It is one of the prettiest spots in metropolitan Washington - "a millionaire's environment on a shoestring," Flora Hurley calls it - so naturally she and her husband were upset when they received a notice in September that Pepco was considering running a high voltage power line through the pasture where their herd of four cattle grazes.
For weeks they tried to get details. But even elected Montgomery County officials, who in the past had solicited their votes, didn't bother returning their phone calls. Finally a county aide in Rockville gave them some advice: "Get a lawyer."
Get a lawyer they did. Although they are more than happy with his work and think he probably saved their land, the cost of his services is driving them to the brink of bankruptcy.
Mrs. Hurley, 74 and retired, along with her husband Walter, 65, from the U.S. Bureau of Engraving and Printing, is talking about taking a job to help pay the lawyer's bills - which have mounted to more than $6,000 in two months even though he trimmed his hourly rate 25 per cent and lopped $2,000 from his latest bill.
It is a classic example of how the high cost of lawyers works against middle income Americans trying to protect their rights - especially when they are up against a large corporation such as Pepco or the government, both of which have staffs of attorneys on tap.
Corporations can afford high priced lawyers since, unlike most legal bills of ordinary citizens, their attorneys' fees can be deduced as a business expense from their corporate income tax.
Moreover, utilities such as Pepco include legal fees as an expense used in the calculation of power rates, which are paid by all users.
Many critics of the American legal system blame inflated attorney fees on corporate indifference fostered by tax laws that allow businesses to share the cost of their lawyers with Uncle Sam.
"It's just impossible for a middle income person to fight a power line case," said Linda A. McMorkle who, with Bernard Nash, represents the Hurleys and two neighbors in Burtonsville, in northeast Montgomery County.
"It you are an ordinary person," said Nash, "you cannot afford proper legal counsel. If you don't band together in groups of hundreds, you have to hire your own lawyer, which costs a small fortune."
"It's one of the most difficult unresolved questions that faces the legal system. I'm ashamed to say I haven't spent enough time focusing on the question," added Gerry Levenberg, an attorney who usually represents utility companies. This time he is working on the power line case for 21 families who own $100,000 to $150,000 homes in the Brinkwood area of northern Montgomery County.
While the rich are able to hire lawyers and programs to provide legal services are available to the poor, there are an estimated 140 million middle income Americans who cannot afford attorneys' fees - especially for long, protracted legal battles.
Most middle Americans recognize this. An American Bar Association survey showed that many Americans stay away from lawyers because they fear the cost will be more than they can afford.
"If, god forbid, I should need a lawyer, I don't know what I would do," said Nash, who worked as an attorney for the government and on the Hill before starting a new firm here with three other lawyers.
"Tthey say you are a fool to represent yourself," he continue. "But to go out and hire someone - I don't know."
He echoed the comments of many Washington lawyers - among the highest priced in the nation will hourly fees running $100 to $150 and up. "I couldn't afford any lawyer I know," said one with a major national practice.
Neither could the Hurleys, who live on about $15,000 a year, grow vegetables, raise beef cattle and do as much of the maintenance around their 25 acres of land as they can.
Yet, faced with the possibility of Pepco running 500,000 volts of electricity on 180-foot towers through their land and the indifference of Montgomery County officials, the Hurleys had no choice.
"We couldn't get anywhere without a lawyer. They wouldn't even talk to us," said Hurley. For example, his wife was able to talk to only one Montgomery County official by saying she represented the Burtonsville Conservation League - a nonexistent organization.
Nash, who had taken on power companies when he served as assistant counsel to the Senate Judiciary Committee's antitrust subcommittee, was recommended to the Hurleys by a mutual friend.
He and Linda McCorkle looked over the issues and decided it was unlikely that Pepco would run the line through the Hurley's property. That route was mentioned only after opposition developed to Pepco's first choice in Howard County. There, residents and developers banded together early and hired a lawyer, and the Maryland State Department of Natural Resources objected that an alternate route would harm parkland. Those two routes remained Pepco's top choices.
But, Nash told them, "He who is not represented gets screwed."
"It's a remote, tangential thing. Yet the three property owners (the Hurleys, Dr. and Mrs. Charles K. Keach, who live across the creek, and Melville Ruggles) were confronted with a dilemma. What should they do? Should they not participate in the hearings? Can we think it remote and take a chance of a Howard County steamroller? Or do they have to appear?" continued Nash.
"We were afraid they were going to come on through because we are the path of least resistance. There are only three families here," said Hurley.
