Fee Simple: Is the Pro Se Attorney Entitled to Attorneys' Fees?

Abstract

This article previews the issues and arguments in Kay v. Ehrler and the Kentucky Board of Elections, on the Supreme Court’s 1990-91 appellate docket. The primary issue in Kay v. Ehrler is, simply put, whether a pro se litigant who also happens to be a lawyer is entitled to attorney fees under the Civil Rights Attorneys' Fee Awards Act.

In the second case dealing with attorney fees this term the Supreme Court willtake up the interesting but highly idiosyncratic problem of a lawyer's entitlement to attorney fees when the lawyer represents him or herself, or, in legal terminology, litigates a case "pro se."The particular battleground for this fee skirmish is the 1976 Civil Rights Attorney's Fee Awards Act, which generally allows the prevailing party in a civil rights action to recover reasonable attorney fees. But what happens when the attorney is the client and the client is the attorney? Aside from the old adage about fools, what about fees? No doubt this peculiar wrinkle on the right to attorney fees will inspire some justices to metaphysical speculation about the mind-body distinction. It may lead many scholars to question, "Was this opinion really necessary?" It will, however, be a closely watched case by the public-interest bar, who will be reading the tea leaves to divine messages concerning the Court's continued receptivity to vigorous prosecution of civil rights actions.

In considering Kay's special situation as a lawyer representing himself, the Supreme Court will not be able to draw a great deal of solace or insight from the lower federal court's handling of this concededly strange fee recovery problem. For example, a large number of appellate and district courts have held that a pro se litigant who is not an attorney is not entitled to recover attorney fees under Section 1988. Some federal courts have extended this general proposition to apply to attorney pro se litigants in civil rights cases, and hence deny recovery of fees in those cases as well. On the contrary there also are a number of federal courts that have permitted pro se attorneys to recover fees under Section 1988.

In short, there is no prevailing trend on this issue, and the Court will have to announce a rule to resolve the conflicting lower court opinions.One possibility is that the Court will literally interpret the language of Section 1988 and not look to legislative history. If the Court pursues this analysis, it must then determine whether a pro se litigant acting on his or her own behalf conceptually has an attorney-client relationship. Both sides agree that Kay was a prevailing party and that the amounts he requests are reasonable. The nub of the problem, then, is whether a lawyer who serves as his or her own attorney has a lawyerly relationship sufficient to qualify for attorney fees.

Thus, the legal (not to mention metaphysical) difficulty is whether an attorney who represents himself ever has a traditional "lawyer-client" relationship countenanced by the law of fee recovery. Following this line of inquiry would require some serious jurisprudential hair-splitting. More likely, the Court may explore either the legislative history of Section 1988, or various policy reasons for allowing or disallowing pro se attorney fees.In examining the legislative history of Section 1988, the Court will have to determine the congressional intent in passing that fee-recovery legislation in response to the Alyeska decision. Did Congress intend to deny fee recovery to individual pro se litigants, but not to institutional pro se litigants? Did Congress by implication intend to permit fee recovery to attorney pro se litigants? What was Congress trying to accomplish by permitting fee recovery in civil rights actions, generally? As is true with a good deal of legislative history, there is support for each of these propositions in the statements of various legislators.

With regard to policy arguments, the Court will have to assess the three prudential concerns articulated by the Sixth Circuit in the context of Freedom of Information Act litigation as applied to civil rights actions. The Court may weigh the policy of encouraging prosecution of civil rights claims against a competing administrative value of not stirring up frivolous and wasteful litigation. As evidenced by the friend-of-court briefs in this case, the Court's resolution of these competing values is of great concern, both to the public-interest bar that often pursues civil rights claims and fee recoveries under Section 1988, and to various governmental entities that wish to be relieved of vexatious pro se litigation.