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Civil Rights Advocates Warn of Dangers to Enforcement of Civil Rights Laws

"Enormous collateral damage” could result in future pro bono and civil rights cases if the U.S. Court of Appeals does not reconsider its recent ruling in Arbor Hill v. County of Albany.

May 22, 2007

For Immediate Release

Susan Lehman, 212–998–6318
Mike Webb, 212–998–6746
Laura Abel, 212–998–6737

Today, 29 public interest groups and small civil rights firms argued “enormous collateral damage” could result in future pro bono and civil rights cases if the U.S. Court of Appeals for the Second Circuit does not reconsider its recent ruling in a case called Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany.

In a friend of the court brief filed by the Brennan Center for Justice at NYU School of Law, Jenner & Block, and Hofstra Law School professor Leon Friedman, the 29 amici explain that the ruling invites judges to reduce attorney fee awards whenever they conclude that lawyers working on behalf of their clients either personally agreed with their clients’ claims or were motivated by “reputational” goals.

The amici argue that the Second Circuit’s ruling overlooked controlling Supreme Court decisions and the mandate of Congress in the 1976 Civil Rights Award Act when it declared attorney fees could be reduced on the grounds that a hypothetical paying client would have been able to talk a pro bono or public interest lawyer into handling a civil rights case for less money than a lawyer would charge in a commercial matter. The amici also point out that the ruling creates an intrusive test that requiring inspection of lawyers’ personal belief systems, that attorneys handling civil rights cases should receive the same fees as attorneys litigating comparable complex federal litigation, and that courts should look to objective criteria such as prevailing market rates when setting fees.

“This ruling places the future of pro bono work in jeopardy, as existing resources are grossly inadequate to meet the civil legal needs of low-income people,” said David Udell, director of the Justice Program at the Brennan Center and one of the brief’s authors. “The result is that our nation’s civil rights laws are already under-enforced, and civil rights violations proliferate. This opinion threatens to make a bad situation far worse.”

In the Arbor Hill case, a law firm had successfully represented community-based organizations in challenging a legislative redistricting plan in Albany County, New York, which had threatened to dilute the power of minority voters. Thanks to the firm’s work, the redistricting plan was redrawn, and a new election was held. The U.S. District Court for the Northern District of New York held under the Voting Rights Act that the defendants must pay attorneys’ fees, but ruled that the fees should be paid at the rate charged by attorneys in the Northern District, not the rate charged by attorneys in the Southern District where the firm’s offices are located. In rejecting the reasoning of the lower court, the Court of Appeals propounded its novel “hypothetical reasonable, paying client” approach, and held that in light of the firm’s pro bono role, the matter need not be reconsidered by the lower court since it would be unlikely to award more fees.

Amici in the case include: the American Civil Liberties Union, the League of Women Voters of NY, the National Association of Consumer Advocates, the National Senior Citizens Law Center, Natural Resources Defense Council, NY Public Interest Research Group, and other public interest and civil rights law firms.

Brennan Center counsel David Udell, Laura Abel and Deborah Goldberg, represented the amici. Leon Friedman also represented the amici. Jenner & Block counsel Joshua Block, Harry Sandick, and Jeremy Creelan represented the Brennan Center.

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