By Hena Mehta, Sheehan Summer Law Clerk (2023)
On July 26, 2023, The Supreme Court of Michigan issued a landmark decision in Woodman v. Department of Corrections regarding pro bono representation as it relates to an attorney fee award amount.[1] The question of whether a reasonable attorney fee award can be lessened based on representation being provided on a pro bono basis was a case of first impression in the state of Michigan.[2] Among other key points, the highest court made clear in their ruling that “pro bono representation is not an appropriate consideration in determining the reasonableness of attorney fees.”[3] Indeed, the court went so far as to categorically declare: “[W]hether a client is represented pro bono is never a valid consideration when calculating a reasonable fee award.” (Emphasis added.) This decision is a victory for pro bono attorneys in Michigan.
How the Case Made Its Way to the Supreme Court of Michigan
The plaintiffs are two freelance journalists that submitted public records requests under Michigan’s Freedom of Information Act (“FOIA”) to the Michigan Department of Corrections (“MDOC”) to obtain audio and video recordings of a fatal altercation that resulted in the death of an inmate.[4] The journalists’ requests were denied under MCL 15.243(1)(c), which provides that unless disclosure of the information outweighs public interest in nondisclosure, FOIA requests may be denied if it “would prejudice a public body’s ability to maintain the physical security of custodial or penal institutions occupied by persons arrested or convicted of a crime or admitted because of a mental disability.”[5] Plaintiffs then separately filed lawsuits in the Court of Claims against MDOC for disclosure of their requested audio and video footage, and the Court consolidated their actions.[6]
Court of Claims
The plaintiffs were represented by the American Civil Liberties Union (“ACLU”) and Honigman LLP.[7] Each litigant moved for summary disposition, and the Court of Claims temporarily held off on ruling on each party’s motion for summary disposition and appointed a special master to review the footage to identify any additional security concerns aside from the identities of those in the video being revealed.[8] Upon the special master’s determination of no additional concerns, the Court of Claims ordered MDOC to disclose unredacted videos to the journalists’ attorneys. The defendant’s reconsideration request of the court’s order was unsuccessful; the Court gave the journalists’ attorneys an opportunity to review unredacted and redacted versions of the video, and upon their review, to “make further prayer for relief.”[9] The journalists then moved to request attorney fees under MCL 15.240(6) as the “prevailing” party.[10] In opposition, MDOC argued two-fold: (1) the journalists only prevailed in part because the Court allowed for certain faces in the video footage to be blurred, and (2) the pro bono representation from Honigman LLP prevents the journalists from collecting attorney fees and associated costs, or in the alternative, the fee should be reduced.[11] The Court of Claims rejected the first argument, finding that the journalists prevailed in full, thus entitling them to reasonable attorney fees.[12] ACLU was awarded 100% of its requested fees. However, Honigman was only awarded 10% of its request.[13] In its decision, the Court of Claims acknowledged that the hourly rates and hours billed from Honigman were reasonable, but reduced their award because the dollars spent as it relates to their contribution were “pro bono dollars.”[14] (The journalists also requested statutory punitive damages, but the Court of Claims denied that request.[15])
Court of Appeals
Both the journalists and the MDOC appealed to the Court of Appeals–the journalists challenged: (1) the attorney fee award reduction for Honigman, and (2) their punitive damages request; and MDOC contested the finding that the journalists prevailed in full and were entitled to related attorney fees.[16] The Court of Appeals found that the journalists prevailed in part (because MDOC was able to redact information from the video footage) and remanded the case back to the lower court to determine whether an attorney fee award is appropriate.[17] The appellate court urged the lower court to decide whether pro bono representation status should be a factor considered when determining the reasonableness of attorney fee awards.[18] The Court of Appeals did not address the issue of Honigman’s reduced award based on their pro bono representation but did affirm the denial of the journalists’ punitive damage request.[19]
The Decision of The Supreme Court of Michigan
In determining whether the journalists prevailed “in full,” the highest court’s analysis included three questions:
(1) Was the action reasonably necessary to compel the disclosure of the records;
(2) Did the action actually have the causative effect of delivering the information; and
(3) Did the plaintiff obtain everything it initially sought?[20]
As to the first two questions, the Court responded in the affirmative. It was clear to the Court that the litigation was the cause of the disclosure because MDOC “admitted that it issued blanket denials for the FOIA requests in the instant cases,” which added support to the notion that the records would not be disclosed but for litigation.[21]
The majority’s main analysis was directed to the third question. In their Complaint, the journalists requested “a complete, unredacted copy” of the video footage.[22] The Supreme Court of Michigan explained that a requesting party in a FOIA request is disadvantaged because that party is unable to request the desired information with specificity not having seen the records before.[23] This added support that a FOIA request is intentionally meant to be broad unless otherwise stated.[24] The Supreme Court of Michigan found that the journalists received the records they sought after–audio and video footage of an inmate altercation –pursuant to this litigation and their request was silent as to any redactions or footage modifications.[25] The Supreme Court analogized to the binding precedent of International Union to further illustrate their decision that plaintiffs prevailed “in full.”[26]
As to the issue regarding Honigman’s fee reduction, the majority held that the Court of Claims abused its discretion in lowering the award by 90% solely on the basis of Honigman’s pro bono representation status.[27] The Court, in its “Smith/Pirgu” decisions, illustrated the “guiding principles” lower courts should use in determining the “reasonableness” of an attorney fee in a fee provision statute for a FOIA request.[28]
Considering this framework, The Supreme Court of Michigan concluded that a lawyer’s pro bono representation status is irrelevant to determining the reasonableness of their fee.[29] A lawyer’s agreement to represent a client pro bono “should not have any effect on the quality of representation provided or the time spent on the case.”[30] Further, the majority rejected the existence of “pro bono dollars” in the calculations of the fee’s reasonableness because “reasonable fees are not equivalent to actual fees charged.”[31] Additionally, awarding reasonable attorney fees under fee-shifting provisions irrespective of the type of representation the lawyer provides “encourages enforcement of FOIA, encourages pro bono representation in cases that lawyers might not otherwise accept, and furthers access to justice for indigent parties that are seeking enforcement of their rights.”[32]
The Court emphasized a lawyer’s ethical obligation to pro bono service in MRPC R. 6.1.[33] In doing so, the Court highlighted the work of Pro Bono Institute in “assist[ing] law firms in identifying pro bono opportunities” and noted that PBI “encourage[s] firms to seek reasonable attorney-fee awards in pro bono matters when available.”[34] This is the second instance in recent times that PBI’s position on the recovery of attorney fees by pro bono attorneys has been noted.
