Reprinted from

Volume 17, Number 3

Spring 2004

THE

GEORGETOWN

JOURNAL

OF

LEGAL ETHICS
Evans v. JeffD.

Conflict and Solidarity: The Legacy of

Daniel Nazer

NOTES
Confct and Solidarity: The Legacy of Evans v. Jeff D.
DANIEL NAZER*

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? D., public interest lawyers After the SupremeCourts decision in Evans v. Jeff 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 the offer 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
liabilty, then any increase in a fee agreement may come at the cost of decreasing the damages for the client.4
the defendant is solely concerned with minimiing overal

* 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).

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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 protecting the client's control of litigation. Thus, lawyers pursuing these strategies must exercise considerable care to avoid breaching ethical duties to their clients. I consider ways in which bar associations and cours can regulate attorney behavior to 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 public interest lawyers significant ethical and financial difficulties. I found that public interest 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. JeffD., 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.
Id.

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 interviewee.

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i. EVANS V. JEFF D.

A. BACKGROUND

In the United States, the default rule is that the prevailing party in not entitled to collect attorney's fees from the 10ser.lO Exceptions to this default rule were virtually non-existent until the late 1960s.11 Since then, Congress has included fee-shifting provisions in a variety of statutes. Such provisions are found in civil rights laws, employment laws and environmental laws, among others.12 Fee awards are intended to promote the practice of law in the public interest.13

When a case goes to judgment, the court wil calculate the attorney fee award.14 This means that a lawyer is unlikely to face any difficult ethical
questions after judgment is entered. After judgment, the attorney can advocate vigorously for a large fee award without endangering the relief that has already been awarded to his or her client. Fee-related conflicts might arise in settlement negotiations, however. Prior to judgment, the parties usually try to settle both the
is Defendants pursue this
issue of relief for the plaintiff as well as the fee award.

strategy because they are concerned with their total liabilty and fees can be a significant component of liabilty.16 Plaintiffs' lawyers can ask the defendant to
leave the fee award to the court, but in practice defendants are very reluctant to do
I? Thus, settlement usually requires that parties simultaneously negotiate
this.

both fees and relief. This generates potential conflicts of interest between
10. See, e.g., Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of

Health & Human Resources, 532 U.S.

598, 602 (2001). This default rule is often called the "American Rule." See id. A system of automatic
fee-shifting is called the "English Rule." See Herbert M. Kritzer, Legal Fees: The English Rule, A.B.A. 1., Nov. 1992, at 54.
II. See Evans v. Jeff

D., 475 U.S. 717, 746 (1986) (Brennan, J., dissenting).

12. See,e.g., 42 U.S.c. § 1988 (2003) (from the Civil Rights Attorney's Fees Awards Act of 1976)

(hereinafter Fees Act); 29 U.S.C. § 216(b) (2003) (from the Fair Labor Standards Act) (hereinafter FLSA); 42 U.S.c. § 7604(d) (2003) (from the Clean Air Act). State statutes often have similar provisions. See, e.g., N.Y.
LAB. LAW § 198(1-a) (Consol. 2003). 13. See, e.g., Newman v. Piggie Park Enter., 390 U.S. 400, 402 (1968).

14. The court is usually given discretion over whether to award fees. See, e.g., 42 U.S.C. § 1988 (2003); 42 U.S.C. § 7604(d) (2003). Sometimes statutes say that the court shall award attorney's fees to the prevailing plaintiff. See 29 V.S.C. § 216(b) (2003).
15. See, e.g., Prandini v. Natl Tea Co., 557 F.2d 1015, 1020 (3d Cir. 1977).

16. This wil be paiticularly true when the fee award is significantly more than damages. See, e.g., Rivera v. Riverside, 763 F.2d 1580, 158 i -83 (9th Cir. i 985) (total liabilty of $245,456.25 with only $33,350 awarded in damages); Copeland v. Marshall, 641 F.2d 880,887,891 (D.C. Cir. 1980) (en bane) ($160,000 liability for fees for $33,000 damages). 17. Interviewees reported that they regularly ask defendants to settle the merits first and then allow the court to determine the fee award. Defendants rarely, if ever, accept this suggestion. See Telephone Interview with Attorney i (Oct. 3, 2002) (on file with author); Telephone Interview with Attorney 2 (Oct. 7, 2002) (on file with author); Telephone Interview with Attorney 3 (Oct. 8,2002) (on file with author); Telephone Interview with Attorney 4 (Oct. 10, 2002) (on file with author); Telephone Interview with Attorney 5 (Oct. 15 2002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16, 2002) (on file with author); Telephone Interview with Attorney 7 (Nov. 1,2002) (on file with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author); Telephone Interview with AttOiney 9 (Nov. 13,2002) (on file with author). One attorney had

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plaintiffs and their counseL. If defendants are concerned with total

liabilty then

any increase in fees may come at the expense of reduced relief on the merits.

Similarly, improvements in relief on the merits may come at the expense of a lower fee offer. This leads to a conflict of interest as clients do not necessarily
share their attorneys' interest in maximizing the fee award. Prior to Jeff D., the United States Courts of Appeals were divided on how to

approach these fee-related conflicts of interest. The Ninth and Third Circuits
disapproved of the simultaneous negotiation of fees and merits.

is Other Courts of

Appeals allowed paries to negotiate fees and merits together.19 In Prandini v.

National Tea Co., the Third Circuit expressly prohibited simultaneous negotiation?O The court stated that "(t)his would eliminate the situation. . . having, in practical effect, one fund divided between the attorney and client.,m The court hoped that this would reduce the conflict between attorney and client and help prevent "sweethear" contracts.22 In contrast, the Distrct of Columbia Circuit
allowed at least some simultaneous negotiation of fees and merits.23 The court

noted the importance of encouraging settlement and the difficulty of monitoring settlement negotiations between private parties?4 The issue of fee-related conflicts also divided bar association ethics committees. The Association of the Bar of the City of New York ("NYC Bar") prohibited

simultaneous negotiation of relief on the merits and fees.2s The District of
Columbia Bar ("D.C. Bar") allowed some simultaneous negotiation but prohlbited defendants from asking plaintiffs to completely waive their rights to statutory

fees.26 The State Bar of Georgia ("Georgia Bar") rejected both positions and allowed all simultaneous negotiation of fees and relief on the merits?? The bar associations, like the courts of appeals, were divided over how to
resolve the tension between encouraging settlement and reducing the potential

for conflicts of interest. The NYC Bar emphasized the link between fee waivers and conflicts of interest.2s The NYC Bar argued that fee waiver requests have "the effect of placing the plaintiff's lawyers in conflict with their clients and

more success with this tactic. He reported that defendants accepted the suggestion as frequently as they rejected it. See Telephone Interview with Attorney 10 (Nov. 15,2002) (on file with author). 18. See Mendoza v. United States, 623 F.2d 1338, 1352-53 (9th Cir. 1980) (disapproving simultaneous negotiation); Prandini, 557 F.2d at 1021 (prohibiting simultaneous negotiation offee awards and damages). 19. See, e.g., Moore v. NatlAss'n of Sec. Dealers, Inc., 762 F.2d 1093, 1104 (D.C. Cir. 1985).
20. See Prandini, 557 F.2d at 1021.

21. Id. 22. See id. 23. See Moore, 762 F.2d at 1104.

24. See id. at iioi n.13.
25. See N.Y.C. Bar Ass'n Comm. on Prof' & Judicial Ethics, Formal Op. 80-94 (1980) (hereinafter N.Y.C.
Op. 80-94). 26. See D.C. Bar Legal Ethics Op. 147 (1985) (hereinafter D.C. Op. 147).
27. See State Bàr of

Ga., Advisory Op. 39 (1984) (hereinafter Ga. Op. 39).

28. See N.Y.C. Op. 80-94, supra note 25.

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THE LEGACY OF EVANS V. JEFF D.

503

undercutting the policies of the civil rights statutes which provided for fees and
that accordingly the demands were prejudicial to the administration of justice.,,29

Accordingly, the NYC Bar reached the same result as the Prandini Court, and prohibited fee waiver requests.
The Georgia Bar emphasized the importance of settlement.3o The Georgia Bar
claimed that "(t)o force a defendant into proposing a settlement offer wherein

plaintiffs (sic) statutory attorney fees are not negotiated . . . leaves a defendant in

a position of exposure that is at best, uncertain, and at worst so tenuous that
meaningful settlement proposals might never be made.',) On this basis, the Georgia Bar declined to prohibit the simultaneous negotiation of fees and merits.
B. THE MAJORITY OPINION

Evans v. Jeff D. resolved the split within the courts of appeals. In Jeff D., the Supreme Court considered a Ninth Circuit decision that had invalidated a fee waiver contained in a settlement of a class action?2 Jeff D. was a class action brought on behalf of disabled children in the care of public entities in Idaho.33 The plaintiffs sought injunctive relief intended to improve conditions of care, but they did not seek damages?4 During settlement negotiations the defendants offered almost all of the injunctive relief sought by the plaintiffs.3s The Ninth Circuit noted that this offer was "more than the district court in earlier hearings
had indicated it was wiling to grant.',36 Clearly, the plaintiffs' lawyer would wish

to accept such an offer. The problem, however, was that the defendants made their offer conditional on a complete waiver of statutory attorney's fees and costs?? The plaintiffs' lawyer signed the settlement agreement but filed a motion asking the district Court not to approve the agreement's provision on costs and
fees.3s The distrct court denied this motion and the plaintiffs appealed.39 The

Ninth Circuit invalidated the fee waiver and left the remainder of the settlement agreement standing.40 The court of appeals remanded to the district court for the purpose of the determination of a reasonable fee.4I

29. Id. 30. See Ga. Op. 39, supra note 27.
3 i. Id. 32. See Evans v. Jeff

D., 475 U.S. 717 (1986).

33. See id. at 720. 34. See id. at 721. 35. See id. at 722.
36. JeffD. v. Evans, 743 F.2d 648, 650 (9th Cir. 1984).
37. SeeJeffD., 475 U.S. at

722.

38. See id. at 723. 39. See id. at 724. 40. See id. 41. See id.

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The Ninth Circuit held that the defendants' settlement offer had created á "paricularly severe conflict when important interests of class members are at stake."42 The court noted that conflicts between clients and class counsel more
commonly involve allegations that counsel has obtained a large fee at the expense

of adequate relief for his or her clients.43 The court held that there is also a conflict of interest when counsel is "asked to choose between forgoing any compensation while obtaining a favorable settlement on behalf of the class, or
declining the benefit for the class in hope of eventually receiving a fee award.,,44 The court held that, absent special circumstances, defendants should not be able to place lawyers in such a position.4s The Supreme Court began its analysis by holding that the Ninth Circuit should not have accepted some elements of a settlement agreement while rejecting others.46 The Court noted that the result might be a settlement package to which
the parties would not have agreed.4? Thus, the Court concluded that the

settlement should have been upheld or rejected as a whole.4s Next, the Court
turned to the issue of whether the fee waiver provision provided cause for
invalidating the settlement.

1. ETHICAL CONSIDERATIONS

The Court held that the "strictures of professional ethics" do not create a duty to invalidate negotiated fee waivers.49 The majority stated that it did "not believe that the 'dilemma' was an 'ethical' one in the sense that Johnson (the plaintiffs' attorney) had to choose between conflicting duties under the prevailng norms of professional conduct."so The Court claimed that there was no "dilemma" because

Johnson had an ethical duty to serve the interests of his clients but had no "ethical" duty to seek attorney's fees.si This conclusion is based on a very
narow, and unsympathetic, understanding of what can constitute an "ethical"

dilemma. The Court assumed that an ethical conflict only arises when there is a direct conflict between courses of action required by the rules or duties of legal ethics. For example, the Court would probably accept that a lawyer faced an "ethical" conflict if one rule of ethics directed her to withdraw from representation and another rule directed her not to withdraw. In Jeff D., however, the

42. Jeff D. v. Evans, 743 F.2d 648,652 (9th Cir. 1984).

43. See id.

44.Id.
45. See id. The Court of Appeals did not offer much guidance as to what could qualify as "special
circumstances." See id.
46. SeeJeffD., 475 U.S. at 726-27.

47. See id. at 726. 48. See id. at 727.
49.Id. at 727.

50. Id. at 728.
51. See feffD., 475 U.S. at 728.

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plaintiffs' attorney could only obey an ethical rule at great financial cost to himself. Here the "dilemma" was between the attorney's self-interest and following an ethical rule. The Court would not consider this an "ethical" dilemma.

The Court's analysis is inadequate. The dilemma of choosing between
self-interest and a client's interest is certainly "ethical" in a non-technical sense. Moreover, attorneys are much more likely to have to choose between self-interest and obeying an ethical rule than they are to come face to face with two directly

conflicting rules. Most importantly, "the prevailng norms of professional
conduct" do address this kind of ethical conflict. Model Rule 1.7 of the Model Rules of Professional Conduct ("Model Rules") addresses situations where there is a conflict between a client's interest.and the lawyer's interest. Under Rule 1.7, the attorney must reasonably believe that representation wil not be affected by any conflicts of interest.s2 The attorney must also get client consent to continue
53
representation.

conflict of The Court's analysis brushes over the fact that Johnson did face a interest. The conflict is between his interest in securing a fee and his duty to his clients. Two ethically proper courses of action appear to be open to Johnson. First, he could advise his clients to accept the settlement offer and forgo a fee award. Second, if he determined that he was no longer able to offer imparial

advice, he could withdraw from representation. The Supreme Court only
considers the first option. Moreover, the Court simplistically ignores the danger that, unlike Johnson, other lawyers wil be tempted to do the wrong thing and put their own interest above their clients. By ignoring these issues, the Court misses an opportunity to apply the Model Rules to the case. Model Rule 1.7 can be extended to situations where one pary causes the other to face a conflict of interest. If it is inappropriate to create a conflict by accepting representation it may also be inappropriate to create a conflict for other lawyers.
This is the basic reasoning behind the decision from the Ninth Circuit.s4 The

Supreme Court was too hasty in dismissing the possibilty of an ethically based
decision in Jeff D.
2. A NEW VISION OF FEE-SHIFTING POLICY: FEE-SHIFTING AS A "WEAPON"

Having rejected the idea that legal ethics could be dispositive, the Court turned to the Civil Rights Attorney's Fees Awards Act of 1976.55 The Court found that

52. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.7(b) (2002) ("A lawyer shall not represent a client

if the representation of that client may be materially limited by the. . . lawyer's own interests, unless: (I) the lawyer reasonably believes the representation wil not be adversely affected; and (2) the client consents after
consultation.") (hereinafter MODEL RULES).

