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Rule 4-213.1 – Appointment, Appearance, or Waiver of Attorney at Initial Appearance

May 13, 2021 | Criminal Prodcedure, Maryland

(a) Right to Representation by Attorney.

(1)Generally. A defendant has the right to be represented by an attorney at an initial appearance before a judicial officer.
(2)Attorney. Unless the defendant waives that right in accordance with section (e) of this Rule or another attorney has entered an appearance, if the defendant is indigent within the meaning of Code, Criminal Procedure Article, § 16-210(b) and (c):

(A) the defendant shall be represented by the Public Defender if the initial appearance is before a judge; and
(B) the defendant shall be represented by an attorney appointed by the court in accordance with section (b) of this Rule if the initial appearance is before a District Court commissioner, unless the Public Defender enters an appearance for the defendant.
(b) Appointment of Attorneys for Initial Appearance Before Commissioner.

(1)Appointment. After consultation with the State and local bar associations and the Public Defender, the District Administrative Judges shall develop lists of attorneys willing to accept appointment to represent indigent defendants at initial appearances before District Court commissioners in the district on a pro bono basis or at fees equivalent to those paid by the Public Defender to panel attorneys. Attorneys shall be appointed from the lists as needed for specific proceedings or to be available for blocks of time.
(2)Processing of Invoices. Invoices for fees due to court-appointed attorneys shall be processed in accordance with procedures adopted by the State Court Administrator.
(c) General Advice by Judicial Officer. If the defendant appears at an initial appearance without an attorney, the judicial officer shall advise the defendant that the defendant has a right to an attorney at the initial appearance, of the importance of having an attorney, and that, if the defendant is indigent, (1) the Public Defender will provide representation if the proceeding is before a judge, or (2) a court-appointed attorney will provide representation if the proceeding is before a commissioner.
(d) Proceeding Before Commissioner.

(1)Determination of Indigence.

(A) If the defendant claims indigence and desires a court-appointed attorney for the proceeding, the defendant shall complete a request and affidavit substantially in the form approved by the Chief Judge of the District Court and, from those documents and in accordance with the criteria set forth in Code, Criminal Procedure Article, § 16-210(b) and (c), the commissioner shall determine whether the defendant qualifies for an appointed attorney.
(B) If the commissioner determines that the defendant is indigent, the commissioner shall provide a reasonable opportunity for the defendant and a court-appointed attorney to consult in confidence.
(C) If the commissioner determines that the defendant is not indigent, the commissioner shall advise the defendant of the right to a privately retained attorney and provide a reasonable opportunity for the defendant to obtain the services of, and consult in confidence with, a private attorney.
(2)Inability of Attorney to Appear Promptly. The commissioner shall further advise the defendant that, unless the attorney, whether court appointed or privately retained, is able to participate, either in person or by electronic means or telecommunication, within a reasonable period of time, the initial appearance may need to be continued, in which event, subject to subsection (d)(3) of this Rule, the defendant will be temporarily committed until the earliest opportunity that the defendant can be presented to the next available judicial officer with an attorney present.
(3)If Initial Appearance Continued. If pursuant to subsection (d)(2) of this Rule, the initial appearance needs to be continued, the commissioner, before recessing the proceeding, shall proceed in accordance with this subsection.

(A) Arrest Without Warrant–Determination of Probable Cause. If the defendant was arrested without a warrant, the commissioner shall determine whether there was probable cause for the charges and the arrest pursuant to Rule 4-216(a). If the commissioner finds no probable cause for the charges or for the arrest, the commissioner shall release the defendant on personal recognizance, with no other conditions of release. If the defendant is released pursuant to subsection (d)(3)(A) of this Rule, the Commissioner shall not make the determination otherwise required by subsection (d)(3)(B) of this Rule, but shall provide the advice required by subsection (d)(3)(C) of this Rule.
(B) Preliminary Determination Regarding Release on Personal Recognizance. Regardless of whether the defendant was arrested with or without a warrant, the commissioner shall make a preliminary determination regarding the commissioner’s authority to release the defendant on personal recognizance and the appropriateness of such a release pursuant to Rules 4-216 and 4-216.1. If the commissioner’s preliminary determination is that release on personal recognizance with no other conditions of release is authorized and appropriate, the commissioner shall release the defendant on that basis.
(C) Required Compliance Before Release of Defendant. Before releasing the defendant pursuant to subsection (d)(3)(A) or (B) of this Rule, the commissioner shall comply with the applicable provisions of Rules 4-213 and 4-216(g).
(D) Preliminary Determination Not to Release. Upon a preliminary determination by the commissioner not to release the defendant on personal recognizance, the commissioner shall comply with the applicable provisions of Rule 4-216(f) and (g) and recess the proceeding. The commissioner’s preliminary determination is without prejudice to the right of the defendant to seek release on personal recognizance when the proceeding resumes with the attorney present. If the proceeding resumes before the commissioner who made the preliminary determination not to release the defendant on personal recognizance, the commissioner, upon request of the defendant, shall recuse, and the proceeding shall be before another judicial officer.
(e) Waiver–Initial Appearance Before Judge or Commissioner.

