Ethics

Today the Supreme Court added to its lawyering lineup a third case involving the award of attorney fees under a fee-shifting statute.  This brings the grand total to 14 lawyering cases granted certiorari so far this term. 

In Hardt v. Reliance Standard Life Insurance Co., the Fourth Circuit reversed the district court's award of attorney fees under ERISA § 502(g)(1) because the plaintiff was not considered a prevailing party.  The questions presented are: (1) whether the Fourth Circuit erred in holding that the ERISA statute provided a district court discretion to award fees only to a prevailing party; and (2) whether a party is entitled to fees pursuant to the ERISA statute when she persuades a district court that a violation of ERISA has occurred, successfully secures a judicially-ordered remand requiring a redetermination of entitlement to benefits, and subsequently receives the benefits sought on remand.

The other cases involving fee-shifting statutes currently pending before the Court are Astrue v. Ratliff and Perdue v. Kenny A.  Astrue v. Ratliff challenges the Eighth Circuit's determination that fees awarded to a prevailing party under the Equal Access to Justice Act belong to the attorney, not the client.  Perdue v. Kenny A. questions whether a fee awarded pursuant to a federal fee-shifting statute may be enhanced based on the quality of performance and results obtained.  At stake is a fee award of more than $10.5 million to attorneys who represented a class action of 3,000 foster care children against the State of Georgia, $4.5 million of which represents the enhancement for performance and results.  The Eleventh Circuit upheld the award, but did so with serious reservations.

One might consider the Court's focus on fee-shifting statues in light of the unmet need for legal representation in civil matters.  A recent New York Times editorial argues for the unbundling of legal services to address this need.  A meaningful fee-shifting statute is another way to ensure access to critical legal representation, as University of Michigan Law Professor Sam Bagenstos explains in his recent article Thurgood Marshall, Meet Adam Smith: How Fee-Shifting Statutes Provide a Market-Based System for Promoting Access to Justice (Though Some Judges Don't Get It), forthcoming in the Fordham Urban Law Journal.