Evans v. Jeff D. Brief for Amici Curiae

    No. 84-1288

In the

Supreme (Emtrt uf tlje United
O ctober Term , 1985

J ohn V. Evans, et a i,
Petitioners,

Jeff D., et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR AMICI CURIAE NAACP LEGAL DEFENSE AND EDU­
CATIONAL FUND, INC., LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW, AMERICAN CIVIL LIBERTIES UNION, AND 

LEGAL AID SOCIETY OF NEW YORK,
IN SUPPORT OF RESPONDENTS

James Robertson 
Harold R. Tyler , Jr . 

Co-Chairmen
NORMAN Redlich , Trustee 
W illiam  L. Robinson 
Norman J. Chachkin 
Lawyers’ Committee for 

Civil Rights Under Law 
1400 ‘Eye’ Street, N.W.
Washington, D.C. 20005 
(202) 371-1212
Kalman F inkel 
Helaine M. Barnett 
John E. Kirklin
The Legal Aid Society of New York 
11 Park Place
New York, New York 10007 
(212) 406-0745

Julius LeVonne Chambers 
♦Charles Stephen  Ralston 
Steven L. W inter 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street
New York, New York 10013
(212) 219-1900
E. R ichard Larson 
Burt Neuborne 
American Civil Liberties 

Union Foundation 
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Attorneys for Amici Curiae 
♦Counsel of Record



QUESTION PRESENTED

May a court, in determining post­

judgment fee entitlement under 42 U.S.C. § 

1988 in a case in which only injunctive 
relief is sought, approve a coerced waiver of 

all attorneys fees sought by defense counsel 

on the eve of trial as a condition of 

providing relief on the merits through a 

consent decree?

1



TABLE OF CONTENTS
Page :

Question Presented...........     i

Table of Contents........................... ii

Table of Authorities....................... iii
Interest of Amici.... ........................1

Summary of Argument....... ..................4

Argument....................... ............. 9
A. The Nature of Civil Rights 

Practice Makes Civil Rights 
Lawyers Uniquely Vulnerable 
to Coerced Waivers of Fees, a 
Practice Which if Approved 
Would Result in No Fees
Whatsoever..............................9

B. Coerced Waivers of Fee Entitlement 
Under 42 U.S.C. § 1988, Obtained 
as Prerequite Conditions for i 
Merits Settlements, Contravene
the Purposes of the Statute........... 19

C. Enforcement of Congress' Intent, 
by Barring Coerced Fee Waivers,
Will not Discourage Settlements 
or Make More Difficult the Quick 
Disposition of Nuisance Suits........ 39

D. In View of the Federal Courts' 
Inconsistency in Confronting 
Coerced Fee Waivers, Specific 
Guidance Must Be Provided by 
this Court Barring Coerced 
Fee Waivers 51



Page:
Conclusion. ........................ . ........ 61

TABLE OF AUTHORITIES
Cases;

Alyeska Pipeline Service Corp. v .
Wilderness Society, 421 U.S.
240 (1975)  ......................  25, 26

American Family Life Assurance 
Company v. Teasdale, 733 F.2d 
559 (8th Cir. 1984) ....................  46

Arnold v. Burger King Corp., 719
F. 2d 63 (4th Cir. 1983) ....... .........46

ASPIRA of New York, Inc. v. Board 
of Education of the City of New 
York, 65 F.R.D. 541 (S.D.N.Y.
1975) ................................ 31, 32

Barrentine v. Arkansas-Best 
Freight System, 450 U.S.
728 ( 1981)   20

Blackledge v. Perry, 417 U.S.
21 (1974 ) .................... ...........  23

Blum v. Stenson, 465 U.S. ,
104 S.Ct. 1541, 79 L.Ed.2d
891 ( 1984) ....................  passim

Bradley v. School Board of City 
of Richmond, 416 U.S. 696
(1974 ) ....................................1

- i i i -



Cases; Page:
Brooklyn Savings Bank v. O'Neil,

324 U.S. 697 ( 1944) ............. 20, 21 , 52

Cannon v. University of Chicago,
441 U.S. 677 ( 1979) ..................... 36

Carey v. Piphus, 435 U.S. 247
(1978) .... ......... ..................... 11

Charves v. Western Union
Telegraph Company, 711 F.2d
462 (1st Cir. 1983) ..................... 46

Chattanooga Branch, NAACP v. 
City of Chattanooga, No. 
79-2111 (E.D. Tenn. Dec. 2, 
1981), appeal dismissed, 
Nos. 82-5013 & 82-5016 (6th
Cir. April 29, 1982) ............... .....56

Christiansburg Garment Co. v.
EEOC, 434 U.S. 412 (1978) ............ 1, 46

City of Newport v. Fact 
Concerts, Inc., 453 U.S.
247 (1981) ............................... 12

Clanton v. Allied Chemical 
Corporation, 459 F. Supp.
282 (E.D. Va. 1976) ......................37

Copeland v. Marshall, 641 F.2d
880 (D.C. Cir. 1980) .................  2, 43

Dennis v. Chang, 611 F.2d 1302
(9th Cir. 1980) ...... .............. 44, 45

El Club del Barrio v. United 
Community Corporations, 735
F. 2d 98 (3d Cir. 1984) ...................54

IV



Cases: Page:
Ellison v. Schilling, Civ. No. 

L-80-23 (N.D. Ind. July 11,
1983) ..........................

Ford Motor Company v. EEOC,
458 U.S. 219 (1982) ............

Freeman v. B & B Associates, 595 
F. Supp. 1338 (D.D.C. 1984) ___

Gibbs v. Town of Frisco City,
626 F.2d 1218 (5th Cir. 1980) .,

Gillespie v. Brewer, 602 F. Supp. 
218 (N.D. W.Va. 1985) ......... .52, 54

Hall v. Cole, 412 U.S. 1 (1973) .. .21, 28
Hanrahan v. Hampton, 446 U.S.

754 (1980) ..................... .24, 31, 34
Harlow v. Fitzgerald, 457 U.S.

800 (1982) .....................

Henry v. Gross, 84 Civ. 8399
(TPG) (S.D.N.Y. June 18, 1985) .,

Hensley v. Eckerhart, 461 U.S.
424 ( 1983) ..... ..........  1 , 4, 24, 41, 47

Hutto v. Finney, 437 U.S. 678
( 1978) ....................... 1 , 24, 39, 58

Incarcerated Men of Allen 
County v. Fair, 507 F.2d 
281 (6th Cir. 1974) ............. .31, 32

Johnson v. Georgia Highway 
Express Co., 488 F.2d 714
(5th Cir. 1974) .......................... 2

v



Cases: Page:

Lazar v. Pierce, 757 F.2d
435 ( 1st Cir. 1985) ........ . 22, 52, 55

Leisner v. New York Telephone 
Co., 398 F. Supp. 1140 
(S.D.N.Y. 1974 ) .................. .... 37

Lipscomb v. Wise, 643 F.2d 319
(5th Cir. 1981) ....................

Lisa F. v. Snider, 561 F. Supp.
724 (N. D. Ind. 1983 ) ... ........ . .41, 53

Maher v. Gagne, 448 U.S. 122
( 1980 ) ..... ................... . 24, 33, 40

Marek v. Chesny, 53 U.S.L.W.
4903 (U.S. June 27, 1985) ........ 6 , 43, 47

Moore v. National Ass'n of 
Securities Dealers, 762 
F.2d 1093 (D.C. Cir. 1985) ..... 52, 55, 59

Nadeau v. Helgemoe, 581 F.2d
275 (1st Cir. 1978) ................ . .... 41

Newman v. Piggie Park Enter­
prises, Inc., 390 U.S. 400 
(1968) .................... ......... .passim

New York Gaslight Club, Inc. v. 
Carey, 447 U.S. 54 (1980) ..... .

North Carolina v. Pearce, 395
U.S. 711 (1969) ........... ........

Northcross v. Board of Educa­
tion of Memphis, 412 U.S.
427 ( 1973) ... .....................

Oldham v. Ehrlich, 617 F.2d
163 (8th Cir. 1980) .... ...........

vi



Cases: Page:

Palmigiano v. Garrahy, 616 F.2d 
598 (1st Cir.), cert, denied,
449 U.S. 839 (1980)   10

Parker v. Matthews, 411 F. Supp.
1059 (D.D.C. 1976), aff'd sub 
nom., Parker v. Califano,
561 F.2d 320 (D.C. Cir. 1977) .......31, 32

Pigeaud v. McLaren, 699 F.2d
401 (7th Cir. 1983)   47

Prandini v. National Tea Co.,
557 F. 2d 1015 (3d Cir. 1977) ............ 54

Pulliam v. Allen, 466 U.S. ,
104 S.Ct. 1970, 80 L.Ed.2d
565 (1984) ............................... 24

Regalado v. Johnson, 79 F.R.D.
447 (N.D. 111. 1978) ................ 10, 52

Roadway Express, Inc. v. Piper,
447 U.S. 752 (1980) ...................... 47

Schulte v. Gangi, 328 U.S.
108 (1946 ) ..........................  20 , 21

Shadis v. Beal, 685 F.2d 824 
(3d Cir.), cert, denied,
459 U.S. 970 ( 1982) ...................... 52

Supreme Court of Virginia v.
Consumers Union, 446 U.S.
719 (1980) ................    24

Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S.
1 (1971) ................................... 6

- vii -



Cases : Page;

White v. New Hampshire Depart­
ment of Employment Security,
455 U.S. 445 (1982) .... .1, 34, 35, 41, 60

Wilko v. Swan, 346 U.S. 427
(1953) ..............................  22, 52

Statutes and Rules:

Civil Rights Act of 1964, Title
VII, 42 U.S.C. §§ 2000e, et seq. ....11, 13

Civil Rights Attorney's Fees 
Awards Act of 1976, 42 U.S.C.
§ 1988 ........... . ............ passim

Fed R. Civ. P.
Rule 11 ...   47

Rule, 12(b) ..........     46

Rule 16 ............................. 58, 61

Rule 23 .............................. 58, 61

Rule 56 .............  ......46
Rule 68 ........................   47

Legislative History:

H.R. Rep. No. 1558, 94th Cong.,
2d Sess. (1976 ) ..................... passim

- viii -



P a g e ;

S. Rep. No. 1011, 94th Cong.,
2d Sess. reprinted in 1976 
U.S. Code, Cong. & Ad. News
5908 ................................. passim

