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Are Ordinary People Losing Access to Courts?

U.S. Supreme Court reviews three cases about attorneys’ fees.

The case, Astrue v. Ratliff, hinges on the high court’s interpretation of the Equal Access to Justice Act (EAJA), passed by Congress in 1980 to improve access to the courts for people with Social Security and veterans disputes by requiring the government to pay their attorneys’ fees and other costs when it loses. Most of the fees paid by the Social Security Administration to lawyers under the law are small (the average was less than $3,600 in 2006). But the government points to the letter of the law, which says fees should be paid to “a prevailing party,” not the party’s lawyer, with the prevailing party then able to pay her attorney’s fees–or see those fees applied to an outstanding government debt.

A brief filed in the case on behalf of Ratliff by AARP and several other public-interest advocacy groups argues that in Social Security cases, EAJA fees “are the first—and sometimes the only—fees the attorney may receive.” The possibility that attorneys won’t be paid because of their clients’ unrelated debt would be a big disincentive to take such cases, these advocates say.

Rewarding exceptional work

A similar issue is at play in Perdue v. Kenny A., argued before the Supreme Court in October, which stems from a case brought by lawyers working for a nonprofit advocacy group and a private firm, all working without pay on behalf of children in Atlanta’s troubled foster care system.

“The kids were being housed in a really, really bad shelter where they were getting abused,” says Marcia Robinson Lowry, executive director of Children’s Rights, the national watchdog group that helped bring the case. ”Kids were in overcrowded and abusive foster homes, kids were being moved from place to place, and kids weren’t moving out of foster care.”

After a series of court proceedings, the state and advocates for the children reached an agreement that brought sweeping reforms to the city’s foster care system. A federal district court judge then calculated that the children’s attorneys were due $6 million in fees (based on the number of hours worked and reasonable hourly rates), to be paid by the state. The district court also accepted the lawyers’ request to increase that sum, adding what’s known as an “enhancement”—bumping the fee owed to the children’s attorneys to $10.5 million because the judge said the lawyers had brought an exceptional degree of skill, commitment and professionalism to the case.

The state of Georgia, led by governor Sonny Perdue, balked at the fee increase. Now the Supreme Court is weighing whether judges have the authority to increase attorneys’ fees based simply on the quality of their work and results. While it has become rare for lawyers to receive such hefty enhancements, the court could effectively eliminate them in cases brought under more than 100 federal laws that allow winners to recover their attorneys’ fees. (AARP has also filed a friend of the court brief in this case, on behalf of the Atlanta foster care children and their attorneys.)

Richard Samp, chief counsel at the Washington Legal Foundation, a conservative group that filed a brief in the case on behalf of the state of Georgia, says the fee-shifting system shouldn’t be used to generate windfalls for plaintiffs’ attorneys. He also argues that the current system encourages lawyers to spend too much time seeking enhancements, on top of the time already spent tracking hours and wrangling over fees. “You ought to try to make the process of computing those fees as simple as possible, so lawyers can spend time doing other things,” Samp says.

But Lowry stands by her decision to ask for the extra fees. “It was a very hard-fought case, and it presented some novel legal issues,” she says. “Organizations like mine need these fees to stay in business.”

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