The Michigan Supreme Court clarified any remaining ambiguity last week about whether Michigan courts can reduce an otherwise fair attorneys’ fee award if attorneys work pro bono. The Supreme Court of Michigan has now joined every state and federal court to have considered this issue. In Woodman V Michigan Dept of Corrections, it held that “pro bono work is not an appropriate factor in determining reasonableness of attorneys’ fees,” and that “reducing attorney fees based upon a pro bono service is […] inappropriate.”
After the decision of the lower court, it was evident that the impact of Woodman and the harsh consequences the Michigan legal community would have avoided if they had ruled otherwise, were clear. After the Michigan Department of Corrections denied their requests to obtain records relating to the death of an inmate, independent journalists Spencer Woodman & George Joseph filed a routine Freedom of Information Act claim against the agency. The Court of Claims decided that they were entitled everything they requested. Then they sought attorneys’ fee, which FOIA grants to successful parties. The Court of Claims granted the ACLU its full fee request, but reduced its cooperating counsel fees by 90% as they were “pro-bono dollars.”
In the wake of this ruling, those who most needed access to justice were suddenly vulnerable to attacks if they had lawyers working for free. The ACLU was challenged on several occasions in the first year following the Court of Claims decision. In each case, the opposing side cited the Court of Appeals judgment in Woodman to argue that “pro bono dollar” is inherently less valuable than a firm’s paid time. In light of the Supreme Court’s landmark decision, pro bono attorneys are now treated in the same way as their paid counterparts.
The importance of the decision goes beyond Michigan being an outlier. It clarifies what factors a Michigan court may consider when analyzing a request for fees. The decision is likely to have an impact across the legal profession and on pro bono cases in Michigan, particularly those involving government transparency and statutory fee shifting.
Woodman encourages private practitioners, among other things to continue accepting pro bono cases because the possibility remains of recovering reasonable fees in the event that the case is successfully resolved. Pro bono counsel can also be encouraged to represent parties who otherwise would not have the means to pay for legal services. The decision will also likely expand the range of practitioners that are willing to do pro bono work. This decision will not only level the playing field between law firms that have significant resources and those who do not, but it will also make it more likely for smaller firms or sole practitioners to accept pro bono cases given the possibility of full recovery.
Woodman is a deterrent to another kind of crime. The defendants in civil rights cases, as well as state agencies that are subject to FOIA laws, should be aware that if they unnecessarily increase the costs of litigation, it could result in significant fees being awarded against them. This is true even if plaintiffs’ lawyers work for free. The Court of Claims misguided logic, which relegated pro bono dollars to second class status, encouraged agencies to fight no matter what, because they knew they would only incur a fraction of the fee award they were likely to receive if they lost. Woodman restores teeth to the fee-shifting clauses in these crucial areas of law.
The Michigan State Bar encourages pro bono work as a policy. Many law firms also include pro bono as one of their core values. Others require that attorneys donate to pro bono organizations if they don’t meet a certain threshold of pro bono hours. The Michigan Supreme Court in Woodman noted that the Pro Bono Institute encourages law firms to request reasonable fees in pro bono cases when available. Woodman provides protection to those who seek fee awards for pro bono matters. This will make it more likely that these aspirational promises become reality.
The article Justice Served – Michigan Supreme Court Recognizes Pro Bono Value first appeared on Attorney at Law Magazine.