On the surface, it looked ugly. Few doubted that impropriety of the nice School Administrators at the Lower Merion School District secreting spying on students in their bedroom via the webcam on school-supplied computers. Creepy. But when the case was settled, a new controversy appeared on the horizon.
The total settlement amount was $610,000, broken out as follows:
The settlement calls for $175,000 to be placed in a trust for Robbins and $10,000 for a second student who filed suit, Jalil Hassan. Their lawyer, Mark Haltzman, will get $425,000 for his work on the case.
From Radley Balko :
So public school officials get caught illegally spy on students. But no one gets fired. And none of the offending parties will be fined. Instead, a municipal insurer (which will ultimately affect taxpayers) will pay a decent settlement to one student, a small settlement to another, and a small fortune to their lawyer.
Explaining why public school officials caught spying walk away unscathed is easy. They were doing it for the children. They’ve done far worse in the name of protecting the children. What would have been a horrendous crime, an outrage, if done by anyone else is at worst a source of debate over school privacy. When it comes to justifying inexcusable conduct, no position is more sacred than school administrator. After all, they are educational professionals.
But what of that apparent scoundrel, Mark Haltzman? Proof of the secret cabal of lawyers who trade off the misery of others to line their pockets with outrageous fortune? Whatever happened to the free consultation?
Max Kennerly does yeoman’s work in straightening out the jerking knee.
In the Lower Merion cases, however, the Plaintiffs brought several claims which, by federal statute, provided for attorneys’ fees in addition to the damages suffered by the plaintiff. :
- Interception of electronic communications in violation of the Electronic Communications Privacy Act;
- Unauthorized access of an electronic communications service in violation of the Stored Communications Act;
- Deprivation of constitutional rights to privacy (under 42 U.S.C. 1983);
- Invasion of privacy in violation of the Fourth Amendment;
This is critically important in this, and many of the cases concerning the deprivation of constitutional rights discussed here. Despite the often astounding assumptions of the “value” of civil rights violations, as if every wrong done is worth billions of dollars, the damages are usually trivial compared to the harm we feel. In other words, there’s no doubt that the conduct was terribly wrong, but that bruise isn’t going to make you filthy rich.
The upshot, which pisses people off enormously, is that lawyers won’t take cases involving wrongs by government actors (not people who play the government on TV, but people whose conduct was performed on behalf of the government) because there’s no pot of gold at the end of the rainbow to pay for the lawyers’ services. They anger is then transferred from the offending government actor to the uncaring lawyer, but for whom “justice” would be done.
Recognizing this harsh reality, some laws provide for attorneys fees apart from the damages to the litigants.
This case represents another example for why attorneys’ fees are so important: In addition to giving lawyers the incentive to bring cases where the wrong is clear, but the economic damages are minimal or nonexistent, the presence of attorneys’ fees also encourages the defendants to settle the case early, and thereby limit their liability.
Of course, this does little to explain the extent of legal fees on Haltzman’s bill, leaving the appearance that his “work” far outstripped the value of the case. After all, if the evil government (or its insurer, which will eventually send a bill to the evil government for the premium) is footing the bill, what’s the incentive for the lawyer to crank it up, put on a double Cadillac representation with gold-plated legal pads, all on the taxpayer’s tab?
But why did this case, where liability was obvious, cost so much? There’s a simple answer for that: because the School District litigated the heck out of the case. Their own lawyers, as of the end of July, had already billed $743,000 to the school district. I bet the finally bill will exceed $1 million.
Viewed through that lens, Mr. Haltzman was downright frugal in accepting less than half what his opponents charged to fight him.
Notably, this part of the story was omitted in the explanation of the settlement, and is often completely unknown to anyone outside of the small group of insiders calling the shots and signing off on the bills. Litigation generally isn’t subject to open meetings or FOIA laws.
But this isn’t the only reason. While the wrong in this particular case seemed abundantly clear, especially since it received broad attention and near-universal condemnation, the deprivation or violation of constitutional rights that seem so obvious to the victims often fails to get to trial. Sure, getting your “day in court” is a fine platitude, just like so many that make us feel warm and comfy even though they defy reality in the trenches. The hard fact is few civil rights cases are ever heard, and fewer still recover damages, whether for some variation of governmental immunity or some banal rationalization which makes the wrong “good enough for government work.”
That means that the efforts of a lawyer to pursue the violation of rights may not only fail to result in a payday, but leave the lawyer out of pocket for whatever unreimbursed expenses accrued in the process. This can be a very risky business, trying to protect our constitutional rights by representing a person whose rights were deprived.
So Mark Haltzman “made” more money from this case than did his clients. Was he supposed to eat the cost of this litigation, as if he, rather than the school administrators, committed the wrong? Even so, does it concern anyone that we know how much Haltzman got out of the settlement. Notice that no one names the lawyers representing the school district, the ones who billed out twice Haltzman’s portion, so that anyone who wants to look to the high price of legal services can focus their ire at someone who deserves it?
As Kennerly notes, in relative terms, Haltzman was downright frugal. He was also successful. For that, we all owe him a debt of gratitude, as every case that defends civil rights covers our rights as well.
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“Bind not the mouth of the kine that treadeth the corn, or you’ll have to tread your own damn corn, and you don’t know how to, bucko.”
At the conference I attended a couple of weeks ago, lots of folks asked why we lawyers don’t take on civil rights claims and I tried to explain that for me, personally, it is simply not financially feasible. It is unfortunate, but true for most of these claims where rights were clearly violated, but eh, so what? In my brief time with the AG I defended the state in a lot of cases. We lost 1. Where CO’s broke an inmate’s arm. The jury awarded him 100.00. What does the lawyer make? He gets a victory dance and not much else. Good for the lawyer in this case. Good for everyone that attorneys fees were available and awarded.
Good for Mark Haltzman, but he probably didn’t get anywhere near enough for what he did.
One quarrel I have with what a few others are saying is their absolute assurance that this case was an “obvious” winner. It’s like saying that a suppression motion would “obviously” be granted – after the fact, of course.
Beforehand, nothing is obvious, other than the usual – the government wins, the bank wins, the insurance company wins. Once in a while, for reasons that usually defy explanation, that doesn’t hold.
Criminal defendants and civil rights plaintiffs have a lot in common.
That’s an important clarification to my remark that liability in the case was “obvious.” I certainly didn’t mean to imply that the plaintiff was going to easily walk into court and win the case – I’ve had my fair share of civil rights cases in which courts have bent not just the laws of America, but the laws of physics (I lost one case because the court held there was no genuine issue of material fact that event B happened after event A, despite the impossibility of such sequence), to deny relief.
What it meant by “obvious” is that, to any rational observer, the school district wronged the children and should be liable.
Well, factual impossibility is not the same as legal impossibility. For factual impossibility, you would have to have an “expert”, right? Someone with credentials who comes in and says, e.g., that pregnancy had to precede childbirth. Otherwise, we wouldn’t know, right?
You could maybe ask for “judicial notice” for something simple and commonly known, but judges only do that for the government, the insurance company, the bank, etc.