Vetoed Pay the Attorney Act

Veto

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This Act amends Part III §7 of the Redmont Civil Code Act to direct legal fees to the Defense's counsel rather than the defendant on acquittal, to create a new automatic award on dismissal, and to vest the ancillary claims fee entitlement in the prevailing party's counsel rather than the prevailing party.

The purpose is sound. An attorney who wins a case in which no damages are recovered should not walk away with nothing while the fee provision of the Code pays a client who did none of the work. Part III §7(2)(h) already treats a pro se litigant as their own legal representative, and §7(2)(i) already vests the power to waive fees in the legal representative rather than the client, so the Code already leans in the direction this Act is pushing. I record that the author's disclosure of his own interest at Section 2(3) is proper practice and I would like to see more of it.

I nonetheless withhold assent for four reasons.

First, the Act does not amend the provision that actually awards the fee, and so fails at its own stated purpose in the ordinary case. Part III §7(2)(a) reads "Legal fees shall be awarded at a rate of 30% of the case value to the prevailing party," and this Act leaves it untouched. Paragraphs (b) through (d) set minimums, (e) and (f) set valuation, and it is (a) alone that says who receives the money. After this Act, fees would go to counsel on a criminal acquittal, on a dismissal, and on ancillary claims, and would continue to go to the party in every contested civil case decided on the merits. That is the case in which the attorney has done the most work and it is the one case the Act does not reach. Section 2(1) states that "Attorneys do not get paid in legal fees as the Defense if they prevail in a case," and after this Act, in a contested civil matter carried to verdict, they still would not.

Second, the amendment at Section 3(3) sets Part III §7(3) against itself. Amended §7(3)(b) would vest the entitlement in the prevailing party's counsel, while §7(3)(c) directs the court to "apply set-off to determine the net legal fees payable" and §7(3)(e) speaks of a party being ordered to pay "the opposing party's legal fees." Set-off under Part IV §5 operates between awards made to the plaintiff and the defendant. Once the fee belongs to counsel, who is not a party, the court is being told to set off one person's entitlement against a different person's liability within the same subsection that still describes those fees as belonging to the parties. I am not willing to hand the courts a provision that contradicts its own neighbours on the question of who owns the money. I note further that this amendment is not confined to defending attorneys at all, despite the title of the Act, since it reaches the counsel of any prevailing party on any ancillary claim.

Third, the new provision at Section 3(2) is both misplaced and substantively larger than it appears. It is inserted as Part III §7(2)(e)(i), beneath a paragraph that reads "In civil cases, the value of a case shall be assessed as either the award actually granted if the plaintiff prevails, or the award requested by the plaintiff if the defendant prevails." The inserted text then speaks of "dismissal of charges." Charges are criminal. A criminal rule sitting under the civil valuation paragraph will be argued both ways for as long as it stands there. Read as it is placed, it makes an award automatic on the dismissal of a civil claim, valued under (e) at up to 30% of the sum the plaintiff requested, and it does so regardless of why the claim was dismissed. A claim dismissed on a filing technicality, or withdrawn by a plaintiff after the defendant cured the harm, would carry the same automatic consequence as one dismissed on its merits. That is a substantial new exposure for plaintiffs and a removal of judicial discretion, and it appears nowhere in the Reasons and Intent.

Fourth, the Act makes no provision for the client who has already paid. Section 2(3) acknowledges the practice, describing attorneys receiving "the little they were paid by the Defendant before the case." A defendant who pays a retainer and is then acquitted currently recovers that outlay through the fee award. Under this Act that defendant recovers nothing and counsel receives both the retainer and the statutory fee. A legal fee award has until now functioned as an indemnity to the party for money actually spent. Converting it into a payment to counsel without crediting what the client has already paid does not move the money from an undeserving recipient to a deserving one, it charges the same client twice. A clause crediting sums already paid by the client against the award, or returning them to the client out of it, would resolve this and I would sign an Act containing one.

I record the following for Congress and for the Office of Congressional Affairs.

The Act does not address Public Defenders. Where the Defense's counsel is a Public Defender maintained by the Judicial arm under Section 14 of the Constitution, this Act directs the fee to that defender, while Part III §7(2)(g) provides that "Legal fees shall not be awarded to the Commonwealth in civil or criminal proceedings." Whether a Public Defender is caught by that bar is unresolved, and the answer determines whether an acquitted defendant represented by a Public Defender produces a fee for the defender, a fee for nobody, or a fee the Commonwealth may not receive. Under the current text the defendant simply received it. This should be settled in the Act rather than in litigation.

I note that the Hire an Attorney Act, presently returned to Congress, rested at its Section 2(3) on this Act "which gives the Defense's counsel legal fees instead of the Defendant" as part of the reason private counsel would take civil work that Public Defenders would no longer cover. Because this Act does not touch Part III §7(2)(a), it cannot carry that weight even if assented. The two bills should be reconciled before either returns.

On drafting, the inserted text uses "Defense" where the Code uses "defences," as at Part V §2(d). The phrase "Defense's counsel" is used three times and is defined nowhere in Part II §7.

A redraft that amends Part III §7(2)(a) directly so that fees vest in the prevailing party's counsel, that carries §7(3)(c) and (e) along with §7(3)(b) so the subsection reads consistently, that places the dismissal rule where it belongs and states whether it reaches civil claims, criminal charges or both, and that credits sums already paid by the client, would have my assent. The defect here is execution, not aim.

My thanks to Representative _GreyMC for authoring this Act and to Senator unalign for co-sponsoring it.

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