Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany and Albany County Bd. of Elections, 522 F.3d 182 (2d Cir. 2008)

Brief Summary
Attorneys in the Second Circuit who decide to take civil rights cases pro bono need not worry that the decision to do so will be used completely to deny attorney fees awards. But if the case is of a type that is normally litigated pro bono, this fact may be used to reduce fee awards.

Complete Summary
A panel consisting of Second Circuit Judges Dennis Jacobs and John M. Walker Jr., as well as retired Supreme Court Justice Sandra Day O’Connor sitting by designation, amended for the second time a controversial 2007 opinion dealing with attorney fee awards in civil rights cases. The general rule of thumb is that fees should be determined by what a “reasonable, paying client would be willing to pay.” Id. at 184. The controversy here involved the court’s suggestion that the factors in this determination should include the attorney’s willingness to work for non-monetary benefits (e.g. reputation), and “whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration) . . . .” Id.

The panel’s first attempt to address the controversy resulted in a footnote stating that: “[o]ur decision today in no way suggests that attorneys from non-profit organizations or attorneys from private law firms engaged in pro bono work are excluded from the usual approach to determining attorney’s fees.” Id. at 184n.2.

The panel’s second amendment added caselaw to the footnote. The panel cited Blum v. Stenson, 465 U.S. 886 (1984), for two propositions: (1) that the reasonableness of fees does not turn on whether an attorney works for a private firm or a public interest organization, and (2) that fees must be based on the prevailing rate charged for similar services in the community. The court added that the starting point for calculating a reasonable fee is the rate that would be charged for similar work by comparably skilled attorneys in the area. Cohen v. W. Haven Bd. of Police Comm’rs, 638 F.2d 496 (2d Cir. 1980). The panel also cited Reiter v. MTA N.Y. City Transit Auth., 457 f.3d 224 (2d Cir. 2006), for the proposition that awards are not “necessarily limited because the attorney has agreed to undertake the case for a reduced fee compared to the customary market rate.” Arbor Hill, 522 F.3d at n.2.

The underlying issue before the court in this case was whether the fee calculation should use, as a starting point, typical fees charged by attorneys from the Southern District of New York, where plaintiff’s counsel was from, or from the Northern District of New York where the case was heard. The court noted that: “a reasonable, paying client would have known that law firms undertaking representation such as that of plaintiffs often obtain considerable non-monetary returns — in experience, reputation, or achievement of the attorneys’ own interests and agendas-that might cause them to accept such representation despite a prevailing hourly rate that is lower than the law firm’s customary billing rates.” Id. at 193-94. Nonetheless, the court affirmed the district court’s fee award.

Significance of the Opinion
The computation of fees issue remains complex.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

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