Municipal Liability Under 42 
U.S.C. § 1983; Hearings on 
S. 585 Before the Subcomm. on 
the Constitution of the Senate 
Comm, on the Judiciary, 97th 
Cong., 1st Sess. (1981) ................. 39

Attorney's Fees Awards; Hearings 
on S. 585 Before the Subcomm. 
on the Constitution of the 
Senate Comm, on the Judiciary,
97th Cong., 2d Sess. (1982) ............. 38

H.R. 5757, 98th Cong., 2d Sess.
(1984)   38

S. 2802, 98th Cong., 2d Sess.
(1984) ...................................  38

Legal Fees Equity Act: Hearings
on S♦ 2802 Before the Subcomm. 
on the Constitution of the 
Senate Comm, on the Judiciary,
98th Cong., 2d Sess. ( 1984) ..............  38

S. 1580, 99th Cong., 1st Sess.
( 1985) ...................................  39

Ethics Rules and Opinions;
American Bar Association, Model

Code of Professional Responsibility
DR 5-101 (A)  7

IX



Pa g e ;
EC 5-2 ..................................7

EC 7-7 ...... ................ .......... 7

American Bar Association, Model 
Rules of Professional Conduct

Rule 1.2(a) ....... ............ ........ 7

Committee on Legal Ethics, The 
District of Columbia Bar,
Opinion No. 147, reprinted in 
113 Daily Wash. Law Rptr. 389 
(Feb. 27, 1985) ........ ..................7

Committee on Professional and 
Judicial Ethics of New York 
City Bar Ass'n, Opinion No.
80-94, 36 Record of New York 
City Bar Ass'n 507 (Nov. 1981) 
amended and reissued in
Opinion No. 82-80 (Dec. 1983) .... ...... 54

Law Review Articles:

Bartholet, Application of Title 
VII to Jobs in High Places, 95 
Harv. L. Rev. 945 ( 1982) ................ 12

Comment, Settlement Offers Con-
ditioned~~Upon Waiver of Attorneys'
Fees: Policy, Legal, and Ethical
Considerations, 131 U. Pa. L. Rev.
793 ( 1983) ............................... 57

x



Page :
Kraus, Ethical and Legal Concerns in 

Compelling the Waiver of Attorney's 
Fees by Civil Rights Litigants in 
Exchange for Favorable Settlement of 
Cases under the Civil Rights Attorney's 
Fees Awards Act of 1976, 29 Vill. L.
Rev. 597 ( 1984) .... ..................... 54

Levin, Practical, Ethical and Legal 
Considerations Involved in the 
Settlement of Cases in Which Statutory 
Attorney's Fees Are Authorized, 14 
Clearinghouse Review 515 ( 1980) ........  57

xi



BRIEF FOR AMICI CURIAE 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, 

LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, 
AMERICAN CIVIL LIBERTIES UNION, AND 

_______ LEGAL AID SOCIETY OF NEW YORK________
INTEREST OF AMICI 1/

Amici are public interest law organiza­
tions that have substantial experience in the 

litigation of civil rights cases subject to 
various statutes providing for awards of 

attorneys fees, particularly the Civil Rights 
Attorney's Fees Awards Act of 1976, 42 U.S.C.
§ 1988. We have been involved in many cases, 

either as counsel for parties or as amicus 
curiae, which have established basic stand­

ards for awarding f e e s . —/

1. Letters consenting to the filing of this Brief 
have been lodged with the Clerk of Court.

2. E.g., Blum v. Stenson, 104 S.Ct. 1541, 79 L.Ed.2d
891 (1984); Hensley v. Eckerhart, 461 U.S. 424 (1983); 
White v. New Hampshire Department of Employment Secu­
rity, 455 U.S. 445 (1982); Hutto v. Finney, 437 U.S. 
678 (1978); Christiansburg Garment Co. v. EEOC, 434
U.S. 412 (1978); Bradley v. School Board of City of
Richmond, 416 U.S. 696 (1974); Northcross v. Board of 
Education of Memphis, 412 U.S. 427 (1973); Newman v.
Piggie Park Enterprises, Inc., 390 U.S. 400 (1968);
[footnote cont'd]

1



Our interest in the issues presented by 

this case is two-fold. First, we depend on 

donated services of attorneys in the private 

bar to assist us in conducting litigation. 

In our experience, the potential for fee 

awards to prevailing parties in such litiga­
tion has increased the willingness of the 

private bar to participate in civil rights 

cases. To the extent that fees and costs 
become unavailable even when the party re­

ceiving pro bono representation prevails, the 
availability of donated services will de­

crease .
Second, we also depend to a substantial 

degree on fee awards for income necessary to 

carry out, through our own staff, our pro­

grams of providing legal services to the 
victims of civil rights violations. Thus, 

the availability of fee awards is essential

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980); 
Johnson v. Georgia Highway Express Co., 488 F.2d 714 
(5th Cir. 1974).

2



both to the continued provision of legal 

services and to the vigorous enforcement of 

the civil rights statutes in general.

We are convinced that the judgment of 
the court below is correct. Allowing defense 

counsel to offer lawyers for plaintiffs in 

civil rights or other injunctive actions 

certain, meaningful relief for their clients 
-- on condition that statutory fee entitle­

ments be waived —  in theory pits plaintiffs 

against their attorneys. In fact, long- 
settled ethical principles, prudence and 

compassion dictate that plaintiffs' counsel 
in such cases will be compelled to waive 

fees. If this tactic is approved by this 

Court, it would destroy the efficacy of the 
civil rights acts and would totally undermine 
the intent of Congress when it made attorneys 
fees available in such suits.

3



SUMMARY OF ARGUMENT
Congress passed the Civil Rights Attor­

ney's Fees Awards Act of 1976, 42 U.S.C. § 
1988 ("the Fees Act"), to increase the avail­

ability of counsel to represent plaintiffs in
3 /suits brought under applicable federal law—/ 

by authorizing recovery of reasonable compen­

sation for attorneys' services where plain­
tiffs prevail on their claims. See generally 

Blum v. Stenson, 104 S.Ct. 1541, 79 L.Ed.2d 

891 (1984); Hensley v. Eckerhart, 461 U.S. 

424 (1983). In the absence of "special cir­
cumstances [which] would render such an award 

unjust,"— ^ the liability of a defendant whose 
conduct violates a statutory or constitu-

3. The Fees Act applies to suits under 42 U.S.C. §§ 
1981, 1982, 1983, 1985 and 1986, and to suits to en­
force provisions of 20 U.S.C. §§ 1681 et seq. or 42 
U.S.C. §§ 2000d et seq.
4. Newman v. Piggie Park Enterprises, Inc,, 390 U.S. 
400, 402 (1968), quoted with approval in S. Rep. No. 
1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S. 
Code, Cong. & Ad. News 5908, 5912; and quoted in H.R. 
Rep. No. 1558, 94th Cong., 2d Sess. 6 (1976).

- 4



tional obligation encompassed by the applic­

able statutes is expanded to include a fee 

award to the prevailing plaintiff. "If suc­

cessful plaintiffs were routinely forced to 

bear their own attorney's fees, few aggrieved 
parties would be in a position to advance the 

public interest by invoking the injunctive 
powers of the federal courts."— /

This case involves perhaps the most 

extreme factual situation in which government 
defendants, in a private action brought to 

compel compliance with these important public 
policy requirements, seek to avoid their 

statutory liability under the Fees Act by 
trying to condition an offer of substantial 

relief on the merits to plaintiffs upon their 
lawyers' abandonment of any fee entitlement.

5. Newman, 390 U.S. at 402, quoted in S. Rep. No. 
1011, supra note 4, at 3, reprinted in 1976 U.S. Code, 
Cong. & Ad. News at 5910; and quoted in H.R. Rep. No. 
1558, supra note 4, at 6.

5



Unlike the "lump sum" offer context in 

Marek v. Chesny, 53 U.S.L.W. 4903, 4905 (U.S. 

June 27, 1985), in which the client, in de­

ciding whether to accept a monetary offer of 
settlement, must confront some necessary 

reduction of his recovery in order to permit 
his counsel to be compensated, plaintiffs in 

an injunctive suit such as in this case will 
not have their recovery diminished in the 
slightest by waiving the right to prosecute a 

statutory fee claim against the defendant. 

For this reason, when defense counsel in such 

a case propose a substantial merits settle­
ment conditioned on a fee waiver, they are 

knowingly presenting the plaintiffs and their 

attorneys with a "loaded game board"— / —  an 
offer which plaintiffs could have no reason 

whatever to reject and which their lawyers 
cannot ethically or morally advise them to

6. Swann v. Charlotte-Mecklenburg Board of Educa- 
tion, 402 U.S. 1, 28 (1971).

6



7 /r e j e c t '

It is precisely the devotion of plain­

tiffs' counsel to their ethical obligations

7. Plaintiffs in this case are a class of indigent 
juveniles, committed involuntarily to state institu­
tions , who necessarily had no liability to their Legal 
Services counsel for either fees or costs. In these 
circumstances, no attorney could, consistent with his 
ethical obligation to place the client's interests 
above his own, advise rejection of merits relief which 
promised some change in allegedly unconstitutional and 
dangerous conditions of confinement simply because 
counsel's costs would not be reimbursed or fees not 
awarded to him. See American Bar Association, Model 
Code of Professional Responsibility DR 5-l0l(A) ("Ex­
cept with the consent of his client after full disclo­
sure, a lawyer shall not accept employment if the 
exercise of his professional judgment on behalf of his 
client will be or reasonably may be affected by his 
own financial, business, property, or personal inter­
ests" ); id,, EC 5-2 ("A lawyer should not accept 
proffered employment if his personal interests or 
desires will, or there is a reasonable possibility 
that they will, adversely affect the advice to be 
given or services to be rendered the prospective 
client"); id., EC 7-7 ("[I]t is for the client to 
decide whether he will accept a settlement- offer"); 
American Bar Association, Model Rules of Professional 
Conduct Rule 1.2(a) ("A lawyer shall abide by a 
client's decision whether to accept an offer of set­
tlement of a matter"); Committee on Legal Ethics, The 
District of Columbia Bar, Opinion No. 147, reprinted 
in 113 Daily Wash. Law Rptr. 389 (Feb. 27, 1985) 
("Plaintiff's counsel owes undivided loyalty to the 
client and is obliged to exercise his judgment in 
evaluating the settlement free from the influence of 
his or her organization's interest in a fee. DR 5- 
101(A)").

