Baltimore officials insist lawsuit secrecy not their idea

Lawyer who won $200,000 for client claims city wanted gag order, not him

December 23, 2010|By Justin Fenton, The Baltimore Sun

Baltimore officials hit back Thursday at claims that they pushed for secrecy in a six-figure settlement involving a man mistakenly arrested by city police, providing a document that they say shows the man's lawyer pushed for confidentiality.

But the lawyer responded by releasing other documents that he says prove the city initiated the discussion over privacy, and that his counterproposals were made to protect his client.

In the end, each side stood firm in its contention that the other was not being truthful, but both agreed that the episode had become "regrettable."

The plaintiff, Germantown violinist Yakov Shapiro, was arrested in 2008 when police were actually seeking a bar mitzvah teacher from Baltimore named Israel Shapira, also identified in court records as Yisroel Shapiro. Despite Yakov Shapiro's protests, a judge increased his bail and he was jailed for nearly two days. He filed a claim in federal court seeking millions in damages.

Both sides agreed to a $200,000 settlement earlier this year. But the dollar amount was left off public documents when the Board of Estimates, the city's spending board, approved the agreement in March, and there was no disclosure of who was receiving the money or why. Officials said that omitting the amount was a mistake, but refused to release the name or discuss the case, saying the plaintiff had "demanded" confidentiality.

Shapiro's name came to light this week in the business publication The Daily Record, which used its own attorneys to compel the disclosure. Shapiro's attorney, Steven D. Kupferberg of Rockville, said that he had been opposed to the confidentiality language in the agreement.

City Hall officials are sensitive to charges of secrecy, with Mayor Stephanie Rawlings-Blake, who took office this year after a fraud scandal toppled her predecessor, making government ethics and openness a major goal.

Baltimore officials maintain that the secrecy was not their idea, even though they acknowledge that they typically seek a "non-disparagement" clause as part of such agreements to keep details out of the media. In this case, the clause was altered to include a gag order on both city officials and the plaintiff.

Kupferberg said he always objected to the original clause but tried to work with the city after they insisted.

City officials insisted Thursday that Kupferberg first brought up the issue of confidentiality at a settlement conference, an off-the-record discussion that includes a judge.

"Our counsel heard what you would expect — a concern about the client not having to suffer anymore, to be protected from further publicity," said City Solicitor George Nilson.

City attorneys produced a Feb. 18 letter from Kupferberg in response to their draft agreement in which he suggests replacing their "non-disparagement" clause with a section titled "confidentiality agreement." In e-mail responses, city attorneys said his changes were not possible because the agreement had to go before the Board of Estimates.

"When monies are paid on [the city's] behalf, that fact is subject to public inspection," an attorney for the Police Department, Neal M. Janey, wrote to Kupferberg. "There is nothing we can do about that."

But Nilson said they decided to make a special accommodation for Shapiro. "It was one of those things that was right and fair to the plaintiff," he said.

Kupferberg denied that he broached the topic at the settlement conference. His two associates in an interview with The Baltimore Sun also said it never came up at the conference and said they were willing to sign affidavits attesting to that.

"At no point in time was any of that ever discussed or suggested as an option until sometime after the mediation meeting, at their insistence," said David Hainline, another lawyer working on the case.

In a Feb. 9 letter to city attorneys, Kupferberg asks the city for time to review the settlement "since you have suggested a confidentiality agreement as to the amount of the settlement, which was not an issue at our mediation."

Their language, he said Thursday, meant "my client was being gagged, and nobody else." By imposing the confidentiality restrictions on the city as well, it would level the playing field, he said.

"It was never discussed that it would be secret at the Board of Estimates; that's not my bailiwick," Kupferberg said. "If they told me the name had to be released [on public spending documents], the name would be released. It was a take-it-or-leave-it proposition given to me by" the city, he said. "It's pretzel logic."

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