Pro bono as profit center, cont’d

by Walter Olson on September 7, 2007

Just so you’re totally clear on the meaning of the term pro bono when you read it from now on:

McMinimee [Seattle Public Schools attorney Shannon McMinimee] says it’s “disingenuous” for the law firm, Davis Wright Tremaine, to go after money when the firm took the case pro bono. But firm spokesman Mark Usellis said “pro bono” means their clients don’t have to pay.

“The thing that’s really important to us in a civil-rights case is that Congress specifically and explicitly wrote into the law that if the government is found to have violated citizens’ civil rights, then the prevailing party should seek fee recovery,” he said.

Most governments can argue, as Seattle Public Schools is, that they don’t have much money. But going after the fees helps deter other government bodies from violating civil rights, Usellis said….

If the firm wins, the fees likely wouldn’t be covered by the district’s insurance carrier, McMinimee said. So the money would have to come out of the district’s $490 million general-fund budget.

(Emily Heffter, “Law firm wants school district to pay $1.8M”, Seattle Times, Sept. 6).

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1 Tom T. 09.08.07 at 12:15 am

I hear what you’re saying, but let me offer the argument from the other side. The law is the law, as far as the “prevailing party” provision goes. If the parents can establish that they are a prevailing party (and substantively I have no idea whether they can or not; this isn’t my area), and Davis Wright had been billing them all this time, the school system would presumably be liable for their fees, without much question. Why, then, should the school system (i.e., the losing party) be entitled to a “windfall” due to Davis Wright’s decision not to bill the parents for seven years?

Put another way, if one is committed to the concept of and policies behind “loser pays,” then the billing structure that either counsel adopts as to its own client should be irrelevant.

2 Anonymous Attorney 09.10.07 at 3:17 pm

By this standard, most plaintiff’s attorneys are “pro bono.”

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