OpposeTaxing Legal Services
State government presently relies on two taxes—the personal income tax and the retail sales and use tax—to raise most General Fund revenues. Other sources of state income include franchise and insurance taxes, alcohol and tobacco taxes, estate taxes, and the State lottery. In addition, dedicated taxes (revenue sources levied to fund specific purposes defined by law) include transportation taxes (motor vehicle fuel tax, title tax and registration revenues), a percentage of corporate income tax receipts, and the State property tax. Maryland also receives revenue from the federal government, although the percentage of the state budget funded by this source has been decreasing in recent years. Finally, the receipt of billions of dollars from the lawsuit against tobacco companies will be used over the next 25 years to fund specified programs. Periodically, the Legislature explores imposing a tax on legal services as part of the revenue-raising measures associated with other taxes. See HB 755 (1997), HB 1 (2002), HB 448 (2007).
General negative impact on access to the courts.
A legal services tax is a disincentive for citizens to seek legal advice and falls on the clients—not the lawyers. The MSBA places a high value upon access to justice for all citizens. A levy on legal services would hit low- and moderate-income taxpayers hardest, especially those who do not qualify for public assistance, yet cannot afford to devote a significant percentage of their income to pay for legal advice. Many legal transactions, such as property transfers and administration of estates, require payment of taxes. A legal services tax would impose an additional tax on the same transaction. In addition, clients seeking legal advice on dissolution of marriage, bankruptcy, child support, debt collection and similar matters would pay the tax, but are those who can least afford to pay an additional charge. Moreover, an audit of client fund accounts in order to administer the tax may violate the attorney/client privilege. In some instances, a legal services tax could be a tax on tax advice. And taxing a person’s ability to defend himself or herself in a criminal proceeding could be challenged as unconstitutional.
OpposeAttorney Admission and Renewal
Maryland’s fiscal crisis in the early 1990’s prompted some lawmakers to propose new revenue- generating ideas as a means of chipping away at budget shortfalls. One of these proposals appeared in a bill, and later a budget amendment, to establish an admission and biennial renewal fee for all Maryland lawyers.
Maryland lawyers already pay substantial amounts to provide for regulation and maintenance of professional standards. Applicants to the bar exam must pay a fee to take the test. Once admitted, each attorney must pay an annual fee for the Attorney Grievance Commission and the Client Protection Fund of the Bar of Maryland to support the disciplinary and public protection infrastructure of the State’s legal profession. The MSBA, although a voluntary bar, provides many of the services supplied by government agencies and unified bars in other states. MSBA annual dues are $150 per year. The Continuing Legal Education Committee of the MSBA includes additional fees and costs for programs, materials, and webinars.
See SB 544 (1992), HB 16 (1999), HB 56 (2003), HB 523 (2011)
Professional service fees should apply to all professions.
Additional professional service fees, if enacted, must include all professions, not just the legal profession. Consideration also must be given to the impact of the additional fee on efforts to encourage attorneys to devote more time to pro bono activities.
OpposeGenerally – Regulation of the Legal Profession
The Legislature regulates the legal profession through the Business Occupations and Professions Article of the Maryland Annotated Code. Within that Article are sections regulating admission to the Bar, misconduct of attorneys, unauthorized practice of law, the state prosecutor, state’s attorneys, attorney escrow funds, and attorney liens, as well as authorizations for the Client Protection Fund and the Maryland Legal Services Corporation.
Judicial oversight of the legal profession is much more extensive, consisting of a variety of offices and agencies including the Attorney Grievance Commission, the Client Protection Fund, the Maryland Judicial Conference, the Maryland Professionalism Center, the Court of Appeals Standing Committee on Rules of Practice and Procedure, and the State Board of Law Examiners. The Judicial Branch has primary responsibility for regulating the practice of law, admitting new members to the Bar, and disciplining attorneys who fail to meet the standards of professional conduct.
See HB 1292 (1993), HB 2 (1994), HB 165 (1995), HB 184 (1995), HB 16 (1999), HB 1398 (2002), HB 426 (2003), HB 1108 (2004), HB 792 (2007), SB 493 (2008), SB 389 (2008).
The Judicial Branch has primary responsibility for regulating the practice of law.
To the extent the Legislature has the ability to regulate the legal profession, it should do so consistently with its regulation of other professions.
It is the policy of the MSBA that attorney discipline is within the sole jurisdiction of the Judiciary, and that the Legislature should not dilute the authority of the Judiciary in this area.
See SB 466 (1994), SB 76 (1996), HB 792 (2007), HB 949 (2018)
The Judiciary has the primary responsibility for regulating the practice of law.
SupportThe Justice System Must Have Adequate Funding For Its Programs and Services
Cuts in funding some programs within the justice system during recent years have prompted state and local officials to look at ways to reduce costs without sacrificing the quality of services or changing public policy.
