Justices Put Curbs on Payment for Lawyers

The Supreme Court on Wednesday made it a little harder for civil rights lawyers to be paid extra for exceptional results.

In most American lawsuits, each side pays for its own lawyers whether they win or lose. But Congress occasionally allows the winning side to claim its legal fees from its adversaries, notably in cases involving claims of civil rights violations.

The question in the case decided Wednesday, Perdue v. Kenny A., No. 08-970, was how judges should determine how much the losing side has to pay.

The case arose from a successful class-action suit on behalf of 3,000 children in Georgia that helped reform the foster-care system there.

The trial judge awarded the lawyers $6 million using a conventional way of calculating legal fees — hours worked times the local hourly market rate for lawyers of comparable experience and skill. The judge then added $4.5 million for what he said was work of exceptionally high quality.

Justice Samuel A. Alito, writing for five justices, said that some additional payments may be proper in rare cases but that the judge here had not given good enough reasons for increasing the basic payment by 75 percent.

For the most part, Justice Alito said, it is not possible to know what role a lawyer played in obtaining a favorable result.

“The outcome may be attributable to superior performance and commitment of resources by plaintiff’s counsel,” he wrote. “Or the outcome may result from inferior performance by defense counsel, unanticipated defense concessions, unexpectedly favorable rulings by the court, an unexpectedly sympathetic jury or simple luck.”

The majority opinion recalled an exchange from the argument in the case in October.

Chief Justice John G. Roberts Jr., who used to be a highly paid appellate lawyer, questioned Paul D. Clement, a former United States solicitor general now in lucrative private practice.

“You think the lawyers are responsible for a good result and I think the judges are,” the chief justice said.

Mr. Clement responded: “Maybe your perspective’s changed, your honor.”

Justice Alito replied: “Maybe your perspective has changed, too, Mr. Clement.”

The justices were unanimous on Wednesday in saying that enhanced awards were at least theoretically possible, but they split along ideological lines in discussing how trial judges should approach the question.

Justice Alito, joined by Chief Justice Roberts and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, said that the trial judge’s “essentially arbitrary” award in the Georgia case would have caused the lawyers there to “earn as much as the attorneys at some of the richest law firms in the country.”

The legal-fees provision, he wrote, “was enacted to ensure that civil rights plaintiffs are adequately represented, not to provide such a windfall.”

Justice Stephen G. Breyer, joined by Justices John Paul Stevens, Ruth Bader Gisburg and Sonia Sotomayor, said the Georgia lawyers had indeed vindicated important civil rights and helped reform an abusive foster-care system through an exceptionally long, complex and hard-fought litigation. Justice Breyer added that the trial judge was in the best position to assess their performance.

“If this is not an exceptional case,” Justice Breyer asked, “what is?”

By Adam Liptak

Source: NYtimes.com