The MSBA actively monitors hundreds of bills each legislative session and advocates on behalf of the profession. The ability to make a difference in Annapolis is just one of the many reasons we need all attorneys to belong to the MSBA to ensure we remain a strong and vibrant association. The Maryland General Assembly adjourned this unique pandemic session on Monday night, and MSBA is pleased to see the passage of several of our priority bills.
Right to Counsel in Evictions
Maryland has become the first in the nation to pass a statewide access to counsel bill. The MSBA and the Access to Justice Commission (A2JC) strongly supported HB18 Landlord and Tenant – Residential Tenants – Right to Counsel, which provides tenants with access/right to counsel in eviction proceedings. Much remains to be done, however: a companion bill, HB31 Courts – Surcharges and Payment to Special Funds – Prohibited Lease Provisions, which would have provided a funding source for the Access to Counsel program and an additional funding stream for the Maryland Legal Services Corporation (MSLC), to bridge its funding shortfall, failed to pass this session. A2JC will continue to convene and work with partners to secure funding sources to make the access to counsel meaningful. Hundreds of thousands of Marylanders may face an eviction in Maryland in the coming year, even as $800 million dollars of rental assistance will be pouring into the state from federal relief programs. Low-income tenants and those who are technologically challenged will face the harshest barriers to justice and will need assistance to connect to rental assistance and raise appropriate defenses to ensure they remain housed and have a fair and equitable shot at justice.
Civil Legal Aid Funding
The Maryland legislature also passed HB514/SB413 Maryland Legal Services Corporation Funding – Abandoned Property, bills supported strongly by both the MSBA and A2JC. These bills increased allocation to the MLSC—the largest funder of civil legal aid in Maryland—from the Abandoned Property Fund from $2 million to $8 million. MLSC faced up to 70% funding declines during the height of the pandemic because its funding streams are tied to interest rates and filing fees, both of which dramatically decreased as a result of COVID. Funding from the Abandoned Property Fund is the only source of stable funding for MLSC, and it was important to shore that up. This work came at the heels of A2JC successfully advocating for $11.7 million in one-time emergency funding to MLSC through its work driving the Maryland Attorney General’s COVID-19 Access to Justice Task Force.
Maryland Attorney General’s COVID-19 Access to Justice Task Force
The Right to Counsel in Evictions and Civil Legal Aid Funding bills flowed from the work of the Maryland Attorney General’s COVID-19 Access to Justice Task Force, which was co-lead by the MSBA-backed Access to Justice Commission. There were almost 60 recommendations to improve the civil justice system in the final Task Force Report, Confronting the COVID-19 Access to Justice Crisis. These recommendations were converted to over 40 bills, and almost 45% of the bills found success during the 2021 legislative session. Please find many of the other legislative successes related to the A2J Task Force here.
Remote Witnessing of Estate Planning Documents
During the summer of 2020, the MSBA Estates & Trusts Law Section developed legislation that would extend the provisions of Governor Larry Hogan’s Executive Order authorizing the practice of remote witnessing of wills, powers of attorney, and advance directives. The legislation, Senate Bill 820/House Bill 1261 – Wills, Powers of Attorney, and Advance Directives – Electronic Execution, was introduced by Senator Chris West and Delegate Wanika Fisher. As passed, the bill, like the executive order, allows for a will or power of attorney to be electronically executed or remotely witnessed. The bill has a specific carve-out to the remote execution of powers of attorney in real estate transactions, as the parties are not typically known to one another as might be the case in a lawyer-client instance. Additionally, the bill contains a retroactivity clause declaring that the Act shall be construed to apply to and interpreted to affect any will, power of attorney, or advance directive executed on or after March 10, 2020 (the date of the Governor’s Executive Order).
Financial Protection of Susceptible (Vulnerable) Adults
On the afternoon of the final day, the General Assembly gave final passage to Senate Bill 327 – Civil Actions – Financial Exploitation of Susceptible Adults and Older Adults (Maryland SAFE Act, which, as amended, allows either the Attorney General or the Maryland Securities Commissioner to initiate a private cause of action to confront instances of financial exploitation of a susceptible (vulnerable) adult. In 2019, the MSBA Section Councils of the Estate & Trust Law Section and the Elder Law & Disability Rights Section organized the Vulnerable Adult Financial Exploitation Task Force in order to provide an interdisciplinary approach to tackling the vexing concerns around financial exploitation of vulnerable adults. This legislation also involved input from the MSBA Criminal Law & Practice Section, as well as various external stakeholders to examine potential remedies in the civil arena that would supplement existing criminal penalties. The result of these combined efforts led to the introduction and ultimate passage of SB 327.