Metropolitan News-Enterprise


Monday, August 22, 2011


Page 1


Ninth Circuit Rules:

Attorney May Recover Fees for Representing Spouse in Rights Action


By SHERRI M. OKAMOTO, Staff Writer


An attorney who successfully represents his or her spouse in a civil rights action is entitled to recover reasonable fees under the Civil Rights Attorney’s Fees Awards Act, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The appellate panel said the district court erred in focusing its inquiry on whether Malibu practitioner Natasha Roit was sufficiently independent and emotionally detached to render effective representation to Rebecca Rickley in her lawsuit against the County of Los Angeles.

Rickley and Roit are married and co-own a residence in Malibu, in an area prone to landslides. Since at least 2001, the couple has been complaining to the county regarding two of their neighbors’ illegal construction and land use..

They eventually sued their neighbors and obtained a permanent injunction, but continued to complain to the county regarding building code violations on the neighbors’ properties. A majority of the complaints were lodged by Roit, although Rickley said that Roit did so in her capacity as Rickley’s attorney.

Rickley, as sole plaintiff, then filed a 42 U.S.C. § 1983 action against the county, alleging its officials had harassed her and Roit in retaliation for her complaints. The parties eventually reached a settlement which left the determination of attorney’s fees and costs to the district court.

As the prevailing party, Rickley filed a motion to recover $145,930 in attorney’s fees under the fee awards act, which is § 1988, including $124,510 for the legal work performed by Roit and $21,420 for work performed by co-counsel Christopher L. Campbell.

U.S. District Judge Stephen V. Wilson of the Central District of California granted Rickley’s request for attorney’s fees for Campbell in the amount of $13,770, but denied the request with respect to Roit.

Independent and Detached

Wilson based his decision upon the principle that attorney’s fees may not be awarded under 42 U.S.C. § 1988 other than for legal services performed by an “independent, emotionally detached counsel” derived from Kay v. Ehrler, (1991) 499 U.S. 432 and Ford v. Long Beach Unified School District, (2006) 461 F.3d 1087.

In Kay, the Supreme Court held that § 1988 does not permit an award of attorney’s fees to attorney-plaintiffs who represent themselves in successful civil rights actions since the “overriding statutory concern” was “the interest in obtaining independent counsel for victims of civil rights violations.”

The Ninth Circuit expanded the holding of Kay in Ford to apply to the Individuals with Disabilities Education Act, ruling that attorney parents who represent their children in proceedings under the act are not entitled to attorney fees because the statutory scheme was intended to encourage parents “to seek independent, emotionally detached counsel for their children’s IDEA actions.”

Equal Measure

Wilson found that Roit, as Rickley’s spouse and as the co-owner of the property subject to the litigation, could not satisfy this standard since she had lodged a majority of the complaints with the county and stood to gain in equal measure with Rickley from any benefits obtained through the litigation.

Writing for the appellate court, Judge Raymond C. Fisher said Wilson had misconstrued the intent of Kay and Ford.

“First, neither § 1988 nor the IDEA imposes a general rule requiring counsel to be independent and emotionally detached,” Fisher said, and second, “each of these cases addressed whether a category of lawyers should be excluded from § 1988 or the IDEA because that class of attorneys as a whole should be presumed to lack independence or detachment.”

Fisher also declined to extend Kay’s ruling and create a rule that successful civil rights plaintiffs are categorically barred from recovering attorney’s fees under Sec. 1988 for legal services performed by their attorney-spouses.

He acknowledged that “there exists some risk that an attorney who represents her spouse in a civil rights action may allow emotion to cloud her independent legal judgment,” but said he was not persuaded that all attorney spouses are, as a general proposition, unable to provide objective advice.

‘No Comparable Function’

Ford, Fisher said, is distinguishable because IDEA designates parents as “enforcers of their children’s education rights,” making them “uniquely invested in IDEA proceedings,” whereas spouses “serve no comparable function in federal civil rights actions.”

The jurist also noted that two district courts have also reached the conclusion that Kay should not be extended to attorney-spouses.

Senior Judge Michael Daly Hawkins and Chief U.S. District Judge Mark L. Wolf of the District of Massachusetts, sitting by designation, joined Fisher in his decision.

Roit and Campbell represented Rickley before the Ninth Circuit. Deputy County Counsel Deborah J. Fox and Philip A. Seymour of Meyers, Nave, Riback, Silver & Wilson represented the county.

The case is Rickley v. County of Los Angeles, 09-56498.


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