Billing in "pro bono" cases is fodder for ethics debate

Lawyers at Davis Wright Tremaine didn't charge a parent group for seven years of work on a U.S. Supreme Court case against Seattle Public Schools: They took the case pro bono.

But now that the firm is trying to collect $1.8 million in legal fees from the school district, several national legal experts say the term — technically, "pro bono publico," meaning "for the public good" — may no longer apply.

The firm's effort has put a local lens on a national debate: If attorneys get paid for pro bono work, is it still pro bono?

Davis Wright Tremaine says the case took nearly 6,000 hours of the firm's time and should be considered pro bono because attorneys didn't charge their client, Parents Involved in Community Schools. Members of the group sued the district in 2000 when their kids didn't get into the school of their choice because of their race. The district used race as one of several "tiebreakers" if a student's race would bring a school's racial and ethnic makeup closer to the district average.

Earlier this month, Davis Wright Tremaine, which also represents The Seattle Times, filed with the 9th U.S. Circuit Court of Appeals seeking $1.8 million, which includes copies and other costs as well as attorneys' hourly fees of $265 to $460 an hour.

If a judge agrees to award the fees, Seattle Public Schools officials don't know whether the district's insurance will cover the amount; the district is self-insured up to $1 million. The rest would come out of either an insurance pool spread among several school districts or the district's own $490 million general-fund budget. The district has spent $435,000 on the case so far.

"If the real interest is to better public education, then I think that the money is best spent on public education," said Shannon McMinimee, a school-district attorney.

Anticipating backlash, Davis Wright Tremaine cited the Georgetown University-based Pro Bono Institute. According to that organization's Web site, collecting fees in pro bono cases is fine, but attorneys should donate the money, for example, to charity.

The institute's president and executive director, Esther Lardent, said she wouldn't take sides on the Davis Wright Tremaine case.

"This is a very controversial matter," she said.

Nationwide, Lardent added, pro bono cases frequently involve ethical questions about collecting attorneys fees.

Davis Wright Tremaine spokesman Mark Usellis said the firm hasn't decided whether to donate money it may collect in the Seattle case.

The firm should consider whether the district can afford to pay, said Barbara Arnwine, the executive director of the Lawyers Committee for Civil Rights Under Law.

"If you know that you're going to be taking money away from the school system and the school system is going to be less able to do their job ... then that's something that I think needs to be taken into consideration ethically by the person seeking the fees," she said.

Davis Wright Tremaine points to a 1976 federal law that gives attorneys the right to collect money in civil-rights cases.

Similar cases elsewhere

But the law has sparked similar controversies over attorneys fees elsewhere: Attorneys for the woman who sued the state of South Carolina and The Citadel for refusing to admit her to the military school in the early 1990s argued that they should receive fees even though they took the case pro bono. The judge agreed and awarded $4.6 million.

More recently, Davis Wright Tremaine collected attorneys fees from a library system in California after winning an eight-year court battle over the library's restriction of patrons' access to the Internet. The judge awarded the fees even though the library system argued that it had limited funds.

And in the Kentucky student-assignment case that shared with Seattle the Supreme Court ruling in June, the attorney representing the plaintiff has already filed to collect his fees from Jefferson County Public Schools, plus a bonus, for a total of at least $150,000, according to the Louisville Courier-Journal. The judge in that case has delayed a ruling on those fees.

American Lawyer magazine, which publishes an annual ranking of firms based partly on the amount of time they spend on pro bono work, doesn't consider work pro bono if attorneys get paid. Davis Wright Tremaine was No. 72 out of 200 firms in this year's American Lawyer ranking.

"Our position is that if fees are granted in a pro bono case, that those fees should be moved along to a charitable organization," said executive editor David Brown. "It can't go into their pockets, because that's not pro bono."

Sending a message

Usellis, of Davis Wright Tremaine, said many civil-rights groups — like the Lawyers Committee for Civil Rights Under Law — are liberal-leaning. They're letting their disagreement with the outcome of the case get in the way of their usual position that collecting fees is a good thing to do, he said.

Since Parents Involved in Community Schools didn't seek any damages, making the district pay fees could discourage other government agencies from violating civil rights, Usellis said.

Kathleen Brose, president of Parents Involved in Community Schools, agreed.

"It sends a message to the school district that, if they're going to violate their students' civil rights, there are repercussions to their actions," she said. "The school district got themselves in this pickle."

Seattle Times news researchers Miyoko Wolf and Gene Balk contributed to this story.

Emily Heffter: 206-464-8246 or eheffter@seattletimes.com