Second Thoughts on Attorney Fees
Earlier this week, I posted on a settlement in the case of the Pennsylvania public school accused of illegally spying on its students. Noting that the bulk of the settlement will go the students' attorney, I wrote:
So public school officials get caught illegally spy on students. But no one gets fired. And none of the offending parties will be fined. Instead, a municipal insurer (which will ultimately affect taxpayers) will pay a decent settlement to one student, a small settlement to another, and a small fortune to their lawyer.
After reading some analysis by Max Kennerly and Scott Greenfield, I'm persuaded that I was off-base with my snark (in other words, I was wrong).
If the Lower Merion case had gone to trial, and the plaintiffs had won on any of those claims — and they definitely would have won on the first — then the school district would have been liable for all of the plaintiffs' attorneys' fees in litigating the case.
The settlement of the case reflects that eventual reality: if the School District had not paid the plaintiffs' lawyer now, they were going to pay them later…
But why did this case, where liability was obvious, cost so much? There's a simple answer for that: because the School District litigated the heck out of the case. Their own lawyers, as of the end of July, had already billed $743,000 to the school district. I bet the final bill will exceed $1 million.
Viewed through that lens, Mr. Haltzman was downright frugal in accepting less than half what his opponents charged to fight him.
And here's Greenfield:
While the wrong in this particular case seemed abundantly clear, especially since it received broad attention and near-universal condemnation, the deprivation or violation of constitutional rights that seem so obvious to the victims often fails to get to trial. Sure, getting your "day in court" is a fine platitude, just like so many that make us feel warm and comfy even though they defy reality in the trenches. The hard fact is few civil rights cases are ever heard, and fewer still recover damages, whether for some variation of governmental immunity or some banal rationalization which makes the wrong "good enough for government work."
That means that the efforts of a lawyer to pursue the violation of rights may not only fail to result in a payday, but leave the lawyer out of pocket for whatever unreimbursed expenses accrued in the process. This can be a very risky business, trying to protect our constitutional rights by representing a person whose rights were deprived.
So Mark Haltzman "made" more money from this case than did his clients. Was he supposed to eat the cost of this litigation, as if he, rather than the school administrators, committed the wrong?
These are all great points. As someone who would like to see a heck of a lot more civil rights suits against government officials who abuse their power, I was wrong to direct scorn at an attorney who actually brought one (even in an obvious case like this one). It would be even better if the responsible parties actually had to pay out for their actions, and not have the taxpayers bail them out. But that's beside my point here, which is that Haltzman shouldn't be blamed for getting compensated for his time and expense in bringing this lawsuit.