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After a Petition for Disciplinary or Remedial Action has been filed, discovery is permitted as follows, subject to any scheduling order entered pursuant to Rule 19-722.

(a) Generally

(1) Except as otherwise provided in this Rule, discovery after a Petition for Disciplinary or Remedial Action has been filed is governed by the relevant Rules in Title 2, Chapter 400, subject to any scheduling order entered pursuant to Rule 19-722 and any order entered pursuant to Rule 2-402 (b)(1) tailoring discovery to the facts and circumstances of the particular action.

(2) For purposes of this Rule, the parties are Bar Counsel and the attorney against whom charges have been filed.

(3) Bar Counsel and the attorney have the obligation to respond to the other’s discovery requests addressed to them.

(4) Bar Counsel and the attorney have a continuing duty to supplement information required to be disclosed under this Rule.

(5) The judge appointed pursuant to Rule 19-722 shall preclude a party from calling a witness, other than a rebuttal witness, or otherwise presenting evidence upon a finding, after the opportunity for a hearing if one is requested, that (A) the witness or evidence was subject to disclosure under this Rule, (B) the party, without substantial justification, failed to disclose the witness or evidence in a timely manner, and (C) the failure was prejudicial to the other party.

(b) Disclosure by Bar Counsel upon Written Request

After an Answer has been filed pursuant to Rule 19-724 and within 30 days after a written request from the attorney, Bar Counsel shall (1) provide the attorney with a copy of all material and information accumulated during the investigation and statements as defined in Rule 2-402 (f), (2) provide summaries or reports of all oral statements for which contemporaneously recorded substantially verbatim recitals do not exist, and (3) certify to the attorney in writing that, except for material that constitutes attorney work product or that is subject to a lawful privilege or protective order issued by the circuit court, the material disclosed constitutes the complete record of Bar Counsel as of the date of disclosure.

(c) Exculpatory Information

Whether as part of the disclosure pursuant to section (b) of this Rule or otherwise, no later than 30 days following the filing of an Answer, Bar Counsel shall disclose to the attorney all statements and other evidence of which Bar Counsel is aware that (1) directly negate any allegation in the Petition, (2) would be admissible to impeach a witness intended to be called by Bar Counsel, or (3) would be admissible to mitigate any sanction.

(d) Witnesses

No later than 45 days prior to the scheduled hearing, Bar Counsel shall provide to the attorney the names and addresses of all persons, other than a rebuttal witness, Bar Counsel intends to call at the hearing. No later than 30 days prior to the scheduled hearing, the attorney shall provide to Bar Counsel the names and addresses of all persons, other than a rebuttal witness, the attorney intends to call at the hearing.

(e) Waiver of Medical Privilege; Medical or Psychological Examination

(1) The assertion by an attorney of the existence of a mental or physical condition or an addiction, as a defense to or in mitigation of a charge of misconduct, or the non-existence of a mental or physical condition or an addiction, as a defense to a charge against the attorney constitutes a waiver of the attorney's medical privilege and permits Bar Counsel to obtain, by subpoena or other legitimate means, medical and psychological records of the attorney relevant to issues presented in the case.

(2) Medical or psychological examination of the attorney is governed by Rule 2-423.

(f) Depositions of the Attorney Grievance Commission

The Attorney Grievance Commission is not subject to an organizational designee deposition, pursuant to Rule 2-412 (d), in an attorney disciplinary or remedial matter.

Committee note: Section (f) of this Rule does not preclude the deposition of other persons, including Bar Counsel, or individual members of the Office of Bar Counsel, or individual members of the Commission, in accordance with the Rules in Title 2, Chapter 400, subject to the substantive law applicable to taking a deposition of the person.

(g) Motions

All discovery motions are governed by Title 2, Chapter 400 and shall be determined by the judge appointed pursuant to Rule 19-722.

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By The Lawyer's Lawyers | Kramer & Connolly and Irwin R. Kramer who are responsible for the content of this informational website.   This website is designed for lawyers faced with attorney grievances. As cases do differ, past performance does not guarantee future results.