Editorial Advisory Board: A bitter but necessary pill for Baltimore to swallow

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The City of Baltimore has sought permission from the City Council to spend $2 million to hire the Washington, D.C., law firm WilmerHale to represent it in matters relating to the Department of Justice’s pattern and practice investigation of the Baltimore Police Department. A few years back, we called for such an investigation by DOJ if the BPD was unable to get its act together. A pattern and practice investigation will end with a negotiated or imposed consent decree.

Our initial reaction to the hiring of WilmerHale was a preference for a Baltimore firm, but we are of the firm opinion that if the city determines it is in its best interest to be represented in such an important matter, Mayor Stephanie Rawlings-Blake should be allowed to exhibit her best independent judgment and select counsel of her choice as guided by City Solicitor George A. Nilson. To be sure, Nilson, in a memo this past fall, supported his choice of WilmerHale by stating that the city “needed counsel with experience with ‘police pattern and practice’ investigations, credibility with the [DOJ] and familiarity with our Police Department.”

The lawyers selected by the city solicitor have commenced their representation of the city and Nilson was quite satisfied with their services. They have discounted their customary rates and have agreed to a maximum fee of $2.2 million. While that sounds like a large figure, the city solicitor compares that to the $50-to-$300 million that implementation of the consent decree will cost. He believes with the help of experienced counsel, he can shorten the investigation and get a jump on putting in place new and revised policing policies. Apparently, the City of Chicago felt the same because it also hired WilmerHale for the same purpose. We note, also, that WilmerHale’s lead counsel is Jamie Gorelick, one of the longest serving deputy attorneys general of the United States.

Initially, some of us may have questioned not the choice of lawyers, but whether the city should even be represented in this matter. We firmly believe, however, that anyone under investigation should have the right to assistance of legal counsel, and a city is no different. More importantly, the reason to have counsel is not to obstruct the investigation (the city called for it in the first place), but instead to facilitate the gathering and production of documents and to interface in other ways with the DOJ to help the city negotiate a fast resolution of this problem that will result in a benefit to everyone involved, especially the citizens of Baltimore. As if he needed any other reason to hire outside counsel, Nilson believes the magnitude of the investigation was beyond the city Law Department’s capacity.

Prominent supporters

Other prominent lawyers have voiced their opinion. Kenneth L. Thompson of Venable LLP recently wrote to Nilson that hiring outside counsel where appropriate was a recognized, sound and long-established practice, as is the practice of providing considerable deference to the city solicitor to determine how the city’s legal needs should be answered. Thompson noted that representation in the DOJ investigation requires specialized knowledge.

Stephen Sachs, former Maryland attorney general and retired from WilmerHale for 15 years, said, “Wilmer’s expertise blends with the nature of the representation that is called for.” He noted that its role will not be to mount a “full-throated defense,” but to assure that the “DOJ investigation results in fundamental reform at BPD.” We cannot agree more, and we will not quibble over the cash.

The effort to hire WilmerHale on terms the city solicitor and mayor believe are fair are being blocked by some within the City Council, including its President Bernard C. “Jack” Young. The DOJ prescription will be an expensive and bitter pill. The City Council is just as complicit as the mayor in the lack of leadership and got us to this place. While WilmeHale works to guide Baltimore through the DOJ reform process, reform at home must include elected officials working to dismantle the police union’s grip on city governance. That will take political courage and accepting that the people should no longer be forced to negotiate against themselves in the delivery of public safety at the cost of personal liberty and safety.

We recognize that the council serves as a critical watchdog function over certain decisions of the city, but we call upon the council to allow Nilson to do his job and determine, as Thompson wrote, “how best to address the legal needs of the City,” including whether the resources should be sourced internally or externally, at cost and from what source.

No one else is qualified to make this decision.

Editorial Advisory Board members Caroline Griffin, C. William Michaels, William Reynolds, H. Mark Stichel and Tracy L. Steedman did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

Wesley D. Blakeslee

Arthur F. Fergenson

Daniel F. Goldstein

Caroline Griffin

Elizabeth Kameen

Ericka King

Stephen Meehan

C. William Michaels

William Reynolds

Norman Smith

Tracy L. Steedman

H. Mark Stichel

Ferrier R. Stillman

Anwar L. Young

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.