7



to their clients in this, and in similar 

cases, which places in the hands of defense 

counsel a potent weapon to defeat the policy 

underlying the Fees Act. Attorneys in pri­
vate practice who accept pro bono referrals 

and who are confronted after years of litiga­
tion with coerced waivers of fees are unlike­

ly to continue to provide representation in 
such cases in the future unless their finan­

cial burden is eased in accordance with con­
gressional intent. Public interest law 

organizations such as amici will be less able 

to undertake representation in such cases 
without fee awards when their clients pre­

vail. Thus, allowing defendants to coerce 

waivers of fee awards as a condition of mak­

ing available substantial merits relief 

through settlement will directly impede real­
ization of the purposes of the Fees Act.

8



ARGUMENT
In civil rights injunctive suits such as 

this case, federal courts cannot condone, 
much less enforce, defense efforts to coerce 

fee waivers by conditioning substantial 

merits relief for plaintiffs upon counsel's 
abandonment of statutory fee entitlement.

A. The Nature of Civil Rights Practice 
Makes Civil Rights Lawyers Uniguely 
Vulnerable to Coerced Waivers of 
Fees, a Practice Which if Approved 
Would Result in No Fees Whatsoever
In order to understand fully the pro­

blems that arise when defendants demand a
waiver of fees as the price for settling a
civil rights case, particularly one in which 
only equitable relief is sought, it is neces­

sary first to understand the relationship 

between counsel and client in a typical civil 

rights suit. That relationship is very dif­

ferent from traditional commercial or contin­

gent fee practices, in which the client un-

9



dertakes a specific monetary obligation to 

the attorney, based either upon an agreed 

(usually hourly or daily) rate, or upon a 

percentage of the ultimate recovery in cases 

where monetary relief is sought.

1. In the vast ma j ority of civil 
rights cases, plaintiffs are unable to pay 

any fees whatsoever/ Further, by statute, 

court rule, or Internal Revenue Service regu­

lation, most legal services and legal aid 
organizations like amici are prohibited from 

charging fees to their clients.2 /  Occasion-

8. This fact has been widely recognized by the lower 
federal courts, see, e.g,, Lipscomb v. Wise, 643 F.2d 
319, 320 (5th Cir. 1981); Regalado v, Johnson, 79 
F.R.D, 447, 451 (N.D. Ill, 1978); and it provided the 
basic premise for Congress' enactment of the Fees Act, 
see infra at 23-30.

9. For example, private organizations in New York 
that provide legal assistance are chartered by the 
courts as legal aid societies which ordinarily are 
prohibited from charging fees. Congress specifically 
intended that such groups receive awards under the 
Fees Act, see H.R. Rep. No. 1558, 94th Cong., 2d Sess. 
8 n.16 (1976); Palmigiano v, Garrahy, 616 F.2d 598, 
601-02 (1st Cir.), cert, denied, 449 U.S. 839 (1980).

10



ally, civil rights plaintiffs can afford to 

pay some of the costs of the litigation or a 

reduced fee. But in most instances, we rei­

terate, the client has no written or unwrit­

ten duty to compensate counsel for his ser­
vices .-!£/

In many civil rights cases, even where 

monetary relief is demanded, the amounts 

likely to be recovered will not be large 

enough to cover the reasonable value of the 

attorneys' services in the 1 it igat ion .-12/

10. As noted, civil rights and legal aid organiza­
tions may not create such an obligation in a retainer 
agreement. While private pro bono counsel might do 
so, plaintiffs in these cases, many of whom have 
already suffered from harassment by legal or govern­
mental authorities, are often reluctant to sign such 
agreements. The object of the Fees Act was to make it 
unnecessary for civil rights plaintiffs to assume fee 
payment obligations in order to secure counsel.

11. For example, suits to redress the invasion of 
fundamental constitutional rights may produce only 
nominal damages, Carey v. Piphus, 435 U.S. 247, 266-67 
(1978); the requirement that even a wronged party 
mitigate his damages may reduce a recovery, see, e.g,, 
42 U.S.C. § 2000e-5(g) (interim earnings to be de­
ducted from back pay award); in suits against public 
officials, immunity doctrines and special defenses may 
limit or even bar the recovery of damages, see, e.g,, 
[footnote cont'd]

11



Moreover, as is true here and as this Court 
noted in Newman v. Piqqie Park Enterprises 

Inc., 390 U.S. at 402, many cases involve

Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified 
immunity); City of Newport v. Fact Concerts, Inc., 453 
U.S. 247 (1981) (punitive damages unavailable from 
municipal defendants); or the offer of partial relief 
pendente lite may toll accrual of monetary entitle­
ments, see Ford Motor Company v. EEOC, 458 U.S. 219 
(1982). In the typical individual employment discrim­
ination case, the back pay award will be too small 
plausibly to justify either a contingent fee or a fee 
premised on reasonable hourly rates for time expended 
to obtain a favorable result. Most, but not all, 
Title VII cases have involved lower-level, "blue- 
collar" positions, see Bartholet, Application of Title 
VII to Jobs in High places, 95 Harv. L. Rev. 945, 948- 
49 (1982); since monetary recovery in such cases is 
restricted to back pay, the amount of recovery is 
necessarily limited by the lower prevailing salaries 
for these jobs. Thus, at New York City rates for 
attorneys with about two years of experience, see Blum 
v. Stenson, 79 L.Ed.2d at 897 n.4; Bradford vT~'BlumT~ 
507 F. Supp. 526 (S.D.N.Y. 1981), an individual Title 
VII case requiring 200 hours of lawyer time for fil­
ing, discovery and trial would, if handled by a rela­
tively young attorney, still require a fee of $19,000 
exclusive of costs —  more than a year's back pay for 
many entry-level jobs. Recoveries are generally small 
even in damage actions for killings brought under 42 
U.S.C. § 1983, see, e,g,, Gibbs v. Town of Frisco 
City/ 626 F.2d 1218, 1220 (5th Cir. 1980) (plaintiff's 
son shot and killed by local police; damage award of 
$12,000 and fee award of $8,000).

12



only injunctive relief-!!/ All of these 

cases, however, are precisely the lawsuits 

whose initiation and litigation Congress 
wished to encourage through the fee award 
mechanism of 42 U.S.C. § 1988.

Thus, the typical civil rights lawsuit 
subject to the Fees Act has the following 

characteristics: (a) the plaintiff has no or

only a very limited obligation either to

12. Amici do not mean to suggest that serious ethical 
and public policy problems do not exist in cases where 
relief other than an injunction is at issue. In liti­
gation enforcing Title VII of the Civil Rights Act of 
1964, it is now increasingly common for defendants to 
offer a lump sum representing back pay and fees in 
total settlement of a case. Since it is rare that the 
lump sum is sufficient both to cover the individual 
back pay claims of the class members (so as to make 
them whole) and to compensate their attorneys, the 
interests of the class members are pitted against 
those of their attorneys. And since these actions are 
class actions in which there is no contractual obliga­
tion on the part of either the named plaintiffs or the 
class itself to pay fees, the conflicts cannot be re­
solved by submission to the clients.

The Court is not faced with such questions in the 
case before it, however, and we limit our discussion 
in this Brief to demands for complete waiver of fee 
entitlements in suits where no monetary relief has 
been sought but in which defendants offer substantial 
merits relief.

13



provide funds for the costs of litigation or 

to compensate his counsel for legal services; 

and (b) once the attorney-client relationship 

comes into being, plaintiff’s counsel owes 
his client the same quality, zeal and effica­
cy of representation which he would provide 
to a paying client, as required in bar disci­

plinary codes. Recognizing these facts, 

Congress created, in the Fees Act, an obliga­

tion of unsuccessful defendants in civil 

rights cases to compensate plaintiffs' 

attorneys for their services, in order to 
encourage and attract lawyers to provide 

representation in these cases.

2. Given this context, the problems 

faced by plaintiffs' counsel when the issues 
on the merits of a case and the availability 

of attorneys fees are linked, in a single 
offer proposing waiver of the latter in ex­

change for substantial relief on the former,

14



are totally different than in ordinary tort 

or commercial litigation.

For example, in a personal injury case 

where there is a contingent fee retainer, 
client and counsel will share proportionately 

in any recovery and the client's decision 
whether to accept a settlement will be sub­
ject to the client's obligation to share the 
proceeds with his attorney. While some dif­

ferences of opinion may persist which are 

detrimental to the attorney's interest in 

maximizing his remuneration, see Br. for U.S. 

at 24-25, civil rights suits in which a fee 

waiver is demanded differ from this situation 

in at least two very significant respects, 

(a) So long as there is some recovery for the 
client, there is some recovery for counsel; 

the two are inextricably linked and cannot be 
manipulated one against the other by defense 

counsel. (b) There is no strong public poli­
cy, much less a federal statute, providing

15



that counsel for successful plaintiffs should 

receive reasonable compensation for their 

time and effort, to be paid by the defendant.

Similarly, in a case in which the client 

has agreed to compensate his counsel at an 

established rate, irrespective of the results 
of the litigation, the relationship between 

attorney and client is impervious to the 
tactics of defense lawyers and is unaffected 

by any public policy, save that favoring its 

confidentiality.
In each of these situations, while dif­

ferences may occur, the personal and profes­

sional interests of counsel are at least 
generally aligned with the interests of the 

client when a settlement is proposed. In the 

typical civil rights case, however, the si­
tuation is diametrically opposite. Because 

the client is under no financial obligation 

to pay the attorney, a settlement offer of 

substantial merits relief conditioned upon a

16



fee waiver necessarily places the personal
interest of the attorney, the professional

interest of the attorney, and the interest of

the client, in conflict. As the Committee on

Legal Ethics of the District of Columbia Bar
aptly put it, supra note 7:

Defense counsel thus are in a uni­
quely favorable position when they 
condition settlement on the waiver 
of the statutory fee: They make a
demand for a benefit that the 
plaintiff's lawyer cannot resist as 
a matter of ethics and one in which 
the plaintiff has no interest and 
therefore will not resist.il/

13. These concerns are not abstract or theoretical. 
Amici and the attorneys with whom they work have 
experienced the problems outlined above in many dif­
ferent contexts. In fact, we recently have all been 
repeatedly faced with the impossible choice between 
obtaining relief for our clients and forfeiting our 
statutory entitlement to the fees that would enable us 
to bring other actions to enforce civil and constitu­
tional rights.