In 2022, PBI participated in an amicus brief submitted to the U.S. Court of Appeal for the Ninth Circuit challenging the denial of a fee award to prevailing pro bono counsel for plaintiff Daniel Cisneros by the United States District Court for the Northern District of California.[35] The Ninth Circuit ruled in Cisneros’s favor, holding that the district court improperly relied on the law firm of Reed Smith’s pro bono representation in denying an attorney fees award. The court reversed and remanded the proceedings to the district court to award reasonable attorney fees.
PBI is delighted and gratified to have played a role in court decisions that have refuted the notion that attorney fees should not be granted or should be drastically trimmed on the ground that the lawyers provided representation on a pro bono basis. We strongly believe that awarding attorney fees to prevailing pro bono counsel is a win-win for access to justice. First, the award encourages governmental entities to adhere to the rule of law where they have erred and heightens the stakes for failing to do so. Second, such awards facilitate greater access to justice by either replenishing law firm pro bono program budgets or allowing firms to donate the fees awarded to a legal service organization that will use the funds to enhance their services to the deserving. We encourage firms to take on pro bono matters whether or not a fee shifting statute applies, avail themselves of such statutes when they are available, and to use any awards received in the spirit of pro bono and access to justice. PBI also stands ready to support its Law Firm Pro Bono Project® members in their efforts to obtain such fee awards.
To combat inappropriate denials of attorney fees to pro bono counsel by trial courts, pro bono counsel may wish to look for parallels in their cases and some of the key from the majority’s Decision in Woodman v. Department of Corrections, including:
- A contrary ruling would go against “policy and purposes underlying FOIA.”[36]
- If pro bono representation status is a valid consideration in determining the reasonableness of an attorney fee award, attorneys would be discouraged from engaging in pro bono service, and public bodies would be discouraged from voluntarily complying with FOIA when the requester was represented–wholly or in part–by a private firm because it could later “petition to have those fees almost entirely wiped out.”[37]
- The literal language of MCL 15.240(6) does not distinguish between attorney fee awards for pro bono and non-pro bono attorneys and is intended to protect low-income plaintiffs not able to afford litigation costs.[38]
[1] See Woodman v. Department of Corrections, No. 163382-163383, 2023 WL 4770671 (Mich. July 26, 2023).
[2] Id. at *12.
[3] Id. at *4.
[4] Id.
[5] Mich. Comp. Laws § 15.243 (2023).
[6] See Woodman v. Department of Corrections, No. 163382-163383, 2023 WL 4770671 at *4 (Mich. July 26, 2023).
[7] Id.
[8] Id. at 4-5
[9] Id. at *5.
[10] Id.
[11] See Woodman v. Department of Corrections, No. 163382-163383, 2023 WL 4770671 at *5 (Mich. July 26, 2023).
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] See Woodman v. Department of Corrections, No. 163382-163383, 2023 WL 4770671 at *5 (Mich. July 26, 2023).
[18] Id.
[19] Id.
[20] Id. at *7.
[21] Id.
[22] See Woodman v. Department of Corrections, No. 163382-163383, 2023 WL 4770671 at *8 (Mich. July 26, 2023).
[23] Id.
[24] Id.
[25] Id.
[26] Id. at *8-9.
[27] Id. at *11.
[28] See Woodman v. Department of Corrections, No. 163382-163383, 2023 WL 4770671 at *11-12 (Mich. July 26, 2023). The framework is as follows: (1) “Determine ‘the reasonable hourly or daily rate customarily charged in the locality for similar legal services, using reliable surveys or other credible evidence,’” (2) “[m]ultiply that rate by the reasonable number of hours expended in the case to arrive at a baseline figure,” and (3) consider “a nonexhaustive list of factors ‘to determine whether an up or down adjustment [from the baseline figure] is appropriate.’” These factors include: (1) experience, reputation, and ability of the lawyer performing the services, (2) difficulty of the case and skill required to perform the legal services competently, (3) amount in question and the subsequent result, (4) expenses, (5) nature/length of the professional relationship with the client, (6) the likelihood that acceptance of the particular employment will prevent other employment by the lawyer, (7) time limitations imposed by the client, and (8) a contingent or fixed attorney fee.
[29] Id. at *12.
[30] Id.
[31] Id.
[32] Id. at *14.
[33] Id. at *13.
[34] See Woodman v. Department of Corrections, No. 163382-163383, 2023 WL 4770671 at *13 (Mich. July 26, 2023).
[35] See Brief for Pro Bono Inst. et al. as Amici Curiae Supporting Appellant, Cisneros v. Vangilder, No. 21-15363, No. 21-15405, 2022 WL 1500805, at *1 (9th Cir. May 12, 2022).
[36] Id. at *15.
[37] Id.
[38] Id. at *13.