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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Maryland Legal Ethics

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary:

3.1:101      Model Rule Comparison

Maryland Rule 3.1 and MR 3.1 are substantially identical, except that Maryland permits a non- moving party in any action, civil or criminal, to require the moving party to establish every element of the case. The Model Rule limits this exception to criminal cases. The comments (MD Rule 3.1, cmt., MR 3.1, cmt.) accompanying each Rule are substantively identical.

3.1:102      Model Code Comparison

DR 7-102(A)(1) provides that a lawyer may not "file a suit, assert a position, conduct an offense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." Maryland Rule 3.1 is to the same general effect as DR 7-102(A)(1), with three qualifications. First, the test of improper conduct is altered from "merely to harass or maliciously injure another" to the requirement that there be a basis for the litigation that is "not frivolous." This includes the concept stated in DR 7-102(A)(2) that a lawyer may advance a claim or defense unwarranted by existing law if "it can be supported by good faith argument for an extension, modification or reversal of existing law." Second, the test in Maryland Rule 3.1 is an objective test, whereas DR 7-102(A)(1) applies only if the lawyer "knows or when it is obvious" that the litigation is frivolous. Finally, unlike DR 7-102(A), Maryland Rule 3.1 provides that, in defending a case, the lawyer may require the opposing side to prove every element of its claim, even if there is no non-frivolous basis for the defense.

3.1:200   Non-Meritorious Assertions in Litigation

Primary Maryland References: MD Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL § 170, Wolfram § 11.2

This section has not yet been completed.

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

Primary Maryland References: MD Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:151, ALI-LGL § 170, Wolfram § 11.2

This section has not yet been completed.

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:520]

Primary Maryland References: MD Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL §§ 77, 170, Wolfram § 11.2

This section has not yet been completed.

3.1:500   Complying with Law and Tribunal Rulings

Primary Maryland References: MD Rule 3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 16:1201, ALI-LGL § 165, Wolfram §§ 12.1.3, 13.3.7

This section has not yet been completed.

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:

3.2:101      Model Rule Comparison

Maryland Rule 3.2 and the MR 3.2 are substantively identical. The comment to MD Rule 3.2 and the comment to MR 3.2 are substantially the same, except that the comment to MR 3.2 includes the following statement, which has been specifically deleted from Maryland's comment: "Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client."

3.2:102      Model Code Comparison

DR 7-101(A)(1) states that a lawyer does not violate the duty to represent a client zealously "by being punctual in fulfilling all professional commitments." DR 7-102(A)(1) provides that a lawyer "shall not . . . file a suit, assert a position, conduct a defense [or] delay a trial . . . when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another."

3.2:200   Dilatory Tactics

Primary Maryland References: MD Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:201, ALI-LGL § 166, Wolfram § 11.2.5

This section has not yet been completed.

3.2:300   Judicial Sanctions for Dilatory Tactics

Primary Maryland References: MD Rule 3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:201, ALI-LGL § 166, Wolfram § 11.2.5

This section has not yet been completed.

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 3.3
Background References: ABA Model Rule 3.3, Other Jurisdictions
Commentary:

3.3:101      Model Rule Comparison

Maryland Rule 3.3 and MR 3.3 are substantively identical, except that Maryland adds Maryland Rule 3.3(e). Paragraph (e) states, "[n]otwithstanding paragraphs (a) through (d), a lawyer for the accused in a criminal case need not disclose that the accused intends to testify falsely or has testified falsely if the lawyer reasonably believes that the disclosure would jeopardize any constitutional right of the accused." The comment to Maryland Rule 3.3 and the comment to MR 3.3 are substantially similar, except for a minor difference as follows: the comment to MR 3.3 states that "[i]n some jurisdictions, these provisions have been construed to require that counsel present an accused as a witness if the accused wishes to testify, even if counsel knows his testimony will be false. The obligation of the advocate under these Rules is subordinate to such a constitutional requirement." On the other hand, the comment to the Maryland Rule reads "[p]aragraph (e) is intended to protect from discipline the lawyer who does not make disclosures mandated by paragraphs (a) through (d) only when the lawyer acts in the 'reasonable belief' that disclosure would jeopardize a constitutional right of the client."

3.3:102      Model Code Comparison

Maryland Rule 3.3(a)(1) is substantially identical to DR 7-102(A)(5), which provides that a lawyer shall not "knowingly make a false statement of law or fact."

Maryland Rule 3.3(a)(2) is implicit in DR 7-102(A)(3), which provides that "a lawyer shall not . . . knowingly fail to disclose that which he is required by law to reveal."

Maryland Rule 3.3(a)(3) is substantially identical to DR 7-106(B)(1).

With regard to paragraph (a)(4), the first sentence of this subparagraph is similar to DR 7-102(A)(4), which provides that a lawyer shall not "knowingly use" perjured testimony or false evidence. The second sentence of paragraph (a)(4) resolves an ambiguity in the Model Code concerning a lawyer's obligations when it is discovered that the lawyer has offered perjured testimony or false evidence. DR 7-102(A)(4), quoted above, did not expressly deal with this situation, but the prohibition against "use" of false evidence can be construed to preclude carrying through with a case based on such evidence when the fact has become known during the trial.

DR 7-102(B)(1) provides that a lawyer "who receives information clearly establishing that . . . his client has . . . perpetrated a fraud upon . . . a tribunal shall [if the client does not rectify the situation] . . . reveal the fraud to the . . . tribunal . . . ." Because use of perjured testimony or false evidence is usually regarded as "fraud" upon the court, DR 7-102(B)(1) apparently requires disclosure by the lawyer in such circumstances.

Paragraph (c) confers discretion on the lawyer to refuse to offer evidence that the lawyer "reasonably believes" is false. This gives the lawyer more latitude than DR 7-102(A)(4), which prohibits the lawyer from offering evidence the lawyer "knows" is false.

There are no counterparts in the Model Code to paragraphs (d) and (e).