53. Id. 54. The Court of Appeals did not explicitly invoke Rule 1.7, however. See JeffD. v. Evans, 743 F.2d 648 (9th
Cir. 1984).

55. See Jeff D., 475 U.S. at 730-39.

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the Act provided no support for overturning the fee waiver. First, the Court noted that the text of the statute does not support a prohibition on fee waivers.S6 The statute merely states that the trial court "in its discretion, may allow the prevailng
pary. . . a reasonable attorney's fee."S? The statutory text gives little guidance on

the extent of the trial court's discretion and it does not address the issue of
whether the prevailng pary can waive eligibilty for a fee award. Finding no guidance from the statutory text, the Court turned to the purpose of
the Fees Act.sS The Court stated that, by passing the Fees Act, Congress added "to the arsenal of remedies available to combat violations of civil rights."s9 The

Court stated that "the Fees Act has given victims of civil rights violations a
powerful weapon that improves their abilty to employ counsel, to obtain access

to courts, and thereafter to vindicate their rights by means of settlement or
trial.,,60 This broad understanding of the Fees Act forms the basis of the Court's

decision. Of paricular importance is the Court's view that the Fees Act is intended to help plaintiffs secure favorable settlements. The Court correctly noted that a plaintiff might be able to secure a better settlement by agreeing to
forgo a fee award.6I Consequently, the Court upheld fee waivers as a valid use of a "weapon" provided by the Fees Act. 62
By permitting fee waiver requests, the Court also upheld the simultaneous

negotiation of relief and fee awards.63 The Court upheld simultaneous negotiation for the same reason that it supported the fee waiver. The Court argued that

simultaneous negotiation could allow plaintiffs to achieve better settlement results.64 Plaintiffs can use simultaneous negotiation as a "weapon" because liabilty. The Court assumed defendants have an interest in controllng their total that, by allowing a defendant to establish his or her total liabilty, a plaintiff makes settlement more attractive.6s Moreover, faciltating settlement has the
added benefit of reducing pressure on judicial resources.66

It is important to note that the majority's opinion has a very wide scope.
Although the Court based its decision, at least in part, on the statutory language the Fees Act, this has not meant that the holding of JeffD. is limited and history of

56. See id. at 730-32.
57. 42 U.S.C. § 1988(b) (2003).
58. See Jeff

D., 475 U.S. at 732-39. 59. Id. at 732. 60. Id. at 74 i. 61. See id. at 741-43. The majority noted that the case before it proved this point because the plaintiffs

secured a better result than they were likely to achieve at triaL. See id. at 743. 62. See id. at 737-38. 63. A fee waiver provision is the extreme example of simultaneous negotiation. 64. SeeJeffD., 475 U.S. at 733. 65. See id.
66. See id. at 736-37 ("It is. . . not implausible to anticipate that parties to a significant number of civil rights
cases wil refuse to settle if liabilty for attorney's fees remains open, thereby forcing more cases to trial,

unnecessarily burdening the judicial system, and disserving civil rights litigants." (footnote omitted)).

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to the Fees Act. First, the Court rejected all ethical arguments against fee
waivers.67 This par of the holding effectively overrules cases involving other

fee-shifting statutes, such as Prandini, which were based on ethical consider-

ations.6s Thus, Jeff D. undercuts the main basis for prohibiting fee waiver
requests and simultaneous negotiation of fees and merits. Second, the language of the Fees Act is very similar to that of many other fee-shifting statutes.69 Thus, Jeff D. can be applied directly to most, if not all, federal statutes allowing for
fee-shifting.70
C. THE DISSENT

Justice Brennan, joined by Justices Marshall and Blackmun, wrote a dissenting

opinion arguing that the majority reached the wrong result because they
mischaracterized the purpose of the Fees Act.71 Justice Brennan claimed that the

primary purpose of the Fees Act was "to ensure that there would be lawyers available to. plaintiffs who could not otherwise afford counsel, so that these plaintiffs could fulfill their role in the federal enforcement scheme as 'private
attorneys general,' vindicating the public interest.,m Unlike the majority, Justice Brennan did not see fee awards as a "weapon" for individual plaintiffs to use to
secure better settlements.73

Justice Brennan argued that, as fee waivers wil discourage lawyers from representing plaintiffs in civil rights cases, they conflict with the primary purpose of the Fees Act. 74 The court was sharply divided over this prediction. The dissent

claimed that "(t)he conclusion that permitting fee waivers wil seriously impair the abilty of civil rights plaintiffs to obtain legal assistance is embarrassingly obvious."7s The majority claimed that, in the absence of any documentation to
support such a view, this conclusion was premature?6 Moreover, the majority

believed that it was unlikely that fee waivers would impair the abilty of civil
rights plaintiffs to obtain legal assistance?7
67. See id. at 727-28.
68. See Prandini v. Natl Tea Co., 557 F,2d 1015, 1020-21 (3d Cir. 1977).

69. See, e.g., Bandera v. City of Quincy, 220 F, Supp. 2d 26, 44 (D. Mass. 2002) (noting that under JeJI D., "the abilty to apply for attorney's fees under section 1988 and, by analogy, under the same language in section 2000e-5(k) of Title VII, belongs to the client and not his attorney").
70. See Jeff D., 475 U.S. at 732 n.22. State supreme courts, however, can take a different approach to

fee-shifting provisions found in state statutes. See Flannery v. Prentice, 28 P.3d 860, 872 (CaL. 2001) (Kennard, J., dissenting) (noting that the majority opinion "ignores the plain language of the statute as well as persuasive United States Supreme Court precedent (including Jeff D.) construing virtually identical language in the federal civil rights law" (emphasis added)). 71. See Jeff D., 475 U.S. at 743-66 (Brennan, J., dissenting). 72. Id. at 745 (Brennan, J., dissenting). 73. See id. at 752 (Brennan, 1., dissenting). 74. See id. at 758-59 (Brennan, J., dissenting). 75. Id. (Brennan, 1., dissenting).
76. SeeJeffD., 475u'S. at 742 n34.

77. See id.

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Justice Brennan supported his view with a story about how the Court's holding would influence future settlement negotiations. Justice Brennan's horror story runs as follows. "(O)nce fee waivers are permitted, defendants wil seek them as a matter of course, since this is a logical way to minimize liabilty."78 Such an offer is not less attractive to the plaintiff and it reduces the exposure of the defendant.79 Moreover, plaintiffs' lawyers must place the interests of their clients first and wil advise their clients to accept fee waiver offers.so Thus, we can. expect settlement offers to routinely contain fee waiver demands.si This wil make it harder for plaintiff's lawyers to secure fee awards. Thus, they wil be
much more reluctant to take civil rights cases.S2

In response to this story, the majority claimed that there was no "reason or documentation to support such a concern at the present time."s3 In support, the majority simply cited a footnote from Judge Wald's concurrence in Moore v. National Ass'n of Security Dealers, Inc.s4 In this footnote, Judge Wald claimed
that:
(M)y belief is that most public interest counsel explain the financial detaiisof

the litigation well in advance to their clients, and that few clients wil against leap to accept a settlement that deprives counsel of fair the advice of counsel compensation and themselves of any provision for costs. In my experience, respected counsel do not and should not undertake public interest representation until an understanding is had with clients as to the range of appropriate

settlements. On balance, I do not believe the likelihood that irresolvable
problems between counsel and clients may occur is high enough to justify so
broad-ranging a rule as would cover the present case. S5

Unlike Justice Brennan, Judge Wald assumes that it is acceptable to advise clients to reject an otherwise advantageous offer if the offer does not include a fee award.

Justice Brennan assumed that counsel must "render. . . advice free from the influence of his or his organization's interest in a fee."s6 This lead him to
conclude that "counsel must advise a client to accept an offer which includes waiver of the plaintiff's right to recover attorney's fees if, on the whole, the offer is an advantageous one."S7 Judge Wald assumes that, when advising clients whether to accept an offer, counsel may take the fact that a settlement offer

78. Id. at 758 (Brennan, J., dissenting). 79. See id. at 757 (Brennan, J., dissenting). 80. See id. at 756 n.8 (Brennan, 1., dissenting). 81. See Jeff D., 475 U.S. at 758 (Brennan, J., dissenting). 82. See id. at 758-89 (Brennan, J., dissenting). 83. Id. at 742 n.34. 84. See id.

85. Moore v. Natl Ass'n of Sec. Dealers, Inc., 762 F.2d 1093, 1112 n.l (D.C. Cir. 1985) (Wald, J.,
concurring) (emphasis added). 86. Jeff D., 475 U.S. at 756 n.8 (Brennan, J., dissenting). 87. Id. (Brennan, J., dissenting) (emphasis added).

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THE LEGACY OF EVANS V. JEFF D.

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fair compensation into account. Moreover, Judge Wald suggests deprives them of that clients wil be sympathetic to their lawyers' need for a fee. If Judge Wald is correct, Justice Brennan's horror story may not come true. Justice Brennan assumed that plaintiffs' lawyers would be forced to counsel their

clients to accept an offer conditioned on a fee waiver. This could encourage
defendants to make such offers. This would decrease recovery for plaintiffs' lawyers and make them less likely to take civil rights cases. However, if attorneys can ask clients to reject such offers and clients agree, then Jeff D. may not depress
the availabilty of plaintiffs' lawyers in fee-shifting cases.

In Part II infra, the prophecies offered by the majority and the dissent are

compared with the real world experience of public interest lawyers. Although

neither prophecy was fully accurate, my interviews with practitioners suggested that, overall, Judge Wald was more presctent than Justice Brennan.
D. THE RESPONSE FROM BAR ASSOCIATIONS

Before discussing the options available to public interest lawyers, it is worth investigating the response to Jeff D. from bar associations. Jeff D. would be far less important if bar associations had maintained their ban on defendant initiated fee waiver requests. In Jeff D., the Court rejected ethical arguments against fee waivers. ss It is not clear, however, that bar ethics opinions had to be withdrawn in light of Jeff D. In his dissent, Justice Brennan encouraged bar associations to maintain their opposition to defendant-initiated fee waivers.s9 He stated that "(s)ince Congress has not sought to regulate ethical concerns either in the Fees Act or elsewhere, the legality of (ethical) arguments is purely a matter of local law."90 This means that, to the extent that ethics opinions are based on interpretations of state ethical rules, they can be maintained in the face of
disagreement from the Supreme Court.91

The bar associations did not follow Justice Brennan's advice, however. In
response to Jeff D., both the D.C. Bar and the NYC Bar withdrew their rulings on the D.C. Bar fee awards.92 The NYC Bar withdrew its opinion sua sponte while waited until the issue was brought before it.93 Both associations decided that Jeff D. had overrled their prior decisions.

The D.C. Bar stated simply that "Jeff D. in essence overruled" its prior

88. See id. at 727-28. 89. See id. at 765-66 (Brennan, J., dissenting). 90. Idat 766 n.20 (Brennan, 1. dissenting). 91. See also Peter H. Woodin, Note, Fee Waivers and Civil Rights Settlement Offers: State Ethics
Prohibitions After Evans v. Jeff

D., 87 COLUM. L. REV. 1214, 1226-30 (1987) (arguing that Jeff D. does not

prevent bar associations from prohibiting defendants from requesting fee waivers). 92. See D.C. Bar Legal Ethics Op. 289 (1999) (hereinafter D.C. Op. 289); N.Y.C. Bar Ass'n Comm. on Prof'l & Judicial Ethics, Formal Op. 1987-4 (1987) (hereinafter N.Y.C. Op. 1987-4:1
93. See D.C. Op. 289, supra note 92; N.Y.C. Op. 1987-4, supra note 92.

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opinion.94 The NYC Bar considered the issue in more detai1.9s The NYC Bar

noted that their prior opinion had been based on the Fees Act as well as ethical concerns.96 The Bar claimed that the "principal underpinning" of its decision was
the view that fee waivers were inconsistent with the Fees Act.97 As Jeff D.

undercut this basis, the NYC Bar withdrew its opinion. These actions left all
public interest attorneys vulnerable to fee waiver requests.
II. OPTIONS AVAILABLE TO PUBLIC INTEREST LA WYERS IN THE AFTERMATH
OF JEFF D.

Many commentators feared that Jeff D. would encourage defendants to use aggressive tactics against the plaintiffs' bar.9s At the very least, the decision raised the possibilty of more settlement offers being conditioned on fee waivers and more frequent simultaneous negotiation of fees and merits. This Par considers ways in which public interest lawyers can work around the harsh results of Jeff D. The most promising options are discussed in detail with an emphasis on whether these options are consistent with the directives of legal
ethics.

