West Virginia Record

Monday, July 15, 2019

Judge: No 'catastrophic consequences' from attorney fee ruling

By Lawrence Smith | May 14, 2010



CHARLESTON - A federal judge dismissed as humbug a Charleston attorney's characterization that children with disabilities would be denied access to the courts if his recent ruling regarding attorneys fees in a 2006 civil case was left to stand.

Cynthia E. Evans all but referred to U.S. District Judge Joseph R. Goodwin as Ebenezer Scrooge in a motion she filed in January for him to reconsider a ruling he made two weeks earlier awarding attorneys fees to a former client in a disability discrimination case. Not only is the ruling discriminatory, Evans said, but it would also lead to attorneys like her who specialize in education law going into the poorhouse.

On Jan. 25, Evans made a motion to intervene in a decision Goodwin rendered on Jan. 12, awarding Mark and Tammy Davis $31,072 in return of attorneys fees he paid Evans in 2006 to file an Individuals with Disabilities Education Act claim against the Kanawha County Board of Education. In October, the Davises made a motion that any award of attorney fees should go to them as before they terminated her as counsel in September 2007, they paid Evans nearly $50,000.

In her motion, Evans asked Goodwin to reconsider his ruling saying that he improperly relied on Social Security disability law for his reasoning. She cited two cases - Erickson v. Board of Education of Baltimore County and Sand v. Greenberg - to bolster hers.

In Erickson, the 4th U.S. Circuit Court of Appeals in 1998 upheld a lower court's decision denying attorneys fees to a father of a disabled child who was successful in winning an IDEA suit against the Baltimore County, Md. school board. Noting that Erickson was an attorney who argued the case pro se, Evans said the district court found that he was not entitled to an award since he was acting as a parent.

"The Court stated that the central thrust of fee-shifting statutes are meant to encourage the effective prosecution of meritorious claims, and that they seek to achieve this purpose by encouraging parties to obtain independent representation," Evans said.

In Sand, the U.S. District Court for the Southern District of New York on Jan. 7, held that attorneys fees "spring from an entirely different source." Similar to Erickson, Evans argued that the court in Sand found that attorneys fees weren't meant to compensate plaintiffs, "but rather to encourage members of the bar to provide legal services to those whose wage claims might otherwise be too small to justify retention of able, legal counsel."

Prior to their falling out, Evans said the Davises still owed her $62,021.50. After they were credited the $34,072 from Goodwin's Jan. 12 order, Evans says she's still owed $27,949.50.

As "the only attorney in the State who is willing to take and IDEA case and stick with it for the long haul," Evans said it's crucial she be compensated for the years she put into a case without being paid. Awarding attorneys fees to clients when they still owe a bill will only lead to attorneys getting " 'stiff[ed].'"

"This is a practical matter that produces a chilling effect for any attorney who would anticipate taking on the representation of a disabled child under the IDEA," Evans said.

Also, Evans said Goodwin's ruling would another chilling effect on IDEA cases. If clients are awarded attorneys fees, then only the very wealthy will be able to file one.

"If this Court sets a precedent whereby an attorney fee is required to the parent of a child, instead of the attorney who earned the fee, then it will systematically guarantee that no more disabled children in this State will be represented in the future because there will be no way for the attorney to recoup any of their time if their client does not have an extra $100,000 to $200,000 up front to pay as a retainer," Evans said.

No 'catastrophic consequences'

The next day, Goodwin granted Evans' motion to intervene, but denied her motion to reconsider. He made short work of both her reasoning, and accusations.

Both Erickson and Sand do not apply to the Davis case, Goodwin said. Before explaining his rationale, he noted that Erickson was superseded by the case of Doe v. Board of Education of Baltimore County.

Goodwin agreed that in Doe, the 4th Circuit found that pro se civil rights litigants are generally not entitled to attorneys fees, and awarding fees to pro se litigants would discourage parties from retaining counsel. However, Doe is distinguishable from Davis in that the issue before the 4th Circuit was whether a parent, who was also an attorney, can claim an award of attorneys fees representing his own child in an IDEA suit.

"The issued raised by Ms. Evans's and the defendant's actions, however, is whether and IDEA attorneys' fee award belongs to the prevailing party (Mr. Davis) or his lawyer (Ms. Evans). Doe is therefore inapplicable and not a ground for reconsideration."

Like Doe, Goodwin said Sand "is irrelevant here." There, the court decided the defendant's offer of judgment in an IDEA case did not include an attorneys fee award.

"The court's ruling did not bear on whether an attorneys' fee award belongs to the client or the lawyer; it merely differentiated an attorneys' fee award from a compensatory award," Goodwin said.

As far as "catastrophic consequences" arising from his decision, namely that only the wealthy would be able to file IDEA suits, Goodwin said, "I do not portend such a disaster."

Issues for state court

In concluding his ruling on Evans' motion, Goodwin said if the Davises still owed her money, she should file a civil action against them in state court. As of presstime, Evans had not done so.

However, the Board on April 26 filed suit against Evans in Kanawha Circuit Court alleging she "unjustly enriched [herself] at the expense of the taxpayers" by misleading them into paying her $50,000 on Sept. 8. In its suit, the Board alleged Evans never disclosed the Davises paid her any money only to discover during a hearing on Jan. 8 on their motion to enforce the order of attorneys fees with interest that Mark Davis "maxed out" his credit cards to pay her.

After several attempts to get Evans to repay the money failed, the Board filed a motion in February with Goodwin seeking an order compelling her to repay it. He denied it the next day saying that, like Evans with Davis, if they want to collect from her they need to file suit in state court.

U.S. District Court for the Southern District of West Virginia, case number 06-cv-167

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