Justices Weigh $4.5 Million Bonus Awarded Lawyers in Ga. Litigation

By Robert Barnes
Washington Post Staff Writer
Thursday, October 15, 2009

The Supreme Court spends a sizable portion of its time dealing with lawyers gone bad: the ones who miss critical filing deadlines, put up halfhearted defenses of clients facing death row, give bad advice with disastrous results.

On Wednesday, the court was faced with what to do about lawyers who do good. And also, extremely well.

The justices focused on a group of lawyers from a children's rights group and a private law firm who won a transformation of the state of Georgia's dysfunctional foster-care system. Their work on behalf of 3,000 children so impressed the federal judge who presided over the case that he awarded them a bonus of $4.5 million -- on top of the $6 million in legal fees he told the state to pay.

It made for an animated debate on the skyrocketing cost of legal work, exorbitant salaries for lawyers, whether judges should grade the lawyers who come before them and whether Congress intended some sort of bonus for lawyers who take on uncertain and sometimes unpopular civil rights cases.

Federal law allows those who prevail in such cases to recover their fees, and the judge in the case calculated those fees by multiplying what he thought were the reasonably expected billable hours by the prevailing hourly rate in Atlanta for such work, ranging from $215 an hour for the most junior associate to up to $495 for the most experienced partner.

But U.S. District Judge Marvin H. Shoob went further in awarding the bonus. He said the lawyers from the group Children's Rights and Atlanta's Bondurant, Mixson & Elmore law firm displayed a "higher degree of skill, commitment, dedication and professionalism" than he had seen during his time on the bench, and that in "58 years as a practicing attorney and federal judge, the court is unaware of any other case in which a plaintiff class has achieved such a favorable result on such a comprehensive scale."

The state of Georgia balked at paying the multimillion-dollar bonus, and said neither federal law nor Supreme Court precedent allowed such "enhancements."

Although the winning lawyers in the case are supported at the court by an array of liberal and conservative public interest groups and represented by Paul D. Clement, President George W. Bush's former solicitor general, the reaction of the justices seemed to divide into ideological camps.

Justice Sonia Sotomayor said there must be incentives for private lawyers to take a chance on representing the underprivileged and those pressing claims that their constitutional rights have been violated.

"If the market doesn't give them attorneys to start with, because there are so many risks involved in this process, and it sets a reduced fee because of those risks, how do you attract competent counsel?" she asked.

Mark H. Cohen, representing Georgia, said judges already take into account the lawyers' performance when calculating the base payment for the work. He acknowledged that such enhancements are rare but warned that if the court agrees with this one, "requests are going to come out the wazoo, and district courts are going to be deciding things arbitrarily and on different bases."

On the other side, Justice Samuel A. Alito Jr. said that while he takes the district judge at his word about the lawyers' exemplary performance, he was troubled that a judge "in effect takes $4-plus million from the taxpayers of Georgia" and awards it to a special interest group.

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