[The Key Takeaway: A judge cannot reduce attorneys’ fees awards simply because the attorneys agreed to work pro bono, and such awards also may not be reduced solely on the basis that the party to pay the fees is a government agency.]
You may read the headline to this post and think, “Wait, what do you mean ‘Pro Bono Attorneys’ Fees’? I thought pro bono meant no attorneys’ fees?” What pro bono means, actually, is that the party being represented by an attorney on a pro bono basis does not have to pay any fees. Where there is a fee-shifting statute or a “loser pays” rule, pro bono attorneys are entitled to seek fees for their work to be paid by some other party.
The practice of seeking fees by pro bono attorneys has led to some controversy in the past, particularly where the attorneys are seeking fees from government agencies (i.e., taxpayers). Nevertheless, the basic right of parties to seek attorneys’ fees even where the attorney agreed to represent a party pro bono is well-settled in California.
While the basic right to seek such fees may be well-settled, how those fees are determined is another question. The California Court of Appeals for the Second District dealt with that question recently in Rogel v. Lynwood Redevelopment Agency (B219626, May 2, 2001).
I’m not going to get into all of the facts of Rogel. You can read the case for yourself below.
The basic gist of the case is that the Superior Court judge reduced attorneys fees awarded to plaintiffs on two primary bases: (1) the judge believed that it was a better policy to let the money be used by the government agency defendant rather than be paid to attorneys; and (2) the judge believed that the requested fees were excessive in light of the fact that plaintiffs’ counsel had provided services on a pro bono basis.
Put simply, the Court of Appeals firmly rejected both bases for reducing the award of fees cited by the Superior Court.
As to the first reason cited by the Superior Court, the Court of Appeals noted that it may be acceptable to reduce fee awards for the reason that the cost would be directly borne by taxpayers. The Court noted, however, that in this case there was no evidence that an award of fees would result in higher taxes for residents. All that would result is that the agency would have less money to spend.
We can spend all day arguing about whether that makes sense – after all, if a government agency has less money to spend, it does seem likely in most cases that it is either going to cut services or raise taxes, either way putting the burden on the taxpayer. But that is most cases. Did the fact that the particular agency in this case had more than $13 million sitting in the bank (and significant accounts receivable) matter? Probably. I think the Court of Appeals left open the possibility of courts still considering the impact on the public of awarding a particular amount of attorneys’ fees. What the Court rejected, however, is reducing an award of fees on the mere fact alone that a party is a government agency.
As to the second reason cited by the Superior Court, the Court of Appeals firmly rejected the notion that a judge can reduce a fee award simply on the basis that the services were rendered on a pro bono basis. This is a vindication of the already well-settled proposition that pro bono lawyers can be awarded fees. The rule that pro bono lawyers can be awarded fees despite their pro bono status could be rendered meaningless if a judge might simply turn around and slash the fee award solely because of the attorneys’ pro bono status. The Court of Appeals made clear that judges may not cut fee awards on the basis that an attorney agreed to work pro bono. The only proper consideration, the Court noted, was the market rate for the attorneys’ time.
The Court of Appeals also noted that reducing fee awards in pro bono cases would improperly incentivize defendants to prolong litigation and be uncooperative. This final note was likely added in this case because the defendant was particularly resistant during discovery, resulting in substantial time expended by plaintiffs’ attorneys to deal with discovery battles precipitated by defendant. The bottom line is that the Court did not want to send any kind of message that defendants could play games during litigation based on the knowledge that they would be paying a cut-rate on attorneys’ fees later on.
In the end, this case significantly strengthens the rights of parties to obtain fees for their pro bono attorneys. Any attorney seeking fees in a pro bono case will want to cite this case to remind the court that the attorneys’ pro bono status is essentially irrelevant in determining the amount of fees to be awarded. Furthermore, this case makes it a little more difficult for a government agency to argue that the a fee award should be cut based on its status as a government agency alone. That holding will affect cases regardless of whether they involve pro bono attorneys.
No, this does not mean that attorneys doing pro bono work will be getting rich. Pro bono work will still be about public service. It does, however, reinforce the notion that work performed on behalf of pro bono clients is no less valuable simply because it is done with public service as a motive.
Filed under: Case Reviews, Los Angeles Civil Litigation, Attorneys Fees, Government Parties
Los Angeles Civil Litigation Blog 
The problem with this is that the case law is clear that attorneys fees are the TAXABLE property of the claimant/litigant, not that of the attorneys. (See Commissioner v. Banks, 543 U.S. 426 (2005) So, if attorneys fees are granted in pro bono cases (in which the litigant does not have sufficient money to pay for attorneys in the first place), isn’t the litigant unfairly saddled with a tax obligation on monies s/he never even sees?