3.3:200   False Statements to a Tribunal

Primary Maryland References: MD Rule 3.3(a)(1) & (2)
Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram § 12.5

[See commentaries to Sections 3.3:500, 3.3:510, 3.3:520]

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Primary Maryland References: MD Rule 3.3(a)(2)
Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram §

[See commentaries to Sections 3.3:500, 3.3:510, 3.3:520]

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

This section has not yet been completed.

3.3:400   Disclosing Adverse Legal Authority

Primary Maryland References: MD Rule 3.3(a)(3)
Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
Commentary: ABA/BNA § 4:301, ALI-LGL § 171, Wolfram § 12.8

Failure to disclose adverse legal authority may have far-reaching implications for the client as well as the attorney. See Massey v. Prince George's County, 918 F. Supp. 905 (D. Md. 1996) ("Massey II"). In Massey v. Prince George's County, 907 F. Supp. 138 (D. Md. 1995) ("Massey I"), defendant, Prince George's County Attorney's Office, failed to cite controlling and adverse authority in its motion for summary judgment. The plaintiff also failed to bring the authority to the court's attention, and the court initially granted the motion. When plaintiff's counsel belatedly brought the case to the court's attention, the court granted plaintiff's untimely motion to reconsider. The court went further: the County was ordered to (1) show cause why the authority had not been cited; (2) provide the court with a list of every other case in which it had filed a motion for summary judgment on similar grounds; and (3) identify for each motion whether the County had cited the adverse authority. Massey I, 907 F. Supp. at 143.

In Massey II, 918 F. Supp. 905, the court rejected the County's explanation as to why the authority had not been cited. Particularly troublesome to the court was the fact that the case had only been decided four years earlier and the case was one in which the County had been a party. The court dismissed out of hand the excuse that the County Attorney's office was large and the attorneys were generally unaware of what each other was doing. 918 F. Supp. at 908. Moreover, after conducting his own Westlaw search, the judge rejected the County's argument that it had simply missed the authority in conducting its research. Id. Finally, the court rejected out of hand the County's efforts to distinguish the case on its facts, finding those facts that were distinguishable to be immaterial, and the County's arguments that they were, disingenuous. Id. at 907. In so finding, the court aptly summarized the policy of at least the Maryland federal bench with regard to citation to adverse authority:

In this district whenever a case from the Fourth Circuit comes anywhere close to being relevant to a disputed issue, the better part of wisdom is to cite it and attempt to distinguish it. The matter will then be left for the judge to decide. While Respondents may still in time be judged unsuccessful in their attempt to distinguish the case, they will never be judged ethically omissive for failing to cite it.

Id. at 908. The court's ire was far reaching and went beyond the case at issue. The judge sua sponte re-opened a case in which he previously granted summary judgment in the County's favor in which the adverse authority was not cited. The court also wrote to the other members of the bench, who had also granted summary judgment in the County's favor in any other case in which the authority was not cited. Id. at 909-10. See also Gindes v. Khan, 346 Md. 143 (1997) (chastising attorneys on both sides of a case for failing to bring relevant and controlling authority to the court's attention).

In the context of criminal practice, the MSBA Committee on Ethics has opined that an attorney would not violate Maryland Rule 3.3 by failing to voluntarily disclose adverse evidence against a client in a criminal case, as long as the State or the court did not ask for it. MSBA Eth. Op. 92-16 (1992). [See also 3.3:520 for a discussion of Attorney Grievance Commission v. Rohrback, 323 Md. 79 (1991).]

3.3:500   Offering False Evidence

Primary Maryland References: MD Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL §§ 175-180, Wolfram §§ 12.3, 12.43, 12.5

Maryland Rule 3.3 attempts to strike a balance between an attorney's duty of unwavering truthfulness to the tribunal and the attorney's duty of unwavering loyalty to the client. A client's misrepresentations to the tribunal at various stages of the proceedings place the attorney's dual loyalties into equipoise. After-the-fact examination of the attorney's conduct to ascertain whether Maryland Rule 3.3 was violated turns primarily on whether the litigation was civil or criminal, whether the misrepresentation was made by the attorney or client, and what facts the attorney knew at the time the misrepresentation was made. See MD Rule 3.3, cmt. In general, if the lawyer knows false evidence has been offered by a non-client, the lawyer must correct the misimpression, notwithstanding that doing so may be contrary to the client's wishes. MD Rule 3.3, cmt. If false evidence is offered by the client, however, the lawyer's obligations are in part controlled by whether the client is a civil litigant or a criminal defendant. Id. In either event, the lawyer is instructed to confer with the client, urging that the client remedy the lie. Id. If a client in a civil matter refuses, the lawyer is duty-bound to disclose the falsehood to the court or opposing counsel. Id. If a criminal defendant persists in continuing the falsehood, the attorney's duty is less clear. Id. The comment suggests either withdrawal, disclosure or putting the client on the stand to testify in narrative form. Id. [See also 3.3:510, 3.3:520, and 3.3:610.]

3.3:510      False Evidence in Civil Proceedings

In a factually bizarre case, an attorney was alleged to have knowingly made a false statement to Attorney Grievance Commission representatives that he "accidentally turned the microwave oven on when the cat was in it." Attorney Grievance Comm'n v. Protokowicz, 329 Md. 252, 260 (1993). The Court of Appeals agreed with the trial court's finding that the respondent's disagreement with or failure to agree with Bar Counsel's charges does not equate to a knowing misrepresentation. Accordingly, while the attorney was found guilty of serious misconduct, he was not found to have violated Maryland Rule 3.3. See also Attorney Grievance Comm'n v. Williams, 335 Md. 458 (1994) (attorney violated Maryland Rule 3.3 when he knowingly represented to the court that he was scheduled to begin trial in another case when the case was only scheduled for a calendar call); and Wilson v. Stanbury, 118 Md. App. 209, 213 (1997) (attorney violated Maryland Rule 3.3(a) when he filed complaint based upon facts that he knew were false in order to induce settlement).

