Attorney’s Fee Bill Could Increase Litigation, Costs

On March 1, 2016, Les Knapp, MACo Legal and Policy Counsel, testified to the Senate Judicial Proceedings Committee in opposition of SB 362, Award of Attorney’s Fees and Expenses – Violation of Maryland Constitutional Right.

SB 362 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 SB 362 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. …

Additionally, while the rule is in effect at the federal level, there are additional protections for defendants, including qualified immunity and Federal Rules of Civil Procedure Rule 68. …

Since many of the cases that would be brought under SB 362 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.

Knapp was joined by Andy Murray from the Anne Arundel County Office of Law, Tim Ailsworth from the LGIT, and Bill Jorch from MML. An identical cross-filed bill, HB 393, was heard on February 10 in the House.

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

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