Unnamed Attorney v. Attorney Grievance Commission, No. 57, September Term 2008
ATTORNEY GRIEVANCE COMMISSION–MOTION TO QUASH SUBPOENA– Circuit
Court did not abuse its discretion when it dismissed an attorney’s motion to quash a subpoena
for records related to the attorney’s trust account. The subpoena was reasonable in scope.
Moreover, the court was not required to hold a hearing on the motion to quash, see Md. Rule
2-311(f), and the court did not abuse its discretion in denying a hearing under the facts of this
case, see Md. Rule 16-732 (contemplating a hearing, but not requiring one, on motions to
quash a Commission subpoena).
Circuit Court for Baltimore City
Case No. 24-C-07-009594
IN THE COURT OF APPEALS
September Term, 2008
Opinion by Barbera, J.
Filed: July 21, 2009
Appellant, a practicing attorney and member of the Maryland Bar, is currently under
investigation by appellee, the Attorney Grievance Commission (“Commission”), concerning
the handling of Appellant’s attorney trust account.1 Pursuant to the investigation, Bar
Counsel, acting on behalf of the Commission, filed a subpoena seeking documents from the
attorney and the bank at which the account is maintained.
Appellant filed with the Circuit Court for Baltimore City a “Motion of Objection to
Enforcement of Subpoena” and requested a hearing on the motion. The Commission filed
a response in opposition to the motion, and likewise requested a hearing. The court, without
holding a hearing, issued an order denying the motion.
Appellant appealed the order to the Court of Special Appeals.2 We granted a writ of
certiorari before a decision by that court to answer the following question: “Did the trial
court abuse its discretion in denying the Motion of Objection to Enforcement of Subpoena?”
For the reasons that follow, we hold that the court did not abuse its discretion, and we affirm
the court’s order denying the motion.3
We have listed Appellant in the caption of this case as “Unnamed Attorney.”
The order denying the motion is an appealable order because the order terminates
the court proceeding, notwithstanding that the underlying investigation before the
Commission remains ongoing. Unnamed Attorney v. Attorney Grievance Comm’n, 303 Md.
473, 480-81, 494 A.2d 940, 943-44 (1985).
Appellant filed a “Motion to Strike Portions of the Appellee’s Brief,” arguing that
the Commission’s brief contains a factual misstatement. We deny Appellant’s motion
because, as the Commission correctly states in its opposition to the motion to strike, the
motion is premised on Appellant’s misquoting the alleged factual misstatement in the
On July 31, 2007, Provident Bank reported to the Commission, pursuant to the bank’s
obligations under Maryland Rule 16-610,4 that an overdraft of $25.25 had occurred in an
attorney trust account held by Appellant.5 On August 7, 2007, Bar Counsel sent a letter of
inquiry to Appellant regarding the overdraft, pursuant to Maryland Rule 16-612.6
Appellant responded to the inquiry by letter dated August 28, 2007. Appellant gave
an explanation for the overdraft, as required by Maryland Rule 16-612. In support of that
explanation, Appellant provided account records that included bank statements and canceled
Maryland Rule 16-610(b) provides that a financial institution that maintains an
attorney trust account must, “as a condition of accepting the deposit of any funds into an
attorney trust account,” both “[n]otify the attorney or law firm promptly of any overdraft in
the account or the dishonor for insufficient funds of any instrument drawn on the account”
and “[r]eport the overdraft or dishonor to Bar Counsel as set forth in subsection b 1 (C) of
Appellant states that correspondence in the case alternatively refers to $25.15 and
$25.25. The Commission does not dispute the exact amount. For the purposes of this
opinion, we shall identify the reported overdraft as being in the amount of $25.25.
Maryland Rule 16-612 is entitled “Enforcement,” and provides:
Upon receipt of a report of overdraft on or dishonored instrument drawn on an
attorney trust account, Bar Counsel shall contact the attorney or law firm
maintaining the account and request an informal explanation for the overdraft
or dishonored instrument. The attorney or law firm shall provide any records
of the account necessary to support the explanation. If Bar Counsel has
requested but has failed to receive a satisfactory explanation for any overdraft
or dishonored check, or if good cause exists to believe that an attorney or law
firm has failed to perform any duty under these Rules, Bar Counsel may secure
compliance with these Rules by appropriate means approved by the
Commission, including application for an audit pursuant to Rule 16-722 (Audit
of Attorney Accounts and Records).
checks for the period between May 1, 2007 and July 31, 2007, and ledger cards for those
clients whose money Appellant said was in the trust account during the period of April 30,
2007 through July 31, 2007. Appellant explained the overdraft by referring Bar Counsel to
a $1,000.00 withdrawal he had made for work performed for a client. Appellant maintained
that he made the withdrawal based on the mistaken belief that the client’s check covering
these services already had been deposited into the account.
