Last week, the Michigan Supreme Court resolved any lingering ambiguity about whether a Michigan court can reduce an otherwise reasonable attorneys’ fee award when attorneys work pro bono. Bringing Michigan in line with the every other state and federal court that has considered the issue, the Supreme Court held in Woodman v Michigan Dept of Corrections that “pro bono representation is not an appropriate consideration in determining the reasonableness of attorney fees” and that “reducing fees based on a pro bono representation is […] inappropriate.”
The impact of Woodman, and the harsh consequences that the Michigan legal community avoided if the court had ruled differently, was clear in the wake of the lower court’s decision in the case. Independent journalists Spencer Woodman and George Joseph filed routine Freedom of Information Act (FOIA) claims against the Michigan Department of Corrections after the agency denied their requests for records related to the death of a prison inmate. They won handily and the Court of Claims ruled that they were entitled to everything they asked for. They then sought attorneys’ fees, which FOIA provides to prevailing parties. The Court of Claims awarded the ACLU all of its requested fees, but reduced the ACLU’s cooperating counsel’s fees by 90% because its fees were “pro bono dollars.”
The Court of Claims’ ruling meant those most in need of access to justice suddenly became vulnerable to attacks on their fee petitions if their lawyers worked for free. In fact, in the year after the Court of Claims’ decision, the ACLU faced several challenges to fee requests on this basis. And in each instance, the opposing party cited the Court of Appeals’ judgment in Woodman in arguing that “pro bono dollars” are inherently worth less than a paid firm’s time. But in light of the Supreme Court’s landmark ruling, pro bono counsel is now definitively treated the same as their paid counterparts.
The decision’s import goes beyond removing Michigan as an outlier and crystallizing the factors that a Michigan court can consider in analyzing a fee request. The decision will resonate across the legal community and have a lasting impact on pro bono work across the state, especially in cases involving statutory fee shifting and government transparency cases.
Among other things, Woodman will encourage private practitioners to continue taking pro bono engagements because there remains the possibility of recovering reasonable fees incurred in the event the case is successful. The possibility of fee recovery for pro bono counsel also incentivizes counsel’s vigorous representation of parties who would not otherwise be able to afford legal services. What’s more, the decision is likely to expand the universe of the types of practitioners who are able to take on pro bono work. The decision not only levels the playing field for law firms with significant resources to take on pro bono work, it also makes it more likely that smaller firms or solo practitioners will take on pro bono representations given the possibility of a full recovery.
Woodman serves as an important deterrent in another regard. Defendants, including state agencies subject to FOIA, along with other civil rights defendants, must recognize that unnecessarily driving up the cost of litigation may result in significant fee awards against them, even if a plaintiff’s lawyer works for free. Under the Court of Claims’ misguided logic that had relegated “pro bono dollars” to second-class status, agencies were incentivized to fight at all costs, knowing that they would likely incur only a fraction of a fee award if they ultimately lost. Woodman now restores the teeth to fee-shifting provisions in these critical areas of the law.
Finally, as a matter of policy, the Michigan State Bar readily encourages participation in pro bono services, and many law firms include a pro bono commitment as part of their core values. Some go so far as to require attorneys to donate to a pro bono legal services organization if they do not meet a minimum pro bono hours threshold. And as the Michigan Supreme Court noted in Woodman, the Pro Bono Institute, a service that matches law firms with pro bono opportunities, encourages firms to seek reasonable fee awards in pro bono matters when they are available. The protection Woodman now provides to those seeking fee awards in pro bono cases ensures those aspirational commitments are more likely to be reality.
