January 2010:
When Attorneys are Good (and Bad)

Washington Watch | January 2010
By Bruce Moyer

Three cases before the Supreme Court this term could have broad implications for the consequences of good and bad conduct by attorneys. The first case looks at how to reward exceptional performance by attorneys; the other two consider what should happen when attorneys perform badly. The first case involves how attorneys’ fees are calculated in fee-shifting statutes. The second examines the consequence of bad advice from public defenders. The third could put a dent in the immunity of prosecutors. All three cases were argued before the Supreme Court in October and November.

Perdue v. Kenny A. (08-970) raises important questions about how civil rights should be enforced and what compensation lawyers should receive for enforcing them. The issue before the Court is whether a group of public interest attorneys in a successful class action lawsuit should be entitled to a larger fee under a federal fee-shifting statute, based solely on the quality of performance and the results obtained. Put more simply, should lawyers who do a superb job in a difficult case get a sizable markup beyond the basic amount of fees earned? The outcome of the case could affect the award of fee enhancements under more than 100 federal laws that allow the winners in a wide array of civil cases to recover their attorneys’ fees.

At issue in Perdue is a $10.5 million fee that a federal judge in Georgia awarded to attorneys who had won a sweeping class action that challenged the way various federal and state laws affected a case dealing with the state’s dysfunctional foster care system. Even though the underlying case, brought on behalf of some 3,000 abused and neglected children living in foster homes, culminated after three years in numerous actions the state agreed to undertake to improve the lot of foster children, the two sides could not agree on attorneys’ fees to be paid to the lawyers for the children. That fell to the district judge, who nearly doubled the lodestar figure of $6 million, reasoning that the children’s lawyers had achieved “exceptional” success on a “comprehensive scale”—far beyond what the children would have received had they paid for such representation in the private market. The Eleventh Circuit Court of Appeals affirmed the district court’s decision. During oral argument before the U.S. Supreme Court, the fee award and the amorphous concept of “exceptional” results by attorneys were subject to tough examination. The Court could end up prohibiting enhancements based on the quality of the attorney’s representation while directing district courts to adjust their lodestar calculations to take such considerations into account.

The other two cases before the Supreme Court involve attorneys’ performance at the other end of the quality spectrum. The first case involves the consequences of bad advice provided by a public defender. The second involves the fabrication of evidence by a county prosecutor.

In Padilla v. Commonwealth of Kentucky (08-
651), the Supreme Court is considering whether the Sixth Amendment provides a remedy to a defendant who has been given the wrong advice by his attorney. The case involves a public defender who advised a client who was not a U.S. citizen to plead guilty of drug charges, telling the permanent resident not to worry about the consequences the plea might have on his immigration status. When the guilty plea triggered a mandatory automatic deportation order under federal law, the defendant claimed that his attorney’s bad advice had deprived the defendant of his Sixth Amendment right to effective assistance of counsel. The case has the potential to define the scope of the both citizens’ and noncitizens’ right to the effective assistance of counsel in the context of pleading guilty to a crime.

Finally, Pottawattamie County v. McGhee (08-1065) challenges the limits of strong precedent that give prosecutors absolute immunity from liability for their official acts, especially during trial. The case tests whether that immunity should extend to actions taken in preparation for trial. Specifically, the case asks whether a prosecutor may be held civilly liable for the wrongful conviction and incarceration of a criminal defendant after the prosecutor has procured false testimony during a criminal investigation and then introduced that same testimony against the defendant at trial. The stakes in this technical question are high because the prosecutor’s actions at issue resulted in two men being incarcerated for 25 years based on falsified evidence.

In an interesting turn of events in the case, Deputy Solicitor General Neal Katyal argued for the United States and the prosecutors, while Paul Clement, the former solicitor general in the Bush administration, argued for the defendants who had been framed. Clement faced scrutiny about the practical consequences of curbing the rule of absolute prosecutorial immunity and the prospect of chilling prosecutors from performing their critical duties.

Bruce Moyer is government relations counsel for the FBA. © 2010 Bruce Moyer. All rights reserved.

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