The American Bar Association (ABA), which seldom enters the fray by filing friend of the court briefs except at the Supreme Court level, has taken up the cause of lawyers in a case before the full D.C. Court of Appeals.
The ABA has joined the NAACP Legal Defense and Educational Fund, the Women's Legal Defense Fund, other groups and a number of prominent Washington lawyers in filing an amicus curiae brief in a case involving Washington lawyer Robert M. Adler that may ultimately affect all attorneys who represent clients on a contingent fee basis.
In June, Adler was awarded double his fees -- a 100 percent "enhancement" -- by the D.C. Court of Appeals for a 1983 sexual harassment case that he took on a contingent fee basis, risking no payment at all if he lost.
The D.C. government, the defendant in the case, appealed the decision to the full court of appeals. No other full appeals court in the nation has taken on the issue of attorneys fees, according to an ABA source, and the bar group believes that other courts may take their cue from the court's decision.
The case also may be a particularly attractive one for the the Supreme Court to consider, said Joseph M. Sellers of the Washington Lawyers' Committee for Civil Rights Under Law.
"It's of enormous importance to civil rights lawyers," Sellers said. "It throws into question whether enhanced fees will be used to attract lawyers."
Like many attorneys who take contingent-fee cases, Adler borrowed money to support King v. Palmer, a harassment case brought by a nurse against the D.C. Department of Corrections.
Because clients in many civil rights cases cannot afford to pay attorneys, public-interest groups have expressed concern that individuals will be unable to hire lawyers without the promise of additional fees.
Many law firms have refused to take civil rights cases in recent years, leaving clients few places to turn. Firms that still take the cases said they need the additional fees as an incentive to justify the risks.
"Cases like these are extremely expensive and firms like ours want to take on as many as possible for racial justice and gender justice," said Inez Smith Reid, former D.C. Corporation Counsel and an attorney with the Washington law firm Washington, Perito and Dubuc. "It's extraordinarily difficult to prevail, so when you do prevail, you do need to be able to say to the firm 'We can get this enhancement.' "
"The case is not so important for lawyers, but for their clients," Adler said. "Most attorneys don't have interests here because they've stopped taking these cases. It's the clients who can't get attorneys."