More Fights About Pro Bono Fees
If you're a fan of the tree falling in the forest genre of riddles, consider this one: If a law firm seeks recovery of fees at its standard rates for a case that it originally accepted on a pro bono basis, does the work still count as pro bono? That's a question that I've twice posted about, here and here. And as this National Law Journal story reports, it's a question that crops up with increasing frequency as more large firms seek large fees for pro bono work.
As the NLJ article describes, Seattle-based law firm Davis Wright Tremaine filed a petition to recover nearly $1.8 million in attorneys fees for representing the plaintiffs in PICs v. Seattle School District. The plaintiffs successfully challenged the constitutionality of the Seattle Public Schools' (SPS) policy of using race to determine which school students could attend. The SPS opposes Davis Wright Tremaine's request, arguing that seeking payment is "disingenuous" because the firm held itself out as representing the clients pro bono. However, Davis Wright defends its position, asserting that its clients asked the firm to pursue recovery of fees, which is a well-established civil rights remedy.
There is precedent for a large fee award, however. Last year, Skadden, Arps, Slate, Meagher & Flom received $1 million in fees in a pro bono suit on behalf of workers who sued a restaurant for failing to pay their tips. The firm recovered $700,000 for the workers in addition to the $1 million fee award. Skadden did not keep the fees, but donated the money to nonprofit groups. Daniel Hochheiser, who represented the restaurant criticized the court's judgment, asserting that:
you also had a large law firm telling everybody that they're doing the case pro bono...
The general understanding of pro bono is that you're volunteering your time and effort without compensation, or without expectation of compensation."
Firms have frequently sought fees for pro bono cases. But the difference now is that large firm billing rates have skyrocketed. As such, the amounts sought in pro bono matters today are much greater than they were in the past. Moreover, with so many more young lawyers desperate for hands-on experience, my own guess is that many pro bono cases are now more heavily staffed by less experienced attorneys, who run up more hours.
I don't have a problem with firms that handle cases pro bono and recover fees that are then donated to a pro bono organization. Since the firms aren't obtaining a financial benefit, then their work is still fairly characterized as pro bono.
At the same time, even if firms perform work pro bono, that shouldn't give them carte blanche for an exhorbitant fee request. Courts need to closely scrutinize the bills submitted by firms for pro bono work -- particularly because the client isn't paying the bill. In ordinary situations where a client pays a lawyer, the client's budget limits the size of the bill. When clients pay, firms can't overstaff or pursue every single deposition or defense because the clients won't always authorize those expenditures. By contrast, where a firm uses a pro bono matter as training and the client doesn't pay, a bill can easily get out of hand and well exceed what a reasonable client would have paid for the same service. In awarding fees for pro bono work, the court needs to keep in mind what a reasonable client would have paid for comparable service, and not what a large firm, working on a "sky's the limit" budget ultimately asks for in its fee petition.
Posted by Carolyn Elefant on February 8, 2008 at 03:59 PM | Permalink
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