Attorneys who are prepared to charge clients are able to avoid the. more diffcult ethical challenges posed by Jeff D. This is because they can give the
client a financial incentive to pursue statutory attorney's fees. Julie Davies'

empirical research suggests that this is how most attorneys have responded to Jeff

D.99 She writes that attorneys "very quickly developed fee agreements with
clients which offer some protection from (fee) waivers in the form of financial disincentives."1Oo These agreements include charging contingent fees and
requiring clients to pay hourly fees if statutory attorney's fees are waived.1OI

Once the client and the attorney share an interest in securing a fee, the ethical
conflict of interest should disappear.
102
Davies' research focused on attorneys working in the for-profit setting.

Public interest attorneys in the non-profit sector are less able to protect

themselves with agreements that require charging fees. Indigent clients, for
example, cannot afford to pay hourly rates in the event of a fee waiver. Also,

94. See D.C. Op. 289, supra note 92, at n.6.
95. See N.Y.C. Op. 1987-4, supra note 92.

96. See id. 97. See id.
98. See, e.g., Note, Fee as the Wind Blows, supra note 5, at 1292-94; see generally Stedman, supra note 5.

99. See Davies, supra note 7. 100. Id. at 215.
10 i. See id.

102. See id. at 203-08. Davies' study was focused on the financial, rather than the ethical, impact of Supreme

Court decisions on civil rights lawyers. She explains that "(tJhe basic premise underlying this study is that, in
most instances, attorney compensation drives decisions about what cases wil be taken and what cases wil not

be pursued." Id. at 207.

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lawyers working for non-profits rarely charge contingent fees (although perhaps
they should consider this option).103 This means that public interest lawyers working in the non-profit sector are much less likely to use strategies that remove

fee-related conflicts of interest. Thus, the strategies they develop are more likely
to raise ethical issues. In this Part, I discuss these strategies in detail and

investigate how they can be pursued without violating ethical norms. I also consider how bar associations and courts should respond to the ethical issues
raised by these responses to Jeff D. The three main options for public interest lawyers in the non-profit sector are as follows. First, these attorneys can break with tradition and charge contingent fees. Second, lawyers can follow Judge Wald's advice and encourage their clients to pursue attorney's fees even when the settlement offer is otherwise adequate. Davies' research suggests that some lawyers do pursue this option.104 My research suggests that this is by far the most popular strategy for lawyers in the
non-profit sector.lOS Third, lawyers can simply ask their clients to sign retainer agreements conditioning representation on the .non-waiver of fees. 106 I shall call

this the "limited retainer" solution. Davies' research did not uncover usage of this strategy. A recent ethics opinion, along with other evidence, suggests that at least
107
some public interest lawyers have considered this option, however.

A. CONTINGENT FEES

Fee-related conflicts emerge when a lawyer has an incentive to pursue a fee award even though this pursuit clashes with the clients' interest. In Jeff D., the plaintiffs would have received no extra benefit if their àttorney had refused the settlement offer and pursued fees. Contingent fees provide an effective solution

103. See Telephone Interview with Attorney I (Oct. 3, 2002) (on fie with author); Telephone Interview with Attorney 2 (Oct. 7, 2002) (on file with author); Telephone Interview with Attorney 3 (Oct. 8,2002) (on file with author); Telephone Interview with Attorney 4 (Oct. 10, 2002) (on file with author); Telephone Interview with Attorney 5 (Oct. 152002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16,2002) (on file with author); Telephone Interview with Attorney 7 (Nov. 1,2002) (on file with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author); Telephone Interview with Attorney 9 (Nov. 13,2002) (on

file with author); Telephone Interview with Attorney io (Nov. 15, 2002) (on file with author). Of the ten
attorneys I interviewed, only one worked for an organization that included a contingency fee in its retainer. See Telephone Interview with Attorney 8 (Nov. 13, 2002) (on file with author). 104. See Davies, supra note 7, at 215 ("Attorneys also discourage fee waivers by exercising caution in client selection and by educating clients about the importance of fees in a civil rights practice to prepare clients in the event of a settlement offer contingent on a waiver."). 105. See discussion infra Part II(C).
106. Justice Brennan suggested this option in his dissent in Jeff D. See Evans v. Jeff D., 475 U.S. 717, 766

(1986) (Brennan, J., dissenting) ("lIlt may be that civil rights attorneys can obtain agreements from their clients not to waive attorney's fees.").
107. See, e.g., D.C. Op. 289, supra note 92 (responding to an inquiry from a non-profit legal organization
that wished to use a retainer committing clients not to accept fee waivers); E. Richard Larson, Recent

Developments in the Law of Attorney's Fees, C742 A.L.I.-A.B.A. 781, 844 (1992) (suggesting that limited retainers are the best and most common strategy for dealing with fee-related conflicts).

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to this problem because they can give clients a financial incentive to pursue a
statutory fee award. Attorneys can do this by offering to subtract any statutory fee award from the contingent fee. lOS Once the client and the attorney share an

interest in securing a fee, most conflicts should disappear. The contingent fee solution does not raise difficult ethical problems apar from those ethical issues
raised by contingent fees in general. 109

Although contingent fees are a good solution to fee-related conflicts, this

option is often not available. There are two main reasons for this. First,
contingent fees are not an option when only injunctive relief is sought.11o Second, many public interest lawyers are unable, or very reluctant, to charge contingent fees. Many lawyers are employed by organizations, such as law school clinics, non-LSC funded legal services organizations and other non-profits that have not traditionally accepted contingency fees. ll Of course, it would beg the question to end the analysis there. Perhaps these organizations should change their practice and begin charging contingent fees. There are number of reasons why non-profit public interest organizations are reluctant to enter into contingent fee agreements. An amicus in Jeff D. argued that

its potential clients "many of whom have already suffered from harassment by legal or governmental authorities, are often reluctant to sign such agreements."l12
Thus, public interest lawyers may wish to distinguish themselves from profitseeking attorneys as a way to build client trust. Contingent fees are also unhelpful
11 in cases where the monetary damages wil be small.

3

Internal Revenue Service regulations are probably responsible for much of the
reluctance to charge contingent fees. Tax-exempt public interest organizations

risk losing their tax-exempt status if they collect contingent fees. From 1975 until 1992, the IRS narowly limited tax-exempt organizations' abilty to collect fees

108. See Venegas v. Mitchell, 495 U.S. 82, 84 (1990) (upholding the use of contingent fee contracts in § 1983 civil rights cases).
109. See, e.g., Stewart Jay, The Dilemmas of Attorney Contingent Fees, 2 GEO. J. LEGAL ETHICS 813 (1989).

Of course, the general ethical questions raised by contingent fees are beyond the scope of this Note. 110. Perhaps lawyers could sign contingency agreements whereby clients pay a fixed amount paid in the event of litigation success. Such agreements could apply in cases where the client only seeks injunctive relief. Nevertheless, these agreements would only be viable if the client could afford to pay. If the client can aford to pay, then lawyers can simply ask for an hourly fee from the outset. A lawyer can charge an hourly fee and agree contingent fee solution, this technique gives the to deduct any statutory fee award from the total bil. Like the client an incentive to seek a statutory fee award. As both the lawyer and the client wil want to pursue a fee award, this removes the conflict of interest over fees. Unfortunately, this is not a viable solution for public interest lawyers who wish to represent clients who are unable to afford an hourly fee.
II i. For example, nine of the ten attorneys I interviewed work for organizations that do not collect

contingent fees.
112. Brieffor Amici Curiae NAACP Legal Defense & Education Fund, Inc. eta!. at II n.lO, Evans v. Jeff

D.,

475 U.S. 717 (1986) (No. 84-1288).

i 13. Statutory fee awards can sometimes be significantly larger than potential contingent fees. See Evans v.
Jeff

D., 475 U.S. 717 (1986).

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114 IRS guidance suggested that an organization could be tax-exempt
from clients.

only if it did not "seek or accept attorneys' fees from its clients as compensation
for the provision of legal services."ii This restrictive regime forced all

tax-exempt public interest organizations to rely on alternatives to contingent fees. In 1992, the IRS moderated its regulations. The IRS now allows tax-exempt organizations to "accept attorneys' fees in public interest cases if such fees are paid directly by its clients."1l6 However, "(t)he total amount of all attorneys' fees (court awarded and received from clients) must not exceed 50 percent of the total cost of operation of the organization's legal functions."ll Thus, if an organization already has a significant income from statutory attorney's fees then it can only add contingent fee income if this does not exceed the 50 percent threshold.

This means that contingent fees are unlikely to be a large additional source of income for organizations that already collect statutory fees.

The new regulations may stil help lawyers deal with the problem of
fee-related conflicts, however. A small contingent fee may be a significant amount to the client. If the lawyer agrees to deduct any statutory fee recovery
from the contingent fee then the client wil have an incentive to pursue the

statutory fee award. Thus, even where the contingent fee is small, it can stil
motivate the client to refuse a defenClants request that statutory fees be waived.

It appears that most public interest lawyers do not use contingent fees as a
us This may be because lawyers
strategy for dealing with fee-related conflicts.

see charging fees as fundamentally inconsistent with a public interest mission. Alternatively, it may be because IRS regulations were once so restrictive that they forced public interest organizations to adopt a culture of refusing such fees. Now that the IRS has moderated its stance, public interest lawyers should at least consider using contingent fees. They should investigate whether contingent fees would impair client trust. If contingent fees are not a significant barier for clients then attorneys could use contingent fees as a means of avoiding fee-related conflicts.

114. See, e.g., Rev. Proc. 75-13,1975-1 C.B. 662 (1975); Rev. RuL. 75-74,1975-1 C.B. 152 (1975). These

guidelines apply to entities recognized under the "charitable" or "educational purposes" exemptions of
§ 501(c)(3) of

the Internal Revenue Code.

115. Rev. Proc. 75-13,1975-1 C.B. 662, § 3.01 (1975). 116. Rev. Proc. 92-59,1992-2 C.B. 411, § 4.02 (1992).

I 17. Id. at § 4.05 (The 50% requirement is "calculated over a five-year period, including the taxable year in which any fees are received and the four preceding taxable years (or any lesser period of existence).").

II 8. Of the ten attorneys I interviewed, only one included a contingent fee in his retainer. This attorney reported that this aspect of his organization's retainer agreement "went through a huge amount of vetting with
our board members" to ensure that it didn't endanger its. non-profit status. However, this lawyer reported that his

organization stil considered contingent fees only as a last resort, to be used only if other approaches to a fee
related conflict were unsuccessfuL. He said that he prefers to rely on the support of clients as a solution to fee issues. Thus, even this attorney focused on other solutions to fee related conflicts. Telephone Interview with

Attorney 8 (Nov. 13,2002) (on file with author).

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B. ATTORNEY-CLIENT SOLIDARITY

Judge Wald suggested that fee waivers should not be a significant problem for plaintiffs' lawyers in fee-shifting cases.119 She believed that lawyers would ask clients to refuse settlement offers that did not include fees and that clients would
120 Attorneys can respond to JeffD. by
support their lawyers' need for a fee award.

taking Judge Wald's advice and educating clients about the importance of

attorney's fees and then asking for client support. I shall call this the
"attorney-client solidarity" strategy. This is the most common strategy employed
by non-profit lawyers. I2I Thus, it is worth outlining the ethically acceptable

parameters of this approach. The use of the attorney-client solidarity approach raises a number of ethical

questions. In particular, this practice is in tension with the principal of client control and with the duty to show undivided loyalty to the client. It may be unethical to ask clients to support the pursuit ora fee award if this wil not help, and may even harm, the interests of the client. There is also a danger that the
client may feel unduly pressured into sharng the lawyer's desire

for fees.

1. ASKING CLIENTS FOR ASSISTANCE

Justice Brennan suggested that "the lawyer's duty of undivided loyalty

requires that he render. . . advice (about settlement offers) free from the influence

of his or his organization's interest in a fee."122 This lead him to conclude that public interest lawyers cannot ethically ask their clients to support them in their pursuit of fees.123 There are three reasons for resisting this analysis. First, the
organization's interest in a fee may be coextensive with some interests of the

client. This wil be especially true when the client is a member of the
organization's target client base. Many organizations offer legal services to a

targeted group of clients. Typically, this group is underrepresented within the justice system.124 A client might support the services supplied by the lawyer's

organization on the basis of his or her own loyalty to the community. It is
reasonable to ask a client to help ensure that the lawyer's organization can

continue to provide services to her and her community. A second reason for rejecting Justice Brennan's view is that it diminishes clients by assuming that lawyers should expect, or even encourage them, to be

119. See Moore v. Natl Ass'n of Sec. Dealers, Inc., 762 F.2d 1093, 1112 n.l (D.C. Cir. 1985) (Wald, J.,
concurring). 120. See id. 12 i. See discussion irifra Part II(C). 122. Evans v. Jeff D., 475 U.S. 717, 757 n.8 (1986) (Brennan, J., dissenting). 123. Justice Brennan based this view on Model Rule 1.7(b). See id. Legal Aid Clinic. This clinic was founded to exclusively serve 124. A typical example is the Cabrini Green
clients residing in the Cabrini Green/Near North neighborhood of Chicago. See CGLA's Mission, Values, Goals,

and History, at http://www.ilinoisprobono.org/index .cfm ?fuseaction = home.dsp_content&contentID=267.

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selfish. It is important to remember that clients can share the policy goals of a legal organization. Contrary to public opinion, lawyers do not have a monopoly
on altruistic motivation. Attorneys should be alert to the wide range of clients'

"interests." If the lawyer restricts advice to factors effecting the narow
self-interest of the client then the lawyer appears to assume that the client is only motivated by such factors. A lawyer should explain all of the implications of a settlement offer including the financial impact on the lawyer's own organization.

