GEORGETOWN JOURNAL OF LEGAL ETHICS
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
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