For our cooperating attorneys who are in private 
practice and, therefore, dependent on fees for their 
very livelihood, the problem is even more severe. We 
know of attorneys who have abandoned civil rights 
practice because of the widespread use of tactics such 
as those employed by the petitioners' attorneys in the 
present case. The combination of the loss of income 
and the continued threat of being placed in ethical 
dilemmas has forced attorneys, otherwise willing to be 
involved in the enforcement of the civil rights laws, 
[footnote cont'd]

17



Under our adversary system of litiga­

tion, counsel are encouraged to compromise 

claims favorably to their clients even if the 
result is to afford somewhat more or less 

than complete and exact compensation to the 

victim of wrongdoing. Petitioners and their 

amici are frank to advise this Court, how­

ever, that they read prevailing principles to 
require defense counsel to seek a waiver (not 

a compromise) of fees as part of any settle­
ment in a civil rights c a s e T h e  issue in 

this case is thus whether coercing a fee 
waiver in settlement of a case subject to the 

Fees Act is consistent with that statute —

to abandon this phase of their practice or to limit it 
to those few clients who can contract to pay a full 
fee out of their own pockets.

14. See, e.g,, Pet. Br. at 31-35; Br. of Alabama, et 
al., at 52-53; U.S. Br. at 23; City of New York Br. at 
13; but see Br. of Council of State Governments, et 
al., at 4 ("The narrow question presented to the court 
of appeals for review in this case was the propriety 
of defendant's insistence on a waiver of plaintiff's 
attorney's fees as a condition of settlements. Amici 
take no position with respect to this issue").

18



and it is to that question which we now turn.

B. Coerced Waivers of Fee Entitlement 
Under 42 U.S.C. S 1988, Obtained As 
Prerequisite Conditions for Merits 
Settlements, Contravene the Pur­
poses of the Statute
Petitioners and their amici argue that 

coerced fee waivers are permissible merely 
because the Fees Act does not bar them in 

haec verba These arguments, however,

wholly overlook Congress' purposes in enact­
ing the Fees Act.

1. It has never been the rule that a 
statutory scheme may be vitiated and congres­

sional purposes frustrated through ingenious 
construction or devious stratagems which were 

neither anticipated nor explicitly prohibited 

at the time of enactment. For example, this 
Court has long refused to permit the direct

15. See pet. Br. at 12-13; Br. of Equal Employment 
Advisory Council at 8-9; Br. for Alabama, et al., at 
14-17; U.S. Br. at 21-22.

19



or indirect waiver of the minimum wage re­

quirements of the Fair Labor Standards Act.
E.g., Barrentine v. Arkansas-Best Freight 

System, 450 U.S. 728 (1981); Schulte v. 
Gangi, 328 U.S. 108 (1946 ); Brooklyn Savings 

Bank v. O'Neil, 324 U.S. 697 (1944). In its 

opinion in the seminal case in this line, 

O'Neil, the Court justified its decision on 

the basis of the overall policy goals of the 
statute:

Neither the statutory lan­
guage, the the legislative reports 
nor the debates indicates that the 
question at issue was specifically 
considered and resolved by Con­
gress. In the absence of evidence 
of specific Congressional intent, 
it becomes necessary to resort to a 
broader consideration of the legis­
lative policy behind this provision 
as evidenced by its legislative 
history and the provisions in the 
structure of the Act.

324 U.S. at 705-06 (footnotes omitted). 
Indeed, O'Neil is particularly apt since the 
congressional purpose underlying the Fair 

Labor Standards Act was to ameliorate the

20



results flowing from bargaining between eco­

nomically unmatched and unequal interests:

The statute was a recognition of 
the fact that due to the unequal 
bargaining power as between employ­
er and employee, certain segments 
of the population required Federal 
compulsory legislation to prevent 
private contracts on their part 
which endangered national health 
and efficiency and as a result the 
free movement of goods in inter­
state commerce.... No one can 
doubt but that to allow waiver of 
statutory wages by agreement would 
nullify the purposes of the Act.
We are of the opinion that the same 
policy considerations which forbid 
waiver of basic minimum and over­
time wages under the Act also pro­
hibit waiver of the employee's 
right to liquidated damages.

Id. at 706-07 (footnote omitted) .-M/ The

16. It is the peculiar history of the Fair Labor 
Standards Act, as construed by this Court in O'Neil 
and Schulte, rather than some generically different 
approach to writing statutes, which thus accounts for 
the unusual language of 29 U.S.C. § 253(a), relied
upon by the Solicitor General, see U.S. Br. at 21. 
That section of the Portal-to-Portal Pay Act was 
drafted to overrule O'Neil and Schulte as to liqui­
dated, but not compensatory damages, and it was 
prompted by the specific circumstances in which those 
cases arose. It would be ludicrous to suggest that 
after those decisions, it was incumbent upon Congress 
to add similar language to every federal statute which 
created rights enforceable by individuals. Cf_. Hall 
[footnote cont'd]

21



same inequalities of access and bargaining 

power motivated Congress' enactment of the 

Fees Act.-i-̂ -/

v. Cole, 412 U.S. 1 (1973) (attorneys' fees awarded in 
suit to enforce statute despite absence of explicit 
statutory authorization). Moreover, no suggestion has 
been advanced by petitioners or their amici, and none 
can be supported in the legislative history, that the 
Congress which passed the Fees Act intended to author­
ize defendants to coerce fee waivers in settlements.

It is equally significant that the decision in 
Wilko v. Swan, 346 U.S. 427 (1953), also cited in U.S. 
Br. at 21-22, likewise relied upon the general pur­
poses of the Securities Act rather than any provision 
explicitly addressing arbitrability:

Two policies, not easily reconcilable, 
are involved in this case. Congress has 
afforded participants in transactions 
subject to its legislative power an oppor­
tunity generally to secure prompt, economi­
cal and adequate solution of controversies 
through arbitration if the parties are 
willing to accept less certainty of legally 
correct adjustment. On the other hand, it 
has enacted the Securities Act to protect 
the rights of investors and has forbidden a 
waiver of any of those rights. Recognizing 
the advantages that prior agreements for 
arbitration may provide for the solution of 
commercial controversies, we decide that 
the intention of Congress concerning the 
sale of securities is better carried out by 
holding invalid such an agreement for 
arbitration of issues arising under the 
Act.

346 U.S. at 438 (footnote omitted and emphasis added).

17. The suggestion of Judge Torruella in Lazar v. 
[footnote cont’d]

22



2 . Congress' primary purpose in enact­

ing the Pees Act was to attract competent 
counsel to represent victims of civil rights 

violations who otherwise would be unable to 
gain access to the courts, and thereby to 

provide a mechanism for actual civil rights 
enforcement. This overriding goal emerges 

clearly from an examination of the legisla­
tive history of the Fees Act.-i§/

Pierce, 757 F.2d 435, 439 (1st Cir. 1985), endorsed by 
petitioners and their amici —  that the statutory fee 
entitlement under the Act must be waivable since even 
in the criminal sphere, federal constitutional rights 
are subject to waiver —  is a non sequitur. The issue 
is whether the defendant may coerce such a waiver as 
the price for agreeing to substantial relief on the 
merits. in the criminal area, it is thoroughly set­
tled that a prosecutor may not coerce waiver of con­
stitutional rights as the price of some other agree­
ment with the defendant. E.g,, Blackledge v. Perry, 
417 U.S. 21 (1974); North Carolina v. Pearce, 395 U.S. 
711 (1969).

18. Despite their broad contentions, petitioners 
studiously avoid any examination of the legislative 
history, with the exception of four minor and mislead­
ing cites to H.R. Rep. No. 1558, 94th Cong., 2d Sess.
(1976) * See pet‘ Br* at 13. Petitioner's amici 
similarly avoid any review of the legislative history. 
For example, although the Solicitor General advances a 
[footnote cont'd]

23



Running throughout the legislative his­

tory, particularly the Reports accompanying 

the Fees Act legislationrA2/ are three recur­

rent themes. (a) The victims of civil rights

congressional intent argument in his U.S. Br. at 20- 
21, nowhere in the argument is there any reference to 
the language of the Fees Act or to its accompanying 
legislative history.

The overriding importance accorded the legisla­
tive history accompanying the Fees Act is illustrated 
by, e.g., Pulliam v. Allen, 80 L.Ed.2d 565, 570 & n.4, 
580 & n.23 (1984) (relying on the House Report at 9); 
Blum v. Stenson, 79 L.Ed.2d 891, 898-900 (1984) (rely­
ing on the Senate Report at 6); Hensley v. Eckerhart, 
461 U.S. 424, 429-34 & nn.2, 4, 7 (1983) (relying on 
the Senate Report at 4, 6; and on the House Report at 
1, 7); Maher v. Gagne, 448 U.S. 122, 129, 132 n.15 
(1980) (relying on the Senate Report at 5; and on the 
House Report at 4 n.7); New York Gaslight Club, Inc, 
v. Carey, 447 U.S. 54, 70-71 n.9 (1980) (relying on 
the House Report at 5, 8 n.16); Hanrahan v. Hampton 
446 U.S. 754, 756-58 (1980) (relying on the Senate 
Report at 2, 5; and on the House Report at 4, 7, 8); 
Supreme Court of Virginia v. Consumers Union, 446 U.S. 
719, 737-39 & n.17 (1980) (relying on the Senate 
Report at 4; and on the House Report at 9); Hutto v. 
Finney, 437 U.S. 678, 694 n.23 (1978) (relying on the 
House Report at 4 n.6).

19. The Senate and House Reports are, respectively: 
S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) [herein­
after "Senate Report"], reprinted in 1976 U.S. Code, 
Cong. & Ad. News 5908-14; and H.R. Rep. No. 1558, 94th 
Cong., 2d Sess. (1976) [hereinafter "House Report"], 
reprinted in E. Larson, Federal Court Awards of Attor­
ney' s Fees, 288-312 (1981).

24



violations are ordinarily unable to afford 

lawyers, and are thus ordinarily unable to 

gain access to the courts. (b) Effective 

civil rights enforcement depends upon actions 

initiated by private plaintiffs and thus 

depends upon encouraging private lawyers, 
through the availability of court-awarded 

attorneys fees, to represent plaintiffs in 
private suits. (c) For these reasons, fee 

awards are essential if our Nation's civil 
rights statutes are to be enforced.

a. The Senate Report at 2 recog­
nized at the outset that in "many cases aris­

ing under our civil rights laws, the citizen 

who must sue to enforce the law has little or 

no money with which to hire a lawyer." This 

lack of financial resources, coupled with 

this Court's rejection of the "private attor­

ney general" doctrine in Alyeska Pipeline 

Service Corp. v. Wilderness Society, 421 U.S. 
240 (1975), effectively precluded access to

25



the courts. The House Report at 2 made clear 

that "civil rights litigants were suffering 

very severe hardships because of the Alyeska 

decision." " [P]rivate lawyers were refusing 

to take certain types of civil rights cases," 

and civil rights organizations, "already 

short of resources, could not afford to do 

so" either. Id. at 3. For victims of civil 
rights violations, the situation was indeed 

bleak: "Because a vast majority of the vic­
tims of civil rights violations cannot afford 

legal counsel, they are unable to present 
their cases to courts." Id. at 1.