The justice system in Maryland is financed by a combination of State and local funds. In general, the State pays for the courts and indigent defense while the subdivisions support the police and prosecutorial functions. There are exceptions to this rule. For example, local governments pay for the support staff for the circuit courts, and the Maryland State Police Department does not receive any local expenditures. The correctional systems are financed by a blend of State and local funds. The legislation requiring legal counsel for bail hearings compounded this issue. Similar issues arise with the new electronic case management and establishment of the Family Courts.
See SB 197 (1995), SB 133 (1999), HB 913 (2000), SB 66 (2014), HB 51 (2015), HB 54 (2015), HJ 3 (2018)
The MSBA has an interest in ensuring that Maryland’s courts are adequately funded, and that other components of the justice system are not subject to unfunded mandates.
The Legislature often enacts laws that promote services or require infrastructure that it does not fund either at the State or local levels. These initiatives impact the justice system when the program either is delayed in implementation due to the cost or requires elimination of other valid programs to fund the initiative.
SupportMaryland Legal Services Corporation, Inc.
The Maryland Legal Services Corporation (MLSC) was established by statute in 1982 as a means of expanding the availability of legal services to those Maryland citizens who were unable to afford adequate legal counsel. The primary function of the MLSC has been to fund providers of legal services to the poor in non-criminal proceedings. While the MLSC is not an agency of the State, its governing board is appointed by the Governor and confirmed by the Senate, it is required to submit an annual report and audit to the Executive and Legislative branches of government, and it must have statutory approval of its funding sources. Also specified within the MLSC’s enabling statute are restrictions on spending MLSC funds for use in fee-generating cases, criminal proceedings or civil cases arising out of criminal convictions, lobbying or political activities, and class action suits. MLSC funding is provided primarily by a $500,000 annual appropriation from the State abandoned property fund, from proceeds of the Interest on Lawyer Trust Accounts (IOLTA) program, and from surcharges on circuit and district court filing fees.
In 2008, the Maryland Access to Justice Commission was created to develop, consolidate, coordinate, and implement policy initiatives to expand access to and enhance the quality of justice in civil legal matters for persons who encounter barriers in gaining access to the State’s civil justice system. In 2011, the Commission published a report entitled Implementing a Civil Right to Counsel in Maryland, which made recommendations on implementation strategies, including specifying the types of cases for which the right to civil counsel should attach. Similar efforts are expected in the future.
See SB 280 (2012), HB 265 (2012), SB 640 (2013), HB 1303 (2013), SB 262 (2013), HB 1291 (2017)
The MSBA supports legal services for all Maryland residents.
The MSBA has been a strong advocate for the MLSC in the Maryland General Assembly, supporting its goals and fighting for passage of both the voluntary and comprehensive IOLTA statutes. The MLSC provides a significant resource for legal services in Maryland.
SupportOffice of the Public Defender
The Office of the Public Defender (OPD) was created in 1971 to provide legal representation for indigent defendants in criminal or juvenile proceedings. The OPD has three divisions: Mental Health; Inmate Services; and Appellate. Recent legislation expanding the services of the OPD without necessarily including an adequate increase in the budget has created concern over implementation of the requirement that all individuals are entitled to legal representation at bail reviews.
The Court of Appeals ended the discussion by deciding in DeWolfe v. Richmond and Clyburn v. Richmond that defendants are entitled to legal representation at bail hearings. Recognizing the economic impact on the Office of the Public Defender, the Court issued several stays of the decision’s implementation. As of July 1, 2014, no further stays exist. The Chief Judge of the District Court and the local bar associations have collaborated on establishing supplemental services for ensure the representation, because the OPD continues to have insufficient funding to perform these new responsibilities.
The MSBA has an interest in ensuring that the OPD can fulfill its statutory mandate.
MonitorPublic Defenders at Bail Review Hearings
One of the chronic problems in detention facilities is the number of inmates who have been incarcerated for relatively minor offenses because they were unable to pay bail. In many of the cases, the defendants are released with no punishment other than time served, but their incarceration has deprived the jurisdiction of valuable jail space that could have been used to house those accused of more serious crimes. Often defendants lose jobs and suffer significant personal difficulties during and after even a brief detention, consequences that may increase the likelihood of lawbreaking by these individuals in the future. The Commission on the Future of Maryland Courts (CFMC) reviewed this situation during its tenure (1995-1996) and recommended involvement in criminal cases by defense counsel soon after arrest as a means of resolving many of these cases earlier in the process. The most significant hurdle in implementing the recommendation has been funding.
In 2013 and 2014, a series of reviews by the Court of Appeals resulted in a requirement that a defendant have legal counsel at an initial appearance before a District Court Commissioner. See DeWolfe v. Richmond and Clyburn v. Richmond. Recognizing the economic impact on the Office of the Public Defender, the Court issued several stays of the decision’s implementation. As of July 1, 2014, no further stays exist. The Chief Judge of the District Court and the local bar associations have collaborated on establishing supplemental services for ensure the representation, because the OPD continues to have insufficient funding to perform these new responsibilities.