3.3:520      False Evidence in Criminal Proceedings

The Court of Appeals closely examined the scope of Maryland Rule 3.3 in Attorney Grievance Commission v. Rohrback, 323 Md. 79 (1991). There, an attorney was disciplined because a drunk driving defendant insisted on using a bogus name in a DWI proceeding. Indeed, the defendant, represented by the attorney, had another DWI case pending where his correct name was used. The court found that the attorney did not violate Maryland Rule 3.3 when he failed to volunteer information about his client's MVA record when the court failed to ask. Rohrback, 323 Md. at 87. The attorney also was said not to have violated the rule when he failed to disclose his client's crime of giving a fictitious name to an arresting officer because, at the time the attorney learned of the crime, it was a completed offense. Therefore, the attorney did not assist his client in committing a fraud upon the court in that instance. Id. at 92. Moreover, even though the attorney participated in creating the occasion for his client's subsequent fraud upon the bail commissioner (he told the bail bondsman his client's true identity and then stood in the back of the room when his client appeared before the commissioner), the attorney did not actually participate in the fraud when committed. Id. at 94. Once the misrepresentation was made to the commissioner, it was a consummated act. Therefore, the attorney had no later duty to make a voluntary disclosure of the fraud to the court. Id. at 96.

The attorney in Rohrback ultimately was found to have violated Maryland Rule 3.3. Both of his client's cases were referred to the same probation and parole agent. The attorney accompanied his client to the interview with the agent. In that interview, the client continued to use the false identity. The attorney failed to correct the error and, in fact, introduced his client using the false name. This, the court held, was the equivalent of substituting a third party for the defendant at counsel table at trial in a criminal case and violated Maryland Rule 3.3. Id at 99. See also Venable v. State, 108 Md. App. 395, 407 (1996) (defense counsel would have been under an ethical obligation to correct defense witness's false testimony had it been given; accordingly, the trial court's ruling that allowed prosecutor to put defense attorney on stand to attempt to obtain same result was prejudicial error); MSBA Eth. Op. 90-13 (1990) (defense counsel had duty under Maryland Rule 3.3 to urge client to reveal true identity and, if client refused, the attorney should withdraw); and MSBA Eth. Op. 88-82 (1988) (Rules .3, 3.4, and 8.4 prohibit defense counsel in criminal case from substituting a third party at counsel table in place of the defendant).

Maryland Rule 3.3 applies even when an attorney is testifying on his own behalf in traffic court. Attorney Grievance Comm'n v. Myers, 333 Md. 440 (1994). Accordingly, respondent's false statement that he had not had a ticket since he was 19 years old, warranted his disbarment. Id.

Attorneys are presumed to speak truthfully to the tribunal and the trial court need not resort to putting an attorney under oath in order to be entitled to expect candor. Gray v. State, 317 Md. 250, 258 (1989). Accordingly, the trial court's failure to require the prosecutor to testify under oath when he categorically denied that his jury selection challenges were based on race was not in error. Id. at 255- 56. See also Attorney Grievance Comm'n v. Kent, 337 Md. 361, 372 (1995) (respondent violated Maryland Rule 3.3(a) when he engaged in less than candid word games with Bar Counsel during an Inquiry Panel hearing that arose as a result of respondent's actions with regard to a criminal defendant); Spencer v. State, 76 Md. App. 71, 78, n.2 (1988) ("counsel has an unqualified obligation to be forthright with the court and cannot make an affirmative misstatement of the facts").

3.3:530      Offering a Witness an Improper Inducement

There are no reported Maryland cases or Ethics Opinions addressing this topic. However, the comment to Maryland Rule 3.4(b) makes clear that it is not improper to pay a witness's expenses or to compensate an expert witness. It is, however, improper to pay an occurrence witness any fee and it is improper to pay an expert witness a contingency fee. MD Rule 3.4, cmt.

3.3:540      Interviewing and Preparing Witnesses

There are no reported Maryland cases or MSBA Ethics Opinions addressing this aspect of Maryland Rule 3.3. However, the Court of Appeals addressed the issue of the permissible limits on witness preparation in State v. Earp, 319 Md. 156, 170 (1990). In that decision the court chastised the prosecutor in a criminal case for showing witnesses the victim's videotaped deposition testimony, which was taken shortly before the victim died of wounds inflicted by the defendant. Attorneys, the court said, are permitted to review with the witness statements, depositions, or prior testimony that the witness has given. The attorney may also refresh the witness's memory as to facts, "but in so doing the attorney should exercise great care to avoid suggesting to the witness what his or her testimony should be." Earp, 319 Md. at 171.

Where evidence suggests that a witness has been improperly influenced, the trial judge may exclude the testimony altogether or may determine whether cross examination is a sufficient remedy to reveal the improper influence. Id. at 172.

3.3:600   Remedial Measures Necessary to Correct False Evidence

Primary Maryland References: MD Rule 3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:401 et seq., ALI-LGL § 117A-B, Wolfram §§ 12.5, 12.6, 13.3.6

3.3:610      Duty to Reveal Fraud to the Tribunal

The timing of an attorney's knowledge of the client's fraud, and the status of the proceeding at the time of the discovery, are important factors in assessing the attorney's obligations under Maryland Rule 3.3. In Maryland National Bank v. Resolution Trust Corp., 895 F. Supp. 762 (D. Md. 1995), the plaintiff argued that an earlier settlement agreement between the parties must be set aside because of the fraud the defendant allegedly used to induce the agreement. The alleged wrongful inducements were inaccurate representations that the defendant's attorney made to the settlement tribunal. Plaintiff claimed not only that the attorney violated Maryland Rule 3.3(a), but that the violation gave it grounds to have the agreement set aside. 895 F. Supp. at 771. The court rejected the plaintiff's claim that a violation of Maryland Rule 3.3 gave it a cause of action. Further, the court also refused to adopt an alternate theory of misrepresentation to the settlement tribunal because it could not determine that the attorney knew the facts were incorrect at the time they were represented to the court. In so holding, the court noted:

Whatever the rules are in a commercial context with respect to the duty owed to an adversary, that duty changes once the adversarial party makes a representation in open court. A party entering into a settlement agreement is entitled to rely upon the direct representations made by an adversary in a court of law to a judge. Once an attorney has made such a direct representation of fact, he is duty-bound to advise the court and opposing counsel if he subsequently learns that the representation is false.

