Today was “tomorrow” yesterday so let’s revisit the Hensler vs City of Davenport decision as it relates to the award of attorney fees.

What is it about going on the bench that makes a person quickly disregard the costs of maintaining a law practice? The lawyers in Hensler were from the ACLU of Iowa Foundation; that means the rights being discussed were significantly important and no lawyer in private practice would take the case. You know ... there is a reason why private practicing lawyers wouldn't take this case. Let me give you a hint, we too have bills to pay.

It goes without saying the judges want lawyers to assist low and no-pay clients to enforce their rights. The Supreme Courts says it’s our ethical obligation to do pro bono work. For those of you who don’t know what that means it means, it means we don’t get paid to help them; we simply give away our time, unless a statute says we can get paid, but then only if we win. Sort of like a contingent-hourly fee case where even if you win your time is going to be reviewed by the Judge who will decide how much of it he will allow to be compensated.

Now I don't wish to deminish the importance of pro bono work, but for the sake of those laypersons reading this article, allow me an analogy that every rural Iowan will understand. Pro bono work is similar to making farmers give away a certain percentage of the corn and soybeans they raise to the poor; or requiring nurses and doctors to work at a public clinic that they operate on their own dime. Like everyone else in this economy lawyers are struggling to make ends meet. A poor economy produces more, not less, pro bono work. My point is this, if you want us to do more, then you have make it economically feasible for us to do more. Let's see what that means and how it translates over to the Henlser case.

So what happened in Hensler that has me upset?

The Iowa District Court, the lower court awarded $20,857.40 in legal fees to the winning party, the ACLU. That award isn’t by and means excessive. When you consider the lawyers were from Des Moines and were litigating in Davenport first in the District Court and then in the Iowa Supreme Court the award is on the low end of the fee scale. I would expect their bill was upwards of $40,000. I'm also going to guess the litigation expenses were $857.40. That means only $20,000 is being awared for the lawyers' time.  So why then is the court revisiting the fee award? As a lawyer who has practiced law for over thirty years and run my own office this is one aspect of the Hensler vs City of Davenport decision I find troubling.

What I really don’t like about the decision is sending the case back to the District Court Judge that already decided on the issue of attorney fees with the suggestion he revisits the issue for the sole purpose of reducing the award; which the Court can decline to do and should decline to reduce it. 

In this instance with the fees already awarded why should the case be remanded? The Judge has already looked at fees, so why send it back talking about just how successful the lawyers were at proving the apple was rotten. They won the case so why revisit it and split hairs? The ordinance was unconstitutional, what difference would it make that the attorneys suggested multiple ways it was unconstitutional? Why take away fees just because the Court didn’t buy the entire argument. This will only discourage lawyers to handle these cases. Lawyers never know why the Court will find one argument better than others. To expect perfection from trial lawyers is to cloak us in a robe of absurdity. It’s like saying Tiger Woods gets only 60% of the prize money because he lost 40% of the holes he played.  Why is golf more important than lawyering for people’s Constitutional rights?

This is why lawyers don’t take these cases. This is the exact reason why most lawyers won’t even talk to potential clients when they call the office looking for a lawyer. Even when we win we don't get paid an adequate amount. With all due respect, if the public wants lawyers to take these small fee cases then stop nickel and diming us when it comes to paying for legal services. Don't forget we do have to pay the bills to maintain an office.

Awarding less in fees will only make this Consitutional rights case a fish file.

Caption: Anne Hensler vs City Of Davenport, In The Supreme Court Of Iowa, No. 09-0608, Filed November 12, 2010. (30 page opinion by Justice Wiggins.) A copy of the Hensler decision is also available on the Lombardi Law Firm website.

Mom you should have made me take golf lessons. Fore!