative Office of the Courts also raised concerns over the application of Rule 1-322.1, leading to a clarification that the rule did not apply to administrative, business-license and notice records.

Although amended Rule 1-322.1 went into effect in July 2013, the high court delayed implementation of 1-322.2 until July 1, 2014, to give lawyers and clerks time to adapt to it.