California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - AUGUST 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - August 2001
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News / News Briefs
MCLE deadline for Group 3 (last names N-Z) is Feb. 1
Judicial Council launches online self-help center
California lawyers honored for work for homeless, minorities and children
Coy about her future, Reno focuses on women's issues
No bias found against solos
Governor signs two-year fee bill
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Ethics update...
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Trials Digest
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Opinion
From the President - Bar targets unauthorized practice
Microsoft ruling: Foundation to settle
MJP is more than alphabet soup
Letters to the Editor
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Legal Tech - A look back at six years of technology news
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You Need to Know
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MCLE Self-Study
A word from our sponsors
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - Let's go surfin' now, everybody's learnin' how
Recovering alcoholic may get to recover his license
Attorney Discipline
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Public Comment
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State Bar, PLF battle over $2 million fee for Brosterhous case
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Continued from Page 1
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Sacramento Superior Court Judge Morris England Jr. said he would rule soon on the Pacific Legal Foundation's request that it be paid at current market rates for some 5,000 hours of work it put into Brosterhous v. State Bar over the last 10 years.

PLF is seeking to double its $1.1 million fee demand to almost $2.3 million, contending it is entitled to a multiplier because the case was significant and complex and because it believes the plaintiffs prevailed on seven of eight points.

Bar lawyers tried to minimize the matter's importance, noting that a decade of litigation resulted in small change for the 41 plaintiffs and did not break new constitutional ground. They asked the judge to reject the multiplier and to reduce the requested base amount by more than half - action which would reduce a fee award to about $400,000.

Keller-based case

England ruled in 1999 that the State Bar improperly used mandatory member dues to fund some of its activities in 1991, the year after the U.S. Supreme Court ruled in Keller v. State Bar that mandatory fees could not be used to pay for activities with political or ideological coloration not "reasonably related" to the bar's core functions.

The bar gave up its appeal in January because it no longer funds controversial programs with dues money.

It recently settled a fee demand from Lawrence Hensley of Sacra-mento's Nageley & Meredith, who tried the case for PLF, for about $90,000.

The arguments at a July 6 hearing focused on three points: whether hours spent on a 1991 arbitration should be included in any fee award, whether the total number of hours was justified and whether a multiplier is appropriate.

England appeared receptive to both sides' arguments about different issues and asked questions that suggested he may scale back the PLF request but still order the bar to pony up some fees.

He seemed to agree with PLF attorney Deborah J. La Fetra that Brosterhous was a significant case that forced the bar to change the way it pays for its programs. (Signifi-cance and complexity are grounds for a multiplier.)

"A lot of significance was placed on this case," England said. "This was the first execution of the Keller case. I think it does have some first impression issues."

He later observed, "It seems like it's taken all three branches of our government to get the bar to change the way it charges dues" - a reference to Gov. Pete Wilson's 1997 veto of the dues bill, legislation specifying what activities cannot be funded by dues, and court decisions.

Substantial compliance

Mark Danis, a San Diego attorney who represented the bar during the trial, disagreed and told England the bar has done its best to comply with Keller. Brosterhous challenged the deduction the bar offered its members in 1991 for "non-chargeable" activities, a refund it based on 1989 pre-Keller expenditures.

"There's been disagreement about what Keller means," Danis said. "This court has come down differently on some issues, but the bar has substantially complied with Keller."

Danis also disputed La Fetra's contention that the bar has violated its members' First Amendment rights for 10 years. "This case was about one year," he said. "Each year's activities are different."

Dispute over success

La Fetra told England that PLF was successful on seven of eight issues and that it prevailed throughout the course of litigation, including at the appellate level.

She accused the bar of intentionally prolonging the proceedings through its "stubborn intransigence," and said PLF deserves to be compensated for work it did as the case "went on and on."

She even submitted a bill for additional work required to justify the hours PLF claimed in its fee request after the bar said the hours were not adequately described.

William Chapman, a San Francisco fees expert retained by the bar, disputed her every claim, downplaying the importance of the case, saying the hours claimed are unjustified and arguing that a multiplier is not warranted.

Keller itself resulted in a fee award of $261,000 with no multiplier, Chapman said, adding, "One million dollars seems excessive. A multiplier? I don't think so."

He said the plaintiffs had "quite limited success" in the litigation, saying they originally sought a refund of $129, and reduced that amount to $75, then $67, and eventually received only $10.

"What plaintiffs undertook was a full frontal assault on bar programs," Chapman said. "What it settled for was $10."

He asked England to subtract from any award the 550 hours PLF claimed for an early arbitration and 350 hours spent on fleshing out the fee request, a 20 percent reduction for what he said are questionable hours and a reduction for what he called "bracket creep" - rates based on an attorney's current experience rather than the level of experience at the time the work was done several years ago.

The total reduction would amount to $650,000 to $700,000, Chapman said.

England has 90 days to rule.