Chronicling the high cost of our legal system
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The Center for American Progress is hosting two panels on the topic “Legal Services for the Poor in an Economic Downturn,” this Wednesday, July 8. I’m on the first panel with Peter Edelman and Don Saunders from 12 to 1. A “light lunch” will be served at 11:30. I’ve spoken before on this topic in rooms where I was the only person on the center-right, but it’s always nice to see a friendly face.
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The founding dean of the ideologically charged new law school at the University of California, Irvine, is already taking a hand in Orange County public affairs by suing the town of Laguna Beach on behalf of homeless persons: he and his public-interest-law colleagues “want a federal judge to enjoin enforcement of Laguna’s anticamping ordinance until the city builds more no-strings-attached homeless housing.” [Heather Mac Donald, WSJ] More: Chemerinsky offers to debate Mac Donald.
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In the latest Liability Outlook, I rebut the ABA’s resolution for guaranteed taxpayer funding of civil lawyers for the poor, expanding on my earlier ACS talk:
[The poor] will trade higher rents and higher taxes for the right to legal services that often will not help them.. . . [P]arties with meritorious cases will find it harder to signal to overwhelmed judges that their cases are distinguishable from the vast majority of meritless cases with appointed counsel that the courts will see every day.
Larry Ribstein approves: “The ABA resolution should be seen as what it is: a justification for rent-seeking by the organized bar.”
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Apparently not quite so pro bono as all that, reports the Washington Times: a Kuwait-based group backed by the government of that wealthy Arab state has kicked in nearly $4 million to the legal effort. Firms receiving Kuwaiti funds include Shearman & Sterling, Arnold & Porter and Pillsbury Winthrop. “The Kuwait-based group also has financed a public relations campaign run by Levick Strategic Communications in Washington” toward the goal of “due process for the detainees held at Guantanamo Bay”. (Jim McElhatton, “Kuwait helps pay detainees’ legal bills”, Jul. 25)(via Elefant).
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Here are my prepared remarks for the June 14 panel at the ACS convention. My actual remarks differed from this somewhat, as I extemporized a bit and, by my watch, I didn’t get my full ten minutes before the moderator cut me off:
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Toldjah so: The Virginia Supreme Court has unanimously ruled against Lisa Miller of Winchester, who has been ignoring a duly issued Vermont court order providing her former lesbian partner Janet Jenkins with rights of visitation to the child they had been raising together. Miller’s defiance of the law had been backed by Liberty Counsel, the ironically named pro bono group headed by the dean of Jerry Falwell’s Liberty University School of Law, as well as other conservative religious figures such as Chuck Colson. Despite misreporting to the contrary in some quarters of the conservative press, the case had nothing to do with recognition of the former couple’s Vermont civil union, nor did it eventuate in an award of custody (as distinct from visitation) to Jenkins. (AP/Newport News Daily Press; Ed Brayton and more; our earlier coverage).
A customer complained to the staff that a man was in the women’s restroom in the Greenwich Village restaurant Caliente Cab Co. Given the risk of multi-million dollar liability of failing to act in the face of a warning if a customer were assaulted by a man in the women’s restroom, a restaurant bouncer ejected Khadijah Farmer, Khadijah’s girlfriend, and a third in their dinner party.
Unfortunately for the restaurant, Khadijah Farmer was not a man, but an extraordinarily masculine-looking lesbian (who says she is mistaken for a man on a “daily basis”).
Further unfortunately for the restaurant, New York City has an unusual law prohibiting discrimination on the basis of “sexual stereotyping.” Further further unfortunately, Ms. Farmer wasn’t satisfied when the restaurant offered her a free meal in response to her complaint, and went straight for the lawyers. Further further further unfortunately, a top-tier law firm agreed to work the case “pro bono,” assigned three attorneys to it, and ran to the courthouse, even after the restaurant agreed to sensitivity training for its employees.
Let’s agree: the bouncer made a mistake and should have taken the opportunity to look at Farmer’s ID. Women shouldn’t be thrown out of women’s restrooms for looking like men, though one who looks as masculine as Farmer has to reasonably expect questioning unless we’re going to go the unisex bathroom route.
