But, But, But Attorneys Fees?!?

Oh, the promise of law in the eyes of the layman can be so charming, so alluring. After all, there are some little tidbits in there that would, in a sane world, make all the difference between a system where people stand half a chance and none at all.  One such promise was the Hyde Amendment.

Illinois Congressman Henry Hyde tacked an amendment onto an appropriations bill back in 1997 that allowed for attorneys fee for a claimant in an in rem forfeiture action.  You know, the ones where they seize property without a criminal conviction (or even a charge), claim some inherent evil and force the owner of the property to prove its innocence?  Among the many problems with this scheme to “take the profit out of crime” is that it can cost more to fight for the return of property than the property is worth.

As government set-ups go, forfeiture is about as sweet as it gets. They only need to claim probable cause to validate the seizure, which requires them to come up with a half-baked story about how only drug dealers carry cash or drive Toyota Camries, whereupon a judge wakes up from his nap long enough to nod before passing out again. Then they split the loot among the police departments involved and have a party. Yeah, a great set-up indeed.

Then along came Henry Hyde to screw up the deal. Except it didn’t quite do its voodoo, despite the bitching and moaning of the government.

The problem was that the Hyde Amendment, which provided for a defendant to obtain attorneys fees from the government, was limited to instances where the government’s conduct was “vexatious, frivolous, or in bad faith.”  That’s an extraordinarily high legal bar to meet, requiring not only the most egregiously bad faith acts one can imagine from the government, but a judge willing to agree.  It’s incredibly easy to beat the Hyde Amendment by the mere incantation of words that showed the slightest degree of either factual basis or good faith.  Most judges are notoriously reluctant to conclude that any government attorney was so totally evil as to invoke the Hyde Amendment.

There’s a world of difference between winning a forfeiture case and reaching the level of “vexatious, frivolous, or in bad faith,” which is why the Hyde Amendment was almost never invoked. So in the Civil Asset Forfeiture Reform Act of 2000, it was reformed to make recovery by a prevailing claimant easier.

Naturally, it failed to keep its promise, as the structural problem of getting a competent lawyer to sign on based on the hope of recovering fees after prevailing was too far a stretch, and few claimants had the financial ability to either hire a lawyer or take the risk. But Robert Moser’s case was different.

A couple of years later, the court found that Moser had been subjected to “serial constitutional violations” that were “purposeful and flagrant.” It suppressed the evidence obtained by the illegal search, including the $28,000 that was found on the premises.

Where a court holds the seizure unconstitutional, and the violations “purposeful and flagrant,” the government finally would appear to trip over the reimbursement threshold.  But they just couldn’t let it go.

The government didn’t let go of the cash so easily, though. It fought the return of the illegally-seized money for another year, causing Moser to rack up legal bills that exceeded the amount of cash taken from him.

Racking up legal fees would be a problem, but he gets them back, right? Right?!?

The district court again found in favor of Moser and awarded him legal fees… but only a small portion of what had been requested. His lawyer went in seeking over $50,000. Moser left with only $14,000.

Boom.  While the court was constrained to award legal fees, that didn’t mean Moser got what it cost him, but rather what the judge decided was “fair.”  Tim Cushing at Techdirt crushes the problem:

Here, the lower court did the government’s work for it by recharacterizing the nature of the litigation and applying outdated pay scales.

[T]he court awarded Moser only $14,000 in fees. Disregarding three declarations from forfeiture specialists, the district court incorrectly stated that Moser’s declarations did not accurately reflect the forfeiture market rate because they discussed only litigation fees generally. The court then purported to apply its own knowledge of the market, and, based on its characterization of Barnett’s work as essentially criminal in nature and a nine-year-old fee award mentioned in one of the declarations, determined that $300 was a reasonable hourly rate.

Then it blamed the victim.

Turning to the hours expended, the court found that Barnett gave the government’s aggressive and often specious litigation arguments “more respect than [they] deserved,” and that such an experienced attorney should have expended fewer hours opposing the government’s arguments. Although the court specifically identified as questionable only 6.75 hours of work on a reply brief, it reduced the hours for which fees would be awarded from 101.55 to 60.

Forget what the market says constitutes a reasonable legal fee. Forget that the claimant’s lawyer, Richard Barnett, had to deal with the government’s “specious” arguments just as he did the sound arguments, because it’s not like a judge ever bought a specious government argument before. Forget that Moser had to pay his lawyer. The judge knows better, and just wants to be “fair” to the government. How nice of the judge.

Fortunately, the Ninth Circuit called bullshit, that the legal fees incurred,* and which were put through the wringer with three declarations from other lawyers attesting to the reasonableness of the hourly fees for the prevailing legal market and the lawyer’s level of skill and experience, were fair and reasonable.

But will this smack in the face change the incentives for the government’s seizure of property and assets for the fun of it?  Come on. They can afford to throw some legal fees back every once in a while given that in rem forfeiture is the government’s version of an ATM machine, with your password. And it only took an appellate court to award the lawyer what he would have gotten in the first place. No big deal.

*The District Court judge pulled a shrewd move by comparing the legal services provided Moser with those provided a defendant in a criminal matter, and then using the CJA rate as a measure.  This isn’t the first time a scoundrel judge has tried to pull off that crap.

4 thoughts on “But, But, But Attorneys Fees?!?

  1. angrychiatty

    So Mr. Federal Judge proclaims that defense counsel spent “more time than was reasonably necessary” in dealing with the government’s case? “Hmmm, this 7.5 hours on the Reply brief seems excessive to me.”

    How the HELL would he know??? Since I don’t have the qualifications to work on forfeiture proceedings I apologize for my ignorance- clearly, it must be because Federal Judges are appointed due to their wide-ranging and deep wisdom in all things legal…I’m also assuming this judge must have years and years of experience in the trenches opposing the government in forfeiture actions…yeah, that must be it.

    This sentence from the concurring opinion must have made you spit your coffee out of your mouth: “The court has a separate interest in preserving society’s confidence that public funding of litigation is implemented wisely.” Couldn’t agree more pal. We just differ on WHEN the court is supposed to act to “preserve” this “confidence.”

    1. SHG Post author

      As in, the public funding of the government’s intransigent refusal to give the wrongfully seized assets back in the first place, without a futile forfeiture action.

  2. John Barleycorn

    WTF?! No district court judge’s public relations portrait/mug shot photo? What a gip!

    I so do like to study the quality of their, government funded, dental work when they choose to show off their smiles as I am working on a theory about the courlation of district court judges dental work with their judicial temperament.

    And I could probably be done by now and working out the pricing matrix of what lawyers would be willing to pay for this research, in various regions of the country, if you posted more judicial mug shots in your front pages.

    P.S. “in rem” must be some sort of lawyerly Latin term eah? Sounds more like some sort of divient sex act involving the nonconsensual reaming of unathorizied bodily orfices without consent to me.

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