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Baltimore police settlement clauses run afoul of lawyers’ ethics, brief argues

The non-disparagement provision in Baltimore police misconduct settlement agreements limits attorneys’ ability to speak about past representation and impacts their ability to represent subsequent victims, says Ajmel A. Quereshi, co-director of Howard University School of Law Civil Rights Clinic. (File photo)

The non-disparagement provision in Baltimore police misconduct settlement agreements limits attorneys’ ability to speak about past representation and impacts their ability to represent subsequent victims, says Ajmel A. Quereshi, co-director of Howard University School of Law Civil Rights Clinic. (File photo)

Baltimore’s non-disparagement provisions in police misconduct settlement agreements violate the Maryland Attorneys’ Rules of Professional Conduct, according to an appellate brief filed in support of a challenge to clauses.

The brief, filed Tuesday by the Howard University School of Law Civil Rights clinic and Public Justice PC, an Oakland-based legal nonprofit, claims the policy is at odds with ethics rules that prohibit attorneys from offering or making an agreement which includes a restriction on their right to practice.

Ajmel A. Quereshi, co-director of the Howard clinic, said provisions limiting attorneys’ ability to speak about past representation impacts their ability to represent subsequent victims, especially in Baltimore.

“Cases of excessive force by police are frequent which means you’re going to have a lot of complaints which means you’re going to have a lot of people seeking representation,” he said.

But Baltimore City Solicitor Andre Davis said Wednesday he believes the arguments “miss the mark” and was critical of the “continued attacks on a non-disparagement clause that the City Law Department abandoned many months ago.”

Agreements now require plaintiffs and their agents to “strictly limit their public comments… to the facts alleged in the pleadings and motions filed with the court,” according to a sample provided by Davis’ office.

Quereshi did not immediately respond to a request for comment about the revised language the Law Department says it is using in agreements.

The brief was filed in the 4th U.S. Circuit Court of Appeals in support of the ACLU of Maryland, which represents Ashley Overbey and the Baltimore Brew. Overbey filed suit after she given only half of a $63,000 settlement with the city because she commented on a blog post about the alleged beating she received from three police officers in 2012. The Brew joined the lawsuit, claiming a freedom-of-the-press violation.

U.S. District Judge Marvin J. Garbis upheld the non-disparagement clause used in Overbey’s case because she waived her First Amendment rights by signing a contract while advised by counsel. The judge also ruled the Brew did not have standing to bring a claim.

On appeal, the plaintiffs ask the 4th Circuit to find Baltimore’s non-disparagement policy violates the First Amendment by restricting public discourse through “economic coercion.”

The attorney ethics issue has not been raised by the litigants but Quereshi said the clinic hoped to raise another issue for the court to consider that has not been explored.

“We dug into the issue and what initially became clear was…there was a lot bigger and a lot clearer story that needed to be told,” he said.

The brief raises an issue that bar associations and courts around the country have spoken out about in recent years.

In a 2016 ethics opinion, the Maryland State Bar Association determined an agreement never to discuss or disclose the underlying facts of a lawsuit runs afoul of the rule because advertising is one facet of the practice of law.

“Those ethics opinions make clear that not only are attorneys prohibited from agreeing to those types of agreements but attorneys are explicitly prohibited from requiring another party to enter into them,” Quereshi said.

The brief was one of three filed in support of the ACLU, including one signed by 20 news organizations arguing Baltimore’s policy restricts journalists’ ability to gather news from the cases and accurately report on issues of public interest.

The appellate case is Ashley Amaris Overbey et al. v. Mayor and City Council of Baltimore et al., 17-2444.


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