John DeBone is a paralegal on the staff of the Commission and has the primary
responsibility of reviewing and analyzing trust account records. Upon analyzing the
documents provided by Appellant in response to Bar Counsel’s August 7, 2008 inquiry, Mr.
Debone found a discrepancy between the May 31, 2007 trust account bank statement and the
ledger cards. Whereas the trust account statement showed a balance of $149,380.47, the
ledger cards showed that the balance in that account should have been $153,774.00, a
difference of $4,393.53.7 The discrepancy suggested to Mr. DeBone that Appellant was not
holding in trust the amount of money that the internal ledger cards indicated he should have
been holding. Mr. Debone concluded that the explanation Appellant gave in his August 28,
2007 letter for the overdraft did not explain the more than $4,000.00 discrepancy.
Mr. DeBone stated the amount to be $149,380.47, in an affidavit he made in
connection with this proceeding. In its brief before us, however, the Commission states the
amount as $149,348.37. We can discern from the record no substantive explanation for the
discrepancy; moreover, neither party has since mentioned it. We conclude that the
discrepancy is immaterial to the issue we decide in the appeal, and, for purposes of this
opinion, we shall identify the difference between the trust account statements and Appellant’s
client ledger cards as $4,393.53.
Mr. DeBone’s discovery prompted Bar Counsel to issue a subpoena on October 11,
2007, in connection with his investigation of the matter. The subpoena was directed to
Appellant and Provident Bank and sought the “original documents,” of all deposit slips, all
deposited items, monthly statements, and all disbursed items and debit and credit memos for
the escrow account “for the period of July 1, 2006 through the present.”
On December 17, 2007, Appellant filed the “Motion of Objection to Enforcement of
Subpoena,” seeking to quash the subpoena. He raised a number of contentions in support of
the motion: the subpoena violates his right to privacy; it bears no relationship to the
legitimate duties imposed upon the Commission; the request is “over broad and calculated
to go on a fishing expedition contrary to the authority” of Bar Counsel; the subpoena is
“abusive and repressive”; and “use of this [subpoena] power by Bar Counsel under these
facts is arbitrary and capricious and perhaps discriminatory.” Appellant requested that “a full
hearing be held on the record to litigate the issues raised herein.”
The Commission filed a response in opposition to the motion. The Commission
explained the discovery of the $4,393.53 discrepancy between Appellant’s ledger cards and
bank statement. The Commission argued that Bar Counsel “is obligated to conduct a
thorough investigation of any error in movant’s management of his trust account,” and the
subpoena was necessary to assist Bar Counsel in that investigation. The Commission
requested a hearing so that it could “introduce testimony to support a good faith basis for the
issuance [of the subpoena].”
By order docketed January 4, 2008, the court denied the motion, without a hearing.
This appeal followed.
Appellant presents two grounds in support of his contention that the Circuit Court
abused its discretion in denying the motion to quash the subpoena. He argues, first, that the
subpoena was “over broad” and “not relevant to [Bar Counsel’s] inquiry,” and, second, that
the court should not have ruled on the motion without affording him a hearing or an
explanation for the ruling. In support of the first ground of attack upon the court’s order,
Appellant argues that his August 28, 2007 letter to Bar Counsel satisfactorily explained the
$25.25 overdraft, negating any need for further investigation. He further argues that the time
period for which Bar Counsel has requested records, described in the October 11, 2007
subpoena as “from July 2006 to the present,” is unrelated to the $25.25 overdraft that
occurred in July 2007. In support of the second ground, Appellant relies on Maryland Rule
16-732(f), which is entitled “Confidentiality” and states in part: “A hearing before the court
on any motion shall be on the record and shall be conducted out of the presence of all persons
other than Bar Counsel, the attorney, and those persons whose presence the court deems
necessary.” Appellant argues that this provision “contemplates” a hearing, and the court
abused its discretion in not granting a hearing in this case.8
Appellant has opted not to raise any of the other grounds he asserted in the motion
to quash. Specifically, he does not attempt to argue that the subpoena violates his right to
privacy, is “abusive and repressive,” or that “use of this [subpoena] power by Bar Counsel
under these facts is arbitrary and capricious and perhaps discriminatory.” We note, without
remotely intending to intimate that any of those bare contentions has merit, that Appellant’s
The Commission counters that it properly approved Bar Counsel’s issuance of the
subpoena because it was reasonably related to the Commission’s investigation of Appellant’s
trust account, and it was not overbroad in its scope. The Commission points out that, even
assuming Appellant satisfactorily explained the overdraft that precipitated Bar Counsel’s
initial inquiry, he has not yet explained the $4,393.53 discrepancy between his ledgers and
the bank statement that Mr. DeBone discovered during his analysis of the records Appellant
submitted in response to Bar Counsel’s original inquiry.
