Monday Morning Hearsay: Not This Year (The Maryland Civil Attorney’s Fee Shifting Statute)

Maryland Senate Bill 263 (which was cross-filed with House Bill 130) would have permitted courts to award attorney’s fees to individuals who filed suit to enforce constitutional rights in Maryland courts but was reported unfavorably in committee and withdrawn.  Attorney’s fees may be awarded under many federal civil rights statutes, but Maryland has no similar general scheme.  (Certain specific Maryland statutes do permit attorney’s fee awards, and fees may be awarded in certain civil actions such as suits to enforce rights under an insurance policy.)The language that follows is from Senate Bill 263:

WHEREAS, There are now more than half a million Marylanders living at or near the federal poverty level; and WHEREAS, The legal problems faced by low–income Marylanders are more likely to involve low monetary claims, which make it difficult or impossible for them to attract counsel because the means are not available to compensate an attorney from the proceeds; and WHEREAS, There is no provision in Maryland law that permits an award of attorney’s fees to individuals asserting a State constitutional claim, which means that many Marylanders are unable to assert their rights under the State constitution for lack of counsel, because these claims are often for injunctive or nonmonetary relief and, without a monetary award, there are no funds with which to pay an attorney; and WHEREAS, A law that provides for an award of attorney’s fees to a prevailing party would permit litigants in cases involving low or nonmonetary relief to find attorneys to represent them, provided their cases have merit; and WHEREAS, Such provisions can be a powerful tool for promoting access to justice, and they do so in a way that does not require any additional expenditure of public funds, by creating incentives for private attorneys to accept clients with meritorious claims; and WHEREAS, Such provisions permit aggrieved parties to be “made whole” by ensuring that they do not have to pay for their legal representation from the compensation they were awarded; and WHEREAS, Such provisions permit individual citizens to enforce rights protected by law in a manner that has a larger social benefit, reducing the need for State action and expenditure to enforce the law; and WHEREAS, The purpose of such provisions is not to benefit private attorneys, but to promote access to legal representation for individuals who are unable to retain counsel, despite having meritorious claims, in case types that legal aid organizations are not able to accept because of statutory or funding restrictions; and WHEREAS, When large segments of Maryland’s population are denied effective access to the justice system and are unable to assert and defend effectively important civil legal rights and prerogatives, public trust and confidence in the justice system is placed in jeopardy[.]