On January 8, 2021, the MSBA filed an amicus curiae brief in Chavis v. Blibaum Associates, P.A., a consolidated case currently pending before the Court of Appeals of Maryland. The MSBA, which prides itself on being the voice of attorneys across the state representing lawyers in a broad range of practice areas, experience levels, and demographics, had not filed an amicus brief in approximately 35 years. It did so in Chavis, not to advocate for either side but to protect core tenets of the attorney-client relationship.
The facts of Chavis are not in dispute: a law firm representing a commercial landlord filed breach of contract claims against multiple tenants due to their failure to pay rent owed pursuant to residential leases. In each case, the law firm obtained judgments against the tenants, and the court ordered that the landlord could recover post-judgment interest at the “legal rate.” The tenants failed to pay the judgments, and the law firm filed requests for writs of garnishment, seeking a 10% post-judgment rate of interest.
The tenants then filed lawsuits against the law firm, asserting that by employing a 10% interest rate, the firm violated the Maryland Consumer Protection Act ( MCPA) and the Maryland Consumer Debt Collection Act (MCDCA). The tenants argued that § 11-107 of the Courts Article limits the post-judgment rate of interest on judgments arising out of breach of contract actions involving residential lease agreements to 6%. However, the issue of whether § 11-107 allowed for the 6% or 10% interest rate was unsettled at the time the tenants’ lawsuits were filed due to the ambiguous language of the statute. The Maryland Court of Appeals ultimately ruled in favor of the tenants on the issue of the applicable interest rate, finding that the 6% limit applied.
The bigger issue that loomed, though, was whether the law firm could be held liable for violations of the MCPA and MCDCA. The MCDCA provides that “[i]n collecting or attempting to collect an alleged debt a collector may not … [c]laim, attempt, or threaten to enforce a right with the knowledge that the right does not exist[.]” Md. Comm. Law Ann. §14-202(8). Despite the ambiguities of § 11-107, the tenants asked the court to sanction the law firm for taking the position that the 10% interest rate was proper under the statute.
In other words, what began as a dispute over the interpretation of statutory provisions morphed into an action that threatens to allow attorneys to be punished for arduously advocating on behalf of their clients. The tenants’ claims were dismissed by two circuit courts, and the circuit court rulings were affirmed by the Court of Special Appeals. The tenants then successfully filed a petition for writ of certiorari to the Court of Appeals, asking the Court to find that the use of wage garnishment to collect excess post-judgment interest and post-judgment filing fees constitutes a violation of the MCDCA. The MSBA filed an amicus brief, asking the Court to affirm the lower court’s contrary rulings.
The amicus brief filed by the MSBA stressed that a “claim, attempt, or threat to enforce a right” is actionable under the MCDCA only if made “with the knowledge that the right does not exist.” Md. Code, Com. Law § 14-202(8). Further, the brief argues that even assuming that the MCDCA allows a debtor to challenge the amount of interest sought by a creditor—as opposed to that creditor’s right to seek any interest—the law on the proper rate of interest was sufficiently unsettled that a federal court certified the question to the Court of Maryland Appeals in three related cases. If a federal district judge found the law so unclear that it deemed it necessary to certify the question, the law firm clearly could not have been asserting a right that it knew did not exist. In sum, the brief explained that if advocating for a client on an unsettled area of the law could expose an attorney to liability, it would create an unsustainable conflict between an attorney’s professional obligation to advocate zealously on behalf of a client and the fear of potential liability under the MCDCA.
Mark Scurti, President of the MSBA, offered some insight into the MSBA’s involvement in the case, explaining he was approached by a member who believed the MSBA would have an interest in the matter. President Scurti explained that after reviewing the issue on appeal, he felt the MSBA owed a duty to its members and to all attorneys in Maryland to protect them from liability when advising their clients on courses of action they might take. He was particularly concerned that a reversal could chill the ability of attorneys to advise their clients on areas of the law that were unclear, unsettled, or otherwise not well-defined. He stressed that the MSBA has no opinion on the merits of the underlying case; rather, the brief was submitted to protect the ability of attorneys to argue on behalf of their clients and to fulfill their professional responsibilities without fearing liability.
The brief was drafted by Steven M. Klepper (Kramon & Graham) and J. Bradford McCullogh (Lerch, Early & Brewer), co-chairs of the Appellate Practice Committee of the Litigation Section of the MSBA. They both became involved in the matter after they were approached by Andrew Baida (Rosenberg, Martin, Greenberg), chair of the MSBA Litigation Section.
Steve explained that the goal of the brief is to ensure that the court is aware of the negative implications for the profession if it were to adopt a reading of the MCDA that would chill zealous advocacy. It aims to protect the right of an attorney to fiercely advocate on behalf of a client without worrying about facing sanctions, which is critical to maintaining a strong attorney-client relationship.
In Steve’s opinion, the MSBA should ordinarily refrain from taking a position in appellate proceedings. He views the Chavis case as an exception to the general rule, however, explaining that in light of the potential implications of the case, it was necessary for the MSBA to take a stand for the good of the profession. He noted that the MSBA includes attorneys that represent both creditors and debtors, and the MSBA’s interests in this matter are in preserving the attorney-client relationship generally, which goes beyond this particular dispute.
Brad echoed Steve’s sentiments, stating that the fundamental aim of the brief was to protect the ability of lawyers to act as advocates for their clients. A reversal on the issue would expose lawyers to liability for taking a legal position that was undecided at the time and would strike at the heart of their obligations to their clients. The brief asks the Court to recognize and protect a lawyer’s duty to advocate zealously for a client, noting that lawyers should not have to weigh the risk of personal liability when determining what legal arguments they can make on behalf of their clients.