The Commission refutes
Appellant’s contention that the court should have held a hearing before ruling on the motion,
by resorting to the language of Maryland Rule 2-311(f). The Commission argues that the
Rule does not require a hearing on the sort of motion that was filed in this case because the
court’s “denial of Appellant’s Motion was not a final disposition of any defense which
Appellant could not raise in further proceedings in the disciplinary process.”
Maryland Rule 16-732(a), entitled “Investigative Subpoena,” in part empowers the
Chair of the Commission to authorize Bar Counsel to issue a subpoena to compel the
production of designated documents or other tangible things, if the Chair finds that “the
subpoena is necessary to and in furtherance of an investigation being conducted by Bar
failure to brief any of those grounds amounts to the abandonment of all of them. See Md.
Rule 8-504; Chesek v. Jones, 406 Md. 446, 455-56 n.7, 959 A.2d 795, 801 n.7 (2008).
Counsel pursuant to Rule 16-731[.]”9 Subsection (b) of Rule 16-732 provides that the
Maryland Rule 16-732(a) provides in its entirety:
(a) Approval and issuance. (1) The Chair of the Commission may
authorize Bar Counsel to issue a subpoena to compel the attendance of
witnesses and the production of designated documents or other tangible things
at a time and place specified in the subpoena if the Chair finds that (A) the
subpoena is necessary to and in furtherance of an investigation being
conducted by Bar Counsel pursuant to Rule 16-731 or (B) the subpoena has
been requested by a disciplinary authority of another jurisdiction pursuant to
the law of that jurisdiction for use in a disciplinary or remedial proceeding in
that jurisdiction to determine alleged professional misconduct or incapacity of
a lawyer subject to the jurisdiction of that disciplinary authority.
(2) Upon approval, Bar Counsel may issue the subpoena.
(b) Contents. A subpoena shall comply with the requirements of Rule
2-510 (c), except that to the extent practicable, a subpoena shall not identify
the attorney under investigation. A subpoena to compel attendance of a witness
shall include or be accompanied by a notice that the witness (1) has the right
to consult with an attorney with respect to the assertion of a privilege or any
other matter pertaining to the subpoena and (2) may file a motion for judicial
relief under Rule 2-510.
(c) Service. Except for service upon an attorney in accordance with Rule
16-724 (b), a subpoena shall be served in accordance with Rule 2-510.
Promptly after service of a subpoena on a person other than the attorney under
investigation and in addition to giving any other notice required by law, Bar
Counsel shall serve a copy of the subpoena on the attorney under investigation.
(d) Objection. The person served with the subpoena or the attorney under
investigation may file a motion in the circuit court for the county in which the
subpoena was served for any order permitted by Rule 2-510 (e). The motion
shall be filed promptly and, whenever practicable, at or before the time
specified in the subpoena for compliance.
(e) Enforcement. On the motion of Bar Counsel, the court may enforce
compliance with the subpoena.
(f) Confidentiality. Any paper filed in court with respect to a subpoena
shall be sealed upon filing and shall be open to inspection only by order of the
court. A hearing before the court on any motion shall be on the record and
shall be conducted out of the presence of all persons other than Bar Counsel,
the attorney, and those persons whose presence the court deems necessary.
contents of the subpoena “shall comply with the requirements of” Rule 2-510(c) (governing
subpoenas) “except that to the extent practicable, a subpoena shall not identify the attorney
under investigation.” In addition, the Rule provides that the subject of the subpoena may file
a motion for judicial relief under Rule 2-510.10
The subpoena in this case was prompted by Bar Counsel’s investigation into
Appellant’s possible mishandling of the attorney trust account he is required to maintain
(g) Recording of statements. Everything said by the witness at the time
and place specified in the subpoena shall be contemporaneously recorded
stenographically or electronically, and the witness shall be placed under oath.
