THE NUMBERS in that story about lawyers' fees were enough to spoil any taxpayer's Sunday morning: $160,000 to be paid by the government to a big Washington law firm for winning an employment-discrimination case involving only $32,000. Where, you had to wonder, had the old idea of probono advocacy gone? What was the government doing but making rich lawyers even richer?
In fact, pro bono still exists, even in this case. And there was nothing illegal, immoral or even enriching in the fee awarded to Wilmer, Cutler and Pickering. You must look closer to see what is wrong.
The size of this fee followed from the rates lawyers charge these days and from the effort Congress has made to see that everyone in the country has adequate legal representation. Congress decreed that the legal fees of employees who win job-discrimination cases shall be paid by the losing employer-in this case the government. Judge Gerhard Gesell set the fee at $160,000 based on what Wilmer, Cutler might charge a paying client for the same services.
But the fee won't increase the profits or pay of the lawyers at Wilmer, Cutler. They regard the 3,600 hours of time put into this case as a public service and will pass the money on to the non-profit Lawyers Committee on Civil Rights Under Law, which persuaded them to get involved.
They continue the old tradition of big law firms donating 5 or 10 percent of their time and talent to pro bono cases.
What's wrong, however, is that no job discrimination case should require 7,200 hours of legal effort-presumably, the government put in as much time defending as Wilmer, Cutler did attacking. The government seems not to have been bothered at all by the size of the legal bills that were accruing-even though Congress wrote the legal fee apart of the job-discrimination law to increase the incentive for employers to settle the cases they might lose.
The second thing that is wrong is the size of lawyers' fees in general.But that's not peculiar to this case or the government.
Finally, what is wrong is that Congress drafts laws, like this one, that seem designed to generate complicated litigation-environmental laws, civil-rights acts, freedom of information, and so on. Ordinary citizens can't exercise their rights under those laws because they can't afford the legal fees.The government solves that problem by paying the fees directly or passing them on to the losers of those cases, who are usually corporations or government itself. The cases, now with good lawyers on both sides, get more and more complex-lawyers are very good at finding ways to make simple things more difficult-and the fees get bigger and bigger.
Somewhere this chain has to be broken. Maybe it requires simpler laws or a slimmed-down legal/judicial process or arbitration or lower legal fees. The lawyers got us into this mess and they need to get us out.