In his article, Feeding Lawyers' Souls but Not Their Wallets, New York Times writer Adam Liptak reports on a recent federal appeals court opinion confirming the old legal saw that bad facts make bad law.

Should Pro Bono Attorneys Be Required to Accept "Psychic Reward" When Their Clients are Entitled  Attorneys Fees?

It seems that Gibson Dunn prevailed in a federal Voting Rights Act case after eight of its attorneys devoted 300 hours to the legal effort, resulting in a $107,000 bill, to be paid by the taxpayers of Albany County.

Most law firms the size, sophistication and power of Gibson do a lot of high profile pro bono work, with no expectation of reward.  When the law permits the recovery of legal fees, however, they are as entitled to be reimbursed as any other lawyer -- be s/he a solo practitioner, a public advocacy group, or a mid-sized law firm.

Sometimes only a firm like Gibson is capable of handling "small" cases on behalf of public-sprited NGO's.  I know.  I represented the Rain Forest Action Network when Occidental Petroleum brought suit against it for picketing the CEO's house in Brentwood.  Right or wrong, this is the type of case most attorneys could handle with a bit of a brush-up on the recent constitutional law on picketing.

Later, however, RAN needed an attorney to respond to a congressional subpoena implicitly threatening its tax-exempt status.  There aren't a lot of attorneys who can do this work, so I lateraled it to an AmLaw20 firm, with a D.C. office and lawyers capable of responding to power with power.

Let's Give the Federal Judges a Raise!

Federal judges -- all of whom are long past due for a pay raise -- sometimes cast a skeptical eye on fee requests by major international law firms.  When first year attorneys at these firms are making more than federal judges, we understand how it rankles.

But the "psychic reward" calculus seems not to have precedent -- nor credible legal basis -- as a response to any attorney's request for fees, be s/he a Gibson lawyer or a solo practitioner.     

Let's Get Back to Judging Fee Requests by their Merit

First, Voting Rights fee provisions are not simply meant to reimburse counsel.  Rather, we suspect, the exception from the "American Rule"  that governs most litigation, is to encourage attorneys -- not all of them Gibson, Dunns -- to take on cases for indigents harmed by civil rights abuses. 

We also suspect that fee awards in Voting Rights Act cases have some punitive purpose -- to encourage the government, for instance, to abide by the Act without lengthy and expensive legal resistance.

And hey!  Some attorneys get a lot of psychic reward from representing their corporate clients, not all -- or even most -- of whom are Simon Legrees of capitalism.  Rather, they're the types of enterprises that keep the American economy humming along for the benefit of most of our citizens. 

Would a court suggest that Yahoo's attorneys, or Google's, should be satisfied by the good they do for the economy of the country rather than seeking actual cash payment for the work they do?  What if their representation of Apple gives attorneys not only the "psychic" reward of playing golf once a week with the CEO, but also social capital -- access to people who can connect you to others who can make you even richer and more powerful than you already are. 

Should we consider that when granting or denying fee awards to the attorneys for Microsoft?

No Good Deed Goes Unpunished

We  shouldn't read this case as a happy occasion to bash attorneys who are signficantly more financially successful than the rest of us.  Rather, we should read it for the decision it is -- yet another occasion to confirm a second class status for the least of us, who this federal court presumes should be content to accept charity from attorneys who cannot hope to recover the fees that might be awarded if they represented clients with sufficient funds to to pay their attorneys in the first instance.   

If Gibson's fee was excessive, it should have been measured as all fee awards are -- based upon the sophistication and difficulty of the legal work required, the amount of time expended and the result achieved.

The fee should not, however, rest upon some unmeasurable "psychic award" that public spirited lawyers presumably receive when working pro bono or for a "good" cause.  

And the Settlement Angle? 

The news here is far from good as well.  If the indigent plaintiff is treated as a second class citizen by the courts, the wrongdoing defendant benefits at the expense of a good samaritan.  With more bargaining chips in hand, the defendant can cut a more advantageous bargain for itself.  The plaintiff -- bent primarily upon the public good -- must be satisfied with a lesser monetary reward and fewer bargaining chips to achieve the social justice s/he seeks.

Gibson did a good deed and is repaid for its public service by derision from the bench for its financial success and a diminished fee award.

No good deed goes unpunished.