E-Alert Case Updates

Maryland Consumer Protection Act Does Not Apply to Lawyers Even When Basis of Claim is a Violation of the Maryland Consumer Debt Collection Act

Stacey J. Hawkins v. Robert N. Kilberg, P.A.
(January 8, 2016) United States District Court for the District of Maryland
by Matthew J. McCloskey, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdd.uscourts.gov/Opinions/Opinions/15-3167%20Hawkins%20Memo%20&%20Order%20for%20WEBSITE.pdf

In a recent opinion, the United States District Court for the District of Maryland held that the Maryland Consumer Protection Act (“MCPA”) does not apply to lawyers rendering professional services, even if the basis of the MCPA claim is a violation of the Maryland Consumer Debt Collection Act (“MCDCA”), under which lawyers may be liable to a consumer.

Plaintiff filed a lawsuit against Defendant, a law firm that had previously sought to collect a debt from Plaintiff on behalf of one of its clients, setting forth three (3) causes of action: (1) violation of the Fair Debt Collection Practices Act (“FDCPA”); (2) violation of the MCDCA; and (3) violation of the MCPA.  In pertinent part, Plaintiff alleged that Defendant was a debt collector within the meaning of the FDCPA and MCDCA, and that Defendant had attempted to collect a debt from her in contravention of provisions of both of those statutes by calling her at work and informing her coworkers regarding her debt.  Plaintiff further alleged that, in violating the MCDCA, Defendant had committed an unfair or deceptive trade practice in violation of the MCPA.

Defendant moved to dismiss Plaintiff’s claim for violation of the MCPA.  Although Defendant conceded that a violation of the MCDCA would constitute a violation of the MCPA, it noted that the MCPA contained a provision which specifically exempted providers of “professional services,” including lawyers, from the provisions of the MCPA.  Consequently, Defendant argued that Plaintiff had failed to state a claim against it for violation of the MCPA. 

Plaintiff opposed Defendant’s motion, noting that the MCPA permits the prevailing party to obtain attorney’s fees, while the MCDCA does not.  Plaintiff argued that, because lawyers can be liable for a violation of the MCDCA, the General Assembly intended the fee shifting provision of the MCPA to be applicable to lawyers when the basis of the MCPA claim was a violation of the MCDCA.  Because these two (2) statutes applied to the same subject matter, Plaintiff asserted that they were “best harmonized by limiting the MCPA’s attorney exemption to MCPA violations that are not based solely on a MCDCA violation.”

Judge James K. Bredar was not persuaded by Plaintiff’s arguments and granted Defendant’s motion to dismiss.  The Court noted that statutes pertaining to the same subject matter should be harmonized, but only to the extent that doing so would not defeat the plain language of the statutes.  In this case, Plaintiff essentially asked the Court to “override an explicit exemption built into the MCPA.”  The Court refused to do so.  Despite the apparent inconsistency of the two statutes, the Court declined to adopt Plaintiff’s reading.

The Court also addressed—and rejected—several other argument advanced by Plaintiff.  The Court distinguished Scull v. Groover, Christie & Merritt, P.C., 76 A.3d 1186 (Md. Ct. Spec. App. 2013), a case in which the Court of Special Appeals drew a distinction between “professional services” and services which are merely ancillary to a professional’s business.  As opposed to medical billing services, debt collection was, in the Court’s words, “the bread-and-butter of many law firms.”  Thus, there was no colorable argument that the MCPA exemption did not apply to Defendant.  The Court also found unpersuasive Plaintiff’s argument that holding attorney debt collectors exempt from the MCPA would create a loophole in the MCDCA enforcement provisions.  In light of the extensive history of the exemption and the multitude of cases affirming that the MCPA does not apply to lawyers acting in their professional capacity, the Court found Plaintiff’s fears misplaced.  Accordingly, it granted Defendant’s motion to dismiss Plaintiff’s MCPA claim.