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Last month, attorneys from a private law firm known for its work defending prison systems in the Deep South entered their appearances on behalf of the state of Maryland in a decades-old class action lawsuit over health care and mental health treatment in Baltimore jails. Since then, the state Office of Attorney General has been largely quiet on how and why those attorneys were brought into the fold.
The Butler Snow LLP law firm has generated headlines in states such as Georgia, Louisiana and Alabama for garnering multimillion-dollar contracts in exchange for defending against a variety of allegations levied at those states’ correctional systems. One common thread appears to be that they are often civil rights class action lawsuits brought by advocacy groups, namely the American Civil Liberties Union and the Southern Poverty Law Center.
But, unlike in the Southern states, Butler Snow’s contract in Maryland was approved in part and maintained under Democratic leaders in the governor’s and attorney general’s offices who often proclaim their support for the civil rights of incarcerated people. And while the lofty costs of the contracts drew the attention of lawmakers in Alabama, the deal has faced little public scrutiny in Maryland.
Butler Snow’s task in Baltimore is to bring to an end litigation that stretches back to before the state corrections department took over the city jails in 1991. Over that time, the lawsuit has been settled, reopened, and settled again, with mixed results. It has forced an array of reforms at the jail and the closure of some of the most dilapidated structures, though independent monitors continue to report that medical and mental health care in the jail system is deeply flawed.
The hiring of the law firm comes as the state has lagged far behind on its plans to come into compliance with the terms of the latest settlement in the litigation, an agreement reached in 2016 that ordered overhauls of the health care system, improvements to facilities, better screening of inmates, timely delivery of medications and other mandates.
While the scope of the lawsuit is limited to the constitutionality of the health care and mental health system in Baltimore jails, it has also forced an atypical level of transparency. The corrections department has had to answer to independent monitors and allow plaintiff attorneys to tour its facilities, sometimes revealing horrific conditions.
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The attorney general’s office hired Butler Snow to accelerate its legal efforts in the case, but to what end remains an object of speculation. The ACLU, for its part, believes the state is digging in for a fight.
Whatever the outcome, the means are likely to be costly. Butler Snow has drawn notoriety in the South for its lofty price tags: garnering nearly $15 million in contracts to defend Alabama prisons, and charging Louisiana between $220 to $285 per hour to defend the relocation of teenagers to the notorious state prison at Angola, according to media reports. The latter effort was recently rejected by a federal judge.
In Maryland, the attorney general’s office has kept the finances of its deal with Butler Snow a closely guarded secret. The office said it was not in possession of any invoices filed by the law firm and has declined to disclose the hourly rate it is paying the private attorneys, saying it is “prevented” from doing so because the information is the “confidential commercial information” of Butler Snow.
In response to questions from The Baltimore Banner, the attorney general’s office said last week that the law firm’s contract was requested under the previous administration, led by Brian Frosh, and approved by former Gov. Larry Hogan. Still, the contract was executed and signed this year, and the current administration, under Attorney General Anthony Brown, has maintained the course.
The attorney general’s office has declined to provide much of an explanation for why it is pursuing the legal strategy, saying only that it is “working in the best interest of Marylanders and as expeditiously as possible to finish this critical work.”
“Although we cannot disclose confidential and privileged communications with our clients as to the specific reasons why assistant counsel might be necessary in a particular case or why a particular firm was chosen, we hire assistant counsel only when necessary and only upon consideration of their unique skill set and experience in helping us to represent the state most effectively in legal matters,” Jennifer Donelan, the agency’s spokesperson, said in an email — the office’s first on-the-record comments about the decision to hire the firm.
In response to a records request, the attorney general’s office provided a copy of the contract given to Butler Snow, but with two sections redacted: “scope of services” and “compensation and method of payment.” It also clarified that it procured the contract under a section of Maryland state code allowing the office to employ assistant counsel considered “necessary to carry out any duty of the office in an extraordinary or unforeseen case or in special county work.”
That means that the decision didn’t need to be publicized and was not subject to a request-for-bid proposal or the scrutiny of the state spending board — as almost all other state agencies are required to do. Butler Snow has not responded to requests for comment.
The attorney general’s office also declined to provide a copy of its written request for outside counsel to then-Gov. Larry Hogan, which may shed more light on why the law firm has been retained. A senior attorney at the office said providing the request “would not be in the public interest because it would chill free and frank discussions among government decision-makers and put our office at a disadvantage in litigation vis-à-vis other parties.”
