Fee Gloom

Because funds from foundations and private contributors have begun to dry up, public interest law firms across the U.S. have been increasingly delighted by a recent trend in court judgments. In the past few years, many federal judges have ordered the losers to pay lawyers' fees when a public interest claim was upheld. The theory was that the plaintiffs lawyers had acted as "private attorneys general," helping to enforce laws that public agencies could not administer adequately.

In one such case, The Wilderness Society, The Environmental Defense Fund and Friends of the Earth mounted a complex legal attack on the Alaska pipeline. They won in court in 1973, and Congress included new environmental safeguards when it subsequently rewrote laws to allow the building of the pipeline. Because the groups had advanced "substantial public interests," the Washington, D.C., Court of Appeals ordered the Alyeska Pipeline Service Co. to pay them legal fees that might have topped $100,000. Last week the U.S. Supreme Court voted 5 to 2 to kill the award. The decision carried a gloomy message to public interest lawyers: they can no longer look to the courts as a significant source of additional funding.

Under the so-called American rule, lawyers' fees in the U.S. are not generally charged to the loser, as they are in England, for example. Justice Byron White conceded for the majority that "the encouragement of private action to implement public policy has been viewed as desirable in a variety of circumstances." But, he concluded, Congress has not "extended any roving authority to the Judiciary to allow counsel fees ... whenever the courts might deem them warranted." Siding with William Brennan in disagreement, Thurgood Marshall cited a number of "judge-made exceptions" to the American rule and argued that courts therefore had adequate power to award fees when important rights were being protected. Marshall would impose restrictions on power, including a stipulation that the winners of public interest cases would not get fee awards if they were otherwise able to recover enough money in damages or other compensation to pay for the litigation.

White responded that such a rule would mean fee awards in suits based on "virtually all congressional output." Congress has already provided for lawyers' fees for "private attorneys general" in a number of laws--notably Title II of the 1964 Civil Rights Act, which bans discrimination in places of public accommodation. White would leave it to the nation's legislators rather than the courts to decide whether to extend the principle. One self-appointed public attorney general, Ralph Nader, quickly vowed to ask Congress to do just that. Otherwise, he says, the ruling "is going to have a very depressive impact on the ability of public interest lawyers to litigate."

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