BOSTON — They worked together successfully to strike Worcester’s two “aggressive panhandling” ordinances from the books on First Amendment grounds.
But now a federal judge has said a phalanx of lawyers from Boston’s Goodwin firm and their partners from the ACLU of Massachusetts got a bit aggressive themselves in asking for the legal fees they were entitled to under the Civil Rights Attorney’s Fees Award Act after prevailing in Thayer, et al. v. City of Worcester.
In his decision, U.S. District Court Judge Timothy S. Hillman awards Goodwin and the ACLU just under $520,000 in fees and costs, roughly half of the $1.04 million they had requested.
Hillman premises his decision on the theory that the attorneys should have based their fee application on the prevailing rates in Worcester, rather than Boston. As a result, he gives the hourly earnings of each a hefty haircut. Goodwin “senior level attorney” Kevin P. Martin has his fees chopped from $640 to $680 an hour to $400 an hour; his law partner Yvonne W. Chan’s are trimmed from $488-$580 an hour to $350 an hour; and the firm’s other attorneys are granted fees ranging from $200 to $250 an hour.
Hillman also set rates for ACLU Legal Director Matthew Segal and Deputy Director Sarah R. Wunsch at $350 and $375 an hour, respectively, rather than the $625 and $750 an hour they had requested.
Martin says Hillman’s theory fails to recognize that much of the litigation occurred in Boston’s 1st Circuit and the U.S. Supreme Court in Washington, D.C.
Wunsch agrees, pointing out that case law indicates that attorneys should receive their usual rates. Moreover, Martin, who once clerked for U.S. Supreme Court Justice Antonin Scalia, had already steeply discounted his hourly rate, she says.
“Four hundred dollars an hour for a Supreme Court litigator is ridiculous,” Wunsch says.
Hillman expresses incredulity about the size of the team that worked on the case, italicizing the numbers “11” (the total number of attorneys) and “nine” (the number from Goodwin).
Hillman allows that the attorneys did a bit of “self-pruning,” not charging for things like travel, litigation strategy meetings, their paralegals’ time, and even some court appearances. But ultimately, he is “not persuaded that Plaintiffs’ attorneys made a concerted effort to, as the saying goes, separate the wheat from the chaff.”
Hillman came away from a detailed review of the Goodwin attorneys’ timesheets “troubled by the manner in which the attorneys were utilized in this case,” specifically questioning the hours spent by attorneys with higher billing rates on “tasks which could have fallen to less senior attorneys,” such as researching and writing initial drafts of documents.
Hillman cites particular excesses as well, such as Chan, an “experienced litigator,” charging for more than 30 hours of prep time for a hearing on a preliminary injunction and over 20 hours preparing for a summary judgment hearing, and Martin charging over 13 hours for preparing for the summary judgment hearing and “holding moot court.” Serious “self-pruning” efforts would have started here, he suggests.
Hillman commends the ACLU attorneys for not charging for approximately half the work they performed but characterizes their role as being “primarily as consultants.” In some cases, their work was “duplicative of the Goodwin attorneys,” he adds.
Hillman also raps the ACLU for charging $16,888 for preparing the fee petition itself, noting a previous admonition the organization and different private co-counsel had received back in 2015. Hillman wipes that piece of the request off the books completely.
Ultimately, Goodwin and the ACLU are grateful for the shrunken-but-still-substantial award, noting the amount could have been zero, had the city of Worcester just read the writing on the wall and taken advantage of a year’s worth of opportunities to resolve the case.
Wunsch notes that two Supreme Court decisions — Reed v. Town of Gilbert, Arizona and McCullen v. Coakley — should have told Worcester that it was holding a losing hand. The Reed case dealt with the town’s content-based “sign code,” which could not survive strict scrutiny, while McCullen invalidated Massachusetts’ 35-foot buffer zone around reproductive health clinics.
Given that landscape, Worcester could have agreed not to enforce the law while the litigation was pending, as Portland and Lowell did with similar ordinances, Martin says. Even after the Portland and Lowell laws were struck down, Worcester resisted abandoning its own law before summary judgment was entered, he adds.
“The availability of attorneys’ fees awards serves a valuable role in forcing cities to consider whether to engage in scorched-earth tactics against civil rights plaintiffs, who often lack the resources to carry a fight to its conclusion,” Martin says.
But Worcester City Solicitor David M. Moore says that, in this case, the “scorched earth” shoe doesn’t fit. While the litigation was pending, he says, the U.S. District Court had denied the plaintiffs’ motion for a preliminary injunction, a denial that was upheld by a 1st Circuit panel “containing no less a First Amendment scholar than former Supreme Court Justice David Souter.”
“Why would any city stop enforcing an ordinance with those successes?” he asks rhetorically.
Ultimately, he adds, the case turned not on anything that the plaintiffs did but on the change to First Amendment jurisprudence brought about by the Reed decision, which held that a city ordinance, content neutral on its face, is still proscribed by “defining regulated speech by its function or purpose.”
Wunsch notes that the ACLU often represents clients — indigent criminal defendants in particular — in which there is no reasonable expectation they will be paid. Access to fees in certain circumstances “lets us do our work,” she says.
In this case, Goodwin is donating what remains of its fees after expenses to the ACLU, Martin says.
But Wunsch fears that if such fee reductions become commonplace, attorneys at large firms will be discouraged from serving as private attorneys general, as was the intent of the Civil Rights Attorney’s Fees Award Act.
Wunsch says that the ACLU and its partners “are not looking for another round of litigation” with Worcester, though they could cross-appeal if the city forges ahead with one of its own.
“We hope Worcester will be thoughtful” with how to proceed, she says.