Justices Wary Of Enhanced Fees For Exceptional Work

By Ryan Davis

Law360, New York (October 14, 2009) -- The justices of the U.S. Supreme Court have expressed skepticism about whether judges should be allowed to increase fee awards for exceptional performance by pro bono plaintiffs attorneys in civil rights cases, raising concerns about how such enhancements can be applied and justified.

During oral arguments on Wednesday, several justices said they were worried that allowing judges to hand out enhanced fees in such a way seems ripe for abuse and appears difficult to justify to taxpayers, who foot the bill for the fees.

The case involves a class action on behalf of 3,000 foster children against Georgia state officials that alleged broad, systemwide failures in the state foster care system. The state has asked the high court to review a $10.5 million fee award issued to attorneys who filed the suit.

The fee award was millions more than the $6 million lodestar calculation, because the judge in the case deemed the work of the attorneys for the plaintiffs the best he had seen in 28 years on the bench.

Justice Samuel Alito told former Solicitor General Paul Clement, who is representing the lawyers, that he was troubled that the judge could make such an award based on his own experience and prerogative.

“It seems totally standardless, and I see no way of policing it, and I see a great danger that trial judges are going to use this as a way of favoring their favorite nonprofit foundation or their favorite cause or their favorite attorneys, because they think they generally do good work,” Justice Alito said.

“I don't know how you can provide standards for determining whether this kind of transfer is based on anything reasonable," he added.

Justice Ruth Bader Ginsburg raised the same issue, arguing that there will necessarily be variations from judge to judge in how they evaluate lawyer performance and how much more money lawyers are entitled to for exemplary work.

“Are there any handles that would prevent this from becoming just random — just — rudderless?” she said.

When Clement said that the matter should be a discretionary judgment on the part of judges, Justice Antonin Scalia retorted, “You say discretion. I say randomness.”

Justice Scalia pointed out that the judge's long time on the bench had a bearing on his decision, and that if he had been a judge for a shorter period of time, the lawyers might not have received such a large award.

Like Justice Alito, who said he found it “very troubling” that the enhanced award was paid by Georgia taxpayers, Justice Stephen Breyer raised concerns about how to justify the award.

Given the number of hours the lawyers billed on the case, the award translated into an average of $700,000 per year, which Justice Breyer said was “more money than 99 percent of the taxpayers hope to see in their lives.”

When the judge is calculating fees in such a case, “if it's a very, very high number in dollars per year, then I am tempted to think: Well, very high is enough. You don't need very, very, very high,” he said.

Clement argued that judges should be allowed to award the enhanced fees because it provides an incentive for lawyers to take civil rights cases.

Without them, he said, “you are basically guaranteeing that as I say the maximum you can make in a civil rights is the minimum you can make in any other kind of case.”

That argument appeared to find favor with Justice Sonia Sotomayor, who said, “How do you attract counsel that is better than the norm in that field to pursue as private attorney generals cases that Congress has determined are worthy of being pursued, unless you have a quality adjustment factor?”

Mark Cohen, the attorney representing the state of Georgia, maintained that that line of reasoning was an insult to civil rights lawyers who do their work all the time without enhancements.

If the standard is that the enhanced awards will be given only in truly exceptional cases, no attorney who wouldn't otherwise take a civil rights case is going to change his mind because “maybe the judge will say I'm the best he's ever seen or one of the best I've ever seen,” he said.

“It's not a rational reason to give out there to attract competent counsel. Counsel are going to take a civil rights case because they know if they prevail they are going to get their prevailing market rate,” he said.

Petitioners are represented by the Georgia attorney general and Troutman Sanders LLP.

Respondents are represented by King and Spalding LLP, Children's Rights and Bondurant Mixson & Elmore LLP.

The case is Perdue v. Kenny A., case number 08-970, in the U.S. Supreme Court.

--Additional reporting by Brendan Pierson