Latest Md. schools funding suit shuffles law firm's allegiances


January 03, 1995|By Mike Bowler | Mike Bowler,Sun Staff Writer

Baltimore goes to court this week or next in search of a bigger slice of the state school aid pie, and offices of the lawyers for competing interests in the case will be only a few miles apart -- in Montgomery County.

One of the firms, Venable, Baetjer & Howard, has done a 180-degree turnabout. Fifteen years ago, it represented Baltimore in the city's first -- and ultimately unsuccessful -- school finance suit. Today, it's looking out for the interests of Montgomery, the city's arch-foe as it approaches the bar again.

So far, three firms and several other independent lawyers are at work on the case, even though only one of the two lawsuits in behalf of Baltimore City has been filed.

Last month, Baltimore hired Abbey G. Hairston, of the Silver Spring firm of Alexander, Gebhardt, Aponte and Marks. Ms. Hairston, who has represented such high-profile clients as ousted NAACP Executive Director Benjamin F. Chavis Jr., will be paid up to $500,000.

To protect its interests -- it could pay higher taxes or lose state aid if Baltimore is successful -- Montgomery engaged Roger W. Titus of Venable's Rockville office. Mr. Titus' contract pays him $215 an hour. Montgomery hasn't formally entered the case on the side of the defendants, but it is expected to. (Michael Subin, the only Montgomery County Council member who opposed the Venable contract, argued that the county should use its own lawyers.)

The American Civil Liberties Union of Maryland, which filed a class-action suit a month ago in behalf of Baltimore parents and students, is represented by Alan I. Baron, of Howrey and Simon, a Washington firm. Mr. Baron is doing the legal work "pro bono" -- for free -- and said Friday that he would continue to work without compensation "as long as the case is alive."

The state attorney general's office is the lawyer for the state officials charged by the ACLU with providing an "inadequate" education for Baltimore schoolchildren, and the attorney general also will represent defendants in the city suit when it is filed. After a hearing early next month, the two suits are expected to be combined.

So the lawyers are in place, and many of their meters are running. Meanwhile, Baltimore schoolchildren return from Christmas break this week to conditions essentially unchanged since 1979 -- crowded classrooms, inadequate supplies, comparatively underpaid teachers.

In that context, the defection of Venable may have some city officials feeling they've been jilted.

Nell B. Strachan, the Venable attorney who tried the city's case in state District Court in 1980, said the firm had given "thoughtful, careful, thorough consideration" to taking on Montgomery as a client, and acting Montgomery County Attorney Marc Hansen said officials in Rockville "felt there were no legal problems at all" in engaging Venable.

The city lost the 1979 suit four years later in the state Court of Appeals, which means more than 11 years have elapsed. During that time, Benjamin Civiletti, a Venable partner, headed a statewide commission that recommended -- and got -- increased school aid to the city.

So Venable's entry into the modern legal fray presents fascinating ethical questions. Lawyers for the plaintiffs in the two suits will argue that the state is failing its constitutional responsibility to provide an "adequate" education. The 1979 suit had sought "equitable" financing, which meant that Baltimore inevitably had to be compared to Montgomery and other wealthy subdivisions.

"The first go-round left undecided the issue of whether adequate education is being provided by the state," said Mr. Hansen of Montgomery. "The standards of what constitutes an adequate education have changed significantly. There is a new set of issues here."

But since the Civiletti commission said the city needed more aid, will Mr. Titus now have to argue that Mr. Civiletti was wrong?

Venable argued not only that the issues have changed in the case, but also that enough time has elapsed to justify the firm's switching sides. School finance is not, after all, fried chicken with a secret formula, they said. All of the data submitted in the trial before Judge David Ross 14 years ago were public record. And if the city lawyers had a secret strategy then, it wouldn't be useful to Montgomery now. After all, the strategy didn't work.

Still, at least one legal ethicist thinks Baltimore has a persuasive argument for demanding that Venable be disqualified.

"Even if there is a substantial difference from the prior representation," said Richard W. Bourne, who teaches courses in professional responsibility at the University of Baltimore Law School, "there is still a sense of betrayal on the part of the city. It's an emotional thing, but it goes to the heart of lawyer-client relationships."

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