An axiom young lawyers are taught and older lawyers like to repeat is that an attorney who pleads his own case has a fool for a client. Nonetheless, for a variety of reasons, lawyers do take their own cases, and a pair of recent decisions show how hard it is for courts to handle those acting in the double role of plaintiff and advocate.
The question is whether such lawyers, when they run into an unjustified adamance from a government agency refusing a Freedom of Information request, can get the Treasury to pay them for the time they spent on their own case. It is a question the Supreme Court will eventually have to decide.
The FOI Act, in order to add teeth to its requirement that all but certain specified kinds of government documents be turned over on demand to anyone, says the government should pay the legal bills for requestors who have to go to court when the final judicial determination finds no good reason for the government's initial recalcitrance. In recent years, the courts have received such payment requests from laymen who have represented themselves in court; although the U.S. Court of Appeals here approved such a fee request, in most other Circuits the fee demands have been turned down. Lawyer fees can go only to lawyers, the judges have ruled.
But what if the person pleading his or her own case is a lawyer? The government insists that it makes no difference. There are no legal expenses to compensate for, because the advocates involved just spent their own time on their own cases, just as housewives or accountants have when they have pleaded their own cases, the government insists. And a major reason for seeking out a lawyer--to get an objective viewpoint on whether or not the case is worth going into court over--is lost when the person with a zealous passion to get certain documents consults only with himself.
Those arguments were persuasive to the U.S. Court of Appeals in Cincinnati, which on August 8, in Falcone v. Internal Revenue Service, ruled that a lawyer is just like any other plaintiff pleading his own FOIA case, and gets no fees from the government.
But just two weeks before, on July 22, the U.S. Court of Appeals in New Orleans had rejected exactly the same arguments from the government. Lawyers do have expenses in preparing their own cases, the New Orleans majority decided, and the whole notion of objective advice runs counter to the concept of awards for attorney fees. What Congress wanted in providing for federal payment of the bills of successful lawyers, Judge Tuttle explained, in Cazalas v. Dept. of Justice, was to make sure that citizens who were trying to squeeze information out of government files would have "vigorous advocacy" for their cases. A lawyer with an unobjective commitment to his or her own cause seems to most likely provide that kind of representation.
In other cases, courts ruled that:
* Special benefits given companies to encourage hiring the handicapped are available even when the handicap is not evident when the worker was hired. The U.S. Court of Appeals in San Francisco threw out two of its earlier rulings to make section 8(f) of the Longshoremen's and Harbor Workers Compensation Act cover accidents to employes whose latent disabilities became manifest sometime between hiring and the accident. Under 8(f), the employer is liable only for the part of a compensation payment that covers the impact the accident would have had on an able-bodied victim; the extra expenses incurred by a handicapped worker are paid from a special fund. If the rule did not apply to latent handicaps, the judges ruled, the company might fire a worker when a handicap shows up--the very opposite of the result the scheme is supposed to achieve. LHWCA terms cover compensation not just for waterfront workers but also for employes in the District of Columbia.
(Director, Office of Workers' Comp. v. Cargill, July 1)
* A bank serving as trustee of a company pension plan has to pay back losses stemming from sloppy monitoring of the investments. The bank was liable, the U.S. District Court in Manhattan decided, because it paid less attention to an important mortgage holding of the pension fund than a "prudent investor" should. The bank claimed that the trust agreement, by giving it exclusive authority to decide how to use the pension plan assets, gave it greater leeway than the usual "prudent investor" standard. But the judge refused to buy that argument.
(Public Service of Colorado v. Chase Manhattan, July 19)
* Despite what it might do to family harmony, the courts can force a witness to give testimony that may incriminate a mother-in-law or father-in-law. The U.S. Court of Appeals in Manhattan told a sales manager that he must answer the questions of an antitrust grand jury looking into allegations of antitrust violations involving the trash hauling firm for which he works, which is owned by his wife's parents. The rule is well established that a person need not testify against his or her spouse, and in the past two years decisions have extended that privilege to a mother who refused to testify against her daughter and a son who did not want to incriminate his father. But even though the appellate judge acknowledged a mandate in the Bible used by U.S. Catholics (though not by Protestants or Jews) to "honor thy father- and thy mother-in-law, which are now thy parents," they refused to further preserve family ties at the expense of letting jurors know all the facts.
(In re Matthews, Aug. 5)
* Some small companies whose owners think they are exempt from the equal opportunity provisions of the 1964 Civil Rights Act may in fact be covered. Firms with fewer than 15 employes do not have to comply with the federal statute banning race and sex bias in hiring and promotion, but the U.S. Court of Appeals in Cincinnati recently came up with a new way of counting those 15. Manufacturer's representatives who sell the company's products on commission may go into the total, the judges said, even if they handle other lines and operate without day-to-day control of the companies they represent. It depends on the "economic realities" of the total relationship, the appellate court explained, telling the trial judge who had thrown out a civil rights complaint to take a second look.
(Armbruster v. Quinn, July 7)