As a historic constitutional showdown over gay marriage looms this month at the U.S. Supreme Court, attorneys are fighting over another bitterly disputed issue: their fees.
The battles over billables are erupting far from the Washington, D.C., limelight, in lower courts from West Virginia to Wisconsin and Oklahoma. They pit lawyers representing gay couples who challenged same-sex marriage bans against the states that had enacted the laws.
Typically in the United States, each party pays its own lawyers. But under special laws designed to encourage civil rights cases against the government, parties who win can petition the county, state or other entity they sued for "reasonable" attorneys' fees and costs.
In some cases, the fee requests run well into seven figures and are submitted on behalf of powerful law firms that a Reuters examination found have outsized access to the Supreme Court. Individuals and advocacy groups that file lawsuits aimed at the high court sometimes retain big-firm lawyers who specialize in arguing in that forum and boast remarkable success rates in getting their cases heard.
Gay-marriage litigation, especially, has become a magnet for prominent lawyers and national firms with connections to the Supreme Court. These firms can bill at $1,000 an hour or more, and when they or other Supreme Court experts seek repayment from state coffers at even discounted rates, the rhetoric gets nasty.
"They used a howitzer to kill a gnat," wrote Tulsa County, Oklahoma, in objecting to a $368,827 fee request in January. The local lawyer for the lesbian couple who brought the case had recruited a team that included a University of Oklahoma constitutional law professor who is a former Supreme Court law clerk and who billed at $400 per hour.
FACE TIME AT THE COURT
For the nation's most elite law firms, the appeal of these cases goes beyond racking up billable hours: Litigation seeking gay-marriage rights, which began with a steadily growing number of cases filed by couples across the country in the last decade, has offered the possibility of coveted face time before the Supreme Court.
As Reuters reported last year in a series called "The Echo Chamber," a rarefied group of eight lawyers accounted for almost 20 percent of all the arguments made before the court by attorneys in private practice during the past decade. A dozen firms were involved in a third of cases the court accepted, the report found.
Litigating on behalf of gay couples can also provide firms with a marketing tool for clients and an edge in recruiting. Many firms take these cases on a "pro bono" volunteer basis and promote their efforts on their websites. As Reuters reported last year, at least 30 of the country's largest firms were involved in some stage of gay-marriage litigation, either representing parties or submitting "friend-of-the-court" briefs, all in favor of broader rights.
For example, the state of Wisconsin in February objected to paying $980 per hour to a Chicago-based partner from the large Mayer Brown firm, one of the most successful at getting its cases heard by the high court.
Wisconsin called Mayer Brown's rates "stratospheric." The state also questioned why the fee request - made on behalf of Mayer Brown and lawyers for the American Civil Liberties Union, which had initiated the case - included more than a dozen attorneys in five offices across the country for a total of nearly $1.2 million. Wisconsin in late March agreed to pay $1,055,000.
The attorneys seeking fees in Wisconsin and in Oklahoma said their requests were fair. They cited the complexity of the issue and their expertise. The gay-marriage advocates in Wisconsin who retained Mayer Brown said they had been unable to persuade any large firms in their state to help them.
Wisconsin officials declined to comment. Mayer Brown declined to discuss the settlement, but said it considered the case a pro bono project and that it planned to turn over any fee award to the ACLU.
A 19TH-CENTURY PRINCIPLE
Many federal laws permitting the recovery of attorneys fees in civil rights cases trace back five decades. The principle that private lawyers should be encouraged to sue for unconstitutional government action dates back even further, to the era after the Civil War. In modern times, lawyers have relied on these laws to obtain fees in litigation ranging from racial equality matters to gun rights cases.
Fights over fees are not unique to same-sex marriage litigation and don't always involve big firms. In a case before a U.S. appeals court in Washington, D.C., the federal government is objecting to a $2 million fee claim from a lawyer who represented Shelby County, Alabama, in a case that led the Supreme Court to curtail the reach of voting rights law.
One of the biggest fee calculations in the gay-marriage litigation came from lawyers at the Gibson Dunn firm, including Theodore Olson, a former U.S. solicitor general who is among the top eight Supreme Court advocates identified by Reuters. Their tab: $1.7 million.
That figure emerged in a settlement agreement filed in January in U.S. District Court in Norfolk, Virginia. Olson and other Gibson Dunn lawyers said that they, together with a smaller firm, had spent close to 2,400 hours on their efforts to strike down that state's gay-marriage ban. Olson generally charges $1,800 an hour.
According to the settlement document, after weeks of negotiation, Gibson Dunn reduced both its hours and rates and agreed to take $459,000. Olson declined to comment.
In some cases, it is not known how much states are paying lawyers who win gay marriage cases. Earlier this year, Pennsylvania agreed in a confidential settlement to pay $1.5 million to lawyers who had challenged its gay-marriage ban. Reuters learned of that deal through a filing in a separate case. The $1.5 million payment was confirmed this week by the Pennsylvania governor's office.
The fee disputes stem largely from cases started after the Supreme Court's 2013 ruling in United States v. Windsor favoring gay rights. In most of these cases, gay-marriage advocates prevailed as lower-court judges struck down state bans. The case currently before the Supreme Court stems from same-sex marriage prohibitions in four Midwestern states that were upheld by a federal appeals court.
Known as Obergefell v. Hodges, one of the four consolidated cases, the Supreme Court dispute tests two questions: whether the Constitution's equality guarantee covers a right to same-sex marriage, and if not, whether states that ban such unions must recognize gay marriages performed in other states.
Gay-marriage advocates are arguing for a nationwide right to get married. Currently, 37 states of the 50 states and the District of Columbia allow it. The 13 states still prohibiting such unions are in mainly in the South and Midwest. The states that will defend their bans before the Supreme Court on April 28 are Ohio, Michigan, Kentucky and Tennessee.