The secrecy of the process has shielded Maryland’s business with Butler Snow from public scrutiny to an extent not seen in other states. It may also represent a shift away from transparency in the attorney general’s office.
Doug Gansler, a former Maryland attorney general who held office from 2007 to 2015, told The Banner that, “without specifically addressing this case, typically there is a desire for full transparency when spending taxpayer dollars on any case.”
“A well publicized RFP [request for proposal] is issued in almost in all circumstances,” Gansler said. “However, in rare cases where there’s a specialty that only a particular law firm has that unique expertise, then the RFP process would be circumvented and a sole source procurement would ensue.”
More on the Baltimore jail lawsuit:
David Fathi, director of the ACLU’s National Prison Project, which is representing the plaintiffs in the Baltimore jail class action suit, said he believes the state has struggled so much with coming into compliance with the terms of the settlement agreement that it is now trying instead to “litigate their way out of it.”
To support his theory, Fathi pointed to the request made by the state’s corrections department for legal consultants earlier this year, in which the agency said that it needed the outside attorneys to bring the litigation to a close within 18 months, — a quicker timeline than it had laid out in court filings for coming into compliance.
The request also detailed that the private attorneys would “participate in all aspects of representation of the state” in the litigation, which would “include ... potential hiring and preparation of expert witnesses for defendants, potential depositions of expert witnesses for plaintiffs,” among other responsibilities.
“There will only be expert witnesses if they try to terminate it [the settlement agreement] or otherwise litigate their way out of their obligations,” Fathi said.
The attorney general’s office declined to comment on what it considered to be legal strategy.
The two sides will meet in court in late October for a status conference recently ordered by the federal judge overseeing the case, against the wishes of the state.
AG (sort of) explains decision to clamp down on independent monitor
One issue likely to be discussed at the conference is the recent restrictions the state has put on the jail’s independent medical monitor.
Pressed for comment on its decision to bar the monitor from speaking with clinicians at the jail, as he has done since the 2016 settlement, Donelan, the office spokesperson, wrote that the monitor “was never prevented from performing his work.”
“Under the prior practice, department leadership could not ensure that the medical monitor was receiving all the information he was requesting,” Donelan said. “The change now centralizes the flow of information through the [corrections] department’s chief medical officer.”
She added: “The decision to make that change falls within the defendant’s discretion and was made to deliver the requested information most effectively and to ensure timely delivery.”
Fathi, the ACLU prison attorney, called the department’s explanation a “classic example of Orwellian double speak: ‘We’re prohibiting him from speaking to the clinicians so he can get the information he needs.’”
“Of course, it evades the very troubling fact that this was done unilaterally or covertly, without informing either the court or the plaintiff’s counsel,” Fathi added.
Butler Snow’s paper trail
The legal efforts by the Butler Snow team in Maryland will be spearheaded by William Lunsford, who was at a different firm, Maynard Cooper & Gale, when he first contracted with the state.
Lunsford joined the Butler Snow firm earlier this year with more than 20 other former Maynard Cooper & Gale attorneys to open an office in Huntsville, Alabama, according to reporting by Law360 that was republished on the Butler Snow website. The bolstered law firm now has more than 400 attorneys, the article said.
Lunsford’s dealings in the correctional sphere have earned him scrutiny from lawmakers and other media outlets. Notably, Lunsford briefly served on the board of advisers for the health care provider in Maryland prisons and Baltimore jails: YesCare, a correctional health care giant formerly known as Corizon Health.
That company entered into a controversial bankruptcy earlier this year before it split into two divisions, one of them rebranding as YesCare.
Across the South, Butler Snow has racked up tens of millions of dollars in legal billings in prison lawsuits. In Louisiana, plaintiff attorneys expressed shock that the law firm had run up nearly $3 million in legal defense fees before the trial had even started in a legal battle over one prison’s mental health services in the northern part of the state.
That money, the attorneys observed, “could have gone a long way toward fixing the conditions at David Wade that the lawsuit is meant to address,” the Shreveport Times reported.
Butler Snow’s website includes information about its “correctional litigation group,” citing the need to “manage increasingly complex litigation and risk management issues facing today’s correctional leaders and their agencies” in the face of “a barrage of complex and class-action lawsuits.”
The website promises: “Our team’s knowledge of the corrections industry, trial-tested experience, and innovative defense strategies ensure that agency professionals can fulfill their responsibilities without interference.”
bconarck@thebaltimorebanner.com
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Ben Conarck is a criminal justice reporter for The Baltimore Banner. Previously, he covered healthcare and investigations for the Miami Herald and criminal justice for the Florida Times-Union.
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