During the 2014 legislative session the General Assembly considered measures to either provide representation at initial appearances, or to replace those appearances with a computerized risk-assessment tool. Each of the bills failed.
See HB 1186, HB 1232, SB 973, SB 170 – The Budget Bill (2014), HB 494 (2015), HB 596 (2015)
The MSBA has an interest in avoiding conscription of attorneys while supporting that the Office of the Public Defender has the funding and resources to comply with the requirement.
SupportIncreased Number of Judgeships
Among the methods suggested for reducing clogged court dockets is to increase the number of judgeships in some jurisdictions. The decision of which jurisdictions require additional judgeships relies on a statistical analysis that takes into account several variables, including actual and projected filings; the number of pending cases per judge; the ratio of attorneys to judges; the time required from the filing of the case through its disposition (divided by criminal, civil and juvenile); and the population per judge for each jurisdiction. In addition, each circuit administrative judge, along with others in the jurisdiction familiar with the courts, are consulted. Once the Chief Judge has considered all of the responses and statistics, a decision is made regarding which jurisdictions require new judges.
Due to the costs associated with additional judgeships, a variety of steps are taken on an administrative level prior to the request for a new position. These interim steps include: temporary recall of retired judges; the assignment of active judges from other areas and other courts of the State; and, procedural management adjustments, if necessary. If it is clear that these measures will not result in a permanent decrease in the caseloads, then a new judgeship is requested.
The past few years have seen a number of new judgeships at the district, circuit, and appellate levels of the court system.
See HB 111 (2015), HB 83 (2013), HB 513 (2018)
Additional judges may be necessary to handle overwhelming workloads.
The MSBA is committed to finding immediate and long-range solutions to the problem of overburdened court dockets where they exist. The MSBA will support legislation that will add judges in jurisdictions identified by the Administrative Office of the Courts.
OpposeUnauthorized Practice of Law
Challenges to the exclusive privilege of attorneys to practice law have been an ongoing concern that raises two conflicting ideals: preservation of high-quality legal services (professionalism) versus provision of affordable legal advice (consumerism). Many non-lawyer professionals have sought and obtained permission to perform legal transactions. For example, insurance companies, banks, real estate brokers, financial services, and title companies have competed with attorneys for the right to serve the public in specific areas of the law.
The issue has grown to include paralegals and legal assistants. Undergraduate training and new computer software packages enable paralegals to provide legal assistance to consumers at reduced prices. Among the services that have been marketed by paralegals are:
- preparation of documents for uncontested divorces, probate proceedings, tax matters, residential real estate transactions, name changes, powers of attorney, living wills, revocable living trusts, incorporations, and stepparent or agency adoptions; and
- representation of others before administrative agencies or boards, including public utility commissions, workers’ compensation boards, motor vehicle administrations, environmental permit bodies, landlord-tenant court, and public assistance entities.
The legal community has criticized the use of non-lawyers to perform these tasks by focusing on the poorer quality of the services and the lack of protection of the public when the services are inadequate. The MSBA has viewed immigration consultants as an acceptable service that does not amount to the practice of law.
Non-lawyers should not be permitted to provide legal services.
Legislation that would expand the rights of non-lawyers to perform those services that have been provided by attorneys in the past weakens the legal system and fails to protect the clients from malpractice and misfeasance.
One of the key elements in a lawyer’s effective representation of a client’s interests is the confidentiality of client information. A lawyer may reveal information without the client’s consent only in limited circumstances:
- to prevent fraudulent or criminal acts by the client;
- to rectify the consequences of criminal and fraudulent acts by a client with the lawyer’s assistance;
- to protect a lawyer’s rights in a controversy or disciplinary proceeding; or
- to comply with other rules, court orders, or statutes.
See Rules of Professional Responsibility, Rule 1.6, Confidentiality of Information. The movement toward multi-professional practices creates a challenge to the attorney confidentiality principle.
Protect attorney/client privilege.
Any change to the confidentiality of information exchanged between lawyers and clients should be accomplished by amending the Maryland Rules, not through legislation. This would be consistent with the oversight of the legal profession by the Judiciary.
The Maryland Constitution requires judges to retire when they reach 70 years of age. Prior to retirement, a judge may be removed by a vote of two-thirds of the General Assembly, with the approval of the Governor, if the judge is unable to discharge his or her duties with efficiency because of physical or mental illness. The Constitution requires the Governor to remove judges when convicted by a court or jury, of incompetency, willful neglect of duty, misbehavior in office, or any other crime. Elected judges also may be suspended from office upon conviction or entering a nolo contendere plea for a felony or a misdemeanor related to his or her public duties.
