Appellate Law

CA1: Pullman abstention doesn?t apply to fight over poor-people law fees

By S. COTUS

Batterman v. Leahy, No. 07-2653.  This is a long prolonged suit by a lawyer that was contracted to represent children that were being taken away from their poor parents.  There was a lot of underlying litigation, and the Committee for Public Counsel Services ("CPCS") balked to represent poor people in long trials that would decide the silly matter of whether they would have their kids taken away from them. CPCS decided to audit his billing records, but dragged its feet.  The suit alleged various constitutional and state law issues (the big one being a cap on the number of hours billed).  The District Court sua sponte invoked R.R. Comm'n of Tex. v. Pullman, 312 U.S. 496 (1941) abstention, so the plaintiff could proceed in state courts.  Now we are talking grown-up law.

The First says that Pullman abstention doesn?t apply here.  After all, state law is fairly clear.  It says Burford v. Sun Oil Co., 319 U.S. 315 (1943) abstention might apply, but that isn?t clear, either.

But, then the First goes even further, and it says that the attack on the cap is meritless.  Showing that the judges (and their clerks) never represented real people, it preaches that lawyers might get screwed over if they can?t withdraw from a non-paying representation.  This is oversimplistic: just because a rule of professional conduct says something, doesn?t make it constitutional.  Moreover, when the government seeks to use a rule of professional conduct as a sword against a lawyer state action is invoked, and there is a constitutional issue.  But the First doesn?t care. 

So, it tosses out this bone:

In all events, Batterman?s attack on the cap is meritless and his present hope of a vast monetary recovery may well be dubious. At the same time, he may be owed something under the manual and an agency cannot easily explain why it takes years for it to decide about reimbursement for past work. Both sides ought to consider whether this case can be resolved by discussion and without further litigation.

Full post as published by Appellate Law and Practice on October 15, 2008 (boomark / email).