Damned if it does, damned if it doesn’t; up against a law firm using a bazooka to kill a mosquito; and in a neighborhood where being on good terms with the gay community is important for business relations, the restaurant, facing weekly pickets from the Queer Justice League, rolled over and settled for $35,000 + $15,000 in attorney’s fees, which will eventually be extracted from the restaurant’s clientele in the form of higher prices. (Jennifer 8. Lee, “Sexual Stereotypes, Civil Rights and a Suit About Both”, NY Times, Oct. 10; Jennifer 8. Lee, “Woman Wins a Settlement Over Her Bathroom Ouster“, NY Times, May 14; Andy Humm, “Calls to Boycott Caliente Cab Company”, Gay City News, Jul. 19).
I ate at the Caliente Cab Co. on Bleecker in the summer of 1988 when I lived on 12th and University; next time I’m inclined to eat there, I’ll let them throw me out of the restaurant for a fraction of what they paid Ms. Farmer. (Similarly: Gothamist commenters.)
The good news is that the legal problems of New York’s poor and non-profits have been so thoroughly resolved that a law firm can devote substantial pro bono resources to punitively harassing a small business over a bouncer’s not especially unreasonable misunderstanding, and has successfully trained a couple of young associates that they can file a lawsuit to extract tens of thousands of dollars over a $50 dispute. Do Morrison & Foerster’s clients know that this is the kind of litigation they’re subsidizing?
Previously on pro not-so-bono: October 2004.
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Another instance of the decidedly Pickwickian sense in which some in the legal profession use the term pro bono:
Last year, a federal judge awarded nearly $1 million in attorney fees, costs and prejudgment interest to Skadden, Arps, Slate, Meagher & Flom in a case involving workers at a restaurant in New York’s Chinatown. Chan v. Triple 8 Palace, No. 1:03-cv-06048 (S.D.N.Y.). The New York firm took the case pro bono in an attempt to collect unpaid tips on behalf of the workers.
The firm succeeded. But its request for attorney fees turned heads, especially since the workers received about $700,000.
“And you also had a large law firm telling everybody that they’re doing the case pro bono,” said Daniel A. Hochheiser, a partner at New York’s Hochheiser Hochheiser & Inwood, which represented the restaurant.
“The general understanding of pro bono is that you’re volunteering your time and effort without compensation, or without expectation of compensation,” Hochheiser said.
The case is being compared in several quarters to the Seattle school-suit fee request discussed in this space Sept. 7 and Sept. 23. (Amanda Bronstad, National Law Journal, Feb. 8; Elefant; Cal Blog of Appeal (to whom we’re happy to send the traffic). We briefly noted the Skadden fee ruling last summer.
P.S. Commenters point out — and it’s appropriate to note here as well — that Skadden, unlike Davis Wright Tremaine, says it’s giving away the fee award.
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It’s sparking further discussion:
Hey, Davis Wright Tremaine, and your clients, the parents who sued the district: This is insane.
You argue this isn’t to enrich the firm, but to punish the district. The theory is that the fees, at $1.8 million and rising, are a lash to whip the district for its bad race-based deeds.
When I called the lawyers Tuesday, they compared it to, among other cases, their pro bono defense of a prisoner beaten by L.A. jail guards.
This makes no sense. Seattle’s policy wasn’t intended to hurt anyone, let alone beat them to a pulp.
(Danny Westneat, “The bill just keeps going up”, Seattle Times, Sept. 19; Emily Heffter, “Billing in ‘pro bono’ cases is fodder for ethics debate”, Seattle Times, Sept. 18; Above the Law, Sept. 18).
