Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘pro bono’

Pro bono as profit center, cont’d

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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“The Secret Life of Judges”

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.

Earlier: Apr. 3; June 2006.

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Podcast: The Role of State Attorneys General

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

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Your Prisoner Sex Change Update

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.

[…]

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.
…

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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June 8 roundup

  • Litigation as foreign policy? Bill authorizing U.S. government to sue OPEC passes House, and is already contributing to friction with Russia [AP; Reuters; Steffy, Houston Chronicle; earlier here, here, and here]

  • Albany prosecutors charge boxing champion’s family with staging 23 car crashes, but a jury acquits [Obscure Store; Times-Union; North Country Gazette]

  • New at Point of Law: Bill Lerach may retire; Abe Lincoln’s legal practice; Philip Howard on getting weak cases thrown out; “Year of the Trial Lawyer” in Colorado; and much more;

  • Multiple partygoers bouncing on a trampoline not an “open and obvious” risk, says Ohio appeals court approving suit [Wilmington News-Journal]

  • Skadden and its allies were said to be representing Chinatown restaurant workers pro bono — then came the successful $1 million fee request, bigger than the damages themselves [NYLJ]

  • Who will cure the epidemic of public health meddling? [Sullum, Reason]

  • Turn those credit slips into gold, cont’d: lawsuits burgeon over retail receipts that print out too much data [NJLJ; earlier]

  • Lawprof Howard Wasserman has further discussion of the Josh Hancock case (Cardinals baseball player crashes while speeding, drunk and using cellphone) [Sports Law Blog; earlier]

  • “Women prisoners in a Swedish jail are demanding the ‘human right’ to wear bikinis so they can get a decent tan.” [Telegraph, U.K.]

  • Disbarred Miami lawyer Louis Robles, who prosecutors say stole at least $13 million from clients, detained as flight risk after mysterious “Ms. Wiki” informs [DBR; earlier at PoL]

  • Indiana courts reject motorist’s claim that Cingular should pay for crash because its customer was talking on cellphone while driving [three years ago on Overlawyered]

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“Pro Bono” doesn’t mean cheap

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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NJ comp fraud case: lawyers settle out, workers nailed

When the Melard bathroom-components factory closed in Passaic, New Jersey, 112 workers were laid off, and more than 80 filed workers’ comp claims alleging that they’d been injured on the job but just hadn’t gotten around to reporting it previously. Mass comp filings of this sort are by no means rare following plant closings, at least in some parts of the country. However, the employer, Bath Unlimited — a subsidiary of Masco that does business as Melard — sniffed fraud, and decided to fight back. It sued the workers and the law firm that represented them, Ginarte O’Dwyer and Winograd, alleging racketeering:

The company claimed in its 2004 federal lawsuit that the Ginarte law firm and attorney [Michael] Policastro encouraged workers angry at being fired to file claims, most of which were identical except for employees’ personal information. According to the suit, the law firm directed workers to provide false information to doctors, and “virtually all” of the employees examined by physicians for Bath had no disabilities or none attributable to the company, the complaint charged.

The 84 worker-defendants did not make an appearance to contest the charges, and last month a federal judge signed a default judgment against them which leaves them personally on the hook for at least $2.26 million. (Greg Saitz, “$2.26M fraud judgment against workers shakes labor landscape”, Newark Star-Ledger, Mar. 21; “Workers penalty to be reviewed”, Mar. 30; John Petrick, “Workers must pay ‘compensation’ after losing claims suit”, Bergen Record, Mar. 25; Workers Comp Insider, Mar. 21 and Mar. 30).

Not surprisingly, the ruling has sent shock waves through the workers’ compensation and labor bar. Some of these lawyers argue as if granting employers any right at all to pursue fraud sanctions will impermissibly chill legitimate claims; presumably they imagine that the right to sue should forever be left a one-way affair. Others not unreasonably take exception to the severity of federal racketeering law’s treble-damage remedy (although the default “progressive” position, or so it seems, is otherwise to defend that same treble-damage remedy). Finally, and most cogently, they have pointed to the intrinsic harshness of the default judgment as a procedural device, which in this case has laid heavy burdens on unsophisticated immigrant workers, some of whom might plausibly have advanced the merits of their individual comp claims even if the bulk of the other 80-plus cases should be shown to be bogus.

But what of the law firm of Ginarte O’Dwyer and Winograd, which was at the center of the fraud scheme, if a fraud scheme there was? Well, this is the piquant part: after denying the allegations in court papers and trying unsuccessfully to get the federal case dismissed, the law firm settled separately with Bath/Masco/Melard on undisclosed terms. That protected its own interests, but left its former clients … well, “twisting in the wind” may not be too strong a way of putting it. The large law firm of Lowenstein Sandler has now stepped forward, acting on what it says is a pro bono basis, to attempt to get the default judgment against the workers overturned. (Greg Saitz, “Defending factory workers”, Newark Star-Ledger, Apr. 11).

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Update: Neuborne fee fracas

A federal judge in Brooklyn has recommended that the NYU lawprof be given about $3 million, or $1 million less than what he asked, for representing Holocaust-assets claimants. Some clients say they understood Neuborne to have said he was working pro bono (Jones/WSJ law blog, Mar. 16; Tom Perrotta, “$3 Million Fee Suggested for Neuborne for Work on Holocaust Survivor Issues”, New York Law Journal, Mar. 16). Earlier: Oct. 6, etc.

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OT: Abigail Alliance v. von Eschenbach

AEI lets me spend up to a day a week working on outside matters. I hadn’t done any litigating in a while, so when a pro bono opportunity for a good cause presented itself, I took it. Many other bloggers have already spoken on the issues presented by Abigail Alliance v. von Eschenbach, regarding the circumstances under which the FDA has the constitutional power to bar terminally-ill patients from being able to take potentially life-saving doctor-recommended drugs that have achieved Phase 1 approval, but have yet to receive Phase 2 approval from the FDA. (E.g., Jonathan Adler, Derek Lowe, Hans Bader, Orin Kerr, Eugene Volokh, Randy Barnett, Alex Tabarrok.) A 2-1 panel of the D.C. Circuit put limits on the FDA’s powers, but the full D.C. Circuit vacated for en banc review. With the able assistance of attorneys at O’Melveny & Myers LLP, Jack Calfee and I put together a group of all-star economists—Calfee, Dan Klein, Marginal Revolution blogger Alex Tabarrok, Ben Zycher, and one of my heroes, Sam Peltzman—and submitted an amicus brief on their behalf to the D.C. Circuit. While the case presents interesting issues of the due process clause and constitutional standing, the brief focuses on the economic issues underlying FDA drug regulation and the effect of the original panel’s decision on drug and medical safety.

Amicus brief (pdf).

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Sen. Edwards’ record (and some kind words)

Bill Dyer (Dec. 30), following up on Stephen Bainbridge (Dec. 28), has some thoughts about “whether Edwards’ career as a lawyer who primarily represented plaintiffs in personal injury cases is, by itself, a factor that ought to cut against his being President.” Along the way, he has some kind things to say about the authors of this site, which are much appreciated.

The question of what sort of pro bono work Sen. Edwards did during his legal career has also been getting attention recently (as in this guest post at Andrew Sullivan’s). For our take on that, see Jul. 27, 2004.

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