Could a firm ask a court to revisit a statutory fee waiver after settling a civil rights case?

Plain-English summary

A firm represented an inmate in litigation brought under 42 U.S.C. §1983. The settlement required the client to waive an attorney-fee claim under §1988. The client favored the settlement, and the firm agreed to the waiver. The firm then asked whether it could seek court review of the fee question and whether it had to do so.

The committee said attorneys ordinarily were expected to abide by settlement agreements, but that it would not be unethical to ask the court to reopen the statutory fee issue. It conditioned any effort on preserving the client’s settlement and obtaining the client’s knowledge and consent. It did not decide that fees were due or that the waiver could be set aside.

Whether the firm had a duty to raise the question depended on facts the committee did not know about the fee agreement. The opinion distinguished a fee arrangement dependent on a court award from one that left the client owing fees despite the absence of an award.

Currency note

This opinion was issued in 1985 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Was asking the court to revisit the waiver itself unethical?

A: No. The committee said such a request was ethically permissible under the circumstances it described.

Q: Could the firm put the client’s settlement at risk to seek its own fee?

A: No. The committee said any fee effort had to avoid jeopardizing the settlement and require the client’s knowledge and consent.

Q: Did the committee find a duty to seek a fee award?

A: It did not give a categorical answer; that issue depended on the fee agreement and other facts not supplied.

Background and rules framework

The opinion cited former EC 7-7 on the client’s decision whether to accept a settlement and considered statutory fee awards under 42 U.S.C. §1988.

Citations and references

Vermont Code of Professional Responsibility:

• EC 7-7.

Statutes cited:

• 42 U.S.C. §§1983, 1988.

Cases cited:

• Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977).
• Regalado v. Johnson, 79 F.R.D. 447, 451 (D. Ill. 1978).
• Lisa F. v. Snider, 561 F.Supp. 724, 726 (N.D. Ind. 1983).

See also

• Vermont Ethics Op. 94-07: Collecting a tenant’s judgment

Source

• Landing page: VBA topic page
• Original PDF: Vermont Advisory Opinion 85-03
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”