Fees OK for legal aid clients

Virginia judges have the authority under a fee-shifting statute to award attorneys’ fees even in cases where the prevailing party is represented by a legal aid lawyer, the Court of Appeals of Virginia has ruled.

“It’s a very big case for the legal aid community, all across the state,” said the legal aid attorney who prevailed before a divided three-judge panel in the custody case.

The appeals court sent the case back to a Fairfax County judge to decide if other circumstances would warrant an award of fees for the prevailing parent.

The court’s unpublished June 25 opinion is Bahta v. Mohammed (VLW 019-7-111).

Fees denied

A father’s unsuccessful bid to change terms of custody and visitation for his two children led to the ruling. The motion was filed in Fairfax County Circuit Court. Both parties were represented by counsel. The mother’s lawyer was Timothy B. Beason, senior staff attorney at Legal Services of Northern Virginia.

The father’s arguments for more access to his children were unavailing.

“He really had nothing,” Beason said.

When the parties appeared before Judge Brett A. Kassabian for entry of a final order, Beason renewed his request for an award of fees.

Kassabian relied on the mother’s status as a legal aid client to deny the fees. She was not a party to the fee motion, he reasoned.

“The court thus construed Code § 16.1-278.19 as a prohibition against awarding attorneys’ fee to parties represented by non-profit legal organizations that do not charge clients for their services,” wrote Judge Mary Grace O’Brien for the Court of Appeals.

Appeal

The father did not participate in the appeal, other than to watch arguments, Beason said.

The Virginia Poverty Law Center and the National Legal Aid and Defender Association submitted an amicus brief, pointing to federal and state case law in support of legal aid fee shifting.

“There are no reported decisions in which a Virginia court squarely addressed whether attorneys working for legal aid or other nonprofit legal organizations are ineligible to receive attorneys’ fees under Virginia fee shifting statutes,” wrote James W. (Jay) Speer, executive director of the VPLC. “However, Virginia courts routinely award attorneys’ fees to legal aid attorneys,” he said, pointing to several examples in Roanoke.

It is an accepted practice in federal courts, Speer said. The main questions have been how the fees should be calculated or whether the practice should be restricted for certain recipients of federal funds, he said.

The purpose goes beyond mere compensation, Speer argued.

“The attorneys’ fees award is not simply a way to prevent a party from bearing an unfair cost; it also serves to deter disgruntled parties from bringing motion after motion and using the court system to harass an ex-spouse or estranged co-parent,” Speer wrote.

Remand ordered

O’Brien and Judge Glen A. Huff concluded the statutory phrase “attorneys’ fees and costs on behalf of any party” does not require the party to actually incur fees or demonstrate a need for compensation.

“Instead, the phrase contemplates that an award may be appropriate when attorneys’ fees have been expended the course of legal representation,” O’Brien wrote.

The panel majority acknowledged there was no charge to the mother.

“Nevertheless, the legal services were not free from the perspective of LSNV; they were provided at the cost of decreasing the services available for other clients,” the court said.

“By construing the statute as a bar against awarding attorney’s fees to mother, the court was guided by an erroneous legal conclusion,” the panel majority said.

The court reversed and remanded the case for consideration of whether circumstances would warrant an award.

One appellate judge agreed with Kassabian’s view.

Senior Judge James W. Haley Jr. said it matters under the statute whether a party seeking fees has actually incurred the fees.

“In implementing this provision, this Court has repeatedly in published decisions construed ‘party’ to mean a party who has ‘incurred’ legal fees,” Haley wrote in dissent.

He said the panel majority “added words” to the statute and thus amended it.

“Believing this is solely a legislative function, I respectfully dissent,” Haley said.

Reaction

“We won!” announced LSNV on Facebook.

“This decision will advance justice and increase access to Legal Services for individuals living in poverty throughout Virginia,” the organization’s statement said. Besides Beason, LSNV credited Dipti Pidikiti-Smith, deputy director of advocacy, and Walewska Marie Watkins, a LSNV volunteer, who contributed to the brief.

Beason said the decision will help all legal aid attorneys.

“Even though there is a lot of law on this, it’s not something a lot of state judges have looked at,” he said. “I want every circuit, juvenile and domestic relations and general district judge to be aware you can award fees to legal aid attorneys just like any other attorneys,” Beason said.