Friday, September 19, 2008

WaPo Editorialist Whines About Attorney Fees In The 2nd Amendment Civil Rights Case; Plaintiff Lawyer Replies, Mops The Floor With Him

The whine:

Holding Up Taxpayers

Lawyers in the D.C. gun case are demanding that the city pay them outsized fees.
Saturday, September 6, 2008; Page A16

TALK ABOUT adding insult to injury. The lawyers who successfully challenged the D.C. gun ban are now asking the city's taxpayers to pay their legal fees. The tab: more than $3.5 million.

Under long-established law, plaintiffs lawyers who prevail in certain kinds of civil rights cases are entitled to demand that the loser pay their legal bills. These fee-shifting statutes were enacted in large part to encourage competent lawyers to take on important civil rights cases even though many do not result in money awards. The team of lawyers that took on the District's gun ban sued under such a provision, arguing that prohibiting District residents from possessing handguns in their homes violated the Second Amendment right to keep and bear arms. Having won the landmark case this summer before the Supreme Court, the lawyers are entitled to compensation. What they are not entitled to is the kind of windfall they are seeking.

The lead lawyer in the case, Alan Gura, logged 1,661 hours on the case since taking it on in 2003, according to an Aug. 25 court submission. He has asked the D.C. federal trial judge overseeing the case to pay him $557 per hour; four other lawyers in the case are also seeking that rate. Two other, less experienced lawyers who worked on the case are asking for rates of $494 and $285 an hour, respectively.

Mr. Gura and his colleagues claim the $557 figure is fair because it reflects the going rate for District lawyers who have the same number of years of experience as they do. But this does not take into account the fact that these lawyers are usually with Washington megafirms that have Fortune 500 companies as clients -- and that even these companies get discounts from those astronomical rates.

For Mr. Gura, $557 an hour for 1,661 hours would mean a payday of $925,177. But it doesn't stop there. He argues that because of the "exceptional" nature of the case and the excellent results he secured for his client, he and the others are entitled to double the fees. In Mr. Gura's case, that translates to about $1.85 million -- or roughly $1,100 an hour. Even superstar lawyers in the District do not routinely command such rates.

U.S. District Judge Emmet G. Sullivan should pare back the hourly rate using an index of legal fees calculated by the Justice Department for such cases. At the very least, he should deny the request for double fees. The law requires that Mr. Gura and team receive compensation, but it does not require District residents to foot a bill that would make millionaires of its former adversaries.

The smackdown:

We Earned the Fees in the Gun Case

Thursday, September 18, 2008; Page A20

Vindication of fundamental civil rights is not an "injury," and asking that the government be held liable for the cost of enforcing our civil rights laws is no "insult" ["Holding Up Taxpayers," editorial, Sept. 6].

Enforcement of our nation's civil rights laws depends on attracting qualified lawyers to fight government agencies with endless resources on behalf of ordinary people who cannot afford legal services.

Awarding successful civil rights lawyers below-market rates for taking such enormous risks would send the bar a terrible message: Ignore injustice, unless you can afford to fight it.

Our requested rates are based on documented market realities, not on the government's wishes about what it would like to pay.

I was shocked at The Post's suggestion that civil rights lawyers are somehow the lesser relations of those who work in "megafirms" serving the Fortune 500. In any event, I and three other members of our team have worked or are still working in those "megafirms."

And if we are such lousy lawyers, how did we manage to beat the city's militia of lawyers, including three of the biggest of the "megafirms" in town?

The Supreme Court also instructs that civil rights victories in exceptional cases entitle the prevailing lawyers to enhanced fees. Our request for fee enhancement is in line with what cases involving abortion, gay rights, police misconduct and other important issues have earned the lawyers who were brave enough to back them. Would The Post feel differently if we had vindicated a right about which it were more enthusiastic, say, freedom of the press?

If the city doesn't want to pay civil rights lawyers' fees, it should obey the Constitution. Freedom isn't free.



The writer was lead counsel for Dick A. Heller in District of Columbia v. Heller, the case in which the District's ban on handgun ownership was overturned .

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