Attorney Fees

Flummoxed by a Fee Footnote

A new footnote provides quite a kicker in a revised opinion on how to determine attorney fees in pro bono cases.

Lawyers are wondering: Does it mean that pro bono lawyers are generally entitled to the usual attorney fees—or something less—when they win a public-interest case?

The 2nd U.S. Circuit Court of Appeals had ruled in April that lawyers may be paid partly in “non-monetary returns” when they win cases that boost their “experience, reputation or achievement of the attorneys’ own interests and agendas.”

A host of public-interest groups supported Gibson, Dunn & Crutcher in its motion for a rehearing. The New York-based court had awarded the firm only $133,000 out of $445,000 in requested fees in the voting-rights case. (See this post for more details.)

Yesterday, the court denied the motion for a rehearing, but added an interesting footnote 2 in an amended opinion, the New York Law Journal reports.

It read: “Our decision today in no way suggests that attorneys from nonprofit organizations or attorneys with private law firms engaged in pro bono work are excluded from the usual approach to determining attorneys’ fees. We hold only that in calculating the reasonable hourly rate for particular legal services, a district court should consider what a reasonable, paying client would expect to pay. See Pastre v. Weber, 800 F. Supp. 1120 … (finding force to the ‘argument that [defendant] should not be required to pay for legal services at the rate Hughes Hubbard would charge to [its corporate clients].’ ”

Mitchell Karlan of Gibson Dunn, who was co-lead counsel in the case, told the legal newspaper that he reads the footnote “to have reaffirmed the principle that prevailing plaintiffs in civil rights cases are entitled to an award of attorney fees at the prevailing market rate.”

But lawyers for amicus parties that supported Gibson Dunn said the footnote is confusing and appears to conflict with the text of the opinion.

The amended opinion is Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany (PDF), No. 06-0086.

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