Attorney Fees,  Blogging,  Ethics

Pro Bono Attorney Fees in the News Again

Dollar SignNational Law Journal has a new article called Pro Bono Case Triggers a Fee Fight on the controversy surrounding the attempt of a Seattle BigLaw firm (Davis Wright Tremaine) seeking to recover its attorney fees under a fee-shifting statute even though it took the case pro bono. The case was the closely watched “Seattle Schools” case decided by SCOTUS last year. (If you want some background from the view of the losing party, the school district’s press release from the day of the decision is available as a PDF download.)

In a very detailed post entitled The Pro Bono Road to Riches! last October, I discussed the issue in the context of a California case, in which the dictum of the Court of Appeal seemed to indicate a predisposition to awarding fees in pro bono cases. In that case, the trial court trimmed the fee request by 50% right off the top because it deemed the engagement “mildly pro bono,” and ultimately awarded less than one third of the amount requested. The Court of Appeal’s dictum leaves little doubt that the firm left plenty of money on the table by not cross-appealing to contest the amount awarded. (My earlier post includes several links to information about the Seattle Schools case, by the way.)

My post caught the attention of the Overlawyered blog, which sent me a ton of traffic when they linked my post. In fact, the traffic from Overlawyered was responsible for my highest traffic ever for a single day, and accounts for the anomalous bump in traffic during October that you see in the chart to the right. Clearly, this is a hot issue. So I also followed it up with an article in our local bar publication, CITATIONS.

I continue to believe that a large part of the controversy in the Seattle Schools case is driven by the nature of the party from whom fees are sought: a school district. Obviously, many members of the public are going to think that the district has better uses for the money. (Of course, there were probably a lot of people who said the same thing about the money spent by the district in fighting the case.) I wonder, though, if the people who are outraged at the firm seeking fees from the school district would have been just as angry with the firm in the case I profiled, which successfully represented more than 30 tenants seeking damages on various causes of action arising from the landlord’s refusal to let the tenants return to their units after they were evacuated from an unsafe building by the city. That firm, too, was a BigLaw heavy-hitter, but I’m sure the landlord of an unsafe building is going to get far less sympathy from the public than a school district.

One commentator in the NLJ article raises a point I made to a reporter who called me about my post: Is it right for well-heeled firms who often burnish their images by conspicuously accepting pro bono engagements to then seek fees for those engagements? This is an especially valid question if the firm announces the engagement with some fanfare but keeps the fee request rather quiet. It makes one wonder whether anyone honored for their pro bono work has actually been collecting fees for part of it.

Actually, that wouldn’t bother me, as long as fees were disclosed. A semi-pro bono case — in which an attorney agrees to an engagement for which he is paid only if he can recover fees under a contractual or statutory provision — is really just another form of contingency fee case, with all of the same risks.

Hat tip to How Appealing for the link to the National Law Journal article.


  • Franz Criego, Esq

    There is no shame at all. I recently took on a pro bono case because not one attorney in the Los Angeles area would handle the case of an 86 year old female widow who managed to loose her entire life savings in excess of $265,000 to three shyster contractors who ultimately destroyed her house as well. You think that after I dumper $10k of my own money into the litigation that I am not supposed to receive one dime for my time. Pro Bono does not mean that the defendants get take advantage of my services, it means that when they loose, the must pay the attorney as well. If I were paid, they would most certainly need to reimburse my client, so why should they not reimburse me for my time?

  • Verka

    This is why an attorney cant get into heaven…They have no heart! Today our world is falling apart. I am not religious at all, but I can say that I have read parts of the book people call the bible. If people pay attention to what it says and what we do, it would show them that WE, the people are causing things to happen. Not a god. If people would care, we would not have to be so greedy. Money would not be an issue. We have all become lazy. People need to come together and care again. Have a heart…..including the businesses and governements! And no, Im not a poor person. But I do choose to give and share. We can work to make change.

  • Darren Chaker

    What if Davis Wright Tremaine (DWT) didn’t take the appeal? Then a pro per litigant could have made bad case law for all others by being tackled by seasoned appellate counsel. However, DWT took the case not knowing whether it would prevail. It did so and are justified in seeking attorney fees.

    To look at it another way, what if DWT was not a mega-firm, but a small pro bono law firm relying on donations to make ends meet? No doubt it would be entitled to fees. However, we insult the phenomenal firm of DWT for taking on a case then asking for fees? If the standard to award fees depends whether the attorneys work for a big firm or small pro bono firm, then we limit the scope of lawyers who will take on cases, this limit attorneys who will take on cases and leave self represented people to the wolves. To learn what it’s like to be out lawyered and out funded–watch A Civil Action. (true story)

    Darren Chaker

  • Darren Chaker

    100% Agree. If it was not for attorneys as yourself, or cooperating law firms who do the much of work for the ACLU, then far more harm would come to people than good since the alternative would be to simply let contractors get away with robbery, or have seasoned counsel beat them up in court as pro pers.

    Darren Chaker

  • Lawyer

    Keep in mind that fee-shifting serves several purposes. Fees may be appropriate to deter behavior. I am considering requesting fees on behalf of a pro bono client in a dispute with a copyright troll. If we do get fees awarded, I’m not sure if the firm will keep them or donate them.