Creation of Commission
The "Judicial Commission on Pro Bono" was established in the fall of 1998, by Chief Judge Robert M. Bell. The Commission was composed of sixteen members: four judges, eleven lawyers, and one layperson. The lawyer members of the Commission came from the broad spectrum of the bar. Two were members of large firms; one belonged to a medium-sized firm; six were in solo practice or with small firms; one was in government practice; and one was the executive director of a pro bono outreach organization.1
The Commission met regularly for approximately ten months. At the same time, subcommittees within the Commission were formed and met independently. The subcommittees were: 1) needs and resources; 2) role of the judiciary in pro bono; 3) role of the lawyer in pro bono (Rule 19-306.1 of the Maryland Rules of Professional Conduct); 4) court-based initiatives; and 5) oversight and ethics. The Rule 19-306.1 subcommittee was comprised entirely of lawyers.
Report Presented to the Court of Appeals
Throughout the period in which the Commission was meeting regularly, it gathered information about pro bono in Maryland and other states, debated the pertinent issues, heard reports and recommendations from the subcommittees, and took votes on possible recommendations. By the fall of 1999, the Commission members had agreed in principle on their primary recommendations, and the oversight committee began the drafting process. Preliminary drafts were circulated and the Commission met to discuss them. The final meeting of the Commission took place in mid-January 2000; at that time, votes were taken on each recommendation. The oversight subcommittee continued with the final drafting until March 2000, when the report was completed and presented to the Court of Appeals.
The Commission's report was immediately posted on the judiciary website, and was publicized in the Daily Record.
Presentation to MSBA Board of Governors
In April 2000, members of the Commission approached the leadership of the MSBA and asked whether the report could be presented to the MSBA Board of Governors for consideration. Paul Bekman (a Commission member) and Judge Deborah S. Eyler (the Commission's chairperson) were invited to make a presentation about the report to the MSBA Executive Committee. The Commission's report was placed on the agenda for the Board of Governor's retreat meeting on May 12, 2000. In advance of that meeting, the Commission's report was distributed to all members of the Board of Governors, which included (as traditionally is the case) many immediate past presidents of the local bar associations.
MSBA Board of Governors adopts Commission's report
The May 12, 2000 Board of Governors meeting was attended by the then-current members of the Board of Governors and the incoming members (who would be joining the Board in June 2000). Paul Bekman and Judge Eyler gave a presentation about the report and took questions. The issues then were discussed and debated in depth by the members of the Board of Governors, over a period of approximately two hours. At the conclusion of the meeting, the Board of Governors approved a motion to "accept and adopt" the Commission's report.
In the summer of 2000, Chief Judge Bell transmitted the Commission's report, including its proposed rules, to the Rules Committee for consideration.
Input from bar, law firms and legal services providers
In the fall of 2000, the Commission's report was placed as an agenda item on the meeting of the Board of Governors that is held annually in conjunction with the Local and Specialty Bar Associations Presidents' Conference. The Commission's report was again circulated in advance of that meeting, and Sharon Goldsmith, the Commission's Reporter, attended the meeting and met with local and specialty bar association presidents to answer their questions, receive input, and discuss the Commission's recommendations.
Also that fall, Chief Judge Bell sent letters to all the local and specialty bar associations, sixty Maryland law firms, and most of the legal services providers in the state, seeking their input about the Commission's recommendations and advising them that members of the Commission would make themselves available for presentations about the report, to answer questions, and to obtain feedback.
Thereafter, in late 2000 and early 2001, Judge Eyler was invited to make, and made, presentations to the local bar associations in Montgomery County, Prince George's County, Anne Arundel County, and Frederick County. In addition, the Baltimore City Bar Association submitted comments. Other Commission members made presentations in Baltimore County, and Commission members met with family division personnel and the circuit administrative judge in Harford County. Input from these bar associations, groups, and people was incorporated into revised versions of the pro bono rules pending before the Rules Committee.
Changes to the Proposed Pro Bono Rules
The following changes and additions to the proposed pro bono rules were made based on input from the local bar associations: an express statement in Rule 19-306.1 that pro bono service is not mandatory; Maryland Public Information Act confidentiality language covering lawyer pro bono reports; inclusion of "substantially reduced fee" representation within the definition of pro bono service; revisions to the local pro bono committee rule to ensure that a county's existing pro bono and legal services organizations will have a role in the pro bono planning process; and addition of the "secondary offense" disciplinary language in Rule 19-306.1 pertaining to annual pro bono reports. (That language later was discarded and, at the suggestion of members of the Court of Appeals, was replaced with decertification language).
Presentation to Judicial Groups and Law Firms
During the same time period, Judge Eyler made presentations about the Commission's report and the rules pending before the Rules Committee to the Conference of Circuit Court Judges, the Administrative Judges of the District Court, the Judicial Council, and law firms that requested information. Judge Eyler and other members of the Commission also appeared before the Rules Committee, both in its subcommittees and when it met as a whole. Those meetings were publicized and attended by members of local bar associations. In addition, both before and during the Rules Committee process, Judge Eyler met with individual members of the Montgomery County Bar Association and its pro bono coordinator, and with Circuit Administrative Judge Paul Weinstein.
Publications covering the Commission's report
Finally, Commission members provided information that resulted in published articles about the Commission's report and the proposed rules in the Baltimore Business Journal, MLSC Update, the MSBA Bar Bulletin, and Justice Matters. The editorial board of the Daily Record considered the proposed rule changes and on January 19, 2001, published a lengthy editorial discussing and endorsing them.
149th Report of Rules Committee to Court of Appeals
The 149th Report of the Rules Committee, addressing the proposed pro bono rules, was transmitted to the Court of Appeals on April 11, 2001, and was put out for written comment. The comment period ended on June 4, 2001. Favorable comments were received from over twenty people and organizations. There was only one unfavorable comment.
Public Hearing on Proposed Pro Bono Rules
On September 10, 2001, the Court of Appeals held a public hearing on the proposed pro bono rules, at which oral presentations were made by those in favor and those opposed.
The Court of Appeals met again in early October 2001, and publicly deliberated over the proposed rules. It was at that meeting, and partly in response to the presentations on September 10, that certain members of the Court asked that the rules be revised to eliminate the "secondary offense" disciplinary language relative to pro bono reporting and replace it with decertification language like that appearing in the Client Security Trust Fund Rule.
Pro Bono Rules Adopted
Finally, on February 4, 2002, the Court of Appeals again met and publicly deliberated about the proposed rules. Some amendments were proposed and adopted, and the proposed rules were then adopted as a whole, by a four to three vote. On April 9, 2002, the Rules Order officially adopting the new pro bono rules was signed.
The effective date of the new rules is July 1, 2002.
1During the time the Commission was meeting regularly, one of the small firm lawyers on the Commission was appointed to the bench; so that by the time its report was issued, there were five judges on the Commission.
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