This enables the client to consider the broader consequences of his or her
decision as well as its specific personal impact. The third reason for rejecting Justice Brennan's view is that clients may have an interest in the symbolic value of fee-shifting. Clients can be motivated to make an "example" of a defendant.12s Fee-shifting statutes provide the possibilty of additional vindication for plaintiffs. The default rule is that parties pay their own
costS.126 Fee-shifting sends a strong message that the defendant's actions were

contrary to public policy. Thus, there are three good reasons to ask clients to support the pursuit of a fee award. These reasons can be significant even if all other elements of the settlement offer are satisfactory for the client. This shows
that asking clients to support the pursuit of fees is consistent with a lawyer's duty of loyalty. In fact, the lawyer respects the autonomy of the client by assuming that the client may be motivated by altruism.
2. AVOIDING COERCION

It is legitimate to ask clients to support the pursuit of attorney's fees. Lawyers must stil take care, however, to ensure that they do not pressure clients to make an "altruistic" decision. It is only legitimate to pursue fees with genuine support from the client. Otherwise, the attorney wil be acting against the interests the client in violation of Model Rule 1.7(b)(1).127 This raises two closely related
questions. First, how much "encouragement" can public interest lawyers apply to their clients? Second, how can attorneys ensure that clients genuinely support

their pursuit of fees? A correct answer to the first question provides the best solution to the second.
The best way to ensure that client support is genuine is to take care not to apply

too much pressure on clients. If clients have not been pressured then lawyers can feel confident that their support is genuine. If clients are overly pressured then lawyers wil not be able to trust expressions of support. Thus, the most important issue is how public interest lawyers inform and advise clients about fees. How much persuasion is acceptable wil vary. It wil vary depending on how

125. See infra note 222 and accompanying text.
126. See, e.g., Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of

Health & Human Resources, 532 U.S.

598, 603 (200 I). 127. See MODEL RULES Rule 1.7(b)(l) (2002) (requiring that an attorney avoid a conflict of interest unless

"the lawyer reasonably believes the representation wil not be adversely affected").

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important fees are in a paricular case and it wil vary depending on how
sympathetic particular clients are toward the wider policy goals of the lawyer's organization. Early in litigation, particularly in a small case, the potential fee award wil not be significant. If the fee involved is not significant for the attorney's organization then lawyers shouldn't recommend pursuing a fee award

if this may harm the interests of the client. Other cases, however, may have
significant financial implications for the lawyer. In these cases the lawyer wil be eager for the client to support the pursuit of fees. Lawyers should try to get some idea of how important wider policy goals are to a client. If the client has shown a strong interest in the policy goals of the lawyer's organization then the lawyer can place emphasis on a settlement offer's significance with respect to these goals. On the other hand, if clients suggest that
they just want the money they are owed, then the lawyer may be interfering by

placing an emphasis on fees. If public interest lawyers take care to ensure that they only ask for significant support from clients whom they know to be sympathetic, then improper coercion is unlikely to occur. This approach can be contrasted with more radical tactics such as encouraging
a client to refuse a settlement offer by actively misrepresenting the offer. David

Luban has suggested that a radical tactic like this may be acceptable in some
circumstances. I2S He bases this conclusion on his view that public interest
lawyers engaged in cause-lawyering

relationship with their have a unique kind of clients. Luban acknowledges that, ordinarily, lawyers are agents of their clients. He suggests that public interest lawyers, however, may not have a simple agent-principal relationship with their clients. When lawyers and clients join

together to pursue a policy goal they can be seen as having a relationship of
129 Luban argues that people who enter into close
"mutual political commitment."

political relationships understand that their alles may place the cause above the
130 He claims that the public interest lawyer's "relationship
needs of an individuaL.

with her (client) is not an ordinary lawyer-client relationship based on agency conceptions of fiduciary responsibilty, rather, it is a relationship of comradeship, of primary commtment to the cause and only secondar commtment to (the client)."l3 Luban concludes that clients who enter into close political relationships with lawyers can be manpulated if ths is suffciently importt to the cause.13

Luban's radical conclusion is not consistent with standard legal ethics and
Luban accepts this.133 His view is that standard legal ethics is too inflexible too

128. See DAVID LUBAN, LAWYERS AND JUSTlCE 317-40 (1988).

129. Id. at 337. 130. See id. at 329-35. 13 i. Id. at 338. 132. This manipulation could include behavior such as misrepresenting an offer or antagonizing opposing counsel so that they would withdraw the settlement offer. See id. 133. Luban realizes that this practice is inconsistent with the Model Rules. See id. at 321.

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THE LEGACY OF EVANS V. JEFF D.

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accommodate political lawyering. Thus, unless public interest lawyers are
wiling to risk sanctions, they should take

no more than an academic interest in

Luban's argument.

Moreover, Luban asks for attorney-client solidarty to support more weight
than it can bear. Although clients and lawyers may often feel mutual solidarity,

public interest lawyers typically represent clients of lower socio-economic status with little formal education. This hierarchy suggests that any manipulation by the
public interest lawyer would only add to the disempowerment felt and

experienced by their clients. Many academic commentators caution that public
interest lawyers tend to dominate their clients.134 Lawyers should not make this

problem worse by manipulating their clients into rejecting settlement offers.

As long as it is done carefully, asking clients tu support the pursuit of
attorney's fees need not lead to lawyer domination. Much of the literature on
lawyer domination focuses on the problem of lawyers characterizing their clients as helpless victims.13S Public interest lawyers who ask clients for support may actually help counter this problem. Practitioners should only "pressure" clients by asking clients to refuse offers on the grounds that the offer conflicts with the policy goals shared by the lawyer and the client. Mutual political commitment can bear this modest burden because the parnership between lawyer and client remains open and forthright. The client is allowed to consider his or her narow

interests along with the broader political goals. This takes clients out of the
passive role of someone who simply needs to be saved by the lawyer.
3. SCREENING CLIENTS

Lawyers can only get genuine client support for pursuing fee awards if the
client is supportive of the wider political goals of the lawyer's organization. This gives lawyers an incentive to seek out and select clients who are sympathetic to their goals. In cases where the lawyer anticipates a need for client support the lawyer might consider selecting clients especially carefully. Public interest lawyers confront more potential clients than they are able to serve. Thus, all organizations need to develop policies for distributing their
scarce resources. This has been called the "strategy of legal service triage."136 It
is widely accepted that lawyers can base case selection decisions on broad

utiltaran considerations such as how many people are affected or the relative
134. See GERALD P. LOPEZ, REBELLIOUS LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE
22-23 (1992); Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of

Client Narrative,

100 YALE LJ. 2107, 2123-30 (1991) (suggesting that lawyers disregard client narratives and impose stories of client passivity thereby reinforcing lawyer domination); Carl J. Hosticka, We Don't Care About What Really Happened, We Only Care About What is Going to Happen: Lawyer-Client Negotiations of Reality, 26 Soc.

PROBS. 599 (1979) (discussing an empirical study suggesting that lawyers dominate conversations with clients). 135. See Alfieri, supra note 134; Hosticka, supra note 134.
136. Paul R. Tremblay, Acting "A Very Moral Type of God": Triage Among Poor Clients, 67 FORDHAM L.

REV. 2475 (1999).

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seriousness of the potential clients' problems.

These utiltaran considerations can be extended to cover attorney-client solidarity and clients' wilingness to support the pursuit of fees. This is because how many cases it can the financial health of an organization is highly relevant to take. Having clients who support the pursuit of fees should allow an organization to help more people. This means that preferring supportive clients is similar to

preferrng cases where a legal victory wil have a wider impact. Thus, it is
legitimate for a public interest organization to seek supportive clients.
C. LIMITED RETAINERS

Justice Brennan suggested that "it may be that civil rights attorneys can obtain
agreements from their clients not to waive attorney's fees."13S I shall refer to this
idea as the "limited retainer" solution. Limited retainers can put clients and

defendants on notice that settlement offers must include attorney's fees. In this way, the plaintiff's lawyer hopes to avoid conflicts of interest and ensure that lead to a fee award. At least one author has encouraged success on the merits wil attorneys to use limited retainers. 139 Another commentator suggested that limited retainers are the best, and most common, way to deal with conflicts related to the simultaneous negotiation of fees and merits.140 Unfortunately, limited retainers conflict with the basic tenet of legal ethics that clients should control settlement decisions.141 Commentators recommending limited retainers have completely ignored this ethical issue.142 This is a serious last decade, five bar associations have considered the ethical oversight. In the propriety of limited retainers.143 Four of these bar associations ruled that the "limited retainer" solution is unethical.I44 Thus, attorneys in four states cannot
use limited retainers at all without defying their state bar association. Bar

association commentar on limited retainers has not been unanimous, however.
The opinion from the California State Bar provides an alternative view.14S

137. See id. at 2487-89; LUBAN, supra note 128, at 306~16.
138. Evans v. Jeff

D., 475 U.S. 717, 766 (1986) (Brennan, J., dissenting).

139. See David W. Garland, Ethical Conflicts and Professional Considerations: Selected Issues, CA35 A.L.l.-A.B.A 505, 536-37 (1996) (enoouraging plaintiff's attorneys to enter into retainers conditioning
representation on the non-waiver of

fees).

140. See Larson, supra note 107, at 844. 141. See MODEL RULES Rule 1.2 (2002). 142. See Garland, supra note 139; Larson, supra note 107.

143. See D.C. Op. 289, supra note 92; Utah State Bar Ethics Advisory Op. Comm., Op. 98-05 (1998) (hereinafter Utah Op. 98-05); Conn. Bar Ass'n Comm. on Prof'l Ethics, Informal Op. 97-3 i (i 997) (hereinafter Conn. Op. 97-31); Cal. State Bar Standing Comm. on Prof' Responsibilty and Conduct, Formal Op. 1994-136

(1994) (hereinafter Cal. Op. 1994-136); State Bar Ass'n of N.D., Op. 93-09 (1993) (hereinafter N.D. Op.
93-09) .

144. See D.C. Op. 289, supra note 92; Utah Op. 98-05, supra note 143; Conn. Op. 97-31, supra note 143;

N.D. Op. 93-09, supra note 143.
145. See Cal. Op. 1994-136, supra note 143.

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1. ETHICAL OBJECTIONS TO THE LIMITED RETAINER

The main objection to limited retainers is that they interfere with the client's

right to control settlement decisions. A limited retainer "specifically commits the accept a settlement offer client, as a condition of representation, not to conditioned on the client's waiver of his or her right to pursue court-awarded
attorneys' fees."146 Thus, the client agrees to limit his or her discretion to accept

or reject any settlement offers.

In holding this retainer unethical, bar associations have mechanically applied ethical rules granting clients control over settlement decisions. For example, the State Bar Association of North Dakota noted that "Rule 1.2 makes it clear that a

lawyer must abide by the client's decision whether to accept a settlement
offer."147 Thus, a retainer "agreement may not restrict the client's right to receive

and accept settlement offers."14s The Utah State Bar claimed that "(a)n attorney must convey all offers of settlement to a client, and the client must always have the final say. . . (t)his ultimate client authority cannot be contracted away."149 The inquirer to the D.C. Bar claimed that the limited retainer is only a "slight impingement" on the client's control of settlement and that this impingement "is
justified. by fee-shifting statutes and by the public interest served by providing

financing for further cause litigation."lso The D.C. Bar rejected this rationalization stating that "(t)he Committee, like other jurisdictions that have faced this

issue, recognizes that a client's right to accept or reject a settlement offer is
absolute, as confirmed by our Rule 1.2(a)."lSI

North Dakota also make the serious charge that limited retainers actually create a conflict of interest between the client and the lawyer. The D.C. Bar claimed that:
Both the D.C. Bar and State Bar of

(A)n advance waiver of this right (to control settlement) in the context of a fee award waiver would create an actual conflict (of interest) between the lawyer

and client when and if the client were called upon to honor the settlement restriction, seriously impairing the lawyer's ability to render full and candid advice regarding the propriety of accepting the settlement offer and raising
serious issues regarding the client's ability to provide a voluntary consent to the lawyer's continued representation.IS2

The State Bar of North Dakota similarly claimed that limited retainers, "rather

than the settlement offer (conditioned on a fee waiver), create a conflict of

146. D.C. Op. 289, supra note 92, at 2. 147. N.D. Op. 93-09, supra note 143, at 3.
148. Id. 149. Utah Op. 98-05, supra note 143. 150. D.C. Op. 289, supra note 92, at 5 (internal quotation marks omitted).
is!. Id. at 6 (emphasis added).

152. Id.

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interest between the attorney and the clients."ls3 These claims are simply not correct. It is more accurate to say that the limited

retainers resolve a conflict of interest in favor of the lawyer. If a defendant
requests a fee waiver then a conflict of interest wil exist regardless of whether the

client has signed a limited retainer. The lawyer would stil have an interest in
rejecting the offer while the client has an interest in accepting the offer.ls4 For

example, in Jeff D. the plaintiff's attorney believed that his loyalty to his clients required him to accept the offer and forgo a fee award.lss Thus, the conflict was resolved in favor of the client. Alternatively, if a client honors a limited retainer

then the conflict is resolved in favor of the lawyer. The conflict exists
independently of the limited retainer.

Although the D.C. Bar and the State Bar of North Dakota are incorrect in
claiming that limited retainers create a conflict of interest, this does not undercut the main basis for their decision. The main basis of their holding is the tenet of settlement. By automatically resolving a conflict of interest in client control of
favor of the lawyer, limited retainers reduce client control of settlement.

Accordingly, this interferes with an "absolute right" of the client and provides a basis for rejecting limited retainers.IS6 Thus, the crucial question for limited retainers is whether they impermissibly interfere with client control.
2. RESPONDING TO THE ETHICAL OBJECTIONS

The ethical objections to limited retainers do not support the wholesale rejection of their use. Although limited retainers htlve some costs for clients, these costs do not justify banning limited retainers. More importantly, if client
autonomy is considered broadly,' then limited retainers do not impermissibly interfere with this autonomy. Thus, in an at least some situations, these contracts
are ethicaL.

