How Much for the Heller Case Lawyers?

October 3, 2008 • Commentary
By Alan Gura, Robert A. Levy, and Clark Neily
This article appeared in The DC Examiner on October 3, 2008

Prevailing parties in civil rights cases are entitled to a “reasonable” attorney’s fee. We are the attorneys who represented Dick Heller in the landmark Supreme Court case striking down Washington, D.C.‘s handgun ban on Second Amendment grounds, and we have asked the court to award us $3.5 million for six years of litigation.

The Washington Post has characterized that request as “adding insult to injury” and a “windfall” to which we are not entitled. The Post’s editorial is long on rhetoric but short on analysis. In fact, the $3.5 million request is perfectly reasonable under existing court precedent.

The purpose of the fee‐​shifting provision is to ensure “vigorous enforcement” of civil rights laws, especially when monetary damages are not available and the claimants may not be able to afford competent legal counsel. To attain that goal, prevailing lawyers should receive a market rate for their efforts.

The baseline is the total number of hours reasonably expended on the case times the hourly rate normally charged by lawyers of like ability and experience. The award should also include a “contingency enhancement” to offset the very real risk of losing even meritorious suits, in which case no fees are recoverable.

While the Supreme Court has (incorrectly, in our view) rejected that approach, it has approved fee enhancements for lawyers who achieve “exceptional results.”

With respect to our recorded hours, the total was under 3,100 for three lawyers over six years. No reasonable person could consider those hours excessive, particularly considering that we were up against more than a dozen lawyers — some of them eminent Supreme Court practitioners — from the D.C. Attorney General’s office and three of the nation’s largest and most elite law firms.

Moreover, we worked many hundreds of additional hours on tasks — such as media relations, speaking at public forums, writing articles for legal journals — that are not compensable under the statute even though they are essential ingredients of any public interest lawsuit.

Nor is it reasonable to quibble with our proposed rate of $557 per hour, which is consistent with rates charged by lawyers at major D.C. law firms — a fact we thoroughly documented with published survey data and testimony from a respected economist whose estimates have been accepted many times by federal courts.

The Post’s response is to suggest that $557 per hour is the going rate only for those lawyers working at “megafirms” with Fortune 500 clients. Mere public interest lawyers like us should receive less (how much less the Post does not say).

That position is both elitist and illogical, and it has been thoroughly rejected by the courts, which have recognized that the quality of a lawyer’s work is not dependent on the size or reputation of his or her firm. If proof of that proposition were needed, consider our victory over a legal team that included at least nine “megafirm” lawyers.

Finally, there is our request for an enhancement of the baseline fee — not unlike past court awards in abortion, gay rights, and police brutality cases. We asked the court to double our fee in light of the truly “exceptional” results we achieved. How exceptional? Before Heller, no federal appellate court had ever overturned a gun regulation on Second Amendment grounds.

Before Heller, federal courts covering 47 of 50 states had ruled that persons have no Second Amendment redress if a state or locality banned the possession of suitable firearms in the home for self‐​defense.

Before Heller, D.C.‘s local court of appeal had interpreted the Second Amendment as not protecting an individual right to own guns. To prevail in Heller, we had to persuade the Supreme Court to overturn all of those precedents, something it is rarely inclined to do and that happens perhaps once every generation or two.

Heller is a landmark, unprecedented, unequivocal victory for individual rights. If that’s not exceptional, it’s impossible to imagine a result that would be.

Congress wisely enacted a fee‐​shifting statute so capable attorneys would pursue risky and difficult civil rights cases. As prevailing counsel for Mr. Heller, we have earned the right to market rates for reasonable hours, with an appropriate enhancement for high quality work under daunting circumstances in an exceptional case.

Civil rights practice should not require independent wealth or vows of poverty in addition to generosity of spirit.

About the Authors
Alan Gura is a partner at Gura & Possessky in Alexandria, Va. Robert A. Levy is senior fellow in constitutional studies at the Cato Institute in Washington, D.C. Gura, Levy, and Clark Neily are co‐​counsel to Heller.