Early Civil Rights Lawyers Fought For Justice Without The Benefit Of The Civil Rights Attorney’s Fees Award Act Of 1976
Kenneth W. Mack, a historian and Professor of Law at Harvard Law School, has written an engrossing account of the creation of the civil rights lawyer in the 20th century. Prof. Mack’s story is “a multiple biography of a group of African American lawyers whose intersecting lives have come to encompass the story of the civil rights lawyer for many Americans.” (p. 8).
The title of his book, Representing the Race (2012), underscores the ambiguous position of the 20th century civil rights lawyer who had to successfully represent and bond with the client, while successfully “representing the race” – dual and sometimes conflicting roles inherent in the meanings of “representation”, and guaranteed to engender soul-searching questions about the lawyer’s “authenticity.” Early on, the lawyer as representative was the “person who crossed racial lines, and often shook up the expectations of a segregated society.” (p. 37). And, Prof. Mack concludes, the enduring question of authenticity has reasserted itself in the remarkable story of former civil rights attorney Barack Obama -- “the question of authenticity, asked of an African American who seems unlike those around him.” (p. 269).
Our blawg’s beat is attorney’s fees, and Prof. Mack reminds us that early civil rights attorneys could not count on garnering major fees in a civil rights case. While a civil rights victory could improve a lawyer’s social standing, and the lawyer might be able to collect some fees from the lawyer’s own client, the prevailing plaintiff could not collect fees from the defendant. Ironically, the early NAACP sometimes backed away from supporting African American attorneys in high profile cases, because the organization was insecure about the competence of the lawyer. (p. 69). In at least one high profile case, lawyers refused a fee to send “a signal to the public that they were motivated by racial loyalty rather than self-interest.” (p. 71). Some of the lawyers described by Prof. Mack struggled to keep up the volume of small-fee work in their private practices.
In 1946, by the time he hit his stride in his legal practice, Loren Miller, one of California’s most famous civil rights lawyers, after whom our State Bar has named its lifetime legal service award, reported nearly $7,500 in profits from his practice. This put him “well above the national median for solo practitioners of any race” (p. 205) – but not in the same league as partners in large downtown LA law firms.
The Civil Rights Attorney’s Fees Award Act of 1976, codified as 42 U.S.C. section 1988(b), opened up greater opportunities for representing victims of civil rights violations. The Act was in response to the Supreme Court’s affirmance of the “American Rule” that each party bears its own fees in litigation. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 246, 269-70 (1975). The Civil Rights Attorney’s Fees Award Act of 1976 allows the court, in its discretion, to award reasonable attorney’s fees.
The Act is pro-plaintiff and remedial, incentivizing attorneys to represent persons whose civil rights have been violated, persons who would otherwise be without means to vindicate those rights. Also, the awarding of fees is intended to serve a deterrent objective. However, the availability of attorney’s fees, as important and impactful as it may be, is not the type of development that easily ties to Prof. Mack’s big theme of “authenticity.” Nonetheless, the availability of attorney’s fees awards is a significant development that lends respectability and viability to the role of the civil rights attorney. How might the availability of fee awards have influenced the practice of Charles Houston, Thurgood Marshall, Pauli Murray, W. Ashbie Hawkins, William Hastie, Loren Miller, and other civil rights lawyers during the years that they battled?
Thurgood Marshall. Sept. 17, 1957. Thomas J. O’Halloran, photographer. Library of Congress.