Congress responded by authorizing court- 

awarded fees as a financial incentive to 

attract counsel to represent persons whose 

rights had been violated. "In authorizing an 
award of reasonable attorney's fees [the Fees 

Act] is designed to give such persons effec­

tive access to the judicial process where 

their grievances can be resolved according to

26



law." House Report at 1. "This bill ... 

provides the fee awards which are necessary 
if citizens are to be able to effectively 

secure compliance with these existing [civil 

rights] statutes." Senate Report at 6.
b. Congress thoroughly understood 

that most of our "civil rights laws depend 
heavily upon private enforcement," Senate 

Report at 2, for the obvious reason that 

"there are very few provisions in our Federal 
laws which are self-executing." Id. at 6. 

"The effective enforcement of Federal civil 
rights statutes depends largely on the ef­

forts of private citizens." House Report at
1. In creating the incentive of fee awards 

to facilitate the functioning of the enforce­
ment mechanism, Congress made "fees ... an 

integral part of the remedy necessary to 
achieve compliance with our statutory [civil 

rights] policies." Senate Report at 3. 

Congress did so consciously and

27



purposefully. It was aware of Hall v. Cole, 

412 U.S. 1 , 13 ( 1973 ) , in which this Court 
endorsed a fee award in a union member's suit 

to enforce the Landrum-Griffin Act because: 
"Not to award counsel fees in cases such as 

this would be tantamount to repealing the Act 
itself by frustrating its basic purpose." 
Senate Report at 3. Similarly, both Reports 

quoted from this Court's decision in Newman 
v. Piggie Park Enterprises, Inc., 390 U.S. 

400, 402 (1968): "If successful plaintiffs 

were routinely forced to bear their own 

attorneys' fees, few aggrieved parties would 

be in a position to advance the public 

interest by invoking the injunctive powers of 
the Federal courts." Senate Report at 3; 
House Report at 6. Finally, the legislative 

history demonstrates that Congress reviewed 

the enforcement success achieved through fee- 
shifting provisions in other civil rights 

statutes: "These fee-shifting provisions

28



have been successful in enabling vigorous

enforcement of modern civil rights
legislation." Senate Report at 4.

c. The legislative history leaves
no doubt that Congress believed fee awards to

be essential both to secure future legal

representation for aggrieved individuals and

to create an ongoing mechanism for civil

rights enforcement in general. As summarized

in the Senate Report:

"tC]ivil rights laws depend heavily 
upon private enforcement, and fee 
awards have proved an essential 
remedy if private citizens are to 
have a meaningful opportunity to 
vindicate the important Congres­
sional policies which these laws 
contain."

Id. at 2 (emphasis added); "fee awards are 

essential if the Federal statutes to which 
[the Fees Act] applies are to be fully en­
forced," id. at 5 (emphasis added); fee 

awards "are necessary if citizens are to be 

able to effectively secure compliance with 

these existing statutes," id. at 6 (emphasis

29



added); "[i]f our civil rights laws are not 

to become mere hollow pronouncements which 

the average citizen cannot enforce, we must 

maintain the traditionally effective remedy 
of fee shifting in these cases," id. (empha­

sis added).
In sum, Congress enacted the Fees Act to 

"insure that reasonable fees are awarded to 
attract competent counsel in cases involving 
civil and constitutional rights," and thereby 

"to promote the enforcement of the Federal 

civil rights acts, as Congress intended." 

House Report at 9.

3. It is also evident that Congress

intended to make fee awards available to

counsel who further private enforcement of

national civil rights laws by successful

resolution of lawsuits through settlement 
rather than formal adjudication.

30



The Fees Act "by its terms ... permits 

the award of attorney's fees only to a 'pre­

vailing party.'" Hanrahan v. Hampton, 446 

U.S. 754, 756 (1980). Giving meaning to this 

statutory phrase, the legislative history 

demonstrates Congress' intent to make fee 

awards available after a party "prevails" 

through settlement as well as through trial. 
The House Report at 7 states:

The phrase 'prevailing party' 
is not intended to be limited to 
the victor only after entry of a 
final judgment following a full 
trial on the merits. It would also 
include a litigant who succeeds 
even if the case is concluded prior 
to a full evidentiary hearing be­
fore a judge or jury. If the liti­
gation terminates by consent 
decree, for example, it would be 
proper to award counsel fees. 
Incarcerated Men of Allen County v.
Fair, 507 F.2d 281 (6th Cir. 1974); 
Parker v. Matthews, 411 F. Supp.
1059 (D.D.C. 1976); Aspira [sic] of 
New York, Inc, v. Board of Educa­
tion of the City of New York, 65
F.R.D. 541 (S.D.N.Y. 1975). A 
"prevailing" party should not be 
penalized for seeking an out-of- 
court settlement, thus helping to 
lessen docket congestion.

31



By equating success through settlement or a 

consent decree with success through judgment 

following a full trial, and particularly by 

emphasizing that a prevailing party should 
not be penalized by a denial of fees for 

seeking an out-of-court settlement, Congress 

certainly did not intend to diminish statu­
tory fee entitlement, much less obliterate 

it. Congress instead meant nothing less than 
what it said: fee entitlement follows the

achievement of prevailing party status won 

through settlement or a consent d e c r e e ^

20. The three cases relied on in the House Report at 
7 further illustrate Congress' intent. In two of the 
cases, the consent decrees addressed and resolved the 
merits of the litigation without any reference to 
attorneys fees. Incarcerated Men of Allen County v. 
Fair, 507 F.2d 281 (6th Cir. 1974), aff'g 376 F. Supp. 
483 (N.D. Ohio 1973); ASPIRA of New York, Inc, v. 
Board of Education of the City of New York, 65 F.R.D. 
541 (S.D.N.Y. 1975). The consent decree in the third 
case reserved the fee issue for later resolution by 
the court. Parker v. Matthews, 411 F. Supp. 1059 
(D.D.C. 1976), aff*d sub nom., Parker v. Califano, 561 
F.2d 320 (D.C. Cir. 1977). Significantly, in all 
three cases, fee entitlement was held to flow from the 
fact, and after the fact, of the plaintiffs having 
achieved prevailing party status.

32



The Senate Report, albeit less elabo­

rately, confirms this interpretation. After 

noting that fee awards are "appropriate where 

a party has prevailed on an important matter 

in the course of litigation," the Senate 

Report at 5 further states: "Moreover, for 

purposes of the award of counsel fees, par­
ties may be considered to have prevailed when 

they vindicate rights through a consent judg­

ment or without formally obtaining relief." 
Once again, according to Congress, a plain­
tiff's achievement of prevailing party status 

means that fee entitlement follows.

4. This basic congressional intent was 
recognized by this Court in Maher v. Gagne, 

448 U.S. 122 , 129 (1980), where the Court 

held that the "fact that [plaintiff] pre­
vailed through a settlement rather than 

through litigation does not weaken her claim 

to fees." The Court further observed:

33



Nothing in the language of § 1988 
conditions the District Court's 
power to award fees on full litiga­
tion of the issues or on a judicial 
determination that the plaintiff's 
rights have been violated. More­
over, the Senate Report expressly 
stated that "for purposes of the 
award of counsel fees, parties may 
be considered to have prevailed 
when they vindicate rights through 
a consent judgment or without for­
mally obtaining relief." S. Rep.
No. 94-1011, p.* 5 ( 1976) .

Id. See also Hanrahan v. Hampton, 446 U.S. 
at 756-57 (quoting with approval the House 

and Senate Reports) . And in White v. New 

Hampshire Department of Employment Security, 

455 U.S. 445 ( 1982), the Court held that a 
post-consent decree fee motion was not a Fed. 

R. Civ. P. Rule 59(e) motion to alter or 
amend a judgment on the merits because § 1988 

"provides for awards of attorney's fees only 
to a 'prevailing party,'" id. at 451, fee 
entitlement "under § 1988 raises issues col­

lateral to the main cause of action," id. 
(footnote omitted), and any "decision of 

entitlement to fees will therefore require an

34



inquiry separate from the decision on the 
merits —  an inquiry that cannot even com­

mence until one party has prevailed," _id_. at 
451- 52 .-^1/

21 . Also in whi te, as petitioners and their amici 
here are fond of pointing out, this Court "decline[d] 
to rely on" plaintiff's alternative "reason for find­
ing Rule 59(e) inapplicable to post-judgment fee 
requests": that "prejudgment fee negotiations could 
raise an inherent conflict of interest between the 
attorney and client," and that "to avoid this conflict 
of interest any fee negotiations should routinely be 
deferred until after the entry of a merits judgment." 
Id. at 453-54 n.15. Apart from the fact that resolu­
tion of this alternative argument was no longer neces­
sary in view of this Court's favorable ruling for 
plaintiff-petitioner on the meaning of Rule 59(e) 
given that fee entitlement is "collateral to the main 
cause of action," id. at 451, the fact of the matter 
is that this Court, in a footnote, "decline[d]" to 
rule on this simulatenous negotiation argument, and in 
fact said little more than that a defendant deciding 
whether to settle a case on the merits "may have good 
reason to demand to know his total liability from both 
damages and fees":

Although sensitive to the concern that 
petitioner raises, we decline to rely on 
this proffered basis. in considering 
whether to enter a negotiated settlement, a 
defendant may have good reason to demand to 
know his total liability from both damages 
and fees. Although such situations may 
raise difficult ethical issues for a plain­
tiff's attorney, we are reluctant to hold 
that no resolution is ever available to 
ethical counsel.

Id. at 453-54 n.15. This is far from any endorsement
[footnote cont'd]

35



Thus, under the statutory scheme, fee 

entitlement follows from the precondition of 

achieving prevailing party status through 

trial or settlement. Petitioners' tactic of 
demanding a fee waiver as the price for the 

defendant's execution of a settlement agree­

ment on the merits, which establishes a 

plaintiff's prevailing party status, thus 

turns the law on its head.-H/ Judicial ap-

of petitoner's request here for judicial approval of a 
coerced waiver of fees altogether, a situation not 
presented in White.

