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Conflict and Solidarity: The Legacy of Evans v. Jeff D.

Conflict and Solidarity: The Legacy of Evans v. Jeff D.

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Published by dkn2666
17 Geo. J. Legal Ethics 499 (2003-2004)
Conflict and Solidarity: The Legacy of Evans v. Jeff D.; Nazer, Daniel
17 Geo. J. Legal Ethics 499 (2003-2004)
Conflict and Solidarity: The Legacy of Evans v. Jeff D.; Nazer, Daniel

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Published by: dkn2666 on Jan 25, 2013
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Reprinted from
Volume 17, Number 3
Spring 2004
Conflict and Solidarity: The Legacy of
Evans v. JeffD.
Daniel Nazer
Confct and Solidarity: The Legacy of Evans v. Jeff D.
Suppose that you are a lawyer for a small public interest organization. You
have just defeated a summar judgment motion in your biggest case and you
think that your opponent wil finally be interested in negotiating a good
settlement. Soon your opponent makes an offer that includes all the injunctive
relief your clients sought. There is a problem, however. The offer is conditioned on
your client waiving any clai to statutory attorney's fees. You have been workig
on ths case for two years and a fee award could provide much neeed financial relief
for your cash-strapped employer. Do you advise your clients to accept the offer?
Suppose instead that the case involved monetary damages. Rather than
conditioning settlement on a complete fee waiver, the defendant offers to pay
$400,000 dollars to settle the case. The defendant tells you that he doesn't care
how you divide the money between fees and relief for your clients. How should
you respond to this offer?
After the SupremeCourts decision in Evans v. Jeff
D., public interest lawyers
must be prepared to face situations such as these.l In Jeff D., the Supreme Court
held that defendants may ask a plaintiff to waive his or her right to statutory
attorney's fees as a condition of a settlement offer? The Court also concluded that
it is acceptable to conduct
simultaneous negotiation of attorney's fees and
liabilty on the merits? This leaves plaintiffs' lawyers vulnerable to fee-related
conflicts of interest. The attorney's duty to her client suggests that she should
counsel him to accept any offer that includes sufficient relief on the merits. If theoffer is conditioned on a fee waiver then the attorney wil miss out on a fee award
if the client follows her advice. Moreover, even without a fee waiver request, if
the defendant is solely concerned with minimiing overal
liabilty, then any increase
in a fee agreement may come at the cost of decreasing the damages for the client.4
* J.D., Yale Law School (expeted 200). I would like to thank Professor Le Brilmayer for helpful advice and
comments. I would also like to thank the busy public interest lawyers who generously partcipated in this study.
i. Evans v. Jeff
D., 475 u.s. 717 (1986).
2. See id. at 741-43.
3. See id. at738 n.30.
4. See Prandini v. Natl Tea Co., 557 F.2d 1015, 1020 (3d Cir. 1977).
(VoL. 17:499
Many commentators have argued that Jeff D. would frustrate the policy of the
Civil Rights Attorney's Fees Awards Act of 1976 ("Fees Act").s In paricular,
commentators have claimed that Jeff D. wil discourage attorneys from accepting
civil rights cases and wil cause plaintiffs' attorneys to regularly miss out on
collecting statutory attorney's fees.6 Empirical research, however, suggests that
Jeff D. did not have as dire an effect as was anticipated.?This Note considers the practical and ethical consequences of JeffD. I focus on
the challenges faced by public interest attorneys in the non-profit sector. As they
are usually unable to charge fees, these attorneys are most vulnerable to fee
waiver requests.s The Note is divided into three parts. Part I reviews Jeff D. in
detaiL. Part II considers the options that Jeff D. left open for public interest
lawyers. I argue that some of these options are in tension with ethical rules pro-tecting the client's control of litigation. Thus, lawyers pursuing these strategies
must exercise considerable care to avoid breaching ethical duties to their clients. Iconsider ways in which bar associations and cours can regulate attorney behaviorto ensure ethical conduct while protecting lawyers' abilty to pursue statutory fees.
Part II reviews the results of structured interviews conducted with ten public
interest lawyers in the non-profit sector. These lawyers are from diverse regions
and practice areas.9 The interviews examined how public interest lawyers
actually respond to fee-related conflicts and whether such conflicts cause publicinterest lawyers significant ethical and financial difficulties. I found that publicinterest lawyers have developed some common techniques for responding to fee
. related conflicts. The main strategies are careful client selection and "client
education." First, the attorney selects clients who are sympathetic to the overall
goals of the attorney's organization. Second, the attorney explains how important
fee awards are to the continuing success (or even existence) of the lawyer's
organization. Clients wil then be sympathetic to the pursuit of fee awards. This
approach has mitigated the worst effects of JeffD.
5. See, e.g., Alan B. Morrson, Must the Interests of
the Client Always Come First?, 53 ME. L. REv. 469, 478(2001); Note, Fee as the Wind Blows: Waivers of Attorney's Fees in Individual Civil Rights Actions Since Evans
v. Jeff
D., 102 HARV. L. REV. 1278, 1292-94 (1989) (arguing that, without increased vigilance from district COUlt
judges, feilD. wil lead to aggressive and bad faith tactics from the defendants' bar); Randy M. Stedman, Note,
Evans v. Jeff D.: Putting Private Attorneys General on Waiver, 41 VAND. L. REV. 1273 (1988) (arguing that a
legislative response is needed to prevent feilD. from imperiling plaintiffs' abilty to vindicate their civil rights).
6. See, e.g., Morrson, supra note 5, at 478.
If I know that the defendant at the end can offer my client everything, and I have no choice as an
ethical lawyer but to agree to that settlement and lose all of my fees, I know how to answer the
question when I am asked to take on such a case. I wil not do it.
7. See discussion infra Part II; Julie Davies, Federal Civil Rights Practice in the 1990's: The Dichotomy
Between Reality and Theory, 48 HASTINGS LJ. 197,211-22 (1997).
8. See Davies, supra note 7, at 216.9. See the attached Appendix for a description of the interview methodology and a brief description of each

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