Maryland Rule 2-510, entitled “Subpoenas,” provides, in pertinent part:
(e) Objection to subpoena for court proceedings. On motion of a person
served with a subpoena to attend a court proceeding (including a proceeding
before a master, auditor, or examiner) filed promptly and, whenever
practicable, at or before the time specified in the subpoena for compliance, the
court may enter an order that justice requires to protect the person from
annoyance, embarrassment, oppression, or undue burden or cost, including one
or more of the following:
(1) that the subpoena be quashed or modified;
(2) that the subpoena be complied with only at some designated time or
place other than that stated in the subpoena;
(3) that documents, electronically stored information, or tangible things
designated in the subpoena be produced only upon the advancement by the
party serving the subpoena of the reasonable costs of producing them; or
(4) that documents, electronically stored information, or tangible things
designated in the subpoena be delivered to the court at or before the
proceeding or before the time when they are to be offered in evidence, subject
to further order of court to permit inspection of them.
A motion filed under this section based on a claim that information is
privileged or subject to protection as work product materials shall be supported
by a description of the nature of each item that is sufficient to enable the
demanding party to evaluate the claim.
pursuant to Md. Code (2004 Repl. Vol., 2008 Supp.), §§ 10-301–10-307 of the Business
Occupations & Professions Article, Maryland Rules Title 16 Chapter 600, and Maryland
Rules of Professional Conduct 1.15. As we have noted, the subpoena was directed to both
Provident Bank and Appellant, and sought, with respect to the trust account, the following
“original documents”: “All deposit slips”; “All deposited items (front and back)”; “Monthly
statements”; “All disbursed items (front and back)”; and “All debit and credit memos
(including wire transfer memos),” covering the period of “July 1, 2006 through the present.”
Appellant argues that the court abused its discretion in denying the motion to quash
the subpoena because it is overbroad and irrelevant, given the narrow scope of the
Commission’s initial inquiry into the $25.25 overdraft. Appellant correctly recognizes that
we ordinarily review a court’s order denying a motion under an abuse of discretion standard.
See WBAL-TV Division, the Hearst Corp. v. State, 300 Md. 233, 247, 477 A.2d 776, 783
(1984). We have held that a trial court abuses its discretion “‘where no reasonable person
would take the view adopted by the trial court.’” Metheny v. State, 359 Md. 576, 604, 755
A.2d 1088, 1104 (2000) (quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312,
701 A.2d 110, 118 (1997)). Thus, we cannot reverse the order denying the motion to quash
the subpoena unless we are persuaded that “no reasonable person” would have denied it.
In Unnamed Attorney v. Attorney Grievance Comm’n, 313 Md. 357, 360, 545 A.2d
685, 687 (1988), we examined the limits of the Commission’s power, during its investigation
of the appellant’s targeted direct mail solicitation practices, to issue a subpoena compelling
the appellant to produce for inspection “‘any and all financial journals and ledgers’
connected with appellant’s law practice.” In determining whether the facts of that case
justified the Commission’s “substantial exercise of subpoena power,” we had cause to review
the scope of that power. Id. at 364, 545 A.2d at 689.
We noted at the outset of our review that, “[i]n order to justify issuance of a subpoena,
the [Commission’s Inquiry] Panel need not demonstrate that an ethical violation has in fact
We emphasized that, “because an Inquiry Panel’s proceedings are
investigatory in nature, they ‘are similar to the proceedings conducted by a grand jury in
criminal cases. Their purpose is to aid in determining whether to institute disciplinary
action.’” Id. (quoting Attorney Grievance Comm’n v. Stewart, 285 Md. 251, 259, 401 A.2d
1026, 1030, cert. denied, 444 U.S. 845, 100 S. Ct. 89, 62 L. Ed. 2d 58 (1979)). We noted,
too, that disciplinary proceedings involving members of the legal profession are not to be
equated with proceedings before administrative agencies, because “‘such proceedings are
peculiar to the legal profession[,] the conduct of which is under the supervision of this
Court.’” Unnamed Attorney, 313 Md. at 364, 545 A.2d at 689 (quoting Unnamed Physician
v. Comm’n, 285 Md. 1, 9, 400 A.2d 396, 400 (1979)). Nonetheless, “in defining the
appropriate boundaries of the [Commission’s] subpoena power, we are guided by the
requirement of reasonableness which circumscribes an administrative agency’s investigatory
powers.” Unnamed Attorney, 313 Md. at 364, 545 A.2d at 689. We said in that regard that,
In 2001, the rules governing Commission investigations were rewritten. Since
then, Commission Peer Review Panels have taken the place of what formerly were
Commission Inquiry Panels and Review Boards. See Attorney Grievance Comm’n v. Lee,