22. Petitioners' suggestion that Congress enacted the 
Fees Act cognizant of federal court decisions that 
"had interpreted Title II and VII to allow [defendants 
to coerce] plaintiffs to waive attorney's fees" and 
intended to incorporate "this judicial gloss on the 
parallel statutes" into the Fees Act, Pet. Br. at 13, 
is unsupportable. Congress directed attention speci­
fically to "existing judicial standards, to which 
ample reference is made in this report," House Report 
at 8 (emphasis added); and Congress illustrated those 
standards by directing that fees be awarded where 
plaintiffs prevail through settlements or consent 
decrees, House Report at 7 and Senate Report at 5, see 
supra at 31-35. Cf. Cannon v. University of Chicago, 
441 U.S. 677, 696-97 (1979).

In any event, the two pre-Fees Act cases cited by 
petitioners do not concern waiver at all. One gave 
simultaneous approval of settlements of the merits and 
fees, without indicating whether both subjects were
[footnote cont'd]

36



proval of petitioners' approach would have 

the undeniable effect of removing fee enti­

tlement from virtually all cases where plain­

tiffs prevail through settlements or consent 
decrees.-M/ This, however, would be directly 
contrary to Congress’ injunction that a 
"'prevailing' party should not be penalized 

for seeking an out-of-court settlement." 

House Report at 7. And, contrary to Con­
gress' directions, it would eliminate fee 
entitlement from a large category of cases in 

which Congress intended fees to be awarded.

discussed in the same negotiations, and without any 
mention of a fee waiver. Leisner v. New York Telephone 
Co., 398 F. Supp. 1140, 1142 (S.D.N.Y. 1974) ("Defen­
dant has admitted nothing in terms of liability but 
has agreed to a compromise guaranteeing substantially 
all the affirmative relief sought by plaintiffs, and 
further agreed under 'll.A.' to 'payments ... to 
Plaintiffs and their Attorneys ...'") (emphasis added 
in part). in the other case, Clanton v. Allied Chemi­
cal Corporation, 459 F. Supp. 282 (E.D. Va. 1976), the 
settlement agreement provided not for a fee waiver but 
for the court to determine fee entitlement. Id. In­
deed, all of the pre-Fees Act cases cited, see House 
Report at 7, involved bifurcated negotiations with the 
Court determining the fee, as in Clanton.

23. See supra note 14 and accompanying text.

37



Thus, not only is the position of peti­

tioners and their amici not supported by the 

express purposes of the Fees Act, it is di­

rectly contrary thereto. It is consistent, 

however, with the persistent and unsuccessful 

efforts of the Department of Justice, the 
National Association of Attorneys General, 
and other government representatives to con­
vince Congress to amend the Fees Act to limit 

drastically the availability of attorneys 
fees against government agencies .2 A J To 

date, they have been unable to get a bill out 

of committee in either house

24. See e.g., Attorney's Fees Awards: Hearings on s. 
585 Before the Subcomm. on the Constitution of the 
Senate Comm, on the Judiciary, 97th Cong., 2d Sess. 
(1982); Municipal Liability Under 42 U.S.C. § 1983: 
Hearings on S. 585 Before the Subcomm. on the Consti­
tution of the Senate Comm, on the Judiciary, 97th 
Cong., 1st Sess. (1981).

25. The latest effort to limit drastically fee awards 
against government agencies is legislation entitled 
the "Legal Fees Equity Act," which was drafted by the 
Justice Department and which was introduced in the 
98th Cong., 2d Sess. (1984) as S. 2802 and H.R. 5757. 
Hearings were held only on the Senate bill, Legal Fees 
Equity Act; Hearings on S« 2802 Before the Subcomm. 
[footnote cont'd]

38



The present case is but the latest in a

series of equally unsuccessful government

efforts^/ to have this Court interpret the

Fees Act in such a way as to cripple private
civil rights enforcement.

C. Enforcement of Congress' Intent, by 
Barring Coerced Fee Waivers, Will 
Not Discourage Settlements or Make 
More Difficult the Quick Disposi­
tion of Nuisance Suits
Notwithstanding Congress' clearly ex­

pressed purposes in enacting the Fees Act, 

petitioners and their amici argue strenuously 
that restricting the ability of defense coun-

on the Constitution of the Senate Comm, on the Judi­
ciary, 98th Cong., 2d Sess. (1984), but the bill was 
not even voted out of subcommittee.

This same legislation was recently reintroduced 
as S. 1580, 99th Cong., 1st Sess. (1985); see 131 
Cong. Rec. S10876 (daily ed. Aug. 1 , 1985). The 
section-by-section analysis states that this new bill 
is not "intended to preclude discussions between the 
parties of attorneys fees, or the waiver thereof, 
before the decision on the merits ... or to prevent 
the government from discussing liability for attor­
neys' fees in conjunction with liability on the merits 
as part of a settlement agreement." Id. at S10881.

26. See, e.g., Blum v. Stenson, and the U.S. Br. 
therein; Hutto v, Finney.

39



sel to press for fee waivers as part of over­

all settlements will have dire consequences 

for our judicial system, defeating salutary 
policies favoring compromise and settlement 

of litigation and burdening the courts with 

frivolous, "nuisance" litigation. These 
assertions are devoid of merit.

1. As to settlements in general, it is 
an historical fact that counsel in many earl­
ier civil rights cases followed a bifurcated 

approach, settling the merits first and 

thereafter resolving the matter of fees. 

This is precisely what occurred in the three 
settled cases cited with approval in the 
House Report at 7.2JJ it also is what 

occurred in Maher v. Gagne 448 U.S. 122, 126 

(1980) (the "parties informally agreed that 

the question whether [plaintiff] was entitled 
to recover attorney's fees would be submitted

27. See supra note 20 and accompanying text.

40



to the District Court after entry of the

consent decree"); in White v. New Hampshire 

Department of Employment Security, 455 U.S. 

445, 447-48 (1982) (the parties first nego­

tiated a settlement, and thereafter sought to 

negotiate fees, with the district court ulti­

mately awarding fees) ; and in hundreds of 

other civil rights cases including Nadeau v. 
Helgemoe, 581 F.2d 275 (1st Cir. 1978), cited 

with approval in Hensley v. Eckerhart, 461 

U.S. 424, 433 (1983).
Even more compelling is the fact that 

court orders barring defense counsel from 

conditioning an offer of settlement upon a 

coerced waiver of fees have not deterred 

settlement. For example, in Lisa- F. v. 

Snider, 561 F. Supp. 724 (N.D. Ind. 1983 )
(Civ. No. S-79-103), where the government 
defendants, after four years of litigation, 

proposed a settlement on the merits condi­

tioned upon a coerced waiver of fees, and

41



where the court ordered any negotiation on 
the merits to be conducted "separate from the 

question of the plaintiff's entitlement to 

attorney fees," id. at 726, this order did 

not deter settlement. Less than six months 

later, the parties settled the case on the 

merits favorably to the plaintiff. Order of 

September 15, 1983. Thereafter, fee negotia­

tions commenced, no agreement on fees was 
reached, the matter was submitted to the 

district court, and the court ultimately 

awarded fees to plaintiff's counsel. Order 
of February 8, 1985.-2^/

28. Similar results have occurred in many other 
cases. For example, the same private attorney who 
represented the plaintiff in Lisa F. represented the 
plaintiffs in another § 1983 class action, Ellison v. 
Schilling, Civ. No. l-80-23 (N.D. Ind. consent decree 
entered on July 11, 1983), a case in which another set 
of government defendants sought a coerced waiver of 
fees from this private attorney after nearly three 
years of litigation. Plaintiffs immediately there­
after filed a motion seeking an order barring simulta­
neous negotiation; the district court granted plain­
tiffs' motion in an unreported order filed on April 6, 
1983; the parties then negotiated a settlement on the 
merits favorable to plaintiffs, and the court approved 
the consent decree on July 11, 1983; following unsuc- 
[footnote cont'd]

42



Rather than deterring settlement, the 

certainty of defendants' liability for fees 
in meritorious cases not only provides a 

powerful incentive for defense counsel to 

assess the strength of a case early and to 
settle, cf. Marek v. Chesny, 53 U.S.L.W. at 

4904, but also serves to deter potential 

wrongdoers from violating the law in the 

first place. These principles were repeated­
ly enunciated by the courts of appeals that 

ruled, prior to this Court's decision in Blum 
v. Stenson, 104 S.Ct. 1541, 79 L.Ed.2d 891 

(1984), that legal 'aid organizations were 

entitled to fee awards computed on the same 

basis as those for private counsel. As 
stated by the en banc court of appeals in 
Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 

1980), if market fees could not be awarded 
when "a public interest law firm serves as

cessful settlement negotiations as to fees, the court 
awarded fees to plaintiffs' attorney on April 10, 
1985.

43



plaintiff's counsel," then

the defendant will be subject to a 
lesser incentive to settle a suit 
without litigation than would be 
the case if a high-priced private 
firm undertook plaintiff's repre­
sentation. That is so because the 
marginal cost of each hour of con­
tinued litgation would be reduced. 
Defendant's counsel could inundate 
the plaintiff with discovery re­
quests without fear of paying the 
full value of the legal resources 
wasted in response. We do not 
think that Title VII intended that 
defendants should have an incentive 
to litigate imprudently.

Id. at 899 (citation omitted). Additionally, 

the "incentive to employers not to discrimi­

nate is reduced if diminished fee awards are 
assessed." Id. See also, e.g. , Oldham v. 

Ehrlich, 617 F. 2d 163, 168 (8th Cir. 1980) 

(with the focus "on deterring misconduct by 
imposing a monetary burden on the wrongdoer, 

a legal aid organization merits an attorney's 

fee fully as much as does the private attor­
ney") ; Dennis v. Chang, 611 F.2d 1302, 1306 

(9th Cir. 1980) (a full fee "award encourages 

potential defendants to comply with civil

44



rights statutes"). As the Ninth Circuit also 

correctly observed in Dennis, 611 F.2d at 
1307: "if the state could immunize itself

against a fee award . . „ the state would have 

less incentive to settle pending litigation 
and more incentive to resist civil rights 

compliance by defending against the suit 

until trial."

2. Just as a rule barring coerced fee 

waivers will not deter settlement of meritor­
ious cases, neither will such a rule 
whether through a Lisa F. order or otherwise 

—  deter settlement or early disposition of 

frivolous cases or nuisance suits. In deal­
ing with these suits, defense counsel in fact 

possess a considerable array of permissible 
tactics provided by federal rules and sta­

tutes .

