Should Civil Rights Lawyers Get Bonuses?

15 10 2009

An interesting case was argued this week before the Supreme Court. The main issue being whether Judges in civil rights cases have discretion to award “bonuses” over and above a lawyer’s typical hourly rates for success representing those alleged to have had their rights violated.

The justices heard arguments in Perdue v. Kenny A., brought by the state of Georgia to challenge a $4.5 million fee enhancement it was ordered to pay by a district court judge to reward lawyers who succeeded in reforming the state foster care system in a long-running class action. The enhancement would be on top of a $6 million “lodestar” award based on prevailing fees and hours billed. Lawyers for Children’s Rights Inc. and a private Atlanta firm worked on the case.

The idea behind the bonus idea has merit: To attract skilled lawyers to represent people claiming their rights are violated.  I’m sure in this particular case the idea of reforming the foster case system was also a very sympathetic cause.

However, winning plaintiffs in civil rights cases almost always are awarded fees and costs to be paid by the other side at the lawyer’s prevailing rates – why pay them more just because the judge is impressed by their efforts (I mean, isn’t that the goal of any lawyer anyway?)

Moreover, at least here in Chicago, there’s no shortage of lawyers devoting their practice to the prosecution of civil rights claims – there are many that do nothing else and get very, very rich doing so (yes, I landed on the wrong side of that particular ledger).

So the idea that more money is needed to attract lawyers to represent civil rights claimants doesn’t wash, at least here where I practice.  Likewise, indigent plaintiffs are routinely appointed counsel from the federal trial bar – and often have attorneys from some of the largest and most “prestigious” firms appointed to represent them.  Real “white stocking” top-100 firms.  Cream of the crop.

While these attorneys often like to tout that they are representing the plaintiff “pro bono,” I’ve never seen one turn down a fee award when the case goes to judgment and their client prevails.  While they have to wait for payment, in the end they get the rate they would have received if the plaintiff had been able to retain them at their normal hourly rate.  So, other than maybe the time value of waiting to be paid, they end up being reimbursed for their efforts.

But, in the end, I have a more pressing reason for disagreeing with the idea of enhancing the fee and cost awards to plaintiff lawyers in civil rights cases: It would increase the current unfairness that exists in civil rights cases.

Indeed, there is usually no shifting of fees to defendants when civil rights cases are defeated, short of showing that the claim was made in bad faith or was frivolous – an incredibly tough standard for any defendant to pass.

Likewise, even in these cases, the fee and costs awarded as a sanction generally are only assessed against the plaintiff, who generally has no funds to pay the defendants anyway – no matter how much money in defending the claim was forced by their suit.  Thus, the “unshared” risk defendants have in having to pay the plaintiff’s attorney – with no real expectation of being compensated in return should they win – often is a major reason extorting settlement in even hotly contested claims.

In many cases the exposure to the attorney fee claim and expenses alone makes it a very expensive gamble for the defendant municipality to take cases to trial – as even small victories for the plaintiff on any of their claims can often lead to hundreds of thousands in fees and costs being assessed.

Moreover, in the vast majority of civil rights cases I’ve handled, it is not the “bad actors” that end up paying either the judgment or the attorney fees and costs.  It is the municipal entity making this payment – meaning taxpayers who did nothing wrong are saddled with the expense.

I suppose I understand the concept of tilting the fee-shifting scale towards plaintiffs in creating an incentive for skilled attorneys to take the cases on.  However, the system is already severely tilted against municipal defendants.

I can’t count the times plaintiff attorneys have used their likely exorbitant fee and cost claim as leverage in settlement discussions – and have seen too many municipal representative’s eyes gloss over when I explain this added risk when discussing what to do about a certain case.

To add further risk to taxpayers would just be, well, unfair…

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