Id. at 773. The court went on to hold that if the plaintiff could prove at trial that the attorney or defendant "knew the true facts before the release was executed, then the release and settlement agreement will be set aside." Id. See also MSBA Eth. Op. 98-13 (1998) (attorney who learned after judgment was entered in client's favor that client perjured herself, had a duty to either persuade the client to rectify the situation or to make an independent disclosure to the court).

The MSBA Committee on Ethics determined that Maryland Rule 3.3(a) requires an attorney to remonstrate with the client and, failing that, disclose a client's fraudulent embezzlement of funds from the estate for which the client serves as a personal representative, as long as the proceeding has not closed. MSBA Eth. Op. 96-30 (1996).

In MSBA Eth. Ops. 97-21 (1997) and 88-46 (1988), the Committee determined that an attorney has an ethical obligation to persuade a client to correct false testimony given by the client at a deposition when the attorney later learns the testimony given was false. If the client refuses to correct the false testimony, then the attorney is urged to make the disclosure, notwithstanding the client's objections, or to withdraw. See also MSBA Eth. Op. 88-53 (1988) (disclosure of previously given false testimony in adoption proceeding required by Maryland Rule 3.3(a)(4) if the proceeding was still pending at time attorney learned of the false testimony).

In MSBA Eth. Op. 90-23 (1990), the Committee determined that an attorney who learned of a client's ongoing fraud in an administrative proceeding where the attorney had withdrawn from representation, had a duty to remonstrate with the former client to rectify the fraud. That failing, the attorney had a duty to disclose the fraud to the court. Otherwise, the attorney would be allowing his or her services to be used to perpetrate a fraud. See also MSBA Eth. Op. 95-44 (1995) (where facts upon which original representation and Social Security survivor benefits award were based later proved incorrect, attorney was counseled to determine whether retaining benefits under the circumstances would constitute a fraudulent act. If so, Maryland Rule 3.3 would require the attorney to take remedial measures so that the attorney's services were not used to perpetrate a continuing fraud).

In MSBA Eth. Op. 89-42 (1989), the Committee opined that the obligation to fully inform the court of a client's fraudulent act(s) is specific to the proceeding and ends at the conclusion of the proceeding. Accordingly, an attorney who learned of a client's fraud need not have disclosed the fraud in a subsequent proceeding, so long as the attorney did not reference the first proceeding to the court in the ongoing action. Id.

Maryland Rule 3.3 does not permit disclosure when an attorney learns of fraud committed or being committed by a prospective client where the attorney has not appeared before or made representations to the tribunal about the prospective client. MSBA Eth. Op. 97-3 (1997).

An attorney who opens an estate to collect abandoned property for the purpose of collecting the fees or commissions relating to the estate work, may potentially violate Maryland Rule 3.3 by making false statements of material fact on the petition for probate. MSBA Eth. Op. 98-29 (1998).

3.3:700   Discretion to Withhold Evidence Believed to Be False

Primary Maryland References: MD Rule 3.3(c)
Background References: ABA Model Rule 3.3(c), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 180, Wolfram § 12.5

There are no reported Maryland cases or Ethics Opinions addressing this aspect of Maryland Rule 3.3. Reference to the comment to the Rule is not particularly helpful, but may provide some direction. The commentary simply confirms that, as an advocate, an attorney generally may refuse to offer proof that he believes to be false. MD Rule 3.3, cmt. Maryland Rule 1.2(d) and the Terminology definition of "believes" may provide some guidance as well.

3.3:800   Duty of Disclosure in Ex Parte Proceedings

Primary Maryland References: MD Rule 3.3(d)
Background References: ABA Model Rule 3.3(d), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 172 , Wolfram § 12.7

An attorney has an added duty of candor in an ex parte proceeding such that the lawyer has a "duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision." Magness v. Magness, 79 Md. App. 668 (1989). Failure to reveal all facts to the court in an ex parte hearing, however, does not constitute a violation of the Rules, as long as the facts omitted are not material to the court's issuance of the order. Id. at 684.

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 3.4
Background References: ABA Model Rule 3.4, Other Jurisdictions
Commentary:

3.4:101      Model Rule Comparison

Maryland Rule 3.4 and MR 3.4 are substantively identical. The comment sections to Maryland Rule 3.4 and MR 3.4 (MD Rule 3.4, cmt. and MR 3.4, cmt.) are also virtually identical.

3.4:102      Model Code Comparison

With regard to paragraph (a), DR 7-109(A) provides that a lawyer "shall not suppress any evidence that he or his client has a legal obligation to reveal." DR 7-109(B) provides that a lawyer "shall not advise or cause a person to secrete himself . . . for the purpose of making him unavailable as a witness . . . ." DR 7-106(C)(7) provides that a lawyer shall not "[i]ntentionally or habitually violate any established rule of procedure or of evidence."

With regard to paragraph (b), DR 7-102(A)(6) provides that a lawyer shall not participate "in the creation or preservation of evidence when he knows or it is obvious that the evidence is false." DR 7-109(C) provides that a lawyer "shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for his loss of time in attending or testifying; [or] (3) a reasonable fee for the professional services of an expert witnesses." EC 7-28 states that witnesses "should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise."

Paragraph (c) is substantially similar to DR 7-106(A), which provides that "a lawyer shall not disregard . . . a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling."

Paragraph (d) has no counterpart in the Model Code.

Paragraph (e) is substantially similar to DR 7-106(C)(1), (2), (3) and (4). DR 7- 106(C)(2) proscribes asking a question "intended to degrade a witness or other person," a matter dealt with in Maryland Rule 4.4.

With regard to paragraph (f) , DR 7-104(A)(2) provides that a lawyer shall not "give advice to a person who is not represented . . . other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client."

3.4:103      Overview

This section has not yet been completed.