45



Where a matter truly is frivolous at the 
outset as a matter of law, defense counsel 

may quickly have the case resolved under Fed. 
R. Civ. P. Rule 12(b) by filing a dispositive 

motion to dismiss or for judgment on the 

pleadings. Alternatively, where defense 

counsel choose to address matters outside of 
the pleadings, they may quickly have the 
frivolous case resolved under Fed. R. Civ. P. 

Rule 56 by filing a dispositive motion for 
summary judgment. In either event, defense 

counsel may seek and obtain an award of 

attorneys fees from plaintiffs so long as the 

case was in fact frivolous. Christiansburq 
Garment Co. v. EEOC, 434 U.S. 412, 422

(1978). These fee awards, which are often 

substantial pose a strong deterrent to

29. See, e.g,, American Family Life Assurance Company 
v. Teasdale, 733 F.2d 559 (8th Cir. 1984) (fee award 
of $63,000 assessed against plaintiff under § 1988); 
Arnold v. Burger King Corp., 719 F.2d 63 (4th Cir. 
1983) (fee award of more than $10,000 assessed against 
plaintiff under Title VII); Charves v. Western Union 
Telegraph Company, 711 F.2d 462 (1st Cir. 1983) (fee 
[footnote cont'd]

46



frivolous litigation. And, as if additional 

tools were needed to deter nuisance litiga­

tion, fees may always be assessed against 

counsel personally for bad faith litigation, 

Roadway Express, Inc, v. Piper, 447 U.S. 752 

( 1980), and fees now may also be assessed 
against counsel under Fed. R. Civ. P. Rule 11 
for frivolous litigation.-12/

3. Given this arsenal of procedural 
devices available both to dispose of truly 
frivolous cases and to obtain compensation 

for defending them, it is apparent that de-

30. Defense counsel also have available yet another 
permissible tactic: they are free to make an early 
offer of judgment under Fed. R. Civ. P. Rule 68 with­
out specifically including a fee component. If the 
offer is accepted, the available attorneys fees will 
be small, Hensley v, Eckerhart, 461 U.S. 424 (1983), 
and may even be unavailable altogether, Pigeaud v. 
McLaren, 699 F.2d 401 (7th Cir. 1983). If the offer 
is unreasonably rejected and the plaintiff fails to 
secure a superior result, no fees would be available 
from the date of the offer, Marek v. Chesny, 53 
U.S.L.W. 4903 (U.S. June 27, 1985), and the available 
fees again would be small, Hensley.

47



fense counsel's concern is not the frivolous

case but the meritorious case. For example, 
in a meritorious case recently brought by 

amicus Legal Aid Society of New York against 

the City of New York —  and contrary to the 

impression conveyed to this Court in its 

Brief in this case —  the City declined a 

prelawsuit settlement, waited until the eve 
of trial to invoke its policy of offering a 

settlement conditioned upon a total waiver of 
fees, and ultimately was held liable after 

trial for greater relief and for fees.-^i/ In

31 . This chronology occurred in Henry v. Gross, 84 
Civ. 8399 (TPG) (S.D.N.Y. June 18, 1985) notice of 
appeal filed, (2d Cir. July 18, 1985). Two months 
before the suit was filed, Legal Aid lawyers, pursuant 
to established Legal Aid policy (similar to the policy 
required of all grantees of the federal Legal Services 
Corporation), sent the New York City Department of 
Social Services a letter describing the claims by a 
class of welfare recipients of improper termination of 
benefits without hearings, and inviting the City to 
take voluntary remedial action. This of course gave 
the City ample opportunity "as a matter of policy or 
practical judgment ... to dispose of the matter [with 
a] ... substantial reduction of attorneys' fees." Br. 
for City of New York at 11. Nevertheless, the Depart­
ment of Social Services rebuffed this attempt, and 
suit was thus filed. Some four-and-a-half months 
[footnote cont'd]

48



fact, in amici1s experience, it is precisely 

in meritorious cases in which plaintiffs' 

claims on the merits are strong that the use 
of coerced fee waivers is most p r e v a l e n t /

later, after discovery and after motions for class 
certification and for a preliminary injunction had 
been filed, and on the eve of a trial, the City made 
an incomplete merits settlement offer which was 
somewhat favorable on the merits but conditioned upon 
a complete waiver of fees under § 1988. Despite the 
trial court's oral suggestions to the City that this 
negotiating tactic was improper, the City refused to 
negotiate separately and decided to risk going to 
trial rather than agree to pay reasonable fees. After 
a three-day trial, the trial court awarded plaintiffs 
sweeping relief on the merits —  relief substantially 
more favorable than that proposed in the City's with­
drawn settlement offer — - and the court also assessed 
fees against the City.

This is not an isolated example. Amicus Legal 
Aid Society of New York has in other meritorious cases 
been confronted with New York City's practice of seek­
ing coerced fee waivers, ordinarily after substantial 
litigation has taken place, and usually on the eve of 
trial.

32. While at first blush it might seem that offers of 
substantial merits relief in exchange for fee waivers 
would only be made in weak cases, the opposite is 
true. Unlike ordinary commercial or tort litigation, 
or even individual Title VII cases, weak class action 
cases under § 1983 are rarely settled; the government 
agency usually prefers to fight the case on the merits 
rather than restructure its operations. It often de­
cides that the costs of litigation, conducted by staff 
counsel and assisted by paid employees in the affected 
agency, are lower than the costs of structured relief, 
[footnote cont'd]

49



Since this case is neither frivolous nor 

a nuisance suit but rather a substantial case 
involving a wholly illegitimate effort by 
petitioners to evade fee liability imposed by 

statute, approval by this Court of the tactic 
followed by petitioners in seeking a coerced 

waiver of all fees in this case would neces­

sarily allow all defense counsel to extract 

coerced fee waivers in all settlements, and 

it would thus eliminate the very incentive 

provided by Congress for enforcement of and 

compliance with our civil right laws.

It is thus in the strong cases that waiver de­
mands from governmental entities are most common. 
Facing long-term, structual relief after substantial 
litigation, defendants in these cases are most eager 
to reduce their costs by limiting what they know will 
be a large attorneys fee bill. Accordingly, just 
prior to trial they will often offer some relief on 
the merits contingent on a fee waiver. This behavior 
is often reinforced by attitudes about local autonomy 
and resistance to "outside do-gooders" that make 
anathema the idea of liability for the plaintiffs' 
attorneys fees. The result is that it is precisely in 
the cases where plaintiffs are most likely to prevail 
that fees waiver requests are most common.

50



D. In View of the Federal Courts'
Incons istency in Confronting 
Coerced Fee Waivers, Specific Guid­
ance Must Be Provided by this Court 
Barring Coerced Fee Waivers
As is apparent from the lower court 

rulings on the general subject before this 

Court, and from the submissions of petition­

ers and their amici in this case, the federal 

courts to date have neither followed uniform 

standards nor developed procedures sufficient 

to insure that the purposes of the Fees Act 

are not defeated through merits settlements 

conditioned upon coerced fee waivers. This 
Court's clear guidance to the district courts 

is necessary if the congressional intent to 
facilitate meritorious civil rights litiga­
tion is to be realized.

Of course, the ruling by the court of 
appeals in this case goes no further than to 

hold that defendants offering substantial 
merits relief in a nonmonetary Fees Act case 
may not condition settlement upon a complete

51



fee waiver. This reading of the statute has 

ample support in this Court's decisions. 
See, e.g. , Wilko v. Swan, 346 U.S. 427 

(1953); Brooklyn Savings Bank v. O'Neil, 324 
U.S. 697 (1944). Yet, some courts have been 
reluctant to adopt such a rule because of 

fear that it would permit a "secret plan to 

rescind," Lazar v. Pierce, 757 F. 2d 435, 438 
(1st Cir. 1985).JL1/ Given this perspective, 

and especially given the occasional judicial

33. Compare Regalado v. Johnson, 79 F.R.D. 447 (N.D. 
111. 1978) (refusing to hold, in light of the public 
policy underlying the Fees Act, that silence as to 
fees in a settlement agreement amounted to a fee 
waiver); Gillespie v. Brewer, 602 F. Supp. 218, 226-28 
(N.D. W.Va. 1985) (refusing to enforce a fee waiver 
provision in a settlement agreement); Shadis v. Beal, 
685 F. 2d 824 (3d Cir.), cert, denied, 459 U.S. 970 
(1982) (voiding on public policy grounds a provision 
in a funding contract between the state and a legal 
services grantee requiring the grantee to waive fee 
awards in suits against governmental entities); with 
Moore v. National Ass’n of Securities Dealers, 762 
F.2d 1093, 1095-97, 1105 n.17 (D.C. Cir. 1985), peti­
tion for rehearing pending (affirming a denial of 
post-consent decree fee petitions where counsel and 
plaintiff made no objection at a hearing on the fair­
ness of the decree which included a waiver provision, 
and suggesting counsel's obligation to bring any over­
reaching tactics to the attention of a court prior to 
approval of settlement); Lazar v. pierce (semble).

52



reluctance to confront the coerced fee waiver 

issue early and directly, there is a compell­
ing need for clear guidance from this Court.

1. The judicial response to defense 
counsel tactics of simultaneous negotiation 
in general and of coerced waivers in particu­

lar —  as demonstrated in reported opinions, 

in unreported orders, and in unreported refu­

sals to act —  has been varied and inconsis­

tent. Where judicial assistance has been 
sought early, some courts have barred coerced 

waivers in simultaneous negotiations; other 

courts have responded not at all; and yet 

others have implied approval.
The most effective case-by-case proce­

dure for responding to unfair defense tactics 

is a court order, as in Lisa F. v. Snider, 
561 F. Supp. 724, 726 (N.D. Ind. 1983), 

directing that any negotiations on the merits 
be conducted "separate from the question of

53



the plaintiff's entitlement to attorney

fees." This type of court order grows out of 

the Third Circuit's general prohibition 

against simultaneous negotiation, as set 
forth in Prandini v. National Tea Co., 557 

F. 2d 1015, 1021 (3d Cir. 1977). Although 

that decision arose in the context of a 

"sweetheart" settlement rather than a "sacri­
fice" case, the Third Circuit has recognized 

the applicability of the Prandini principles 
to the sacrifice situation as well, El Club 

del Barrio v. United Community Corporations, 

735 F.-2d 98 (3d Cir. 1984), and other courts 
have applied the principles to bar coerced 

fee waivers .-5̂ /

34. See, e.g., Gillespie v. Brewer, 602 F. Supp. 218 
(N.D. W.Va. 1985); Freeman v. B S B Associates, 595 F. 
Supp. 1338 (D.D.C. 1984); see also Opinion No. 80-94, 
Committee on Professional and Judicial Ethics of New 
York City Bar Ass'n, 36 Record of New York City Bar 
Ass'n 507 (Nov. 1981), amended and reissued in Opinion 
No. 82-80 (Dec. 1983); Kraus, Ethical and Legal Con­
cerns in Compelling the Waiver of Attorney's Fees by 
Civil Rights Litigants in Exchange for Favorable 
Settlement of Cases under the Civil Rights Attorney's 
Fees Awards Act of 1976, 29 Vill. L. Rev. 597, 638-48 
[footnote cont'd]

54



Without a governing Prandini-type bar 

against simultaneous negotiation, however, 

some courts have been reluctant to act at all 

when defense counsel seek a coerced waiver. 
For example, when plaintiff's attorney in 

Lazar v. Pierce, 757 F.2d 435 (1st Cir. 