The bar associations that rejected limited retainers did not consider, from the perspective of clients, the likely costs and benefits of limited retainers. This is

worth doing. The main advantage of limited retainers is that they can assist potential plaintiffs to find competent counseL. Although it is not clear how
powerful

limited retainers are for this purpose, it cannot be disputed that lawyers lead to a fee. Only the extent of the benefit is open to question.IS7 Any assistance in securing counsel should be valued highly. Potential clients are unlikely to have their rights
are more likely to take cases if they know that litigation success wil

153. N.D. Op. 93-09, supra note 143, at 3 (emphasis added). 154. This assumes that the offer includes adequate relief on the merits. 155. Evans v. Jeff D., 475 U.S. 717, 722 (1986). 156. D.C. Op. 289, supra note 92, at 6. 157. Even the majority in Jeff D. was "cognizant of the possibility that decisions by individual clients to bargain away fee awards may, in the aggregate and the long run, diminish lawyers' expectations of statutory fees in civil rights cases." 475 U.S. at 741 n.34.

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THE LEGACY OF EVANS V. JEFF D.

521

vindicated at all without representation. We should ~mly reject limited retainers if the costs of these contracts clearly outweigh this benefit. Otherwise, we would be denying plaintiffs a potentially useful tool. There are two main costs of limited retainers. First, by reducing the range of

settlement offers, limited retainers may lengthen litigation and increase the
probabilty that a case wil go to triaL. This can delay relief and make litigation more expensive. Second, a limited retainer may reduce the client's eventual recovery. Neither drawbsJck provides a basis for rejecting limited retainers.

Limited retainers should not be rejected just because they make settlement

more difficult, as other methods of delivering legal services have similar
downsides. For example, lawyers hired on a contingency basis have a financial

incentive to do little preparation and settle early.lss Lawyers paid by the hour have an economic incentive to maximize the time they spend on a case.IS9 This means that hourly biling can require expensive and near constant monitoring by
clients to ensure that legal services are not over-delivered.160 Over-delivery of
legal services is not just more expensive, it can result in settlements being
unnecessarily delayed.161 As other methods of delivering legal services have a

similar effect, limited retainers cannot be rejected on ethical grounds just because they may delay settlement. Nor should limited retainers be rejected because they may reduce the client's recovery. It is true that, by agreeing to a fee waiver, a plaintiff who hasn't signed a strong limited retainer should be able to secure a better settlement.162 This is not a objection to limted retainers, however. Contingent fees have exactly the same drawback. Obviously, a plaintiff wil get a better deal if he can keep his lawyer's contingent fee. Client control over settlement does not give plaintiffs the power to insist that their lawyers waive their contingency fees. More simply, contingent fee contracts are enforceable even when they frustrate financial interests of the client. Thus, limited retainers should be enforceable even though they may have similar negative consequence for clients.
158. See Robert F. Cochran, Jr., Legçil Representation and the Next Steps Toward Client Control: Attorney Malpractice for the Failure to Allow the Client to Control Negotiation and Pursue Alternatives to Litigation, 47
WASH. & LEE L. REV. 819, 835 (1990).
159. SeeDennis Curtis & Judith Resnik, Teaching Billng: Metrics of Value in Law Firm and

Law Schools,

54 STAN. L. REV. 1409, 1419-21 (2002) (discussing institutional pressures within law firms that lead to
excessive billng); E. Donald Ellot, Managerial Judging and the Evolution of Procedure, 53 U. CHI. L. REV.

306,330-32 (1986) (discussing the need for judges to protect clients and courts from attorneys' tendencies to over-supply legal services).
160. See James P. Schratz, I Told You to Fire Nicholas Farber-A Psychological and Sociological

Analysis of

Why Attorneys Overbil, 50 RUTGERS L. REV. 2211, 2222 (1998) ("As legal fees mount, management is devoting

additional corporate resources to understanding and controlling escalating legal fees. . . . (This has lead to aJ burgeoning cottage industry of legal auditors and litigation cost managers. . . .").
161. See Ellot, supra note 159, at 33 1-32.

162. The Supreme Court was correct in noting that a fee waiver can be a "weapon" used to secure a better settlement. See Jeil D., 475 U.S. at 741. Of course, the dissent strongly disputed the majority's claim that this was part of the intent of the Fees Act. See Jeff D., 475 U.S. at 752-53 (Brennan, J., dissenting).

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The costs and benefits of limited retainers are not lopsided enough to warrant the prohibition of this kind of contract. The defense of limited retainers requires

one more step, however. It remains to be shown that limited retainers do not impermissibly interfere with client autonomy. This can be done by considering
the ways in which limited retainers widen and limit client autonomy. If autonomy
is conceived broadly, the freedom to sign a limited retainer may improve client

autonomy. Thus, these retainers should be permitted. Limited retainers infringe on client autonomy by restricting the client's freedom to negotiate with the defendant. This infringement is quite narrow, .

however. Clients maintain most of their power over settlement decisions. For example, clients cannot be forced to accept an offer, as they remain free to reject
any settlement offer. They remain free to accept any settlement offer that includes attorney's fees. By signing the limited retainer a client only decides, in advance, to reject offers conditioned on a fee waiver. Thus, limited retainers only change the time at which a limited range of settlement decisions are made. On the plus side, limited retainers improve clients' freedom to bargain with their attorneys. While other bar associations focused solely on the client's right to control settlement, the California Bar also considered the client's right to contract with counsel at the inception of the attorney-client relationship.163 The California Bar cited. Venegas v. Mitchell in support of the view that civil rights plaintiffs
164 In Venegas,
should be given flexibilty when negotiating with their attorneys.

the Supreme Court held that a contingent fee contract was enforceable even though the contingent fee exceeded the statutory fee awarded under the Fees
Act.16S The Court noted that refusing to allow contingency agreements in civil

rights actions would place plaintiffs "in the peculiar position of being freer to
negotiate with their adversaries than with their own attorneys."166

Similar considerations apply to limited retainers. Refusing to allow limited retainers would place plaintiffs in the situation of being freer to negotiate with

defendants than with their own lawyers. Thus, allowing limited retainers
improves clients' freedom to negotiate with their lawyers at a cost to their freedom to negotiate with defendants. Allowing clients to choose which freedom is most important is the best way to respect client autonomy. Overall, limited retainers can involve a sensible bargain. The client agrees to exchange the "weapon" of a fee waiver to improve her prospects of finding
representation. This deal does not come at an intolerable practical or financial

163. See CaL. Op. 1994-136, supra note 143.

164. See id. 165. See Venegas v. Mitchell, 495 U.S. 82, 88 (1990). Interestingly, Venegas actually involved a limited

retainer. The retainer "forbade Venegas from waiving Mitchell's right to court-awarded attorney fees, and allowed Mitchell's intervention to protect his interest in the fees." Venegas v. Skaggs, 867 F.2d 527, 529 (9th
Cir. i 989). The 'limited' aspect of the retainer was not an issue in the case and was not considered by the court. See generally id. 166. Venegas, 495 U.S. at 88.

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THE LEGACY OF EVANS V. JEFF D.

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cost to the client. Also, a limited retainer does not have an intolerable effect on the client's autonomy. Limited retainers only restrict a small aspect of the clients' right to control settlement. Importantly, they do not force the client to accept any offer. They only require the client to decide in advance to reject a certain type of settlement offers. These points strongly support the view that clients should be allowed to sign limited retainers. These detailed considerations can be contrasted with the simplistic position
167 This right should not
that clients have an "absolute" right to control settlement.

be invoked at a cost to clients. Traditionally, a strong showing is required to establish that a contract is unconscionable.16s Even if we assume that clients

deserve extra protection from savvy lawyers, bar associations should engage in retainers. Applying strict constructiondeeper analysis before prohibiting limited ism to ethical rules may not always be the best way to help clients. In this case, a deeper analysis suggests that, from the perspective of the client, the benefits of limited retainers justify the cost.
3. PROBLEMS WITH ENFORCEABILITY

I have argued that bar associations should allow attorneys to use limited . retainers. Unfortunately, a complication remains. Even if bar associations reach the correct ethical conclusion and allow limited retainers, they do not get the last

word. Retainers are contracts. As such, their usefulness is dependent on the wilingness of courts to enforce them. Like the majority of bar associations, courts generally assign an "absolute" value to the client's right to control
settlement decisions.169 Thus, it is possible that courts wil hold that limited

retainers are invalid. Bar ethics opinions may influence courts to support limited retainers but these opinions are not binding. Thus, bar associations and courts need to act together.

Consider the example of California. California case law, like that of other
states, strongly supports client control of settlement decisions.

170 The California

Bar realized that limited retainers might not be enforceable.171 The Bar

concluded that "(t)he client always has the right to determine whether or not to

167. D.C. Op. 289, supra note 92, at 6. 168. "Enforcement wil be denied only if the factors that argue against enforcement clearly outweigh the
law's traditional interest in protecting the expectations of the parties. .. ." RESTATEMENT (SECOND) OF

CONTRAClS § 178, cmt. b (1981) (emphasis added).

169. See, e.g., New England Training Services, v. Silver St. P'ship, 528 A.2d 1117, 1120 (Vi. 1987)
(Authority over settlement "remains at all times within the control of the client."); Giles v. Russell, 567 P.2d 845, 850 (Kan. i 977) (A "contract which prevents the client from settling without the consent of the attorney is void as against public policy.").
170. See, e.g., Alvarado Cmty Hosp. v. Superior Court, 219 CaL. Rptr. 52, 54 (CaL. Ct. App. 1985) ("An

attorney 'has no implied or ostensible authority to bind his client to a compromise settlement of pending
litigation.' "(quoting Navrides v. Zurich Ins. Co., 488 P.2d 637,639 n.1 (CaL. 1971))).
171. See CaL. Op. 1994-136, supra note 143.

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accept a settlement offer."17 The Bar emphasized that any lawyer must disclose and explain the terms of the retainer, including the possibilty that the retainer is
unenforceable. I73 The recommended disclosure:

should include a discussion that the lawyer may attempt to override the client's desire to settle the case by accepting the injunctive relief requested, if the the attorney's fees, and settement offer depends upon a waiver of some or all of

that the lawyer's right to do so may not be enforceable. The client must be informed that the defendant may offer the full injunctive relief requested in
exchange for a waiver of attorney's fees and that, in this event, the attorney's

interest and the client's interest in settling the case would differ, with the
possible result that the attorney must withdraw.174

If the lawyer cannot accept or refuse a settlement offer without the client's consent then, even if the client has signed a limited retainer, the client can accept an offer conditioned on fee. The lawyer may then withdraw and seek to enforce the retainer agreement.17S However, the lawyer may arive in court only to find
the agreement declared unenforceable.176

Thus, even if their local bar permits limited retainers, attorneys may be
reluctant to ask clients to sign a contract that may be unenforceable. Limited retainers could stil assist in two ways, however. First, the client may feel a moral

obligation to honor the contract, even though the client understands that the retainer may be unenforceable. The retainer would serve as an informal
agreement whereby the client agrees to assist the lawyer to secure a fee. This is an acceptable reason to want an unenforceable contract. Limited retainers could also
help the attorney in an objectionable way, however. Clients could honor the

retainer because they don't understand that they maintain the power to accept settlements conditioned on fee waivers. This could happen with or without deliberate pressure from the attorney. The California Bar attempts to prevent this by requiring attorneys to disclose the possibilty that the retainer is unenforcelack the legal sophistication to appreciate the significance of this. The California Bar does not address this danger.
able.177 Nevertheless, many clients wil

At a minimum, clients should be able to understand the implications of any

contract they sign. Thus, limited retainers are only ethical if the client is
sophisticated enough to understand the implications of signing a contract that

172. See id.

173. See id. California Rule of Professional Conduct 3-300 creates an obligation of disclosure before a
lawyer can acquire any interest adverse to a client. See CAL. RULES OF PROFESSIONAL CONDUCT Rule 3-300

(2003).
174. Cal. Op. 1994-136, supra note 143.

175. See id.
176. See Darby v. City of 177.

Torrance, 810 F. Supp. 271, 273-74 (C.D. Cal. 1992). See Cal. Op. 1994-136, supra note 143.

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THE LEGACY OF EVANS V. JEFF D.