3.4:200   Unlawful Destruction and Concealment of Evidence

Primary Maryland References: MD Rule 3.4(a)
Background References: ABA Model Rule 3.4(a), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL §§ 178, 179, Wolfram § 12.3, 12.4

The Rule commentary reflects that the adversary system contemplates a competitive marshaling of evidence. Fairness in this competitive atmosphere is ensured by prohibitions against concealment and destruction of evidence and efforts to improperly influence witnesses. MD Rule 3.4, cmt.

Accordingly, an attorney violated Maryland Rule 3.4(a) when he broke into the home of his adversary's client and stole documents relating to the pending divorce proceeding that had potential evidentiary value. Attorney Grievance Comm'n v. Protokowicz, 329 Md. 252, 258 (1993).

In a related context, withholding or destroying evidence has an impact beyond disciplinary sanctions. Maryland follows the common law doctrine of spoliation of evidence. See, e.g. Anderson v. Litzenberg, 115 Md. App. 549 (1997), and Miller v. Montgomery County, 64 Md. App. 202, 214- 15, cert. denied, 304 Md. 299 (1985). That doctrine provides that, "destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator, the nature of the inference being dependent upon the intent or motivation of the party." Miller, 64 Md. App. at 214- 15. Further, the spoliation doctrine permits a court to order dismissal, summary judgment, or imposition of an adverse inference to be drawn against the spoliator dependent upon the level of culpability and bad faith. See Hartford Ins. Co. v. American Automatic Sprinkler Sys., Inc., 1998 U.S. Dist. LEXIS 16620, *8 (D. Md. 1998).

3.4:210      Physical Evidence of Client Crime

There are no reported Maryland cases addressing this aspect of Maryland Rule 3.4(a). The MSBA Committee on Ethics has opined, however, that an attorney who retains a bag containing money admittedly stolen by the client does so in violation of Maryland Rule 3.4(a). MSBA Eth. Op. 90-24 (1990). Similarly, an attorney who knowingly receives stolen money in payment for services rendered, violates Maryland Rule 3.4(a) if the attorney fails to turn the money over to the appropriate authorities. MSBA Eth. Op. 90-49 (1990).

3.4:300   Falsifying Evidence

Primary Maryland References: MD Rule 3.4(b)
Background References: ABA Model Rule 3.4(b), Other Jurisdictions
Commentary: ABA/BNA §§ 61:601, 61:701, ALI-LGL § 178, Wolfram § 12.3

This section has not yet been completed.

3.4:310      Prohibited Inducements

This section has not yet been completed.

3.4:400   Knowing Disobedience to Rules of Tribunal

Primary Maryland References: MD Rule 3.4(c)
Background References: ABA Model Rule 3.4(c), Other Jurisdictions
Commentary: ABA/BNA § 61:1231, ALI-LGL § 165, Wolfram § 12.1

Knowing disobedience to the rules of the tribunal or of a court order is punishable by contempt, in addition to subjecting the attorney to possible Bar sanction. Carter v. State, 73 Md. App. 437 (1988). A determination that an attorney knowingly violated the rules or an obligation imposed by the tribunal requires clear and convincing evidence. Attorney Grievance Comm'n v. Dietz, 331 Md. 637 (1993). Counsel's erroneous, but good faith, assumption that the court would agree to a postponement the day of trial in order to allow him to appear before another court in another matter was not clear and convincing evidence that counsel violated Maryland Rule 3.4(c). Id. at 647.

An attorney does not violate Maryland Rule 3.4(c) when his associate fails to appear in court for a scheduled hearing or "appears with insufficient knowledge to provide adequate representation." Attorney Grievance Comm'n v. Ficker, 349 Md. 13, 28 (1998) (the respondent's responsibility for the associate's failure implicated, instead, Maryland Rule 5.1.) In the same case, the attorney was found to have violated Maryland Rule 3.4(c) when he failed to comply with a judge's order that he arrange for his client to meet with the Montgomery County Pre-Release Center to determine the client's eligibility for a special treatment program. Id. at 35.

An attorney was held to have violated Maryland Rule 3.4(c) when he disregarded a court's order not to contact a defendant in a criminal trial who was known to be represented already by counsel. Attorney Grievance Comm'n v. Kent, 337 Md. 361, 378 (1995); See also Attorney Grievance Comm'n v. Garland, 345 Md. 383 (1997) (attorney who disregarded court's order that he report to a facility to receive treatment for alcoholism violated Maryland Rule 3.4(c) and 8.4(d)); Carter v. State, 73 Md. App. 437 (1988) (attorney for one defendant could violate Maryland Rule 3.4(c) by asking the same question ruled objectionable when asked by her client's co-defendant; therefore, defendant was not denied effective assistance of counsel when his attorney failed to ask the question again).

Whether an attorney must comply with a quasi-administrative directive is dependent upon whether the directive can be construed as a "court order or rule." MSBA Eth. Op. 87-16 (1987). However, the MSBA Committee on Ethics declined to provide its opinion on the issue of whether a directive from a court agency, in this case the Circuit Court Mental Hygiene Consultation Service, which was supplied to an attorney with the direction that its content not be disclosed to the client, was in fact a court order or rule. Id.

3.4:500   Fairness in Pretrial Practice

Primary Maryland References: MD Rule 3.4(d)
Background References: ABA Model Rule 3.4(d), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL § 166, Wolfram § 12.4

Although there is no reported case law addressing this aspect of Maryland Rule 3.4, there is a substantial body of case law relating to discovery practice under Rule 2-401 et seq. See, e.g., Tanis v. Crocker, 110 Md. App. 559 (1996); Baltimore Transit Co. v. Mezzanotti, 227 Md. 8 (1961). Pretrial discovery in civil cases is governed by Maryland Rules 2-401 through 2-434 and 3-401 through 3-431. Discovery in criminal cases is governed by Maryland Rules 4-261 through 4-264. Sanctions are available against parties under these rules for certain discovery failures. Maryland Rule 3.4, however, puts additional teeth into the discovery rules by subjecting an attorney to sanction for willful failure to abide by discovery rules. Maryland Rule 3.4(a)-(d) specifically applies to attorneys in the discovery context by prohibiting obstruction, falsification or spoliation of evidence on the one hand, and frivolous discovery requests on the other. [See also 3.4:200 relating to spoliation of evidence.]

