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Rules committee to revisit judicial discipline amendments

Alan M. Wilner, chairman of the Rules committee, said a revised proposal concerning lawyers’ scheduling conflicts balances the trial judges’ desire to control their dockets and the lawyers’ business concerns in ‘what appears to be the reality of law practice in the 21st century.’ (Maximilian Franz/The Daily Record)

Alan M. Wilner, chairman of the Rules committee, said a revised proposal concerning lawyers’ scheduling conflicts balances the trial judges’ desire to control their dockets and the lawyers’ business concerns in ‘what appears to be the reality of law practice in the 21st century.’ (Maximilian Franz/The Daily Record)

Maryland’s top court has ordered a Judiciary committee to revisit amendments to the judicial discipline rules, changes set aside in 2016 while a challenge to the process was on appeal.

The Court of Appeals last week told the Standing Committee on Rules of Practice and Procedure to take up the proposed rule changes again in the wake of the top court upholding a reprimand of Baltimore City Circuit Judge Pamela J. White by the Commission on Judicial Disabilities. The top court also heard a second appeal from another sanctioned judge in March.

Retired Court of Appeals Judge Alan M. Wilner, chair of the rules committee, said work will resume on revising the rules once the court issues its opinion in Howard County District Judge Mary C. Reese’s case. The court dismissed the disciplinary proceedings against her in a March order but has not issued an opinion explaining its reasoning.

The White and Reese cases brought to light complaints about the disciplinary process the rules committee was not aware of during the last round of revisions, according to Wilner. The new revision process will involve input from judges, lawyers who represent them and members of the discipline panel, among others.

“There’s a lot of ferment that had not been, at least, public before, and now it is and we want to take account of it and give everybody an opportunity to weigh in on what they think the rules should look like,” he said.

White complained of due process issues in her case, arguing the commission should have allowed her to question investigative counsel about the findings and elicited testimony from witnesses that would have given more context to the complaint against her.

Reese filed exceptions to the panel’s finding of sanctionable conduct in her case and challenged the process as a whole. The Court of Appeals’ order dismissing stated the commission did not prove sanctionable conduct but the judges may address her due process complaints in its opinion.

Andrew Jay Graham, who represented both judges, said Thursday he looks forward to participating in the revision process and praised the committee for revisiting the rules.

“I haven’t rolled up my sleeves and gone into what they’re doing nor really have I formed any concrete opinions on what changes might be in order,” he said. “I am glad that they are looking at the rules with an eye toward improving them.”

Contemplated changes

The previously recommended changes covered everything from renaming the chapter “Judicial Disabilities and Discipline” to adding options for the commission to warn judges without going so far as to formally reprimand them.

Reese was charged by a divided commission, with four members dissenting. Two of those members filed a separate concurrence laying out what they viewed as shortcomings in the judicial discipline process and lack of tools available for the commission.

The dissenters asked for options to make the process “more helpful to judges and less punitive to them” by allowing for a way to get judges education or training in lieu of a reprimand or referral to the Court of Appeals.

The proposed revisions would allow the commission to dismiss a complaint with a confidential “letter of cautionary advice” if members believe that will sufficiently address any sanctionable conduct. The Judicial Inquiry Board would also be permitted to offer the judge a private meeting with a peer review panel to evaluate the case and offer advice on how to proceed.

Graham said the changes would expand the discipline process to helping improve judges’ performance and educating them. The proposed peer review process is akin to what is available to attorneys going through their version of disciplinary proceedings.

“I think the rules might be improved in that they could make it easier for something appropriate to be done in response to something a judge had done or failed to do that wouldn’t have the punitive effect that the present rules appear designed to have,” he said.

Graham also said he would like to see changes to the timeline for investigation before the judge is informed of a pending complaint and prosecution. He said the current process takes longer than it needs to and investigative counsel can seek multiple extensions.

“It creates a depressing cloud for the judges to know this is going on, and if the whole process takes a couple of years, that’s really a long time for a judge — and particularly for judges who have to stand for election — to be in limbo,” he said.

Wilner said the committee will start with the revised rules and move forward soliciting feedback from the legal community.

“We’re not going to re-plow what we’ve already done but rather use that as a working draft,” he said.

No hearings have been scheduled but updates can be found on the committee’s website.

No hearings have been scheduled but updates can be found on the committee’s website.


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