525

may be unenforceable.l78 Unfortunately, the indigent clients that fee-shifting provisions are intended to help are especially likely to be confused by a request to sign a potentially unenforceable contract. This suggests that limited retainers wil only be ethical in a narow range of cases. Thus, until bar associations and courts

accept limited retainers, plaintiff's attorneys may have to rely on alternative
strategies for dealing with fee-related conflicts of interest. The tension between the California Bar's opinion and the likely response from the courts provides support for a thesis advanced by Peter Joy. Joy argues that state supreme courts should establish procedures allowing them to review bar

association ethics opinions.179 Ethics opinions could then be a source of precedential authority.Iso This would make it less likely that the bar and the courts wil end up working at cross-purposes.ISI Under the current system,
attorneys can not be sure that courts wil respect the California Bar's decision that
limited retainers are ethicaL. Thus, public interest lawyers wil have to proceed

with caution if they use these retainers.
III. JEFF D. IN PRACTICE: PERSPECTIVES FROM THE FIELD

It is diffcult to determine the impact of Jeff D. simply by considering the
options available to attorneys or by looking at subsequent ethics opinions. A more

empirical approach is required. In an attempt to gauge the effects of Jeff D., I conducted structured interviews with ten public interest practitioners. These

interviews addressed the following topics. Do defendants regularly create
fee-related conflicts for public interest lawyers? If so, do public interest attorneys

regularly find themselves forced to miss out on fee awards because of these conflicts? What strategies do plaintiffs' lawyers use to deal with fee waiver requests or the simultaneous negotiation of fees and merits? How effective are these strategies? Do practices differ in California where the bar allows the
"limited retainer" solution? I interviewed attorneys who work for non-profit organizations that focus on plaintiff-side litigation and regularly seek attorney fee awards.1s2 The attorneys'

178. For example, if the client is an organization with its own general counsel then a limited retainer should
be acceptable.
179. See Peter A. Joy, Making Ethics Opinions Meaningful: Toward More Effective Regulation of Lawyers ,

Conduct, 15 GEO. J. LEGAL ETHICS 313, 377-81 (2002).

i 80. See id. at 382. i 81. Joy also argues that such a system wil improve the quality of ethics opinions and make the process fairer. See id. at 377-81. i 82. The attorneys interviewed have pursued fee awards under a variety of statutes including the Ci viI Rights Attorney's Fees Awards Act, the Clean Air Act, the Clean Water Act, the Fair Labor Standards Act as well as state fee-shifting statutes. Telephone Interview with Attorney I (Oct. 3, 2002) (on file with author); Telephone Interview with Attorney 2 (Oct. 7, 2002) (on file with author); Telephone Interview with Attorney 3 (Oct. 8,

2002) (on file with author); Telephone Interview with Attorney 4 (Oct. 10, 2002) (on file with author);
Telephone Interview with Attorney 5 (Oct. 152002) (on file with author); Telephone Interview with Attorney 6

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practice areas included environmental law, immigrants' rights, employment discrimination, prisoners' rights and general civil rights.1s3 The interview sample

is fairly small and was not selected via any rigid and scientific randomization process. Nevertheless, I attempted to interview lawyers from diverse regions
within the U.S. and with diverse public interest

experience. Thus, the interviews

should at least uncover general trends and reveal the most common tactics

employed by public interest lawyers. The sample reflects my own biases as to what constitutes "public interest" practice. This is largely unavoidable. I hope that my choices reflect a fairly conventional view of progressive public interest lawyering.is4 My empirical work overlaps with Julie Davies' study. Davies engaged in a broad study of the effects of Supreme Court decisions in statutory fee cases.ISS Davies interviewed 35 lawyers.IS6 Most of these attorneys were practicing in the
San Francisco Bay Area and most were in private practice.IS7 Davies' study was

focused on the financialimpact of Supreme Court decisions on plaintiff-side civil

rights practice.ISS My interviews also covered this topic although I focused exclusively on non-profit practice. The results of my interviews were consistent
with Davies' results wherever our work overlapped. Thus, my interviews provide good confirmation of the accuracy of Davies' research.is9 My interviews expand
on Davies' study by covering the ethical challenges of Jeff D. in detaiL.

A. mSTICE BRANNAN'S HORROR STORY

Justice Brennan predicted that, in the wake of Jeff D., defendants would seek fee waivers as a matter of course.190 He also predicted that lawyers would advise their clients to accept these fee waiver offers.191 This would make it harder for plaintiffs' attorneys to secure fees and wil make attorneys far more reluctant to

(Oct. 16,2002) (on file with author); Telephone Interview with Attorney 7 (Nov. 1,2002) (on file with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author); Telephone Interview with Attorney 9

(Nov. 13, 2002) (on file with author); Telephone Interview with Attorney 10 (Nov. 15, 2002) (on file with
author). 183. It is worth noting that no interviewees work for legal services organizations receiving funding from the Legal Services Corporation ("LSC"). See id. The reason for this is simple: organizations receiving LSC funds

cannot pursue statutory attorneys fee at all. See 45 C.F.R. § 1642 (2003). Thus, thanks to Congressional
beneficence, their practice falls outside of the scope of this Note. 184. See the attached Appendix for more discussion ofthe interview methodology and a brief description of the practice of each interviewee. 185. See Davies, supra note 7. 186. Id. at 204. 187. Id. at 204-05. 188. Id. at 199-202.

189. The value of this confirmation is supported by the fact that my study was designed and conducted
without the potential prejudicial effect of already knowing Davies' results. 190. See Evans v. Jeff D., 475 U.S. 717, 758 (1986) (Brennan, 1. dissenting). 191. See id.

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THE LEGACY OF EVANS V. JEFF D.

527

take plaintiff-side civil rights cases.192 Justice Brennan's prophecy involves three

independent claims. First, defendants wil routinely make settlement offers
conditioned on fee waivers. Second, plaintiffs wil accept these offers. Third, the first two factors wil combine to reduce the supply of plaintiffs' lawyers. I asked interviewees if they had ever received an offer that included adequate relief for their clients but was conditioned on a waiver of fees. The responses indicate that Justice Brennan was overly pessimistic. Five attorneys reported
having never received such an offer.193 Three lawyers had encountered fee

waivers infrequently.194 One lawyer noted that, while he did frequently receive

settlement offers that did not include fees, these fee waivers were usually tied to
early "trial balloon" offers that were clearly unacceptable to the client.19S Only

one attorney stated that he frequently received fee waiver requests tied to offers
of adequate relief on the merits.196

Some interviewees speculated as to why they do not face fee waivers more frequently. One lawyer suggested that there "may be a lack of knowledge within the defense bar" about Jeff D. and the potential for reducing exposure via fee waiver requests.197 Another interviewee suggested that defense lawyers could be motivated by concerns about mutual cooperation.19S She noted that litigators are sometimes reluctant to use hard-nosed tactics for fear of retaliation. Preventing

your opponent from getting paid is likely to create antipathy and impede
cooperation.199

This Note focuses on fee-related conflicts faced by plaintiffs' attorneys. It is worth noting, however, that defense lawyers also have a potential conflict of
interest. Outside defense counsel have no interest in securing fee waivers as they are generally paid by the hour. Defense lawyers have an interest in the health of the plaintiffs' bar that is not shared by defendants. The lawyers do not want the

opposition to go out of business. Moreover, the defendants are probably not

192. See id. The holding of Jeff D. is generally extended to other fee-shifting statutes. See supra notes 67-7 i and accompanying text. Thus, this prediction should apply in other fee-shifting contexts. Attorney I (Oct. 3, 2002) (on file with author); Telephone Interview with 193. See Telephone Interview with Attorney 4 (Oct. 10,2002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16,2002) (on fie with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author); Telephone Interview with Attorney 9 (Nov. 13,2002) (on file with author). 194. See Telephone Interview with Attorney 2 (Oct. 7, 2002) (on file with author); Telephone Interview with Attorney 3 (Oct. 8,2002) (on fie with author); Telephone Interview with Attorney 5 (Oct. 152002) (on fie with author). 195. See Telephone Interview with Attorney 7 (Nov. 1,2002) (on file with author). 196. See Telephone Interview with Attorney 10 (Nov. 15,2002) (on file with author). Of the interviewees,

this attorney has a unique perspective on settlement. This is because he usually serves in the capacity of
in-house counsel to a community organization. Thus, he is usually the client rather than the lawyer. See id. 197. See Telephone Interview with Attorney 9 (Nov. 13,2002) (on file with author). 198. See Telephone Interview with Attorney i (Oct. 3, 2002) (on file with author). This attorney said there is a sense that "we are all lawyers" and there is an understanding that, as long as the case has some merit, then at
least some fees should be awarded. Id.
199. It would be hard to imagine a bargaining tactic more likely to antagonize opposing counseL.

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GEORGETOWN JOURNAL OF LEGAL ETHICS

(VoL. 17:499

aware of

the power of settlement offers conditioned on fee waivers. Thus, defense

counsel would need to disregard his or her own interest and suggest the fee waiver. This conflict may partially explain why fee waiver requests are less
frequent than was anticipated,zoo

Although my sample size is not large, the interviews strongly indicate that the crucial first element of Justice Brennan's prediction was inaccurate,zoi Defendants da not seek fee waivers as a matter of course?02 This does not mean,

however, that Jeff D. has not had a negative impact on the plaintiffs' bar. A single
fee waiver can have a devastating effect on a small public interest offce.203 The

mere possibilty of a fee waiver request may influence settlement negotiations. Moreover, plaintiffs' attorneys stil face conflicts related to the simultaneous negotiation of fees and merits.
B. SIMULTANEOUS NEGOTIATION: LUMP SUM OFFERS

I asked interviewees if they had received settlement offers of a single lump sum intended to cover both fees and damages. Two attorneys reported that, as
they focus on injunctive relief, defendants could not offer to settle fees and merits

with a single lump sum.204 The remaining interviewees .all regularly receive lump-sum offers.20s Some interviewees receive lump sum offers in the majority

200. See Davies, supra note 7, at 220. Some of Davies' interviewees also speculated that this conflict is partly

responsible for the rarity of fee waiver requests. See id. at 220.
201. See Telephone Interview with Attorney 2 (Oct. 7, 2002) (on file with author); Telephone Interview with

Attorney 4 (Oct. 10, 2002) (on file with author); Telephone Interview with Attorney 5 (Oct. 15 2002) (on fie with author); Telephone Interview with Attorney 9 (Nov. 13, 2002) (on file with author). Together, the ten interviewees have many years of experience litigating under a variety of fee-shifting statutes. At least four interviewees have been practicing since Jeff D. was decided in 1986. See Telephone Interview with Attorney i (Oct. 7, 2002) (on fie with author); (Oct. 3, 2002) (on fie with author); Telephone Interview with Attorney 2 Telephone Interview with Attorney 3 (Oct. 8, 2002) (on file with author); Telephone Interview with Attorney 4
Attorney 5 (Oct. 152002) (on file with author); (Oct. 10,2002) (on file with author); Telephone Interview with Telephone Interview with Attorney 6 (Oct. 16, 2002) (on file with author); Telephone Interview with Attorney 7

(Nov. 1,2002) (on file with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author); Telephone Interview with Attorney 9 (Nov. 13,2002) (on file with author); Telephone Interview with Attorney 10 (Nov. 15,2002) (on file with author).
202. See Davies, supra note 7, at 215-16. This finding is consistent with Davies' research. Thus, it appears

that fee waivers are rare for both the for-profit and non-profit plaintiffs' bar.

203. See Telephone Interview with Attorney 4 (Oct. 10,2002) (on file with author); Telephone Interview with Attorney 10 (Nov. 15, 2002) (on file with author). A fee award in a large case could be more than an entire year's budget for a smaller public interest offce. Attorney 7 (Nov. i, 2002) (on file with author); Telephone Interview with 204. See Telephone Interview with Attorney 10 (Nov. 15,2002) (on file with author). These attorneys are both environmental lawyers.
205. See Telephone Interview with Attorney I (Oct. 3, 2002) (on file with author); Telephone Interview with

Attorney 2 (Oct. 7, 2002) (on file with author); Telephone Interview with Attorney 3 (Oct. 8,2002) (on fie with author); Telephone Interview with Attorney 4 (Oct. 10, 2002) (on file with author); Telephone Interview with Attorney 5 (Oct. 152002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16,2002) (on file with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author); Telephone Interview with Attorney 9 (Nov. 13,2002) (on file with author).

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THE LEGACY OF EVANS V. JEFF D.

529

of their cases?06 Defendants "never seem to care" how the lump sum is divided.207 Thus,

attorneys regularly face the exact situation the Third Circuit had hoped to
prevent. The Prandini Court hoped that prohibiting' simultaneous negotiation

would prevent a situation "having, in practical effect, one fund divided between the attorney and client."20s I asked interviewees how they respond to this difficult situation.

When faced with a lump-sum offer (or any offer), all interviewees ask defendants to separate the negotiation of relief on the merits and fees. This usually involves asking the defendant to negotiate relief on the merits first and
then allow a petition to the court for attorney's fees. All of the interviewees

employ this tactic, although it is spectacularly unsuccessfuL. Only one lawyer had

succeeded with this tactic on more than an occasional basis?09 In fact, many interviewees reported that, after Jeff D., no defendants were wiling to settle on the merits first and then allow the court to determine fees?1O It may appear that the lump sum offer leaves the plaintiff's attorney in an untenable position. The attorney cannot subtract a portion of the lump sum for fees without prejudicing the interest of the client. The ethical challenge of this

situation is not as acute as it may seem, however. This is because the first
lump-sum offer is usually inadequate for the client even if no money is deducted for a fee?l1 Thus, the lawyer can refuse the offer and attempt to negotiate a new offer that includes more money for the client as well as a separate fee award. Attorneys can try to get the defendant to separate future offers into separate

amounts by asking the defendant "how they are coming up with their
numbers."212 The defendant may be calculating the lump sum by adding damages

206. See Telephone Interview with Attorney I (Oct. 3, 2002) (on file with author); Telephone Interview with
Attorney 2 (Oct. 7, 2002) (on file with allthor); Telephone Interview with

Attorney 5 (Oct. 152002) (on file with

author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author); Telephone Interview with
Attorney 9 (Nov. 13,2002) (on file with author).

207. See Telephone Interview with Attorney i (Oct. 3,2002) (on file with author).
208. Prandini v. Natl Tea Co., 557 F.2d 1015, 1021 (1977).