Maryland Rule 3.4 applies to attorneys practicing before the Worker's Compensation Commission, as do the other Maryland Rules. Stinnett v. Cort Furniture Rental, 315 Md. 448, 457, n.7 (1989).

Maryland Rule 3.4 is not violated by not pointing out a statute of limitations problem to opposing counsel. MSBA Eth. Op. 88-63 (1988).

3.4:600   Improper Trial Tactics

Primary Maryland References: MD Rule 3.4(e)
Background References: ABA Model Rule 3.4(e), Other Jurisdictions
Commentary: ABA/BNA § 61:1361, ALI-LGL § 167, Wolfram § 12.1

Clear and convincing evidence is necessary to prove that counsel has engaged in improper trial tactics. Attorney Grievance Comm'n v. Alison, 349 Md. 623 (1998). While calling the opposing party an idiot would be unfair to opposing counsel, calling a phantom driver an idiot in an accident case does not equate to calling the opposing party an idiot. Id. at 630. Accordingly, the court did not find clear and convincing evidence that counsel violated Maryland Rule 3.4. Likewise in the same case, statements to the effect that one could "expect to be jerked around by the insurance company" do not violate Maryland Rule 3.4(e). Id. at 629-30.

Substituting a third party witness for defendant at counsel's table at trial violates Maryland Rule 3.4 and 3.3. MSBA Eth. Op. 88-82 (1988).

[See 0.2:200 regarding MSBA Codes of Civility.]

3.4:700   Advising Witness Not to Speak to Opposing Parties

Primary Maryland References: MD Rule 3.4(f)
Background References: ABA Model Rule 3.4(f), Other Jurisdictions
Commentary: ALI-LGL § 176, Wolfram § 12.4.2

There are no reported Maryland cases or Ethics Opinions addressing this aspect of Maryland Rule 3.4. However, the comment to Rule 3.4 makes clear that a lawyer is permitted to instruct a client's employees to refrain from giving information to another party.

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 3.5
Background References: ABA Model Rule 3.5, Other Jurisdictions
Commentary:

3.5:101      Model Rule Comparison

Maryland has substantially expanded MR 3.5. Maryland Rule 3.5(a)(1) is identical to MR 3.5(a). MR 3.5(b) and (c) are encompassed by MD Rule 3.5(a)(7) and (8), respectively. The remaining paragraphs (a)(2) through (6) are not included in MR 3.5. Similarly, Maryland Rule 3.5(b) is not included in MR 3.5. Maryland Rule 3.5(a)(2) through (5) provides detailed limitations on communications with jurors or prospective jurors before, during and after trial.

Paragraph (a)(6) prohibits a lawyer from conducting "a vexatious or harassing investigation of any juror or prospective juror . . . ." Paragraph (b) requires a lawyer who has knowledge of any violation of paragraph (a) or any improper conduct on the part of a juror, prospective juror or any improper conduct by another towards a juror or prospective juror to report it to the court or the proper authorities.

3.5:102      Model Code Comparison

With regard to Maryland Rule 3.5(a) and (b), DR 7-108(A) provides that "[b]efore the trial of a case, a lawyer . . . shall not communicate with . . . anyone he knows to be a member of the venire . . . ." DR 7-108(B) provides that "during the trial of a case . . . a lawyer . . . shall not communicate with . . . a juror concerning the case." DR 7-109(C) provides that a lawyer shall not "communicate . . . as to the merits of the cause with a judge or an official before whom the proceeding is pending except . . . upon adequate notice to opposing counsel . . . [or] as otherwise authorized by law."

With regard to Maryland Rule 3.5(a)(8), DR 7-106(C)(6) provides that a lawyer shall not "engage in undignified or discourteous conduct which is degrading to a tribunal."

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

Primary Maryland References: MD Rule 3.5(a)
Background References: ABA Model Rule 3.5(a), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 173, 175, Wolfram §§ 11.3, 11.4

3.5:210      Improperly Influencing a Judge

This section has not yet been completed.

3.5:220      Improperly Influencing a Juror

This section has not yet been completed.

3.5:300   Improper Ex Parte Communication

Primary Maryland References: MD Rule 3.5(b)
Background References: ABA Model Rule 3.5(b), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL § 172, Wolfram § 11.3.3

This section has not yet been completed.

3.5:400   Intentional Disruption of a Tribunal

Primary Maryland References: MD Rule 3.5(a)(8)
Background References: ABA Model Rule 3.5(c), Other Jurisdictions
Commentary: ABA/BNA § 61:901, ALI-LGL § 165, Wolfram § 12.1.3

This section has not yet been completed.

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 3.6
Background References: ABA Model Rule 3.6, Other Jurisdictions
Commentary:

3.6:101      Model Rule Comparison

Maryland Rule 3.6 is different in both form and content. Maryland Rule 3.6(a) is substantially similar to MR 3.6(a). But MR 3.6(a) expressly limits coverage of the Rule to "[a] lawyer who is participating or who has participated in the investigation or litigation of a matter. . . ." Maryland Rule 3.6(a) does not expressly include this limitation; however, such limitation is implicit in Maryland Rule 3.6(b). Maryland Rule 3.6(b)(1)-(6) presents broad, primarily trial-related, scenarios in which paragraph (a) is most likely to apply. These subparagraphs were taken almost verbatim from the comment to MR 3.6. Paragraph (c)(1)-(7) are substantially identical to MR 3.6(b)(1)-(7). Maryland Rule 3.6 does not contain counterparts similar to MR 3.6(c) and (d).