A less extreme method of disciplining and removing Maryland judges is exercised by the Commission on Judicial Disabilities. The Commission was established in 1966 by constitutional amendment to investigate complaints against judges. The Commission conducts hearings and exerts substantial informal influence to modify inappropriate judicial behavior. As a means of determining whether to initiate formal proceedings against a member of the Judiciary, the Commission may undertake an investigation, which may involve hearings regarding the alleged disability or misconduct. If a majority of the Commission determines that a judge should be retired, removed, censured, or publicly reprimanded, a recommendation for action is sent to the Court of Appeals. The Commission also has the power to issue private reprimands.
Changes should be made only through Court Rule.
The Judicial Disabilities Commission was established in the Maryland Constitution as a judicial agency. Any changes to the scope or responsibilities of the Commission should be achieved by Court Rule, not by legislation.
Periodically, the Legislature files bills to overturn or nullify court decisions through retroactive application. When that is the sole goal of a bill, it reflects a dramatic disconnect in the legislative/judicial relationship. A certain level of conflict often exists between these branches of government and is expected during most General Assembly sessions where legislators file bills in response to court rulings on specific public policy issues. When the Legislature has passed laws and the courts then interpret these statutes in the constitutional context, some friction often has developed. As long as the focus remains on the issues, they can avoid usurping each other’s authority. The most recent example of this friction arose in the recent redistricting cases.
The roles of the Legislature and the Judiciary must remain separate under the Constitution.
The MSBA opposes any bill that threatens judicial independence or weakens the Judiciary’s status as a co-equal branch of government with the Legislature.
The initiative is a method of lawmaking by which citizens circumvent the legislative process to place proposals directly before the voters. The initiative and the referendum were enacted in an era when political corruption was rampant and when few methods existed by which to expose and effectively prosecute misdeeds by public officials. The initiative served a means of limiting the abuse of power by elected leaders.
During the 20th century, greater citizen participation in the legislative and electoral process, along with more extensive coverage by the mass media, diminished the value of the initiative. Although some special interests that have been thwarted by the legislature still advocate the initiative as the only available means of enacting their programs into law, most of those familiar with the lawmaking process oppose it. These critics recognize that most public policy issues are too complicated to be condensed into ballot questions requiring yes or no votes.
Proposals to place the initiative on the ballot have been filed in the Maryland General Assembly many times and have been unsuccessful. The Constitution of Maryland provides for the Referendum (Article XVI), but it has been used infrequently at the State level.
The initiative is no longer needed to address abuse and the issues are more complex than ever before.
The MSBA supports pursuing legislative change through the legislative process and not based on the initiative process, which may not evaluate the issues properly.
Up until the 2000 General Assembly, it had been generally accepted that legislation should have prospective effect, and not apply retroactively. Constitutionally, the Legislature must begin its session on the second Wednesday of January and conclude on the second Monday in April. In most circumstances, bills that are passed during the Legislative Session take effect on one of three future dates:
- June 1st (constitutional date),
- July 1st (customary date for budget items), or
- October 1st (customary date for all other legislation).
Exceptions to these effective dates include:
- vetoed bills (which do not go into effect unless the General Assembly overrides the veto),
- emergency legislation (which take effect upon the Governor’s signature), and
- constitutional amendments (which are effective upon approval by registered voters on Election Day and certification of the results).
Retroactive effective dates of legislation are unfair and may deny due process.
SupportElimination of Contested Elections
In Maryland, only circuit court judges are appointed by the Governor, and then must run in a contested election within two years following the first year of service. Judges of the appellate courts are appointed by the Governor, confirmed by the Senate, and subject to retention elections. District court judges are appointed by the Governor and confirmed by the Senate, but do not have to stand for election at all (contested or retention).
Several reasons justify an end to contested elections for circuit court judges:
- Many of the best-qualified candidates for the circuit court do not apply, because they must leave their practices with the risk losing their judicial seat in a contested election.
- The appearance of sitting judges accepting campaign donations from contributors, including those who have cases before them, undermines public trust in an independent judiciary.
- The Code of Judicial Conduct prohibits a sitting judge from taking positions as to how he or she would decide certain cases. As a consequence, a key element of the contested election process—debating the issues—is removed and the judicial campaign process becomes an inherently unfair process, because a challenger to a sitting judge does not have to comply with these restrictions.
- The contested election threatens the independence, integrity, and competence of the circuit court.
See HB 450 (2004), SB 647 (2004), HB 271 (2005), SB 206 (2006), SB 647 (2006), HB 1363 (2007), HB 1275 (2008), SB 367 (2015), HB 548 (2015), HB 582, HB 1071 (2015), HB 513 (2018)
The contested election for sitting circuit court judges creates an unfair system and reduces the incentive for qualified individuals to apply.