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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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Via Adam Liptak’s (TimesSelect) column, Judge Dennis Jacobs has given an important speech (published in the Fordham Law Review), describing a problem we have noted here before:
I am not—I repeat, I am not—speaking about a bias based upon politics or agenda, economic class, ethnicity, or para-ethnicity. When I refer to the secret life of judges, I am speaking of an inner turn of mind that favors, empowers, and enables our profession and our brothers and sisters at the bar. It is secret, because it is unobserved and therefore unrestrained—by the judges themselves or by the legal community that so closely surrounds and nurtures us. It is an ambient bias.The result is the incremental preference for the lawyered solution, the fee-paid intervention or pro bono project, the lawyer-driven procedure, the appellate dispensation—and the confidence and faith that these things produce the best results. It is an insidious bias, because it is hard to make out, in the vast maze of judicial work and outcomes, the statutes, doctrines, and precedents that are woven together like an elaborate oriental rug in which the underlying image of the dragon emerges only after you stare for a while. I discern in this jumble a bias in favor of the bar and lawyers: what they do; how they do it; and how they prosper in goods and influence.
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The Federalist Society has posted a podcast of their recent panel:
Recently there has been growing discussion concerning the appropriate role of state Attorneys General. Some argue that state AGs have overstepped their boundary by prosecuting cases and negotiating settlements that have had extraterritorial effects, and sometimes even national effects. Others argue that state AGs are simply filling a vacuum left by the failure of others (for example, federal agencies) to attend to these issues. In light of this debate, the Federalist Society hosted a panel in Washington, D.C. featuring several state Attorneys General who discussed the proper role of state AGs.Panelists included:
* Hon. Bob McDonnell, Attorney General of Virginia
* Hon. Donald Stenberg, former Attorney General of Nebraska; Erickson & Sederstrom
* Hon. John Suthers, Attorney General of Colorado
* Hon. J. B. Van Hollen, Attorney General of Wisconsin
* Ms. Peggy Little, Little & Little; Director, Federalist Society Pro Bono Center, Moderator
A Massachusetts inmate serving life in prison for murder is in court demanding the state pay for a sex-change operation:
The case of Michelle — formerly Robert — Kosilek is being closely watched across the country by advocates for other inmates who want to undergo a sex change. Transgender inmates in other states have sued prison officials, and not one has succeeded in persuading a judge to order a sex-change operation.
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Kosilek, 58, was convicted of strangling his wife in 1990. He claimed he killed her in self-defense after she spilled boiling tea on his genitals.
Robert Kosilek legally changed his name to Michelle in 1993, and has sued the Correction Department twice, arguing that its refusal to allow a sex-change operation violates the Eighth Amendment protection against cruel and unusual punishment.
Naturally, expert witnesses are lining up to defend Kosilek, and a law firm is representing him pro bono:
Two other doctors retained and paid for by the department’s outside health provider, the University of Massachusetts Correctional Health Program, at a cost of just under $19,000 said they believe the surgery is medically necessary for Kosilek. Two other doctors who work for the health provider agreed with that.
In addition, two psychiatrists who testified for Kosilek recommended the surgery. A Boston law firm representing Kosilek for free paid for those experts but would not disclose the cost.
Aside from the propriety of taxpayers paying for a sex change operation (which Kosilek may or may not have been able to pay for himself had he not been in prison), corrections officials are correct that having a (now) woman in a male prison could pose significant problems. It is almost a given that should the operation be performed, Kosilek would petition to be moved to a women’s prison to protect his own safety.
Also, note the interesting correction at the bottom of the story:
(This version CORRECTS `himself’ to `herself.’)
Kosilek hasn’t had the sex change yet, so technically he is still a man – apparently the newspaper thought so, too. It would be interesting to find out who compelled them to change the story to portray Kosilek as a female – and in the process perhaps avoid their own lawsuit.
As noted in the story, Wisconsin went through a similar situation in 2004 when inmate Scott (now Donna Dawn)Konitzer was denied genital gender reassignment surgery by the Department of Corrections and sued the state. Department policy had been to provide hormone therapy to those who had been receiving it for a year before their incarceration, but surgery was not provided as an option. As Kosilek now has, Konitzer claimed denial of the procedure constituted “cruel and unusual punishment” in violation of the Eighth Amendment to the U.S. Constitution.
As a result of Konitzer’s lawsuit, the Wisconsin Legislature actually passed into law a ban on both hormone therapy and gender reassignment surgery. Naturally, that new law has been challenged in U.S. District Court in Milwaukee.
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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.
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Point of Law Volokh