3.6:102      Model Code Comparison

Maryland Rule 3.6 is similar to DR 7-107, except as follows: First, Maryland Rule 3.6 adopts the general criterion of "substantial likelihood of materially prejudicing an adjudicative proceeding" to describe impermissible conduct. Second, Maryland Rule 3.6 is illustrative of the types and nature of trial publicity that may jeopardize the fair administration of justice. Lastly, Maryland Rule 3.6 omits DR 7-107(C)(7), which provides that a lawyer may reveal "at the time of seizure, a description of the physical evidence seized, other than a confession, admission or statement."

3.6:200   Improper Extrajudicial Statements

Primary Maryland References: MD Rule 3.6(a)
Background References: ABA Model Rule 3.6(a), Other Jurisdictions
Commentary: ABA/BNA § 61:1001, ALI-LGL § 169, Wolfram § 12.2

This section has not yet been completed.

3.6:300   Permissible Statements

Primary Maryland References: MD Rule 3.6(b)
Background References: ABA Model Rule 3.6(b), Other Jurisdictions
Commentary: ABA/BNA § 69:1001, ALI-LGL § 169, Wolfram § 12.2

There are no reported Maryland cases addressing Maryland Rule 3.6. Two opinions from the MSBA Committee on Ethics, however, offer some guidance.

MSBA Eth. Op. 91-32 (1991) addressed the propriety of a newspaper advertisement in which attorneys for a plaintiff in a medical malpractice action sought information about the defendant doctor's relationship with other female patients. The Committee found that the advertisement in question was permitted by Maryland Rule 3.6(c) because it clearly stated that the information was "being sought in connection with pending litigation," and was not stated in such a way so as to prejudice the doctor's case. MSBA Eth. Op. 91-32. Notably, the doctor's licence to practice was revoked after he was ultimately found guilty of "immoral conduct in the practice of medicine." In addition, the circumstances of the doctor's relationships with his female patients had been reported in local newspapers at the time the decision was issued. Id.

MSBA Eth. Op. 95-32 (1995) addressed the propriety of a contemplated press release about a pending civil lawsuit. Without a copy of the contemplated press release, the Committee only opined in the abstract, informing counsel that a press release would comply with Maryland Rule 3.6(c) if the release included, without elaboration, a statement about the general nature of the claim, information contained in the public record, and the scheduling of any step of the litigation. Such a press release, the Committee declared, would not violate the rule per se.

See also MSBA Eth. Op. 88-67 (1988) (Maryland Rule 3.6(a) is not limited to jury trials).

3.6:400   Responding to Adverse Publicity

Primary Maryland References: MD Rule 3.6(c)
Background References: ABA Model Rule 3.6(c), Other Jurisdictions
Commentary: ABA/BNA § 61:100l, ALI-LGL § 169, Wolfram § 12.2

There are no reported Maryland cases addressing Maryland Rule 3.6, nor are there any MSBA Ethics Opinions. Determination of whether an attorney violated this Rule 3.6 would necessarily take into consideration the policy statements provided by the comment to Rule 3.6. The commentary makes clear an intention to balance the interests of fair trial and free expression. The vital social interests that may be implicated by pretrial documentation of information about the proceedings themselves are to be balanced against the individual litigant's rights to a tribunal untainted by pretrial publicity. MD Rule 3.6, cmt.

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 3.7
Background References: ABA Model Rule 3.7, Other Jurisdictions
Commentary:

3.7:101      Model Rule Comparison

Maryland Rule 3.7 and MR 3.7 as well as the comments (MD Rule 3.7, cmt. and MR 3.7, cmt.) thereto are substantively identical.

3.7:102      Model Code Comparison

DR 5-102(A) prohibits a lawyer, or the lawyer's firm, from serving as advocate if the lawyer "learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client." DR 5-102(B) provides that a lawyer, and a lawyer's firm, may continue representation if the "lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client . . . until it is apparent that his testimony is or may be prejudicial to his client." DR 5-101(B) permits a lawyer to testify while representing a client: "(1) if the testimony will relate solely to an uncontested matter; (2) if the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) if the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client; (4) as to any matter if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in a particular case."

The exception stated in paragraph (a)(1) encompasses provisions of DR 5-101(B)(1) and (2).

3.7:200   Prohibition of Advocate as Witness

Primary Maryland References: MD Rule 3.7(a)
Background References: ABA Model Rule 3.7(a), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 168, Wolfram § 7.5

The Court of Special Appeals, Maryland's intermediate appellate court, has established guidelines governing circumstances under which defense counsel may be compelled to testify at trial in Venable v. State, 108 Md. App. 395 (1996). In Venable, the court declined to hold that a judge’s decision to permit the State to call defense counsel as an impeaching witness constituted a per se violation of Maryland Rule 3.7. 108 Md. App. at 405. However, the court held that the ruling was erroneous nonetheless and warranted reversal of the conviction and a new trial. Id. at 408.

The court reasoned that the decision whether to allow the State to call defense counsel as a witness against his own client is within the discretion of the trial court. Id. at 406. The court’s discretion in a criminal trial is guided by weighing the materiality of the defense counsel’s testimony against the defendant’s other constitutional rights. The court must also consider “the extent to which defense counsel’s credibility as an advocate will be adversely affected” should defense counsel testify against his client. Id. The court went on to hold that, whenever the prosecutor calls defense counsel to the stand, the trial judge must require a complete proffer of the anticipated testimony, allow an opportunity to rebut, and consider alternate methods of presenting the same evidence. Id. In addition, "[i]f the court determines that the State is entitled to defense counsel’s testimony, the court must next determine whether the defendant — not defense counsel — wants the assistance of another lawyer while defense counsel is on the stand." Id.

In so holding, the court pointed out the dangers attendant upon compelling the lawyer to testify against a client, including (1) the client's difficulty in consulting with the attorney (both for calling inaccuracies to the attorney's attention or in suggesting proper questions for cross-examination); (2) the attorney's difficulty in determining what objections should be made to questions asked; (3) the attorney's difficulty in determining what questions to ask on cross-examination; and (4) the attorney's difficulty in answering questions so as to not antagonize the jury and still maintain a favorable impression. Id.