So they hired Nash's firm, despite his fee, which seemed high to them yet is normal of Washington attorneys.
"My knees buckled when Nash said 'My fee is $100 an hour, but I'll cut it to $75, and my associate's (Linda McCorkle) fee is $50 an hour," Hurley said.
"I'm not quibbling about Mr. Nash's price, added Mrs. Hurley. "It's worth it to get a good lawyer, and I consider him very skillful. If you go to Garfinckel's you have to expect to pay the tab. Otherwise you go to K-Mart."
Nash too is upset by the high cost of the case. He first estimated legal fees would cost $2,500, but "I was shocked myself at how the time rolled up." He said his firm has spent $10,000 in attorneys' time even though they billed only for $6,000.
There have been 10 days of hearings before an examiner of Maryland's Public Service Commission since Nash's clients entered the case last January. Another six are scheduled for next month just to cross-examine Pepco's witnesses. In all, he expects 20 more days of hearings - about 120 hours of billable lawyers' time.
"We're not going to be able to go to most of them," Nash said.
Moreover, he is unable to hire the expert witness he would like to develop certain aspects of his case. For example, he is not challenging Pepco's need to run the high voltage line - part of 240-mile ring around the Washington area which the utility says will help meet the region's growing energy requirements and strengthen its ability to exchange power with other utility companies.
Nor is Nash bringing up possible health hazards to humans and to animals, such as the Hurley's cattle, from high transmission wires.
He can't even afford to buy transcripts of the PSC hearings, which cost 90 cents a page. Instead, he borrows them from Montgomery County, which was persuaded to take enough of an interest in the case to order transcripts.
The question now is how much further to carry the case - both as far as the Hurleys and Nash's law firm are concerned.
"We'll have to pull out. We can't afford it," said Hurley. "We've started this thing, we've got to see it through," replied his wife.
"We're going to win the case," said Nash. "But the point is what it's going to cost."
Facing a possible appeal of the hearing examiner's decision to the full PSC and then to the courts, Nash said, "At some point the client has to say enough is enough."
But the financial pressure is on Nash's law firm as well as the Hurleys and their neighbors. His is a new, small firm, and Nash said it doesn't have th backlog of business or depth of partners to take many public interest cases at reduced rates.
"We still believe in the underdog," said Nash, "but now that we're trying to meet a payroll we can't give our all to a cause. We can't afford to take on more than one case like this. It takes too much time."
Levenberg, pressenting the 21 Brinkwood residents in the same case, has much the same problem. Like Nash, he got involved only because two Brinkwood residents are friends who sought his advice. While he declined to give his hourly rate (it probably is in the $100 to $150 range, other lawyers said), he said he is handling this case at half his normal fee and expects - because the case will become so expensive - to end up with as little as 10 to 15 per cent of his usual fee.
He too borrows the transcripts from Montgomery County and is not attending every witness's testimoney. Nor is he pursuing every possible legal avenue.
"It is not possible to do everything you would when you are not representing 'deep pockets,'" he said.
"It's not like being firmly immersed in the litigation and the issues simply because there are not adequate funds available. There is no money available for expert witnesses of any kind by the Brinkwood residents."
The state Department of Natural Resources, on the other hand, is gathering expert witnesses at state expense to protect park lands.
And about 100 residents of Howard County have ammassed enough money to hire a lawyer, Richard Talkin, and are getting expert witnesses and trying to use political clout to keep the power line out of their backyards.
Talkin declined to reveal his legal fee or the cost of his expert witnesses. He acknowledged that it is expensive, but said he didn't know how his clients were raising the money. "That's up to them," he said.
His attack on Pepco's first choice for the powerline route, nonetheless, has increased the legal costs for everyone else.
Pepco's spokesman Horace Webb said the utility company still wants its original route and has a specific policy against damaging houses if there is vacant land available. The other routes came into the hearing because of opposition from Howard County and the state parks department, he said.
Pepco, meanwhile, has at least two attorneys - an assistant general counsel and an environmental specialist - sitting through every PSC hearing. While Pepco refused to release its legal costs, the attorneys are on salaries, which are paid eventually by the public through the cost of electric power.
"My clients are paying for the legal fees four times," commented Levenberg in a statement that is equally true for Nash's clients and talkin's clients.
They are paying my fee; Montgomery County taxes (for its involvement in the case); state taxes (for the cost of the PSC hearings and the Department of Natural Resources rol), and Pepco's fees through their electricity bills.
"It's an unfair system. There isn't any question about it."