209. See Telephone Inter~iew with Attorney io (Nov. 15,2002) (on file with author). This attorney reported that defendants were wiling to allow the court to determine fees in approximately 50 percent of cases. Id. He reported thatstate and federal defendants were the most likely to accept this request. Id. 210. See Telephone Interview with Attorney i (Oct. 3, 2002) (on file with author); Telephone Interview with Attorney 3 (Oct. 8,2002) (on file with author); Telephone Interview with Attorney 5 (Oct. 152002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16, 2002) (on file with author); Telephone Interview with Attorney 8 (Nov. 13, 2002) (on file with author). Davies reached similar results. She reports that "(sJome plaintiffs' attorneys stated that they have requested bifurcated negotiation of fees and merits since Jeff D., but these requests are usually refused." See Davies, supra note 7, at 217. 2 i I. See Telephone Interview with Attorney i (Oct. 3, 2002) (on file with author); Telephone Interview with
Attorney 3 (Oct. 8,2002) (on fie with author); Telephone Interview with Attorney 5 (Oct. 152002) (on file with

author); Telephone Interview with Attorney 7 (Nov. 1,2002) (on file with author); Telephone Interview with Attorney 9 (Nov. 13,2002) (on fie with author). 212. See Telephone Interview with Attorney 5 (Oct. 15,2002) (on file with author).

530

GEORGETOWN JOURNAL OF LEGAL ETHICS

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to a fee award. Amore common method is to make a counter offer.213 The counter

offer wil include a damages award larger than the total amount of the first offer plus a separate fee award. This means that the lawyer improves the result for the
client while stil getting fees into the equation. The final series of offers and

counter offers wil usually involve separate sums for fees and damages. Thus,
public interest lawyers are usually able to avoid finishing with a lump sum. There is an important exception to this pattern. This is when the early

lump-sum offer seems adequate for the client. In this situation, attorneys wil often recommend that the client accept the offer, requiring the lawyer to forgo a
fee.2I4 Attorneys are reluctant to ask a client to support the pursuit of fees in the

early stages of litigation because the cost to the client could be very high
compared to the benefit to the attorney's organization. Thus, public interest lawyers can miss out on recovering fees due to lump-sum offers that, at least in some circuits, were prohibited before Jeff D.
C. SIMULTANEOUS NEGOTIATION: RELYING ON ATTORNEY-CLIENT

SOLIDARTY

The interviewees do not usually find themselves in a situation where the end

result of settlement negotiations is a single sum to divide between fees and
damages. This does not end the ethical difficulties, however. Although defendants eventually separate offers into two amounts, the defendants are probably more

liabilty. Defendants may stil be wiling to increase one part of the offer at the expense of the other.2ls Thus, any increase in fees may come at the expense of the client. This is the most common form of fee-related
concerned with overall

conflict faced by the interviewees.

Although perspectives on this problem varied, one tactic was employed by almost all of the interviewees. The majority of interviewees focused on the "attorney-client" solidarity tactic outlined in Par II(B), supra. The interviewees
described this strategy in terms of careful client selection and client education?16 These lawyers try to select clients who have an interest in the broader policy
213. See Telephone Interview with Attorney I (Oct. 3,2002) (on file with author); Telephone Interview with
Attorney 3 (Oct. 8, 2002) (on file with author); Telephone Interview with

Attorney 6 (Oct. 16,2002) (on fie with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on fie with author). 214. See Telephone Interview with Attorney i (Oct. 3, 2002) (on file with author); Telephone Interview with
Attorney 2 (Oct. 7, 2002) (on file with author); Telephone Interview with

Attorney 6 (Oct. 16,2002) (on file with

author); Telephone Interview with Attorney 9 (Nov. 13,2002) (on file with author).

215. See Telephone Interview with Attorney i (Oct. 3, 2002) (on file with author). Recall the claim that
"defendants never seem to care" about the separation of fees and merits. See id. 216. See Telephone Interview with Attorney i (Oct. 3, 2002) (on fie with author); Telephone Interview with
Attorney 3 (Oct. 8, 2002) (on file with author); Telephone Interview with

Attorney 4 (Oct. 10,2002) (on file with

author); Telephone Interview with Attorney 5 (Oct. 15 2002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16, 2002) (on file with author); Telephone Interview with Attorney 7 (Nov. I, 2002) (on file with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author); Telephone Interview with Attorney 9 (Nov. 13, 2002) (on file with author). Importantly, these attorneys all outlined very similar

2004)

THE LEGACY OF EVANS V. JEFF D.

531

issues behind any litigation and are sympathetic to the overall mission of the legal organization. They then educate clients about the importance of attorneys' fees to the lawyers' organization and mission,z17 Attorneys hope that, given that clients

have ultimate control over settlement decisions, sympathetic clients are more
likely to be supportive of

the lawyers' interest in securing fee awards. One lawyer explained his organization's strategy as follows. He said that "we look carefully at who we choose as clients.'i2S They explain to clients "that we
are a non-profit and we want to establish good law and policy.',2I9 They try to

ensure that clients understand that it can be difficult and time consuming to
recover damages. Clients are also informed that fee awards are important for the financial viabilty of the organization. He feels that "we've been blessed with clients who understand how we stay afloat and the public importance of what we
do.'i2O Although this attorney had never received a fee waiver request, he

believed that most of his clients would refuse such an offer. Other interviewees shared these sentiments. One attorney had "always been impressed by how 'supportive clients are of our desire for attorneys' fees.'i2I Another attorney reported an occasion where clients placed a higher priority on fees than the attorneys.222 The attorney had recommended that a matter be settled without fees but the clients held out. The clients hoped a fee award would act as a

deterrent and make an example of the defendant. This ilustrates the symbolic
223
value that fee-shifting can have for clients.

Interviewees were alert to the danger that clients wil give insufficient weight to their own interests or wil feel pressured into sharing the lawyer's desire for fees. One attorney noted that this risk is amplified by the fact that clients almost

tactics in response to an open ended and non-leading question about how they deal with simultaneous
negotiation. 217. See Telephone Interview with Attorney i (Oct. 3, 2002) (on fie with author); Telephone Interview with Attorney 2 (Oct. 7, 2002) (on file with author); Telephone Interview with Attorney 3 (Oct. 8,2002) (on file with author); Telephone Interview with Attorney 4 (Oct. 10, 2002) (on file with author); Telephone Interview with Attorney 5 (Oct. 15 2002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16, 2002) (on fie with author); Telephone Interview with Attorney 7 (Nov. i, 2002) (on fie with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author); Telephone Interview with Attorney 9 (Nov. 13,2002) (on fie with author); Telephone Interview with Attorney 10 (Nov. 15,2002) (on file with author). All interviewees reported that fees were an important part of their finances. The importance of fees varied. One attorney claimed his organization would be fairly stable even without fees. See Telephone Interview with Attorney 2 (Oct. 7, 2002) (on file with author). One organization received as much as 70 percent of their revenue from fees. See Telephone Interview with Attorney x (on fie with author) (attorney's identity omitted).
218. Telephone Interview witl1 Attorney 8 (Nov. 13,2002) (on file with author). 219. Id. 220. Id. 221. Telephone Inteview with Attorney I (Oct. 3,2002) (on file with author).

222. See Telephone Interview with Attorney 5 (Oct. 15,2002) (on file with author). This incident did not involve a fee-shifting statute. Fees were available as an equitable remedy because the defendant was held in contempt under a prior order. 223. See discussion supra Part II(B)(l).

532

GEORGETOWN JOURNAL OF LEGAL ETHICS

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always follow their attorney's advice,z24 In response to this problem, attorneys take extra care to ensure that they find highly supportive clients for cases where they anticipate high costs and a greater need for fees. For example, one lawyer reported that her organization takes a different approach to large cases with wide
importance,z2s Sometimes, her organization wil face "bad actors" that cause

significant problems.226 In these cases, her organization wants litigation to have a lasting impact on the behavior of the defendants. This means that early settlement is unlikely. Thus, fees are likely to be large. Her organization wil want clients

"who buy into these goals at the start of the process.'i27 They make sure to
discuss the significance of the lawsuit, fees and the kinds of remedies they would
like to pursue,z2S This attorney's organization also handles cases "where we have

a new defendant and the clients just want their money.',229 These cases are more

likely to settle early and involve a small fee award. As client solidarity and
support are not as important for these cases, the organization wil not select these clients as carefully. It appears that public interest lawyers take care to ensure that they only ask for significant support from clients they know to be sympathetic. This may help to minimize the danger of client coercion. Client selection and education is clearly an important aspect of the practice of many public interest lawyers. Judge Wald suggested that "most public interest

counsel explain the financial details of the litigation well in advance to their clients, and that few clients wil against the advice of counsel leap to accept a
settlement that deprives counsel of fair compensation.',23o This appears to be an

accurate description of subsequent public interest practice with the non-profit sector.
D. LIMITED RETAINERS

I asked interviewees if they use limited retainers. I also asked interviewees if

they are familar with any of the bar ethics opinions on this topic and if they would consider using a limited retainer if they were approved by their local bar association. One commentator has suggested that limited retainers are the most common way to deal with fee-related conflicts?31 Thus, it might have been
sign limited retainers. Surprisingly, my interviews strongly suggested that public interest attorneys do not frequently use limited retainers.
expected that interviewees ask their clients to.

224. See Telephone Interview with Attorney 4 (Oct. 10, 2002) (on fie with author). 225. See Telephone Interview with Attorney 3 (Oct. 8,2002) (on fie with author). 226. Id. 227. Id. 228. Id. These remedies are likely to include damages and significant injunctive relief. Sometimes they wil pursue more radical options like trying to get a defendant arrested on criminal charges. Id. 229. Id.

230. Moore v. Natl Ass'n of Sec. Dealers, Inc., 762 F.2d 1093, 1112 n.l (D.C. Cir. 1985) (Wald, J., concurrng).
23 i. See Larson, supra note i 07, at 844.

2004)

THE LEGACY OF EVANS V. JEFF D.

533

Only one interviewee uses a limited retainer,z32 This attorney works as
in-house counsel for a community group and usually represents the client in any litigation. His organization always agrees not to waive statutory attorney's fees whenever they hire outside counseL. None of the remaining attorneys use limited retainers.233 Thus, no interviewees ask clients to sign limited retainers.

Interviewees suggested that successful client selection and education can
preempt the need for a limited retainer. As one attorney put it, you "only need a strong retainer if you don't have trust and a good working relationship with your
client."234 Many attorneys were concerned about the coercive nature of asserting

a contract against a client. One said "the best insurance is having a client you are comfortable with and on the same page with, I would hate to have to assert par of a retainer against a client.'i2S Limited retainers could be seen as a threat to the
cooperative relationship between the lawyer and client.

Retainers stil play a role in dealing with fee-related conflicts, however. A
retainer should clearly explain that the attorney wil seek attorney's fees and that any fees awarded should be paid to the attorney,z36 The retainer can also be a useful tool for educating the client about what to expect from the litigation. Interestingly, attorneys were not aware of the split between the California Bar and other bar associations on the issue of limited retainers. The attorney who uses a limited retainer does practice in California. However,. he did not know that his local bar is the only one that approves of limited retainers. In fact, interviewees were not aware of any of the ethics opinions.237 Thus, the ethics opinions cannot explain the reluctance to use these retainers. Ethical concerns were stil relevant, however. For example, upon being asked if he used a limited retainer, one attorney responded immediately that such a retainer is unethical because clients
must control settlement decisions.23s

232. See Telephone Interview with Attorney 10 (Nov. 15,2002) (on file with author). 233. See Telephone Interview with Attorney i (Oct. 3, 2002) (on fie with author); Telephone Interview with Attorney 2 (Oct. 7, 2002) (on fie with author); Telephone Interview with Attorney 3 (Oct. 8,2002) (on file with author); Telephone Interview with Attorney 4 (Oct. 10,2002) (on file with author); Telephonelnterview with Attorney 5 (Oct. 15 2002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16,2002) (on file with author); Telephone Interview with Attorney 7 (Nov. 1,2002) (on fie with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on fie with author); Telephone Interview with Attorney 9 (Nov. 13,2002) (on file with author).
234. Telephone Interview with Attorney 7 (Nov. 1,2002) (on file with author). 235. Telephone Interview with Attorney 8 (Nov. 13,2002) (on fie with author).

236. See Telephone Interview with Attorney i (Oct. 3, 2002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16,2002) (on file with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author). 237. Davies does not mention limited retainers. See Davies, supra note 7. Thus, it appears that she did not
uncover any usage of such retainers. Interestingly, Davies' study focused almost exclusively on attorneys practicing in California and, presumably, was conducted shortly after the California Bar issued its ethics opinion

approving limited retainers in 1994. See CaL. Op. 1994-136, supra note 143. Although Davies does not reveal exactly when she conducted her interviews, her article was published in January 1997. 238. See Telephone Interview with Attorney 9 (Nov. 13,2002) (on file with author).

534

GEORGETOWN JOURNAL OF LEGAL ETHICS

(VoL. 17:499

I asked interviewees if they would use a limited retainer if this were permitted in their jurisdiction. Interestingly, this elicited a wide varety of responses?39 One
attorney responded to the idea with enthusiasm?40 This lawyer had reported

some of the worst experiences with fee-related conflicts?41 Four interviewees

also expressed interest in limited retainers but were slightly more cautions. These attorneys said that they would seriously consider using limited retainers if this was permitted in their jurisdiction?42 Four attorneys stated that they would not
use a limited retainer.243

Two of the attorneys expressing guarded interest in limited retainers said that these retainers would be helpful if they put defendants on notice that they cannot ask for a fee waiver at al1?44 They hoped that a limited retainer would prevent a refused to enforce the conflct of interest from arsing in the first place. If courts retainers then they probably would not serve this purpose. One respondent was very sensitive to this issue. He specifically noted that he would not use a limited
retainer unless both the bar and the courts recognize such contracts,z4S

Some interviewees suggested that, even if they used limited retainers, these contracts would probably have a narow role. These attorneys said that their organizations would consider using limited retainers in a handful of cases,z46
They would reserve limited retainers for cases in which they anticipate having to significant amount of money and time. Fee decisions in larger cases can invest a have a long-term impact on the health of a public interest organization,z47 Thus, attorneys have a very strong interest in avoiding fee waivers in large cases.

