Elizabeth D. Duncan v. David B. Poythress

DUNCAN, al., D. et Elizabeth

Plaintiffs-Appellants, al., POYTHRESS, et

David B.

Defendants-Appellees.

No. 84-8076. Appeals, Court of

United States Circuit.

Eleventh

Dec. Atlanta, Ga., Kessler, plain-

Kathleen tiffs-appellants. Fla., Winicki, Jacksonville,

Rоbert J. curiae Winicki. amicus Gen., McKee, Atty. Atlan- Patrick Asst. ta, Ga., defendants-appellees. GODBOLD, Judge, RO Chief Before FAY, VANCE, NEY, TJOFLAT, KRAV HENDERSON, JOHNSON, ITCH, CLARK, HATCHETT, ANDERSON Judges.* Circuit Judge: KRAVITCH, Circuit appeals Appellant Kathleen attorney’s fees application denial * participate in decision. Judge and did C. Hill recused himself James

1509 During appeal trial prevailed the Plaintiffs at and pursuant to 42 U.S.C. 1988. § litigation, repre- on v. part of this Kessler their section 1983 claim. Duncan early Stout; (N.D.Ga.), later plaintiffs Poythress, F.Supp. Duncan and 515 327 sented F,2d 1981), aff’d, she added 691 B litigation, in after was 657 Cir. Unit the 937, 1426, represented The plaintiff, granted, herself. cert. 455 U.S. 102 S.Ct. 647, period dismissed, the in court denied fees for 71 459 U.S. lower L.Ed.2d cert. 368, 1012, (1982). represented herself under 103 L.Ed.2d 504 which Kessler S.Ct. 74 appears theory pro plaintiffs rea that The trial court also awarded the attorney’s pursuant under never entitled to fees se is sonable fees denied Kessler Id. 343. In an 1988. The court U.S.C. at out-of- § settlement, represented agreed the pay for the time that she court defendants fees plaintiffs Hollberg concluded that Rucker a attorneys because it and total other $128,487 fees, in her request pay such fees in but refused to attor Kessler did Finding the application. ney's applied that court fees to Kessler. Kessler then initial rulings, we reverse. erred both to the district for fees. below application for and