(1) If the defendant indicates a desire to waive the right to an attorney, the judicial officer shall advise the defendant (A) that an attorney can be helpful in explaining the procedure and in advocating that the defendant should be released immediately on recognizance or on bail with minimal conditions, (B) that it may be possible for the attorney to participate electronically or by telecommunication, and (C) that any waiver would be effective only for the initial appearance and not for any subsequent proceedings.
(2) If, upon this advice, the defendant still wishes to waive the right to an attorney and the judicial officer finds that the waiver is knowing and voluntary, the judicial officer shall announce and record that finding.
(3) A waiver pursuant to section (e) of this Rule is effective only for the initial appearance and not for any subsequent proceeding.
(4) Notwithstanding an initial decision not to waive the right to an attorney, a defendant may waive that right at any time during the proceeding, provided that no attorney has already entered an appearance.
(f) Participation by Attorney by Electronic or Telecommunication Means.

(1)By State’s Attorney. The State’s Attorney may participate in the proceeding, but is not required to do so. When the physical presence of the State’s Attorney is impracticable, the State’s Attorney may participate electronically or by telecommunication if the equipment at the judicial officer’s location and the State’s Attorney’s location provides adequate opportunity for the State’s Attorney to participate meaningfully in the proceeding.
(2)By Defense Attorney. When the physical presence of a defense attorney is impracticable, the attorney may consult with the defendant and participate in the proceeding electronically or by telecommunication if the equipment is at the judicial officer’s location and the defense attorney’s location provides adequate opportunity for the attorney to consult privately with the defendant and participate meaningfully in the proceeding.
(g) Provisional and Limited Appearance.

(1)Provisional Representation by Public Defender. Unless a District Court Commissioner has made a final determination of indigence and the Public Defender has entered a general appearance pursuant to Rule 4-214, any appearance entered by the Public Defender at an initial appearance shall be provisional.
(2)Limited Appearance. Unless a general appearance has been entered pursuant to Rule 4-214, an appearance by a court-appointed or privately retained attorney shall be limited to the initial appearance before the judicial officer and shall terminate automatically upon the conclusion of that stage of the criminal action.
(3)Inconsistency with Rule 4-214. Section (g) of this Rule prevails over any inconsistent provision in Rule 4-214.

Md. Crim. Causes. 4-213.1

Adopted May 27, 2014, eff. July 1, 2014; Dec. 13, 2016, eff. Apr. 1, 2017; Feb. 16, 2017, eff. July 1, 2017; Oct. 10, 2017, eff. Jan. 1, 2018, April 9, 2018, eff. July 1, 2018.

HISTORICAL NOTES

2014 Orders

The May 27, 2014 order added this rule.

2016 Orders

The December 13, 2016, order, added language to section (c).

2017 Orders

The February 16, 2017, order revised internal references.

The October 10, 2017, order deleted a reference to certain forms used by the Public Defender, added a reference to certain forms approved by the Chief Judge of the District Court, added a reference to a final determination of indigence made by a District Court Commissioner, and deleted the second sentence of subsection (g)(1).

2018 Orders

The April 9, 2018 order, added a Committee note following section (g).

Committee note: The entry of a provisional or limited appearance in accordance with this Rule does not constitute the entry of an appearance for the purpose of bringing, prosecuting, or defending an action and does not require the payment of a fee under Code, Courts Article, § 7-204.