A rule that lacks common sense

I testified before the Court of Appeals last month against proposed Rule 16-804, which would make it a violation of professional ethics for a lawyer to accept a case with a trial date that conflicts with a case the lawyer already has.

As I took the elevator up in the Courts of Appeal building to the Rules Committee’s meeting room, I thought about why this proposed rule didn’t make any sense. To me, it’s common sense that a lawyer should be able to get a postponement based on the fact they already have a conflicting case on the same day. To me, it doesn’t make any constitutional sense that hardworking, taxpaying Marylanders wouldn’t have the right to choose their attorney of choice if that attorney was already scheduled on the same day. It didn’t make sense to me why the Rules Committee would be proposing this postponement rule to be codified now, at this time, of all times they could have tried in the past 35 years. Right now, electronic filing has been launched in Maryland courts and is scheduled to spread. The current and inevitable hiccups with any platform change in what one judge has called “The Wonderful World of MDEC” will surely be exacerbated by a scheduling rule change, such as this proposed rule.

I get it. Some judges are fed up with trying to accommodate and schedule attorneys’ postponements and hearings. I believe the chaos of litigation, no matter what, will always be tough to accommodate for schedulers and it is the nature of trial work in Maryland.

I testified before the Court of Appeals along with at least a dozen other attorneys, including deputy state’s attorneys, a county public defender, criminal attorneys and civil attorneys against this proposed rule, which was argued to have already been in effect for the past 35 years as an administrative order. To that argument, I would say: What is in effect and what is in practice in Maryland courts are two entirely different things. After all of us attorneys testified, the Court of Appeals unanimously agreed to postpone until September any ruling on this proposed postponement rule. (Isn’t it ironic?)

I was under the impression that those who testified would be a part of a further discussion on this matter. Evidently, not entirely so. I recently was in contact with a lucky subcommittee member and he told me he was surprised at how few attorneys were on the list as invited guests to talk about this proposed rule change during the Rules Committee’s meeting Wednesday. The problem is that if there is any compromise at all on this proposed rule, it hurts solo small firms. It’s unclear why this rule was proposed in the first place and by whom. Will the exact people and invited guests on this subcommittee be published to everyone?

Since I testified before the Court of Appeals, I’ve been contacted by numerous attorneys who have chimed in on the issues they have with this proposed rule. As previously mentioned, the proposed law even with its built-in wiggle room, violates the Sixth Amendment and curtails Marylanders’ right to choose counsel. Second, the rule would make every criminal conviction in state court after the effective date of the rule subject to both federal and state post conviction and coram nobis attack because of the Sixth Amendment. Third, the proposed rule disproportionately influences young lawyers and solo/small firm attorneys who can’t give a conflicted case to someone else in their firm.

This proposed rule doesn’t make sense. Any compromise on this rule curtail Marylanders’ rights and hurt the majority of private practitioners. Since the upcoming Rules Committee meeting appears to be for “Members of the Attorneys and Judges Subcommittee and Invited Guests” only, I would urge state residents and Maryland practitioners to contact the Rules Committee as soon as possible to voice your concerns.