387 Md. 89, 104, 874 A.2d 897, 905 (2005).
“in order to meet the test of reasonableness, an investigation of an individual by an
administrative agency may not be based upon mere conjecture or supposition that a violation
of law exists. Rather, it is incumbent upon an agency to demonstrate some factual basis to
support its concern.” Id. Further, “the subpoenaed testimony or documents must appear
relevant to the investigation.” Id. We identified certain specific factors that are “among
those relevant in determining the validity of an administrative subpoena[,]” including:
“‘[w]hether the inquiry is authorized by statute, the information sought is relevant to the
inquiry, and the demand is not too indefinite or overbroad.’” Id. at 365, 545 A.2d at 689
(quoting Banach v. State Comm’n on Human Relations, 277 Md. 502, 506, 356 A.2d 242,
We added that “‘the subpoena power must at all times be confined to ‘the rudimentary
principles of justice,’ [footnote omitted] and the courts will plainly refuse to enforce an
administrative subpoena which is not within the bounds of reasonableness. [Citations
omitted].’” Unnamed Attorney, 313 Md. at 365, 545 A.2d at 689 (quoting Federal
Communications Comm’n v. Cohn, 154 F. Supp. 899, 908 (S.D.N.Y. 1957)) (alterations in
original). We noted that “‘a delicate balance’” exists “‘between the necessity of obtaining
information required in the public interest in furtherance of a lawful inquiry, and the onerous
burdens which the furnishing of this information may place on these respondents.’” Id. We
concluded that the Commission’s “investigatory power, while broad, is not without limits[,]”
and “a subpoena issued in furtherance thereof, cannot be justified by the [Commission’s]
unsubstantiated suspicion of unethical behavior. Instead, there must exist some factual basis
to support the investigation and, furthermore, any subpoenaed testimony or documents must
appear relevant and material to the inquiry.” Unnamed Attorney, 313 Md. at 365, 545 A.2d
Given, moreover, the similarities in nature between Commission investigations and
grand jury investigations, see id. at 364, 545 A.2d at 689, we find useful the test the Supreme
Court announced in United States v. R. Enterprises, Inc., 498 U.S. 292, 297, 111 S. Ct. 722,
726, 112 L. Ed. 2d 795, 805 (1991), for assessing the reasonableness of grand jury
subpoenas. The Supreme Court recognized in R. Enterprises that the grand jury “is an
investigatory body charged with the responsibility of determining whether or not a crime has
been committed” and it is empowered to “investigate merely on suspicion that the law is
being violated, or even just because it wants assurance that it is not.” Id. (citation omitted).
Further, because “[t]he function of the grand jury is to inquire into all information that might
possibly bear on its investigation until it has identified an offense or has satisfied itself that
none has occurred,” the grand jury necessarily “paints with a broad brush.” Id. Based on
those principles, the Court devised a test for deciding a motion to quash a grand jury
subpoena as unreasonable, under Federal Rule of Criminal Procedure 17(c),12 on the specific
ground of relevancy. When such a motion is made, it “must be denied unless the district
Federal Rule of Criminal Procedure 17(c) provides, in pertinent part:
(c) Producing Documents and Objects.
(2) Quashing or Modifying the Subpoena. On motion made promptly, the
court may quash or modify the subpoena if compliance would be unreasonable
court determines that there is no reasonable possibility that the category of materials the
Government seeks will produce information relevant to the general subject of the grand
jury’s investigation.” Id. at 301, 111 S. Ct. at 728, 112 L. Ed. 2d at 807-08.
