Imbalanced Attorney’s Fee Bill Could Increase Litigation, Costs

On February 10, 2016, Robin Clark Eilenberg, MACo Research Director, and Natasha Mehu, MACo Policy Analyst, testified to the House Judiciary Committee in opposition of HB 393, Award of Attorney’s Fees and Expenses – Violation of Maryland Constitutional Right. They were joined by Patricia Via from the Montgomery County Office of Law, and Matthew Peter from the Local Government Insurance Trust.

This bill would authorize a court to award a prevailing party attorney’s fees and expenses in a civil action to enforce a right secured by the Maryland Constitution or Declaration of Rights. This includes claims such as due process, seizure of goods or property, right to an adequate education, and freedom of the press.

However, while a prevailing plaintiff can collect attorney’s fees based on a variety of factors and considerations detailed in the bill, a prevailing defendant is only permitted to recover fees if the court determines that the plaintiff’s suit was made in bad faith or without substantial justification. Attorney’s fee awards in local government cases are subject to the liability cap of the Local Government Tort Claims Act (LGTCA).

From the MACo testimony,

The bill would result in an increase in claims brought against the State and local governments. While attorney’s fees in county government cases would be subject to the LGTCA cap, the bill still incentivizes plaintiff attorneys to bring cases against county governments so long as they are not made in bad faith or without substantial justification (a deliberately high threshold for enforcement).

A balanced justice system is arguably premised on the equal treatment of plaintiffs and defendants as they argue their case before a court or jury. But while HB 393 is purportedly attempting to establish a more level “playing field” for low-income plaintiffs, in reality it will create an unlevel playing field where defendants are put at a disadvantage.

Since many of the cases that would be brought under HB 393 involve nonmonetary damages, county costs would increase due to payment of attorney fees if the plaintiff prevails (where currently no fees would be paid). Additionally, counties will see increased costs to their law departments to defend against the additional claims and potentially higher assessments if the Local Government Insurance Trust (LGIT) incurs losses from payments authorized by the bill.

An identical cross-filed bill, SB 362, will be heard at a later date in the Senate.

For more on 2016 MACo legislation, visit the Legislative Database.