In Brief – In 2007, the U.S. Court of Appeals for the Second Circuit ruled that a judge could reduce an award of civil rights attorneys’ fees based on consideration of whether the winning client’s lawyer, in undertaking the case, may have been motivated by the prospect of achieving what the court termed, a “reputational” gain. The Brennan Center organized and signed an amicus brief, along with 28 other public interest organizations, legal services organizations, and civil rights law firms, requesting that the Second Circuit rehear the case and correct its ruling. The Court did not grant rehearing, but ultimately issued two subsequent opinions, each taking a step toward mitigating the problem.
Procedural History – On August 22, 2003, the U.S. District Court of Northern New York awarded attorneys fees to plaintiff’s counsel following plaintiff’s victory in a civil rights case brought under the federal Voting Rights Act. The U.S. Court of Appeals for the Second Circuit affirmed the decision in on April 24, 2007. The plaintiff then sought rehearing and rehearing en banc from that Second Circuit. The Brennan Center’s amicus brief supported the request for rehearing. The Court denied the request for rehearing, but issued a second fee decision, dated July 12, 2007, modifying the language to which the plaintiff and amici had objected. On April 10, 2008, in response to the petition for rehearing, the Court issued a third fee decision, further modifying the controversial language.
Question Presented – The Brennan Center’s amicus brief argued that the Court had authorized an improper reduction in the attorneys’ fees available to pro bono lawyers by penalizing them for acting on motives other than the goal of making money. The brief also argued that the Court failed to consider past decisions rejecting this principle, and ignored the goal of the attorneys’ fee statute which was intended to ensure that an adequate number of attorneys would be available to represent clients seeking to enforce civil rights laws.
In Detail – The Second Circuit observed that lawyers “obtain considerable non-monetary benefits-in experience, reputation, or achievement of the attorneys’ own interests and agendas” when litigating civil rights cases. The Court disregarded the purpose of the fee-shifting provisions of the Voting Rights Act by holding that a judge could choose to apply a lower compensation rate based on the market notion that “a thrifty hypothetical client” would have been able to get a lawyer to take a civil rights case for less than the usual rate.
In fact, the Voting Rights Act’s fee provisions were intended to inspire lawyers to undertake civil rights cases specifically because the market, alone, would otherwise not provide financial incentive sufficient to ensure that the cases would find lawyers. The ruling also conflicts with fee-shifting provisions that Congress passed specifically to encourage fee comparability for public interest and private attorneys. Statutory provisions for fee awards in civil rights cases are designed to, and do, provide the financial incentive necessary for lawyers to take on civil rights litigation. The Brennan Center’s brief argued that the Court’s ruling was inconsistent with Congress’ intent to promote enforcement of civil rights laws, and that it could have far-reaching negative consequences on civil rights lawyers’ financial ability to continue to take on civil rights litigation and to represent those with limited ability to pay.
While the Second Circuit did not grant rehearing, it ultimately issued three fees opinions. In the second opinion (the first corrected opinion), the Court inserted a footnote usefully stating that the court’s intention had not been to alter the basic law governing civil rights attorneys’ fee claims. In its third opinion, issued months later, the court enlarged the same footnote, and quoted one of its previously omitted precedents for the proposition that: “[N]or is the award necessarily limited because the attorney has agreed to undertake the case for a reduced fee compared to the customary market rate.”
These changes substantially corrected the problem, although they did not entirely eliminate the possibility of subsequent litigation on the issue.