COMMENTARY:

The Backdoor Immunity Bill

Unfortunately, the battle to protect Maryland’s children is not yet over. Proponents of immunity—primarily lawyers who stand to benefit personally—have advanced new bill language designed to hoodwink legislators into indirectly granting immunity through the courts. Worse, the immunity conferred by the new bill language would be even stronger than the immunity that has already been rejected, making it impossible to hold attorneys for children accountable even for conduct that recklessly endangers a child’s well-being.

Last week, the drafters of the original immunity bill announced that they were giving up on trying to win immunity for court-appointed attorneys for children, and that they would be removing all references to immunity from the bill. In its place, however, they proposed to insert new language authorizing courts to appoint attorneys for children who would not owe their primary duty to their child clients.

This proposal immediately set off alarm bells for child advocates. No adult would ever hire an attorney whose primary duty wasn’t to vigorously and effectively advocate for his or her interests. Physically and sexually abused children certainly deserve no less. What were the proponents of immunity up to?

Under questioning, the sponsor of the bill admitted that the new formulation was intended to trigger the courts to do what the legislature would not: grant immunity to court-appointed attorneys for children. The Administrative Office of the Courts concluded in a thoroughly researched memorandum that the new bill language would probably induce courts in Maryland to award attorneys for children “absolute immunity” from liability for malpractice, making it impossible to hold them accountable even for grossly negligent or reckless breaches of professional responsibility.

Thus, the supposed elimination of immunity from HB 700 is not, as it first appears, a big step forward for Maryland’s children. Instead, it is a cleverly disguised two steps back. But this backdoor immunity can become law only if its proponents succeed in sneaking it past philosophically opposed members of the House and Senate Judiciary Committees unawares.

We need to put a stop to this nonsense. Physically and sexually abused children deserve better than back-room political maneuvers and legislative sleight-of-hand. Children need attorneys who are well-trained, who are duty-bound to present all credible evidence of abuse to the courts, and who owe their sole allegiance to their child clients. Judge Ann Sundt, speaking on behalf of the Maryland Judicial Conference, stated last week that court-appointed attorneys for children who commit malpractice “should be held accountable, there’s just no way around that.” So why can’t we find a way to provide these incredibly vulnerable children the protections they deserve?

A coalition of child advocacy organizations has tried to find a way forward by offering the Children’s Protection Amendments. These amendments would (1) authorize courts to appoint attorneys to represent the best interests of children, (2) protect the attorneys from frivolous and vindictive lawsuits by establishing expert certification requirements, and (3) prescribe basic standards governing the training and conduct of attorneys appointed to represent physically and sexually abused children.

Incredibly, the proponents of immunity oppose these safeguards. They reject statutory training requirements, refuse to accept that all credible evidence of abuse should be presented to the courts, and do not want court-appointed attorneys to be primarily responsible to their child clients. In short, they want to ensure that lawyers can collect their paychecks, as much as $30,000 for a single case, with no strings attached.

Immunity supporters cannot get what they want from the legislature, so they hope to defer the issue to the courts. But an issue of this importance is one that our elected representatives should decide. We need to let our legislators know that any bill that is passed must explicitly guarantee that attorneys can be held accountable when they fail children in these incredibly important cases. We need to place children first.