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Are Ordinary People Losing Access to Courts?

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

When Catherine Ratliff opened her small storefront law office in Hot Springs, S.D., 31 years ago, it didn’t take long for her caseload to fill up with disputes over Social Security disability claims.

“The word kind of got out that I was doing this, and there was a flood of people,” she recalls. “There were so many.”

Ratliff has continued that work ever since, mostly with low-income clients who come to her by way of the Department of Veterans Affairs Health Care System in Hot Springs and the Pine Ridge Indian Reservation just on the edge of town. “They have the whole gamut of problems,” she says. “Depression, anxiety, traumatic stress, pain conditions. And at least half the time, there are undiagnosed mental conditions.”

It’s the kind of work that most attorneys stay away from, because even if they win, the sums in dispute are small and their fees are, too. But Ratliff says she believes in serving people in need, pointing to three generations of Methodist ministers in her family as a source of her views.

Now Ratliff, 68 and semiretired, finds herself in the middle of her own legal dispute. Her case, about how lawyers who do such work are paid, was argued before the U.S. Supreme Court in February. It is one of three cases involving attorneys’ fees that the high court is considering this term, and, taken together, their impact could be far-reaching. Public-interest advocates worry that the outcome of the cases could make it harder for people with a wide range of legal disputes—over everything from disability coverage, veterans’ benefits and consumer issues to civil rights and employee benefit plans—to find attorneys willing to represent them.

Looking out for the little guy

In most legal disputes, each side pays its own lawyers for their work. But the cases before the Supreme Court all involve “fee shifting,” an approach that helps to ensure lawyers are paid for work on certain kinds of cases, even if the dollar value of the disputes is small. Under this structure, established through federal legislation, if a person is successful in their lawsuit, their attorneys’ fees are paid by their opponent.

Fee-shifting is most often used in cases where Congress wanted to encourage lawyers to work “on behalf of the little guys,” says Brian Wolfman, codirector of the Institute for Public Representation at the Georgetown University Law Center.

Laura Beth Nielsen, a sociology professor and director of legal studies at Northwestern University, agrees. “These are, for the most part, underrepresented people,” she says. “They’re poor, they’re children, and they’re often going up against the biggest defendant there is, the U.S. government, and everything we do to make that harder is a threat to everyone’s civil rights.”

Ratliff’s frequent Social Security disability work means the government often paid her fees when she won a case. That’s what she was expecting to happen when she represented Ruby Willow Kills Rhee, a member of the Oglala-Lakota (Sioux) tribe who had diabetes, arthritis and other physical and mental health issues. Kills Rhee was receiving disability benefits, but Ratliff argued that she should be getting more. A district court ruled that Kills Rhee was entitled to two months of additional benefits, and Ratliff asked for, and was awarded, attorneys’ fees of $2,112.60 for her work on the case.

But the Treasury Department stepped in and took that fee, applying it to an unrelated debt that Kills Rhee owed the government. “Screwed again,” Ratliff recalls thinking. Faced with the prospect of receiving nothing for her work on the case, Ratliff sued the Social Security Commissioner, trying to recoup her fee.

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