Four attorneys rejected the idea of using limited retainers,z4S One lawyer

239. It is worth noting that these responses were initial impressions. Telephone interviews do not leave much time for in depth consideration of the practical, ethical and legal dimensions of limited retainers.
240. See Telephone Interview with

Attorney 4 (Oct. 10,2002) (on file with author).

24 i. See infra note 269 and accompanying text.
242. SeeTelephone Interview with Attorney i (Oct. 3,2002) (on file with author); Telephone Interview with Attorney 3 (Oct. 8,2002) (on fie with author); Telephone Interview with Attorney 5 (Oct. 152002) (on file with

author); Telephone Interview with Attorney 6 (Oct. 16,2002) (on file with author). 243. See Telephone Interview with Attorney 2 (Oct. 7, 2002) (on file with author); Telephone Interview with Attorney 7 (Nov. I, 2002) (on file with author); Telephone Interview with Attorney 9 (Nov. 13, 2002) (on fie with author). The remaining attorney already uses a limited retainer. See Telephone Interview with Attorney io (Nov. 15,2002) (on file with author). 244. See Telephone Interview with Attorney 5 (Oct. 152002) (on fie with author); Telephone Interview with
Attorney 6 (Oct. 16,2002) (on file with author).

245. See Telephone Interview with Attorney 5 (Oct. 15,2002) (on file with author). 246. See Telephone Interview with Attorney i (Oct. 3, 2002) (on file with author); Telephone Interview with Attorney 3 (Oct. 8, 2002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16,2002) (on file with author).

247. For example, one attorney reported that his organization lost half of its staff as a result of a client
accepting a low fee offer in a large case. See Telephone Interview with Attorney 4 (Oct. 10,2002) (on fie with author). 248. See Telephone Interview with Attorney 2 (Oct. 7, 2002) (on file with author); Telephone Interview with Attorney 7 (Nov. 1,2002) (on file with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author); Telephone Interview with Attorney 9 (Nov. 13,2002) (on file with author).

2004)

THE LEGACY OF EVANS V. JEFF D.

535

believed clients should always control settlement decisions,z49 Another attorney

said that, although he thought that limited retainers might be acceptable on some
occasions, he preferred to leave settlement decisions to the client.2so He noted

that his organization is more financially stable than many legal non-profits. He acknowledged that he might change his mind if he had a greater need for fees.

Two attorneys suggested that limited retainers would interfere with their
relationships with their clients,zsl They preferred to rely on client trust and a
relationship of mutual support,zS2

The interviewee who already uses a limited retainer works as in-house counsel litigation. This attorney reported receiving many settlement offers that included inadequate fee reliees4 He said that his organization would never accept such an offer. Moreover, in its retainer it explicitly agrees not to accept any settlement offer that does not include fee award. This attorney's testimony and experience provide strong support for allowing limited retainers. He said that "we have to keep in mind that there is a limited number of plaintiffs' lawyers and our abilty to win fees is part of why we can attract good outside counsel."2SS The California Bar argued that allowing clients
for a coalition of community groupS.2S3 He focuses on environmental

to sign limited retainers extends the bargaining options for clients prior to
initiating representation?S6 The client may wish to sign a limited retainer to help

secure competent representation. This is exactly how this in-house counsel
conceived of the limited retainer. His organization would be deprived of a useful tool if they were prohibited from using a limited retainer.
E. THE LEGACY OF JEFF D.
Jeff D. was not as devastating as many anticipated. This does not mean,

however, that it did not have a large negative impact on lawyers in the non-profit sector. Interviews suggest that fee waiver requests are not very common. Attorneys stil reported that JeffD. and simultaneous negotiation make it more difficult for them to collect adequate fees.

249. See Telephone Interview with Attorney 9 (Nov. 13,2002) (on fie with author). Attoiney 2 (Oct. 7, 2002) (on file with author). 250. See Telephone Interview with Attorney 7 (Nov. 1,2002) (on file with author); Telephone Interview with 251. See Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author). 252. Id. Both of these lawyers practice in California where the bar permits limited retainers. Id. 253. See Telephone Interview with Attorney 10 (Nov. 15,2002) (on file with author). 254. He also reported receiving "sweetheart" offers where excessive fees were offered together with woefully inadequate relief on the merits. His organization (together with outside counsel) was once offered five times the fee award to which they were entitled. This offer would have saved the defendant millons of dollars in total liability. The interviewee's outside counsel wanted to accept the offer. The client rejected the offer and eventually settled for a large total package with a fair fee award. See id. 255. Id.
256. See Cal. Op. 1994-136, supra note 143.

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GEORGETOWN JOURNAL OF LEGAL ETHICS

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One interviewee practiced in the Third Circuit prior to Jeff D. when, under Prandini, simultaneous negotiation was prohibited?S7 He stated "we continue to take the position that the Prandini rule was the best way to handle fees."2ss He claimed that there is "no question that how you have to negotiate attorney's fees now makes it more difficult to pursue fees."2s9 The diffculty is caused because "post Evans (v. Jeff D.), it has become more difficult to have an effective position

on fees that you adhere to right to the end of the line, unless you have a very
position because this can drag strong claim."26o It is hard to maintain a consistent out negotiations and hold up relief for the client. Then it "becomes an issue how much clients value a quicker settlement."261 Thus, Jeff D. "has forced us to be far
less wiling to hold out on fees.,,262

Other attorneys agreed that Jeff D., while not devastating, did cause significant problems. In particular, they complained about the uncertainty that the decision creates.263 Under the Prandini rule an attorney has much more control over the fee award. The defendant cannot make relief on the merits conditional on a fee offer. Thus, in theory at least, plaintiffs' attorneys could counsel against accepting any fee offer they felt was unreasonable without affecting the amount offered to the client. Under Jeff D., attorneys have to consider how refusing a fee offer wil

affect their clients. Attorneys cannot predict how defendants are going to
intertwine offers on fees and merits, nor can they predict how clients wil react to
an offer.

Uncertainty about fee awards has negative effects as it makes budgeting very diffcult.264 This can be a big issuewhen fees make up as much as 70 percent of
an organization's budget.26s Uncertainty about fees also contributes to a
wilingness to settle cases early without a fee award,z66 This can be true even

where clients are supportive of the attorney's desire to pursue fees. Attorneys were reluctant to ask a client to risk a settlement unless their organization had

257. See Telephone Interview with Attorney 5 (Oct. 15,2002) (on file with author). 258. Id. 259. !d. 260. Id. 261. Id. 262. Id.

Attorney i (Oct. 3, 2002) (on file with author); Telephone Interview with 263. See Telephone Interview with Attorney 3 (Oct. 8, 2002) (on file with author); Telephone Interview with Attorney 4 (Oct. 10,2002) (on file with author); Telephone Interview with Attorney 5 (Oct. 15 2002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16,2002) (on file with author). 264. See Telephone Interview with Attorney 2 (Oct. 7, 2002) (on fie with author). 265. See Telephone Interview with Attorney x (on file with author) (attorney's identity intentionally omitted). 266. See Telephone Interview with Attorney i (Oct. 3,2002) (on file with author); Telephone Interview with Attorney 2 (Oct. 7, 2002) (on file with author); Telephone Interview with Attorney 3 (Oct. 8,2002) (on file with author); Telephone Interview with Attorney 6 (Oct. 16,2002) (on file with author); Telephone Interview with Attorney 8 (Nov. 13,2002) (on file with author); Telephone Interview with Attorney 9 (Nov. 13,2002) (on file with author).

2004)

THE LEGACY OF EVANS V. JEFF D.

537

devoted a significant amount of time to the case.267 The "result is that we often
get less fees than we are entitled to, especially in smaller cases."26S

Interviewees reported that clients were generally very supportive of their
desire to pursue fees. This does not mean that clients are always supportive,

however. One attorney reported that his organization had "taken a bath" in a big case when, against advice of counsel, the client had accepted a settlement offer with a very low fee award?69 He claimed that his organization laid off half of its staff as a result of this settlement. Thus, even if most cases go well, a single bad experience with simultaneous negotiation can have a big effect on a small legal non-profit. Fear ofthis situation motivated the attorneys who would be wiling to
use limited retainers.' They reported a desire to protect themselves in cases where

they invest large amounts of time and resources.270

My interviews focused on public interest practice. Some interviewees suggested that Jeff D. has also had an effect on private practice. One interviewee

claimed that Jeff D. has had a severe impact on the wilingness of private counsel

to take civil rights cases unless these cases involve the possibilty of winning
significant damages and collecting a good contingency fee?71 He said "we're left
with the

situation that if the cop doesn't beat the guy up enough then no one's

going to bring the case."272 He said that civil rights cases were not intended to be D., they are seen in this way unless large damages pro-bono cases but, under Jeff
are anticipated,z73 Thus, Jeff D. may have increased the burden on public interest

lawyers by reducing private counsel's wilingness to take cases.
iv. CONCLUSION

Public interest lawyers, while dedicated to the particular interests of their clients, are also motivated by broader policy aspirations. Moreover, the clients themselves can be interested in broader policy goals. When clients share the policy goals of their lawyers, then clients should be made aware of the policy implications of any settlement decision. This practice respects the autonomy of clients by assuming that they can be motivated by more than narow self-interest.

267. Id. 268. Telephone Interview with Attorney 3 (Oct. 8,2002) (on file with author).

269. Telephone Interview with Attorney 4 (Oct. 10, 2002) (on file with author). The attorney believed the offer also included inadequate relief on the merits. Id. 270. See Telephone Interview with Attorney i (Oct. 3, 2002) (on fie with author); Telephone Interview with
Attorney 3 (Oct. 8,2002) (on file with author); Telephone Interview with author); Telephone Interview with

Attorney 4 (Oct. 10,2002) (on file with Attorney 6 (Oct. 16,2002) (on file with author).

271. See Telephone Interview with Attorney 4 (Oct. 10,2002) (on file with author).

272 !d.
273. See id. Davies provides an extensive discussion confirming that attorneys in private practice are reluctant to take cases with low damages. Her interviews revealed "that the damages rules (such as the holding in Jeff D.) profoundly limit the wilingness of attorneys to take cases with low damages." Davies, supra note 7, at 234.

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GEORGETOWN JOURNAL OF LEGAL ETHICS

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My interviews suggest that public interest lawyers do ask clients to consider the

policy implications of settlement offers. This policy impact can include the
financial consequences for the lawyer's own organization. Within the non-profit
sector, this is the main tactic used to avoid the worst consequences of Jeff D. This
strategy is usually successfuL.

Although Justice Brennan's horror story about Jeff D. did not come true, the
decision has stil had a negative impact on public interest lawyers. After Jeff D.,

attorneys are wiling to counsel clients to accept early offers that include no fee award. Jeff D. has also created a risk that attorneys wil miss out on fees in larger cases if the client is not supportive. This could lead to significant financial consequences for a small organization handling a large case. Limited retainers could provide protection for lawyers in the non-profit sector who are vulnerable to these risks. These retainers would also assist clients to find representation. Bar associations should follow California's lead and permit limited retainers.
ApPENDIX: METHODOLOGY

My assessment of the impact of Jeff D. draws upon original research. In
October and November 2002, I conducted structured interviews with ten public

interest lawyers. I used open-ended questions to elicit descriptions of their
experiences and their personal perspectives on ethical issues.

I guaranteed that I would only describe the location and practice of each interviewee in general terms. This was to ensure that the attorneys felt comfortable being candid when describing difficult ethical choices. I give a brief description of each interviewee below.
Attorney One: Works for a non-LSC funded legal services organization in the North East of the United States. Her fee award cases are brought under Title VII, 42 U.S.C. § 1983 and state statutes. Interviewed October 3,2002. Attorney Two: Has over twenty years experience as public interest lawyer in the South East. He regularly seeks fee awards under the FLSA, Title VII and 42
U.S.c. § 1983. Interviewed October 7,2002.

Attorney Three: Works for a non-LSC funded rurallegal services organization
in the Southeast. She mostly brings cases involving fee awards under the

FLSA. Interviewed October 8, 2002.

Attorney Four: This attorney focùses on Civil Rights practice under 42 U.S.c. § 1983. He has over fifteen years experience as public interest lawyer in the
North East. Interviewed October 10, 2002.
Attorney Fi ve: Works for a non- LSC funded rural

legal services organization in

the Third Circuit. He mostly brings cases involving fee awards under the
FLSA. Interviewed October 15,2002.

Attorney Six: Works for a non-LSC funded legal services organization in the North East. He has approximately eight years experience seeking fee awards

2004)

THE LEGACY OF EVANS V. JEFF D.

539

under Title VII, 42 US.C. § 1983 and state statutes. Interviewed October 16,
2002.

Attorney Seven: Works for a non-LSC funded legal services organization in California. He focuses on environmental litigation and regularly seeks attor-

ney's fees under the Clean Air Act, Clean Water Act and state statutes.
Interviewed November 1,2002.

Attorney Eight: Works for a non-LSC funded legal services organization in California. He focuses on immigrant rights and regularly seeks attorney's fees underthe FLSA, 42 U.S.c. § 1983 and state statutes. Interviewed November 13,
2002.

Attorney Nine: Works in private practice in the Northeast. Until recently, he worked for a rural non-LSC funded legal services organization and, prior to that, he represented prisoners. He has sought attorney's fees under the FLSA, 42 U.S.C. § 1983 and state statutes. Interviewed November 13, 2002.
Attorney Ten: Works as in-house counsel for a community organization in

California. He focuses on environmental litigation. The attorney is in-house counsel for the client in litigation. Interviewed November IS, 2002.

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