The Supreme Court, through a series of recent decisions, has effectively overridden Congress’ dictate that prevailing civil rights plaintiffs are entitled to recover reasonable attorney’s fees and costs. Yet, while the Supreme Court’s recent attack on substantive civil rights law has received substantial attention, even in the popular media, the Court’s decimation of attorney’s fee law has gone relatively unnoticed by the public.
The Court’s attack on the pocketbooks of prevailing civil rights litigants and their attorneys has been subtle but devastating. Although the Court has paid lip service to the concept that reasonable fees and costs are necessary so that civil rights plaintiffs can obtain competent representation, its decisions over the last seven years have ensured that attorneys receive far less than is necessary to compensate them reasonably for the hours they expended on the litigation.
As a result, numerous attorneys have been forced to withdraw from civil rights practice for financial reasons. Consequently, many civil rights plaintiffs with colorable claims cannot find attorneys willing to represent them. The shortage of competent civil rights attorneys has reached crisis proportions, a fact which has been recognized by several state and federal courts. Judges, frustrated with this shortage, have sought to convince or coerce attorneys to fill the need.
The solution to the current crisis lies not in reluctant court-appointed attorneys, but rather in a broad-based reform of the law regarding court-awarded attorney’s fees. Although clever plaintiffs’ attorneys can fight within the parameters of existing Supreme Court jurisprudence for reasonable attorney’s fees and costs, it is unlikely that these steps will prove successful. Ultimately, Congress will have to step in to assure reasonable compensation for the attorneys of prevailing civil rights plaintiffs.
Congress is currently considering legislation which, if enacted, would reverse certain adverse Supreme Court decisions addressed in this Article. However, the proposed legislation, while urgently needed, is not sufficient to fully restore Congress’ original mandate guaranteeing reasonable attorney’s fees and costs to prevailing civil rights plaintiffs.
This Article begins in Section I with a discussion of the cases in which the Supreme Court has sharply limited the attorney’s fees available to prevailing plaintiffs in civil rights litigation. Focusing on the fees awarded pursuant to such statutes as Title VII, Section 1988, and the Clean Air Act, Section I recounts how the Court has gradually chipped away at the total fee award by imposing limitations on the number of compensable hours, the rate of compensation, and enhancements which may be applied to the basic lodestar award. Section I also discusses decisions that have limited attorneys’ fees by forcing them to accept settlements which require them to forego their fees, by capping the court-awarded compensation of expert witnesses at $30 per day,16 and by pressuring them to accept offers of judgment which may cover little or none of their fees. Finally, Section I reviews the few decisions which purportedly protect attorney’s fees, and discusses why their effect may be altogether different.
Section II critiques the flawed legal and economic reasoning underlying many of the Court’s fee decisions and demonstrates the conflict between those decisions and Congress’ express intent in passing the fee legislation. The Section suggests that the new body of caselaw makes it economically impossible for an attorney to practice civil rights law and thereby deprives all but a few wealthy or lucky civil rights plaintiffs of representation by experienced counsel.
Section III of the Article points to some ways in which plaintiffs’ attorneys can work within and around the Court’s adverse decisions in order to protect their fees. The section also acknowledges the limits of these remedial measures given existing precedents.
Finally, Section IV argues that only action by Congress will suffice to override the Supreme Court’s erroneous rulings and ensure just compensation for civil rights attorneys. Absent such legislation, it seems virtually certain that both the quantity and quality of civil rights litigation will continue to decrease. Fewer lawyers will take on civil rights cases, and their expertise will be limited, because they will not be able to afford to specialize in civil rights litigation. Unless Congress acts swiftly, a substantial period of time will pass before attorneys will be reconvinced that a civil rights practice can be economically viable and before such attorneys can be reeducated to the intricacies of civil rights litigation.
Judge Weinstein's creative modifications of the classic lodestar method should be particularly influential and useful in future mass tort litigation.
As a corollary, if the obstacles contained in the anti-fee proposals discussed herein are given serious consideration by Congress, and subsequently enacted, it will be unlikely indeed that competent private counsel will be available to represent potential plaintiffs whose rights
In an era of soaring government deficits and a conservative Civil Rights Commission and Justice Department, the role of public interest litigation is becoming increasingly essential in protecting the rights of the under-represented.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.