The R. Enterprises test for ascertaining the reasonableness of grand jury subpoenas,
when relevancy is at issue, is consistent with the principles we discussed in Unnamed
Attorney, 313 Md. at 364-65, 545 A.2d at 689. That test is also in keeping with the broad
authority bestowed upon Bar Counsel, when investigating an attorney who is the subject of
a complaint that is neither frivolous nor unfounded, to “demand that the attorney provide
information and records that Bar Counsel deems appropriate and relevant to the
investigation.” Md. Rule 16-731(b)-(c). Therefore, we adopt the R. Enterprises test for
ascertaining whether a subpoena issued by the Commission meets the standard of
reasonableness, when relevance is the focus of the challenge to the subpoena.
Turning to the present case, the subpoena readily meets the adopted R. Enterprises
standard of relevancy because there is every possibility that the documents sought by the
subpoena “will produce information relevant to the general subject” of the Commission’s
investigation of Appellant’s handling of his trust account. 498 U.S. at 301, 111 S. Ct. at 728,
112 L. Ed. 2d at 807. Indeed, the very documents Appellant supplied in his response to the
initial inquiry concerning the overdraft gave rise to the Commission’s need for further
investigation into the matter.
Neither does the subpoena suffer from overbreadth, as Appellant contends. Bar
Counsel sought trust account records for roughly the two-year period before and after the
initially-noted discrepancy between the trust account statements and Appellant’s client ledger
cards. Given the nature of Bar Counsel’s investigation, Bar Counsel’s seeking two years of
bank records and related documentation was not remotely unreasonable.
Not unlike the responsibilities and authority of the grand jury described in R.
Enterprises, id. at 297, 111 S. Ct. at 726, 112 L. Ed. 2d at 805, the Commission has the
responsibility of safeguarding the public and, through Bar Counsel, to conduct investigations
into attorney conduct merely on suspicion that the law or Rules of Professional Conduct have
been or are being violated, or even just because the Commission wants assurance that they
have not been violated. See id.; Attorney Grievance Comm’n v. Adams, 404 Md. 1, 11, 944
A.2d 1115, 1120-21 (2008) (explaining the role of Bar Counsel in the attorney discipline
process and declaring that at the “front end” of the process, Bar Counsel is “charged with
investigating complaints filed against attorneys to determine whether petitions for
disciplinary or remedial action are warranted,” and if the petitions are warranted, Bar
Counsel is charged with “‘prosecuting’ those that are filed”). In the proper exercise of its
responsibility and power to do so, the Commission authorized Bar Counsel in the present
case to issue the challenged subpoena. Because the subpoena easily satisfies the test of
reasonableness, being both relevant and not overbroad, the court did not abuse its discretion
in denying the motion to quash the subpoena.
Appellant fares no better with his argument that the court abused its discretion in not
holding a hearing on the motion. He relies in that regard on Maryland Rule 16-732(f), the
text of which reads:
Confidentiality. Any paper filed in court with respect to a subpoena shall be
sealed upon filing and shall be open to inspection only by order of the court.
A hearing before the court on any motion shall be on the record and shall be
conducted out of the presence of all persons other than Bar Counsel, the
attorney, and those persons whose presence the court deems necessary.
Appellant does not argue that Rule 16-732(f) mandates a hearing, and indeed it does
not. He instead points out that the Rule contemplates the holding of a hearing on an
objection to a subpoena, and, from that premise, he argues that the facts presented to the
court in the motion and opposition to the motion necessitated an “evidentiary hearing” before
the court ruled on the motion.
We agree with Appellant that the Rule contemplates that a hearing might be held on
a motion to quash a subpoena in a given case. It does not follow, however, that the court
abused its discretion in opting not to hold a hearing in this case. We have explained why the
subpoena easily satisfies the test of reasonableness in light of the record before the court.
And, contrary to Appellant’s assertion, nothing in either Appellant’s motion or the
Commission’s opposition suggested that an “evidentiary hearing” was necessary.
Appellant, moreover, cites no authority other than Maryland Rule 16-732(f) in support
of his argument that he should have had a hearing on the motion to quash, and we know of
none. Certainly Maryland Rule 2-311, the general rule on motions, does not assist Appellant.
