Clients Must Pay Full Contingent Fee, En Banc Ninth Circuit Holds

 
Richard Burton, as Hamlet, fussed about "the law's delay". 

The Ninth Circuit spans a vastness on our spinning globe -- from Window Rock, AZ, to Merizo, GM; from Border Field State Park, CA, to Barrow, AK; plus a lot in between. 

The biggest U.S. court of appeals also claims, oh, nearly 30 circuit judges.

Let's not advert to the degrees of Their Honors' philosophical separation.

Today the court ruled in an en banc configuration (11 out of the nearly three dozen) that none of its 12 brethren/sisteren circuit courts would recognize as such (because all their judges sit together for their en banc sessions).  The mini-full-court held, by the thinnest of margins (six-to-five), that the district court erred as a matter of law (and fact) by awarding lawyers less (a lot less) than the 25 percent contingent fee their clients agreed to pay them for recovering Social Security payments from a stingy federal government.  Crawford v. Astrue, No. 06-55822 (9th Cir. Nov. 3, 2009) (en banc) (sort of).

Two of the judges limited their dissent to the factual part of the ruling.  They agreed with the majority that the district court erred (in the three cases before the court) when it started with the attorneys' lodestar -- hours x hourly rates -- instead of the fee contracts.  But they added that the court of appeals ought to have let the lower courts apply the right standard in the first instance. 

The other three judges dissented in toto, urging that the district courts' fact-findings about reasonableness of fees must prevail over the attorney-and-client's contract for a 25 percent rate.

Blawgletter notes that, in the newest of the three cases before the court, more than five years had passed since its filing.  The other two involved delays, respectively, of over eight and in excess of 10 years.

The trio of cases presented the question of how to balance the client's interest in keeping as much of the recovery as possible against her or his promise to pay 25 percent of that amount as an attorney's fee.  The lawyers asked for -- and, under the court's ruling, will receive -- less than the percentage their clients agreed on.  We see no injustice there.

The issue of whether the district court deserved to assess the facts, with more room than the majority allowed it, strikes us as worth talking about.  Judging consists at its core of doing a judge's best to get the law and facts right.

Did the magistrate judges do otherwise?  No.  But they did take an unduly stingy view of the weight the law gives to contingent fee contracts between lawyers and clients.  We agree with the Ninth Circuit's en banc correction of their mistake of the law.

Our feed wonders what light on yon window breaks.

Comments

[Lawrence Rohlfing]

In none of the three cases did the individual lawyers ask for the full 25%. The exercise of billing discretion was an important factor in the court's analysis and decision to end the satellite litigation.