Sometimes I don't know if I'm (1) smart, or (2) dumb. I'm pretty sure it's one or the other. I'm just not entirely confident which one it is.
I say that because I definitely had that reaction as I was reading this opinion. This is the latest installment in attorney Michael Mitchell's continuing attempts to get around the Supreme Court's holding in Evans v. Jeff D., which held -- in a substantial (but doctrinally understandable) blow to civil rights cases -- that clients have the right to waive their entitlement to attorneys' fees in Section 1983 suits and that defendants may properly make a settlement offer conditioned upon such a waiver.
After Evans, everyone knows how the game is played, at least in civil rights cases in which important liberties -- but not a lot of monetary damages -- are at stake. Plaintiff is invariably poor and can't afford an hourly fee, so the civil rights attorney takes the case and hopes to make his rent money by getting a fee award if he wins. The defendant defends the lawsuit, but if it looks bad -- if it looks like plaintiff might in fact win -- it will make a settlement offer. But the offer will be expressly conditioned upon a waiver of statutory fees. So, for example, here, L.A. County offers the plaintiff $30,000, but only if plaintiff waives his right to the $50,000+ fee award to which he'd likely be entitled as a prevailing party. Plaintiff takes the offer, of course, because the $50K that he's waiving would go to the lawyer, whereas the $30K that he's accepting goes to him.
The net results are twofold. First, defendants do this all the time. It's good for the plaintiff, it's good for the defendant, and the only one it's bad for is the attorney. L.A. County denies that it has a "policy" of only making fee-waiver settlements in such cases, and, yeah, I'm sure that one in a hundred settlements are an exception, but that's in fact the way the game is played, and everybody knows it. Second, this practice results in fewer attorneys being willing to take on such cases, because the net result of this game is that they don't get paid, and you can't feed your kids or pay your rent with love. (Not legally, anyway.)
Anyway, Michael Mitchell has tried to get around Evans -- and hence get paid -- in a plethora of different cases in the Ninth Circuit; in footnote 1 of his opinion, Judge Bybee cites six Ninth Circuit cases involving Mitchell in which he's desperately tried to obtain fees notwithstanding a fee waiver and Evans. This one is Mitchell's latest shot. This time, he's signed a fee agreement with the client that says that the client hereby assigns to Mitchell the right to statutory fees. Hence, Mitchell argues, the client couldn't waive this right as part of a settlement, since it already belonged to Mitchell as part of the fee agreement.
But Judge Bybee -- like the district court -- disagrees. It doesn't work, you can't assign your rights, it conflicts with Evans, and hence Mitchell still doesn't get paid. Affirmed.
Here's the part I don't understand. What's to stop Mitchell -- a fellow Harvard Law graduate, by the way -- from writing his fee agreement a different way that's entirely effective? Why not just say that the client agrees that (as usual) any fee award will go to the attorney; however, in the event that the client waives a fee award as part of a settlement, the client will owe the attorney his regular hourly rate; say, $500/hour? Surely that's an acceptable fee agreement; basically, to say to the client that you agree to pay me my hourly rate (and, even then, only if we win); however, if we get a fee award -- and you don't do anything to stop me from getting it -- I'll agree to take that lesser amount instead. That's got to be a permissible agreement, right? And one that totally works, too, since there's no way that, given that agreement, clients like the one here would agree to a $30,000 settlement and fee waiver if they'll then owe the attorney the entire $30,000 plus $20,000.
Sure, you could say that my proposed fee arrangement is impermissible since it discourages settlements, but I can't fathom that such an argument would prevail. All the attorney is doing is essentially charging the client a contingent hourly rate, and there's no way that such an (incredibly common and well-accepted) fee structure is impermissible.
So what I don't get is why Mitchell doesn't do this instead of the plethora of other fancy-pants fee structures he's tried in the past. Keep it simple. A contingent hourly rate. Works for me. Don't see why it can't work for you -- and other civil rights lawyers -- just as well.
But, again, maybe I'm just a moron.