READ THE FOONOTES…

Another 5-4 decision from the U.S. Supreme Court.

Civil rights advocates are unhappy with last week’s opinion limiting attorneys’ fees awards in federal cases where the losing defendant pays the winner’s lawyers. (Perdue v. Kenny A (http://www.supremecourt.gov/opinions/09pdf/08-970.pdf))

They shouldn’t be the only ones.

The plaintiffs’ attorneys in the case represented children in Georgia’s foster-care program. It took 30,000 hours of lawyer time over eight years before the state finally surrendered in a consent decree that revamped the entire system. The winners sought a bonus beyond what lawyers call the “lodestar” — an amount equal to the hours devoted to the case multiplied by the hourly rates prevailing in the community. 

The trial judge praised plaintiffs’ counsel as the best advocates he’d seen in 27 years on the bench. So he enhanced their fee award to produce an average attorney hourly rate of $435. The Supreme Court threw it out.

Justice Alito wrote for  the majority that included the usual conservative alignment — Justices Thomas, Scalia, Kennedy, Chief Justice Roberts, and himself. They sent the case back with more than a suggestion that an average rate of $249 was adequate. Never mind that it was below the statewide average for all Georgia lawyers — as Justice Breyer noted in a dissent  joined by Justices Stevens, Ginsburg, and Sotomayor. (Breyer op. at pp. 9-10)

I know what you’re thinking: Why feel sorry for the lawyers? Isn’t  $249/hour a lot of money? Sure, but as Justice Breyer observed, it pales in comparison to the rates that corporate clients routinely pay large firms where $249 won’t buy an hour with a second-year associate. Chief Justice Roberts’ rate when he left private practice to join the Court was probably three times that amount.

Which takes us to footnote 8. Alito was incredulous at the prospect of allowing the  higher fee award: the winning attorneys “would earn as much as attorneys at some of the richest law firms in the country.”

Excuse me? Is that a bad thing? Are outstanding civil rights lawyers suing on behalf of children and the oppressed less valuable to our society than biglaw senior partners? If he were still around, Clarence Darrow might have some thoughts on that one.

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