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Pro Bono Victories Trigger Fee Fights

New York Lawyer
February 8, 2008

By Amanda Bronstad
The National Law Journal

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A Seattle school district that lost a case before the U.S. Supreme Court is arguing that its opposing counsel, Davis Wright Tremaine, should not be entitled to nearly $1.8 million in attorney fees because it took the case pro bono.

It is the second high-profile case in a year challenging fees collected by firms in pro bono cases.

A nonprofit group representing several parents of high school students sued Seattle Public Schools in 2000 to overturn an admissions policy that used race to determine which schools students could attend. PICS v. Seattle School District, No. 2:00-cv-01205 (W.D. Wash). Last year, the U.S. Supreme Court found that the policy violated the Constitution's equal protection clause under the 14th Amendment.

In September, Seattle-based Davis Wright Tremaine filed a petition before the 9th U.S. Circuit Court of Appeals seeking nearly $1.8 million in legal fees. The 9th Circuit refused to grant that request until a federal judge in Washington issued a final judgment in the case.

CONTENTIOUS ISSUE

In recent weeks, both sides have filed briefs in federal court in Washington.

In arguing against the fees, the school district has raised the increasingly contentious issue of whether large law firms that successfully represent clients on a pro bono basis are entitled to seek substantial legal fees from the defendant.

"Davis Wright Tremaine is a large law firm. They have a big name and blue chip clients," said Shannon McMinimee, assistant general counsel of Seattle Public Schools. "They definitely don't need to rely on their pro bono cases to make them money to sustain the law firm."

Mark Usellis, a spokesman at Davis Wright Tremaine, which is arguing for an injunction ruling, said the district is morphing the fee request into criticism of the firm -- not a remedy for wrongdoing.

"We are seeking fees because our clients want us to do it, and it's a well-established remedy in civil rights cases when the government has been found to violate constitutional rights," he said.

Davis Wright Tremaine isn't alone in facing questions about fees in pro bono cases.

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.

While acknowledging that discounted fees are appropriate in a pro bono case, the judge noted that Skadden had already reduced its legal fees and that only a large firm, such as Skadden, could have taken such a complex case.

Mark Cheffo, a partner at Skadden who handled the case, said the firm donated the fees to nonprofit organizations. He questioned why a defendant that violated the law should benefit because the plaintiffs' law firm took the case pro bono.

Seeking legal fees in pro bono cases isn't new, said Esther Lardent, president of the Pro Bono Institute at Georgetown University Law Center. Her group encourages firms to seek legal fees in pro bono cases -- if nothing else, to serve as a deterrent to others, she said.

But she acknowledged that, in recent years, as more large firms with higher fees take on major public interest cases, attorney fee awards have skyrocketed.

DISMISSAL SOUGHT

In Seattle, the school district is seeking to dismiss the case entirely because the district's admissions policy at issue no longer exists.

Further, McMinimee said, Davis Wright Tremaine's request for attorney fees is "disingenuous" given that the firm took the case pro bono.

She said there is a "disconnect" between claiming to take a case pro bono and then seeking $1.8 million in attorney fees from taxpayers who fund the public school system. "Either we put the time into the schools or give the money to the law firm," she said.