One of the secrets of so-called “pro bono” work is that it often isn’t pro bono at all. Instead, it’s really contingency work: firms don’t bill their clients, but if they win, they recover their fees under various statutes, such as the Voting Rights Act, that require the loser — often the government — to pay the attorneys fees of the winner. These statutes are designed to incentivize law firms to take these cases — cases where the plaintiffs often can’t pay and where there’s no big monetary award at stake from which the attorneys can take a cut.
But if the attorneys would take the cases anyway, even if they didn’t get paid all that money, does it really make sense for the courts to award them all their fees? Last month, in a Voting Rights Act case, the Second Circuit said, “Not necessarily.” (PDF.) Rather, the courts should look at how much the plaintiffs would have to pay in the marketplace to convince lawyers to take the cases, and should award fees on that basis. The courts should consider whether these lawyers are really taking the cases “to promote the lawyer’s own reputational or societal goals” — and if so, the court should only award a portion of the fees. (One factor the Second Circuit glosses over is that many of the large law firms that take these cases — Gibson, Dunn & Crutcher handled this particular case — don’t really care about the fees; they really use these cases as a way to provide free training to their younger attorneys without having to risk cases involving their paying clients.)
(Gibson, Dunn’s credibility when making their fee request presumably wasn’t enhanced by the fact that they had previously tried to bill over $100,000 for 300 hours of work when “the entire argument section of the brief on this single-issue appeal occupied barely six pages.”)
But Adam Liptak (Time$elect, May 28) reports that many civil rights groups and other “public interest organizations” are up in arms over this decision, terrified that they might be forced to shop around for attorneys instead of getting taxpayers to pay for attorneys at the highest big firm rates for their causes:
In a flurry of legal filings last week, the lawyers, supported by two bar associations and 29 public interest organizations — including the Urban Justice Center, Public Citizen, the Natural Resources Defense Council and several affiliates of the American Civil Liberties Union — begged the court to reconsider.
“It really is a dangerous decision,” said David Udell, a lawyer with the Brennan Center for Justice at New York University, which represents the public interest groups. “What the court does is say that legal work is less valuable when the lawyers’ hearts are in it.”
That’s not actually what the court said at all; what the court said was that lawyers shouldn’t get paid more by taxpayers than they would if they were hired on the open market.
6 Comments
“to promote the lawyer’s own reputational or societal goals”
Societal goals? Why, what would those be? And shouldn’t those pressing for “societal goals” be somehow connected to something democratically accountable? Oh, silly me. If you can’t beat ’em, join ’em. Conservative public interest law, rock on.
Isn’t one of the “benefits” for lawyers doing pro-bono work that they get a deduction on their income taxes? Seems to me that pro-bono could be a pretty lucrative sideline.
Jim, I’ve never heard of that, but anyone looking for the world’s best evisceration of the sappy big-firm world of “pro bono” should read Heather MacDonald’s lengthy article on it for City Journal, here:
http://www.city-journal.org/html/10_2_what_good_is_pro_bono.html
David,
Liptak wrote, “That is, for better or worse, how real-life pro bono works.” No, that’s not really how pro bono works. Work on a contingency is not pro bono.
The big problem with paying lawyers according to what they would get on the open market is that, by the time the court is deciding what they should be paid, they have already won the case (because the winner doesn’t have to pay the loser’s fees). So the “market price” for legal services is the amount a reasonable client would pay for assured victory, which is likely substantially more than they would be willing to pay for the chance of winning.
I’ve written a little more about the Arbor Hill case here.
Mark Bennett
Defending People Blog
Isn’t one of the “benefits” for lawyers doing pro-bono work that they get a deduction on their income taxes? Seems to me that pro-bono could be a pretty lucrative sideline.
Jim, you can’t get a tax deduction for donating services — only money or tangible goods. (Presumably because it would be too easy to manipulate the donation of services.) Of course, what they’ll sometimes do is donate their court-awarded fees to charity and take the deduction that way.
David,
Are you sure about that? I did some computer work for a local charity. I did it voluntarily, but the Administrator asked me my hourly rate for this type of work and asked me to punch in and out. When I completed my work, she presented me with a form that listed my hours and my hourly rate and the work that I did. She told me that the reciept was so that I could submit my the value of my time as a charitable contribution on my income taxes. I don’t itemize so it wasn’t needed, but she said that this was done all of the time and it has never been questioned.