An attorney’s compliance with a subpoena duces tecum commanding production of fee information does not result in the attorney being commanded to testify against a client when there are alternate means of producing the information (i.e., through the use of stipulations, or producing the records and having them authenticated through the firm’s bookkeeper). In re Criminal Investigation No. 1/296X in the Cir. Ct. for Anne Arundel County, 336 Md. 1, 13 (1994). Maryland Rule 3.7(a)(2) permits an attorney to testify at trial and still represent the client “when the testimony relates to the nature and value of legal services rendered in the case.” Id. at 14. Accordingly, Maryland Rule 3.7 does not provide a basis to quash a subpoena duces tecum of fee records in a grand jury context. Id.

Maryland Rule 3.7 does not preclude an attorney from testifying in a trial on behalf of a client when the attorney is not trial counsel, but is instead, a factual witness. Medical Mut. Liability Ins. Socy. of Md. v. Evans, 330 Md. 1, 31-32 (1993); accord, Kosmas v. State, 316 Md. 587, 602 (1989). In a criminal case, however, defense counsel first should be provided the opportunity to proffer evidence supportive of the client, rather than being compelled to take the stand to testify. Kosmas, 316 Md. at 602.

In a disciplinary hearing, the trial court’s refusal to permit the defending attorney to call Bar Counsel to the witness stand was affirmed because the attorney failed to show that the effort was anything more than an attempt to exclude Bar Counsel from further participation as an advocate in the proceeding. Attorney Grievance Comm’n v. Hallmon, 343 Md. 390, 410 (1996).

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

Primary Maryland References: MD Rule 3.7(b)
Background References: ABA Model Rule 3.7(b), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 168, Wolfram § 7.5, 7.6

In Harris v. David S. Harris, P.A., 310 Md. 310 (1987), an attorney retained his partner to represent him before the Workmen’s Compensation Commission. The trial court disqualified the attorney's firm and he appealed. The Court of Appeals held that the order was not subject to interlocutory review, but that further proceedings would be governed by Maryland Rule 3.7. 310 Md. at 319-20 (cited with approval in Alan F. Post Chartered v. Bregman, 349 Md. 142, 165 (1998), to support the proposition that the Maryland Rules carry force of law outside of the disciplinary context).

The court’s remark in Harris is explained by the fact that the Maryland Rules had only recently been adopted at the time the case was before it, and Maryland Rule 3.7 represented a change from the former practice relating to imputed disqualification. Maryland Rule 3.7(b) expressly permits a lawyer to act as an advocate in a trial in which another lawyer in the firm is likely to be called as a witness. The former rules would not have allowed that practice. DR 5-101(B). See also MSBA Eth. Op. 87-37 (1987) (Maryland Rule 3.7(b) permitted lawyer associated with the advocate’s firm by the “Of Counsel” relationship to testify in pending proceeding).

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 3.8
Background References: ABA Model Rule 3.8, Other Jurisdictions
Commentary:

3.8:101      Model Rule Comparison

Maryland Rule 3.8(a)-(e) are substantially identical to MR 3.8 (a)-(e). The Maryland Rule does not include the provisions contained in MR 3.8(f) and (g). The comment to Maryland Rule 3.8 is substantially identical to the comment accompanying MR 3.8, except that the MR 3.8, comment includes two additional paragraphs relating to MR 3.8(f) and (g).

3.8:102      Model Code Comparison

DR 7-103(A) provides that "a public prosecutor . . . shall not institute . . . criminal charges when he knows or it is obvious that the charges are not supported by probable cause." DR 7-103(B) provides that "a public prosecutor . . . shall make a timely disclosure . . . of the existence of evidence, known to the prosecutor . . . that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment."

3.8:200   The Decision to Charge

Primary Maryland References: MD Rule 3.8(a)
Background References: ABA Model Rule 3.8(a), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

This section has not yet been completed.

3.8:300   Efforts to Assure Accused's Right to Counsel

Primary Maryland References: MD Rule 3.8(b)
Background References: ABA Model Rule 3.8(b), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

This section has not yet been completed.

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

Primary Maryland References: MD Rule 3.8(c)
Background References: ABA Model Rule 3.8(c), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

This section has not yet been completed.

3.8:500   Disclosing Evidence Favorable to the Accused

Primary Maryland References: MD Rule 3.8(d)
Background References: ABA Model Rule 3.8(d), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10.5

This section has not yet been completed.

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

Primary Maryland References: MD Rule 3.8(e)
Background References: ABA Model Rule 3.8(e), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 156, Wolfram § 13.10

This section has not yet been completed.

3.8:700   Issuing a Subpoena to a Lawyer

Primary Maryland References: MD Rule 3.8(f)
Background References: ABA Model Rule 3.8(f), Other Jurisdictions
Commentary: ABA/BNA § 55:1301, ALI-LGL § 156

This section has not yet been completed.

3.8:800   Making Extrajudicial Statements

Primary Maryland References: MD Rule 3.8(g)
Background References: ABA Model Rule 3.8(g), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 169, Wolfram § 12.2.2

This section has not yet been completed.

3.8:900   Peremptory Strikes of Jurors

Primary Maryland References: MD Rule 3.8
Background References: Other Jurisdictions
Commentary:

This section has not yet been completed.

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary:

3.9:101      Model Rule Comparison

Maryland Rule 3.9 and its accompanying comment are substantively identical to MR 3.9 and its accompanying comment

3.9:102      Model Code Comparison

EC 7-15 states that "a lawyer appearing before an administrative agency, regardless of the nature of the proceedings it is conducting, has the continuing duty to advance the cause of his client within the bounds of law." EC 7-16 states that "[w]hen a lawyer appears in connection with proposed legislation, he . . . should comply with applicable laws and legislative rules." EC 8-5 states that "[f]raudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a . . . legislative body should never be participated in . . . by lawyers."

DR 7-106(B)(1) provides that "in presenting a matter to a tribunal, a lawyer should disclose . . . [u]nless privileged or irrelevant, the identity of the clients he represents and of the persons who employed him."

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

Primary Maryland References: MD Rule 3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 164, Wolfram § 13.8

This section has not yet been completed.

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