High Court Justices Doubt Lawyers
 Should Be Paid Extra for Winning

By Tony Mauro
The National Law Journal
New York Lawyer
October 15, 2009

The nine justices of the U.S. Supreme Court are all lawyers, but most showed little empathy for their fellow attorneys on Wednesday as they debated whether legal fee awards can be enhanced for superior performance or exceptional results under a federal fee-shifting statute.

The justices heard arguments in Perdue v. Kenny A., brought by the state of Georgia to challenge a $4.5 million fee enhancement it was ordered to pay by a district court judge to reward lawyers who succeeded in reforming the state foster care system in a long-running class action. The enhancement would be on top of a $6 million "lodestar" award based on prevailing fees and hours billed. Lawyers for Children's Rights Inc. and a private Atlanta firm worked on the case.

Civil rights groups from across the political spectrum are watching the dispute, asserting that the prospect of enhanced fees is necessary to attract quality representation in the lengthy and complex litigation they pursue. But during the hourlong argument, several justices seemed more worried about high legal fees than in encouraging quality lawyers to do public-minded work.

"Seven hundred thousand dollars for a lawyer. Wow!" said Justice Stephen Breyer, referring to the amount one lawyer could make for a year's work on the Georgia litigation. "How do we explain this to the average person?"

Breyer said, "very high is enough," when it comes to lawyer fees. "You don't need very, very, very, high."

Justice Samuel Alito Jr. said he was "very troubled" by the notion of a judge taking "4-plus million dollars from the taxpayers of Georgia" and giving it as a bonus to the lawyers in the case for good performance. "It seems totally standardless," Alito said. "I see a great danger that trial judges are going to use this as a way of favoring their favorite nonprofit foundation or their favorite cause or their favorite attorney."

Chief Justice John Roberts Jr. even challenged the premise behind fee enhancements: that better lawyering can achieve better results.

"The results that are obtained are presumably the results that are dictated or commanded or required under the law," Roberts said. "It's not like, well, you had a really good attorney, so I'm going to say the law means this ... but if you had a bad lawyer, I would say the law says this."

Former solicitor general Paul Clement, representing Children's Rights Inc., countered Roberts' point. "I have seen lawyers come into this Court and concede a point in oral argument, and I have seen that prominently featured in the Court's opinion," said Clement, head of appellate practice at King & Spalding. "So it does seem to me that sometimes the quality of the performance and the results obtained do depend on the lawyer's performance."

Roberts acknowledged, "Maybe we have a different perspective. You think the lawyers are responsible for a good result, and I think the judges are."

Clement's friendly retort: "And maybe your perspective's changed, your honor," a reference to the fact that, before becoming a judge, Roberts was a highly paid appellate advocate for Hogan & Hartson in Washington, D.C.

Alito had the last word, countering that "Maybe your perspective has changed too, Mr. Clement. ... Your argument is that, you know, for $495 an hour you really can't get a good lawyer?"

As chief justice, Roberts is paid $223,500 a year (associate justices are paid $213,900). When King & Spalding hired Clement last year, his pay package reportedly was $5 million. Asked afterward how much he is being paid for his representation in the Georgia case, Clement declined to give a specific figure but said the payment will be "just what you would expect given our position: a special fee arrangement with a potential enhancement for exceptional results."

Mark Cohen of Troutman Sanders in Atlanta, representing the state of Georgia, argued that, under law, superior performance can't be the basis for departing from the lodestar amount. One reason, he said, is that quality performance is already factored into the basic amount paid, so an enhancement amounts to "double-counting."

Justice Sonia Sotomayor wondered whether the enhancement could be made by, for example, bumping a $200-an-hour associate who performs well up to $500 an hour when the lodestar amount is calculated. Cohen said no, because that associate would be charging other clients $200 hourly no matter how good he was. Sotomayor countered that "law firms get bonuses from clients all the time."

In his rebuttal, Cohen also responded to a crack made by Clement earlier. Roberts had noted that some lawyers argue at the high court for free to enhance their reputations, so that paying them prevailing rates might amount to overcompensation. "Sometimes you get what you pay for" when clients get free representation, Clement replied.

Cohen told the justices, "I am getting paid half my hourly rate in this case," but said he is doing so because of his professional responsibility to represent his client "zealously within the bounds of the law."

If the Court allows the fee enhancement to stand in the Georgia case, Cohen argued, applications for similar enhancements in other cases "are going to come out the wazoo, and district courts are going to be deciding things arbitrarily and on different bases."