By Ciera Cockrell, PBI Intern
Pro bono work is essential to help meet the vast civil legal needs of under-resourced populations. While the primary goal of most attorneys engaged in pro bono litigation is certainly not to secure personal monetary gain, fee-shifting statutory provisions allow for monetary remuneration in the form of attorney fee awards. Securing these awards aids in encouraging law firms and other organizations to continue litigating public interest issues.
Trends show that many large firms who prevail in their pro bono cases and secure attorney fee awards donate part or all of that award to a non-profit organization involved in impacting a particular area of public interest. Some firms, like Latham & Watkins LLP, have created a charitable fund based on attorney fee awards they have received in pro bono cases. The donation of attorney fee awards allows non-profit organizations like the Lawyers’ Committee for Civil Rights to continue funding and supporting public interest work.
But, some attorneys are facing difficulty securing appropriate attorney fee awards due to the pro bono nature of their legal representation.
In a U.S. District Court case for the Northern District of California, two inmates brought suit against the state to challenge a denial of their constitutional right.[1] One plaintiff had pro bono representation from a large law firm, and the other had pro bono representation from a smaller law firm. Both plaintiffs were successful on their constitutional claim. Under the California Code of Civil Procedure, both plaintiffs satisfied the requirements of the fee-shifting provision. Both counsels properly requested attorney fees calculated based on the lodestar method. The district court judge awarded the requested fees to the plaintiff represented by the smaller firm, but denied the requested fees to the plaintiff represented by the large firm.
The only distinctions between the two plaintiffs were: 1) the sizes of the law firms providing their individual pro bono counsel; and 2) the smaller firm’s engagement was structured as a contingency, while the larger firm’s engagement was structured as a pro bono matter that allowed for recovery of attorney fees if so ordered by the court. In denying the requested fees for this plaintiff aided by the larger firm, the judge reasoned that due to the large size and good reputation of the firm representing him, providing these free services would not “jeopardize the profitability of the firm.”[2] The plaintiff appealed the denial of attorney fees.
The Law Firm Pro Bono Project® was involved in preparing an amicus brief that challenged the denial of the fee award in concert with an appeal of the district court’s decision to the U.S. Court of Appeals for the Ninth Circuit.[3] The brief highlighted that the judge’s decision was an abuse of discretion that contrasted with California case law. Pro bono status is not one of the factors to be considered in awarding fees, and therefore cannot be used to justify the reduction or denial of those fees.
Fortunately, the Ninth Circuit Court agreed with the plaintiff and the amici curiae, reversed and remanded the proceedings to the district court to award reasonable attorney fees.
Decisions denying attorney fee awards based on the pro bono nature of a case set a harmful precedent that public interest litigation is less valued than private interest and must largely rely on charitable work.
This erroneous reliance on pro bono status to justify the denial or reduction of requested attorney fees is unhappily not an isolated occurrence. Across several jurisdictions, pro bono attorneys have appealed decisions that denied them attorney fees because of their pro bono status.
A case from the Court of Appeals of Michigan, for example, shows how the pro bono nature of the case distracted the judge such that he calculated the actual fees incurred instead of following the established rule of calculating reasonable fees for the services provided.[4] The court reasoned that since the legal representation was free, the plaintiffs did not incur any actual costs in paying attorney fees. The judge therefore denied the requested fee because no fees were actually paid.
The issue of actual fees, however, was not the issue before the court. Rather, the court should have calculated reasonable fees. Under the relevant state statutory provision, if the requested fees align with the reasonable hours and rates of similar legal services in the area, the judge must award the fee.[5] This holds true even in pro bono cases where no actual costs were incurred by the client.
This mistake of calculating actual fees instead of reasonable fees in pro bono cases has shown up across several jurisdictions in the last two years.
Mistakes like these and others that deny pro bono attorneys reasonable fees are potentially detrimental to the encouragement of law firms to continue engaging in public interest litigation. Realistically, not every firm, corporation, or organization has means to absorb the cost of litigation. Those that can often donate such awards to legal services organizations that are resource constrained. Thus, denying fee awards in pro bono cases generally affects the volume and quality of pro bono services that can be rendered to those in need.
The Law Firm Pro Bono Project® encourages law firms participating in pro bono litigation to request reasonable attorney fees when applicable. Once the award is secured, PBI further encourages firms to donate at least part of that award to a non-profit organization dedicated to advancing a public interest.
For law firms seeking to secure attorney fee awards, be sure to familiarize yourself with how attorney fees are calculated in the relevant jurisdiction and under the relevant statute. If possible and applicable, consider including the following in your motion:
- Language that captures the distinction between calculating actual fees and calculating reasonable fees.
- Relevant case law that demonstrates that pro bono status is not a factor to be considered in awarding reasonable attorney fees.
- A non-profit organization or cause that your firm will be donating part or all of the award to. Courts tend to look favorably upon these types of donations.
For more information, contact Law Firm Pro Bono Project at lawfirm@probonoinst.org.
[1] Cisneros v. Vangilder, No. 21-15363, No. 21-15405, 2022 WL 1500805, at *1 (9th Cir. May 12, 2022).
[2] Id. at *2.
[3] Brief for Pro Bono Inst. et al. as Amici Curiae Supporting Appellant, Cisneros v. Vangilder, No. 21-15363, No. 21-15405, 2022 WL 1500805, at *1 (9th Cir. May 12, 2022).
[4] Woodman v. Dep’t of Corr., No. 353164, No. 353165, 2021 WL 2619705, at *1 (Mich. Ct. App. June 24, 2001).
[5] Id. at *4.