Looks like good work will have to be its own reward for Charles Bird, a Luce, Forward, Hamilton & Scripps partner in San Diego.
When the appellate lawyer signed on to represent a woman in a custody battle against her same-sex ex, they agreed she’d pay for oral argument at the court of appeal — something like $8,000 to $10,000. They discussed the fact that if they lost there, the client probably wouldn’t be able to pay more, but he’d probably keep representing her because of his concern for the legal issue involved. And his firm would take a chance on recovering fees if he ultimately won.
Well, Bird did win, and in the process forged some landmark gay-rights case law in California: The Supreme Court’s 2003 opinion in Sharon S. v. Superior Court validated so-called second-parent adoptions, where a same-sex partner adopts a child without the biological parent relinquishing her rights.
But today the Supreme Court — despite saying there’s no question the litigation yielded “a substantial and widespread public benefit” — overturned a ruling that had granted Bird nearly a hundred grand in fees. Bird argued that his client had acted as a private attorney general and should therefore be able to collect attorney’s fees from her ex. That had worked on a trial court, which awarded about $92,000. The unanimous Supremes pinned their contrary decision to the role of the biological mother, Sharon S., who had tried to nullify the adoption rights of Bird’s client. Her taking the issue to court hadn’t adversely affected any segment of the public, the court said — it just so happened that when Sharon S. lost her own private battle, an estimated 10,000 to 20,000 adoptive parents benefited.
Or to put it more generally, “being on the losing side of an important appellate case” doesn’t automatically make someone liable for fees.
— Pam Smith