1985), was confronted with defense counsel 

seeking a coerced waiver, "[p] laintiff filed 
a motion requesting the court to intervene, 

but ... no action was taken." Id. at 437. 
Since this judicial inaction allowed the 

coerced waiver tactic to work from defen­
dants' perspective, it was of no consolation 

to plaintiff's counsel that the First Circuit 

subsequently criticized the defense tactic as 
contrary to the Fees Act: "for a defendant 

to require [plaintiff's counsel] to forego 

his fee ... or to attempt to negotiate an 

unreasonable fee, by playing upon counsel's

(1984). Contra, Moore v. National Ass'n of Securities 
Dealers, 762 F.2d 1093 (D.C. Cir. 1985).

55



concern for his client, is contrary to the 

very intendment of the Act." Id. at 438 .

The absence of a Prandini rule has led 
to similar inaction in other cases, thereby 

allowing defendants to leverage coerced 

waivers.-l^/ It also has permitted district

35. The j udicial inaction in these cases is, not 
surprisingly, ordinarily unreported. Illustrative is 
Chattanooga Branch, NAACP v. City of Chattanooga, No. 
79-2111 (E.D. Tenn. Dec. 2, 1981), appeal dismissed, 
Nos. 82-5013 & 82-5016 (6th Cir. April 29, 1982), a 
suit challenging, on racial discrimination grounds, a 
rezoning that prevented construction of a low-income 
housing project. Subsequent to extensive discovery 
and pretrial preparation, plaintiffs were presented 
with a coerced waiver. The district court refused to 
enter a formal order on plaintiffs' motion to bar 
defendants from insisting on a fee waiver in exchange 
for a settlement offer. (This inaction prevented an 
interlocutory appeal). instead, the judge advised 
counsel orally in an unrecorded chambers conference to 
negotiate for the clients without regard to any fee 
interest. The defendants then threatened to withdraw 
their offer to make a parcel of city-owned land avail­
able for construction of the low-income housing. With 
the ethical dilemma squarely presented, plaintiffs 
agreed to a fee waiver provision, which the district 
court subsequently refused to set aside. Plaintiffs 
then appealed the district court's order refusing to 
set aside the fee waiver. Defendants cross-appealed 
conditionally, arguing (as do petitioners here) that 
if the fee waiver were invalidated the entire consent 
decree must fall. Defendants then advised plaintiffs' 
counsel that because of the pending cross-appeals, the 
city was unable to obtain title insurance for the 
[footnote cont'd]

56



court judges on occasion to compel simulta­

neous negotiation .-3̂ /

2. The widely varying judicial res­

ponses to these problems is mirrored by the 

approaches taken by petitioners and their 

amici. Several, for example, urge rejection

parcel, could not close and transfer the property to 
the developer, and could not assure that the housing 
project would be built. Again, faced with the immi­
nent danger of losing all relief on the merits, plain­
tiffs' counsel capitulated and dismissed the appeal. 
See generally Comment, Settlement Offers Conditioned 
Upon Waiver of Attorneys' Fees: policy, Legal, and 
Ethical Considerations, 131 U. Pa. L. Rev. 793, 802 
(1983); see also, e,g., Levin, practical, Ethical and 
Legal Considerations Involved in the Settlement of 
Cases in Which Statutory Attorney's Fees Are Author­
ized, 14 Clearinghouse Review 515, 519 & nn.47 & 48 
(1980).

36. Amicus Lawyers' Committee recently represented 
plaintiffs in an education suit seeking only injunc­
tive relief. When defendants raised the fee question 
before agreement on the merits had been reached, 
plaintiffs' counsel suggested there was an ethical 
problem and that fee discussions should be postponed 
until after court approval of a merits consent decree. 
At the next settlement meeting, defense counsel re­
ported that he had had an ex parte conversation with 
the judge, who advised that he would refuse to con­
sider any proposed consent decree that did not resolve 
the question of fees along with the merits.

57



of the Prandini rule against simultaneous

negotiation but at the same time suggest that 
ethical difficulties may be avoided by resort 

to the district courts pursuant to Fed. R. 
Civ. P. Rules 16 and 23 .2 2 / On the other 

hand, the Solicitor General suggests that 

these rules are inappropriate to the task, 

U.S. Br. at 28-29, and that trial courts 

should rarely become involved in disputes 

over demands for fee waivers, id. at 27. 

Both petitioners and the Solicitor General 

suggest the necessity of an initial showing 
of "bad faith" on the part of defense coun­

sel, Pet. Br. at 36; U.S. Br. at 27;-^/ while 

at the same time petitioners and other amici 
urge that the ethical obligation to provide

37. E.g., Br. for Council of State Governments, et 
al., at 19; Br. for Equal Employment Advisory Council 
at 7, 18; Pet. Br. at 8.

38. Any such bad faith requirement as a precondition 
for awarding fees to prevailing plaintiffs is of 
course completely inconsistent with Newman v, piggie 
Park Enterprises, Inc,, 390 U.S. at 401-02; see also 
Hutto v. Finney, 437 U.S. at 693.

58



zealous representation in fact requires 

defense counsel nearly always to seek to 
extinguish the fee liability of the client in 

any settlement

3. There is, in fact, no standard 

practice among the federal trial courts to 
prevent coerced fee waivers that are contrary

to the policy underlying the Fees Act. 40/

While the instant case arises in unique cir-

39. See Pet Br. at 31-35; Br. for Council of State 
Governments, et al., at 16; Br. for Alabama, et al., 
at 52-53.
40. The suggestion in Moore, 762 F.2d at 1105 n.17 
(opinion of MacKinnon, J.) that the conflict can be 
avoided by careful drafting of a retainer agreement to 
vest the right to the fee award in the client is 
unavailing. If the retainer merely transfers the 
attorney's interest in a statutory fee recovery to the 
client, it would lack consideration and, more to the 
point, would vest in the client a right to recover 
sums never anticipated which he would be quite likely 
to abandon in order to protect the merits relief 
offered. If, on the other hand, the retainer trans­
fers to the client the right to the fee award but also 
creates an obligation to pay a reasonable fee to the 
attorney should the merits claim prevail, then either 
the policy underlying the Fees Act, or the policy 
encouraging settlements, will be fatally compromised.

59



cumstances since the parties openly memorial­

ized petitioners' demand for a fee waiver and 
agreed that the propriety of that demand 

should be decided by the court, amici submit 

that this Court should do more than merely 
affirm the judgment below.

A holding that fee waivers coerced as a 

condition of merits settlements are unen­

forceable and contrary to public policy will 
do much to ameliorate the problem in negotia­

tions between "ethical counsel," White v. New 
Hampshire Department of Employment Security, 

455 U .S. 445, 453 n.15 (1982). More import­

antly, this Court's announcement of a 
Prandini-type bar against simultaneous nego­

tiation, or at least against defense ini­

tiated fee waivers in the context of merits 
negotiations, would fulfill Congress' pur­
poses in enacting the Fees Act.AL/ it would

41. Short of drawing a prandini bright line, the 
Court at the very least must direct lower federal 
courts to give special scrutiny to simultaneously 
[footnote cont'd]

60



also have the profoundly beneficial effect of 

encouraging early settlement negotiations. 
In our experience, separate negotiation of 

the merits, followed by good faith negotia­

tion of fees, greatly advances the settlement 

of cases, while also fulfilling Congress' 
intent.

CONCLUSION
The judgment below should be affirmed. 

And clear guidance to the lower federal 

courts should be provided so as to assure, in 

the words of Congress in the Senate Report at 
6, that "our civil rights laws" do not

n e g o tia te d  s e tt le m e n ts  when p a r t i e s  seek c o u r t approv­
a l  o f s e tt le m e n ts  p u rsu a n t to  Fed. R. C iv. P. Rule 
2 3 (e ) , o r e n try  o f  co n sen t d ec re es  in  in d iv id u a l  
s u i t s .  F u r th e r , th e  C ourt should  i n s t r u c t  th e  lower 
c o u r ts  to  tak e  prompt a c t io n  when th e  p a r t i e s  seek 
a s s is ta n c e  p u rsu a n t to  Fed. R. C iv. P. Rule 16 because 
o f c o n f l i c t s  o f i n t e r e s t  a r i s in g  in  th e  n e g o tia tio n  
p ro c e s s . Such prompt a c t io n  should in c lu d e  th e  e n try  

L isa  F. o rd e rs  b a r r in g  sim ultaneous n e g o tia t io n s  of 
fe e s  and th e  m e r i ts .  R esponsiveness by th e  c o u r ts  to  
c o u n s e l 's  re q u e s ts  fo r  a s s is ta n c e  i s ,  we subm it, the  
minimum j u d i c i a l  a c t io n  n ece ssa ry  to  a ssu re  a t  l e a s t  a 
measure o f com pliance w ith  C ongress ' purposes in  
en ac tin g  the  Fees A ct.

61



"become mere hollow pronouncements which the 

average citizen cannot enforce."

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
*CHARLES STEPHEN RALSTON 
STEVEN L. WINTER 
NAACP Legal Defense and 

Educational Fund, Inc.

JAMES ROBERTSON 
HAROLD R. TYLER, JR.

Co-Chairmen 
NORMAN REDLICH 

Trustee
WILLIAM L. ROBINSON 
NORMAN J. CHACHKIN 
Lawyers' Committee for 

Civil Rights Under Law
E. RICHARD LARSON 
BURT NEUBORNE 
American Civil Liberties 

Union Foundation

KALMAN FINKEL 
HELAINE M. BARNETT 
JOHN E. KIRKLIN 
The Legal Aid Society of 

New York
September 6, 1985

62



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