We agree with the Commission that subsection (f) of Rule 2-311, which addresses
hearings on motions other than motions filed under Maryland Rules 2-532, 2-533, and 2-534,
does not entitle Appellant to a hearing on his motion. Rule 2-311(f) provides:
Hearing — Other motions. A party desiring a hearing on a motion, other
than a motion filed pursuant to Rule 2-532, 2-533, or 2-534, shall request the
hearing in the motion or response under the heading “Request for Hearing.”
Except when a rule expressly provides for a hearing, the court shall determine
in each case whether a hearing will be held, but the court may not render a
decision that is dispositive of a claim or defense without a hearing if one was
requested as provided in this section.
Neither Rule 16-732, nor Rule 2-510 (e), to which some sections of Rule 16-732 refer,
“expressly provides” for a hearing on a motion to quash a subpoena issued by the
Commission. Further, an order denying a motion to quash is not an order “dispositive of a
claim or defense.”
We have not previously defined precisely what is meant by the phrase “dispositive of
a claim or defense.” The most we have done is indicate what sort of rulings come within the
meaning of that phrase. See, e.g., Lerman v. Heeman, 347 Md. 439, 447, 701 A.2d 426, 430
(1997) (holding that a motion for contribution would be “dispositive of a claim” under Rule
2-311(f) and therefore, if requested by one of the parties, a hearing on the motion would have
been required); Odenton Dev. Co. v. Lamy, 320 Md. 33, 41, 575 A.2d 1235, 1239 (1990)
(holding that the lower court was not required to hold a hearing on a motion to transfer);
Phillips v. Venker, 316 Md. 212, 217, 557 A.2d 1338, 1340 (1989) (concluding that under
Rule 2-311(f) a decision by a lower court on a motion for summary judgment was
“dispositive of a claim” and therefore satisfied “one prong of the requirement for a hearing”).
Although this Court has not precisely defined what is meant by a decision “dispositive
of a claim or defense,” the Court of Special Appeals has examined the issue. In Fowler v.
Printers II, Inc., 89 Md. App. 448, 598 A.2d 794 (1991), cert. denied, 325 Md. 619, 602
A.2d 710 (1992), for example, the court considered the text of Rule 2-311(f) and traced the
history of the drafting of that subsection. The court included in its review the minutes of the
Standing Committee on Rules of Practice and Procedure for its meeting of October 12-13,
1979, to glean the Committee’s intended meaning of the phrase “dispositive of a claim or
defense.” Id. at 484-87, 598 A.2d at 811-12.
The Fowler court concluded that what the Rules Committee intended to encompass
by its use of the terms “claim” and “defense” were claims and defenses “intrinsic to the
underlying cause of action,” such as motions for summary judgment and motions to dismiss.
Id. at 485, 598 A.2d at 812. And from its review of other rules this Court adopted at the
same time as Rule 2-311(f), the Court of Special Appeals further concluded that “[n]ot one
of the other pleadings and motions rules in Chapter 300, in any way suggests a broader
meaning for ‘claim’ or ‘defense.’” Id. at 486, 598 A.2d at 812. Moreover, those terms did
not “include the arguments made in order to obtain or thwart collateral litigation matters, like
those contained in motions for discovery sanctions, motions for protective orders, or motions
for sanctions under Rule 1-341.” Id.
As did the Fowler court, we too have reviewed the text of Rule 2-311(f) and the
pertinent meeting minutes of the Rules Committee. We conclude, as did that court, that a
decision dispositive of a claim or defense is one intrinsic to the underlying action. Further,
the decision must “actually and formally dispose of the claim or defense,” Shelton v. Kirson,
119 Md. App. 325, 330, 705 A.2d 25, 27 (1988). An order denying a motion to quash a
subpoena issued by the Commission is not such a decision. See Unnamed Attorney v.
Attorney Grievance Comm’n, 303 Md. 473, 480-81, 494 A.2d 940, 943-44 (1985)
(recognizing that notwithstanding the finality of such orders for appeal purposes, the
underlying investigative proceeding persists). Rather, the court’s denial of the motion to
quash the subpoena in this case involved merely, in the words of the Fowler court, a
“collateral litigation matter.” 89 Md. App. at 486, 598 A.2d at 812.
We therefore hold that Appellant was not entitled to a hearing on the motion to quash
under either Rule 2-311(f), Rule 16-732(f), or Rule 5-210(e). Moreover, for the reasons we
have discussed, the court did not abuse its discretion in opting to decide the motion
summarily, without a hearing.
JUDGMENT AFFIRMED; APPELLANT TO PAY