Government Practice—A Different Perspective

By Karen Federman Henry

[Editor’s note: We’re happy to present the first post by the newest member of our editorial board.]

As an attorney representing a local government, I enjoy a unique opportunity to delve into a wide array of legal issues. The work itself can range from litigation to administrative hearings to legislative drafting to advising public officials, agencies, and departments as they seek to achieve goals that enhance the interests of the community. While the individual tasks and topics presented may not differ from those seen in private practice, the nature of the client has an impact on the manner of giving advice and providing representation.

Unlike a corporate client, which establishes its purpose and authority through articles of incorporation and by-laws, the authority of the government derives from many sources. The form of government—charter, commission, code, municipality—begins with the Maryland Constitution. Once the jurisdiction selects its form of government, the enabling authority for more specific legislation appears in the State Code. Many counties have evolved through several forms of government, beginning with a Commission and shifting to a Charter County. An attorney for a local government must refer to multiple resources on a regular basis to ensure that the appropriate authority exists for a proposed action. In addition, the client is the government entity, even though many individuals speak for the entity and act on its behalf.

Even the basic subject matter—personal injury cases, land use and zoning, and employment law—often has an additional layer that applies only to governmental entities. One of the more significant aspects of government practice arises from immunity and understanding the difference between the Maryland Tort Claims Act that governs the State of Maryland and the Local Government Tort Claims Act that applies to local governments (counties, cities, and other specified entities).

At common law, the State enjoyed sovereign immunity from any suit against it, while a local government enjoyed governmental immunity, which applies only when it performs a governmental function—if a local government performs a proprietary function, it does not have an immunity defense. This distinction led to very different tort claims acts for the respective governments. The Maryland Tort Claims Act waives the immunity of the State when its employees have acted negligently and, in doing so, allows a short window of time in which to file suit with the State while protecting State employees from being subject to lawsuits directly. On the other hand, the Local Government Tort Claims Act specifically preserves the immunity of the local government—it does not waive governmental immunity. Instead, the LGTCA requires the local government to provide a defense for its employees when they are sued for negligence and to pay any judgment imposed against those employees.

Representing a local government provides a combination of intellectual challenge and the reward of making a difference in the community. By defending the government against lawsuits and protecting the interpretation of its laws and ordinances, I have had many opportunities to contribute to the continuity of county operations in a meaningful way. I look forward to working with the editorial staff and sharing my thoughts during the coming months (with a unique perspective, of course).