The Michigan Department of Corrections does not get to pay reduced attorney fees to volunteer lawyers who represented two freelance journalists in a Freedom of Information Act case. The Michigan Supreme Court issued that decision Wednesday in a 5-2 vote.
In the case, the two journalists were seeking security camera video of an altercation where inmate Dustin Szot was killed. The case was extensively litigated, and the Michigan Department of Corrections eventually released a video with the participants’ faces digitally obscured.
The Honigman law firm billed the state based on their attorneys’ typical fee schedule. The corrections department balked and said the fact that the attorneys were acting pro bono should reduce the costs.
The Supreme Court majority held the fact that attorneys are acting pro bono should not help determine how much the losing party pays in attorney costs.
“When an attorney agrees to represent a client pro bono, the pro bono nature of the representation should not have any effect on the quality of representation provided or the time spent on the case,” read the opinion written by Justice Kyra Bolden and signed by Chief Justice Elizabeth Clement as well as Justices Richard Bernstein, Megan Cavanagh and Elizabeth Welch. “… Therefore, we conclude that whether a client is represented pro bono is never a valid consideration when calculating a reasonable fee award.”
The decision was good news to Marla Linderman Richelew with the Michigan Association for Justice, which filed an amicus brief in the case. She said the decision encourages government agencies to comply with freedom of information laws, and it allows attorneys to do more pro bono work.
“Because they did good and something like this happens, they can do more good,” she said.
She added it will also help ensure law firms assign attorneys with appropriate experience to work on the most complicated cases.
Justices Brian Zahra and David Viviano held a different view. Their dissenting opinion said pro bono work is taken on with the expectation of reduced or no fees.
“The Court’s holding today blurs the line between ‘pro bono’ work and work performed for a contingency fee,” read their dissent. “This also creates a strong, and seemingly perverse, incentive for lawyers and law firms to focus their pro bono activities in areas where they can expect to recover attorney fees rather than in the many diverse areas of the law where pro bono services are desperately needed.”