Kessler’s brief application filed on support I. BACKGROUND Kessler, plaintiff pro behalf “Kathleen pursuant brought this suit Plaintiffs requested These documents fees for se.” claiming the refusal U.S.C. § the on this entire time Kessler worked special officials to call election to of state ease, including the time that was she Georgia Supreme position on the fill a and plaintiffs counsel of record for Duncan constitutionally pro- violated their Court represented time she Stout and the Duncan right to vote.1 Elizabeth tected application analyzed all herself. The also the Stout were two and Elizabeth according forth such time to the factors set plaintiffs filing the time of thе of the Georgia Highway Express, v. Johnson represented by three law- case and were Cir.1974).3 Inc., Kessler, Hollberg, yers: William Kathleen appli- Kessler’s beginning At the The district denied and William Rucker. trial, she sé for fees because plaintiffs moved to amend the cation the litigant. plain- Poythress, have Kessler added Duncan complaint to (N.D.Ga.1983). Kessler moved they felt it Plaintiffs did this because tiff. that, theory the for reconsideration under important testify for Kessler to would be the not entitled to granted even if she was The district court on their behalf.2 herself, she represented that she subject the time plaintiffs’ motion condition for the time that not be denied fees could withdraw as co-counsel. Sub- that Kessler plaintiffs. represented the other two began representing her- she sequently, Kessler denied Kessler’s motion The lower court attorney pro litigant. as an self (4) properly; the perform services complete underlying the of the ac 1. For the facts tion, Poythress, preclusion employment F.2d 691 of other see Duncan v. 1981), case; (5) granted, customary acceptance U.S. Unit B cert. Cir. due to dismissed, (6) cert. S.Ct. 71 L.Ed.2d community; fee is whether the fee 368, 74 U.S. 103 S.Ct. L.Ed.2d (7) 459 (1982). contingent; im- time limitations fixed or circumstances; (8) posed the client or obtained; (9) and the results amount involved Specifically, plaintiffs to testi- wanted Kessler ability reputation, of the experience, and the fy with defendant Bowles about her contact case; (10) "undesirability" of the attorney; suit, regarding his prior to the initiation this length professional (11) the nature resignation. client; (12) relationship awards with See, following e.g., be uti- factors to 3. Johnson lists the 488 F.2d at 717-19. cases. similar determining proper amount of attor- Eckerhart, lized ney’s Hensley (1) for claims under section 1988: 1937-38, (1983). 76 L.Ed.2d (2) novelty required; and labor time difficulty (3) requisite questions; the skill represented themselves were finding entitled to upon its that she had failed based Ellis is unlike the Although fees. ground recovery present earlier. to raise case in that it concerned an FOR LAWYER II. ATTORNEY’S FEES defendant, is, the Ellis court’s reasoning PRO SE LITIGANTS large part, applicable present case. Indeed, Ellis was cited as persuasive this court is question before whether authority in Rybicki v. State Board proceed pro se should be attorneys who Elections, (N.D.Ill.1984) F.Supp. 584 849 attorneys (prevailing treated like other court) (three-judge attorney where attorney(s) plaintiff’s presumptively enti- pro se plaintiff granted fees under pro se fees4) lay litigants tled to or like Staats, section 1988. But see fees) Lawrence v. (not purposes for the entitled (D.D.C.1984) F.Supp. (attorney 586 1375 section 1988. pro se plaintiff fees).7 not entitled to Circuit applica denied Kessler’s The court below courts divided as to whether City v. on tion for fees based Cofield pro litigants are entitled to fees in Atlanta, (5th B 648 F.2d 986 Cir. Unit contexts other than section 1988. Falcone 1981),5in the court denied fees to the Service, v. Internal Revenue 714 F.2d appeared pro plaintiff, nonlawyer, who denied, (6th Cir.1983), 646 cert. 466 U.S. se.6 The specific issue of fees for a 908, 1689, 80 L.Ed.2d 162 appearing prо se was not addressed Co (1984) (attorney-litigant Freedom of In Depart v. Cazalas United States field. (FOIA) fees); formation Act suit denied Justice, 709 F.2d 1051, ment of 1055 n. 8 Department v. Cazalas United States Decatur, City Ehlers v. (5th Cir.1983); Justice, (5th Cir.1983) (attor 709 F.2d 1051 (11th Cir.1983) (unpublished 696 F.2d 1006 case); ney-litigant entitled to fees in FOIA opinion). Only Appeals, one Court of Realty Development v. Arlen White Circuit, Ninth has considered the issue of denied, Cir.), Corp., 614 F.2d 387 cert. (4th lawyer litigant proceeding pro whether a 923, 3016, 100 65 L.Ed.2d 447 U.S. S.Ct. attorney’s ‍‌​‌​​‌​​​​‌​‌​​‌‌​‌​‌​‌‌​‌‌​‌‌‌‌​‌‌​​‌​​‌‌​​‌‌‌​‍is entitled to fees under section (1980) (fees attorney-litigant 1116 denied Cassidy, 1988. Ellis v. (9th 625 F.2d 227 case); v. Cuneo Lending In Act Truth Cir.1980). The Ellis court determined that (D.C.Cir.1977) Rumsfield, 553 F.2d 1360 attorneys defendants who were and who below, courts, ordinarily prevailing plaintiff other than the court to ex- 4. "‘should re- trict attorney's special plicitly circum- cover an fee unless deal with this issue. ” unjust.’ such an award stances would render 213, Brock, F.Supp. v. 498 225-26 In Durham S.Rep. Cong., reprint- 2d Sess. No. 94th (6th (M.D.Tenn.1980), F.2d 1218 Cir. 698 aff’d Cong. ed U.S.Code & Ad.News in 1976 1982), court denied fees to an a district Piggie (quoting Enterpris- Newman v. Park prevailed in his claim that es, 400, 402, 964, 966, S.Ct. advertising by regarding attor rules Tennessee’s Eckerhart, (1968)); Hensley v. L.Ed.2d 1263 court, neys violated the first amendment. The S.Ct. 1937. however, specifically ques address the did not lawyers who them tion of whether Circuit, Reynolds v. Se- 5. The Eleventh in Stein 1988; entitled to fees under section selves are Cir.1982), curities, Inc., (11th 667 F.2d rather, deny the court used its discretion adopted precedent decisions of the former case. particular circumstances of that B, under the Circuit, September rendered after Fifth Unit U, Services, Legal v. G & Inc. In Mid-Hudson 1981. 1978), Inc., (2nd the Second Cir. 578 F.2d lay 6. A number of other courts have also denied legal attorney’s servic fees to a Circuit awarded pursuant brought corporation suit on behalf office that es Tuttle, (10th E.g., Cir. Turman v. 711 F.2d 148 lawyers em corporation individual of the 1983); (3d Vaughn, Cir. Pitts v. 679 F.2d 311 corporation. found ployed by The court Crowell, 1982); Wright F.2d 521 workers, although none of the farm Snow, (1st Cir.1982); F.2d 170 Lovell v. clientele, up normally made the office’s Parratt, Cir.1981); 608 F.2d 717 Davis v. suit, Legal Services plaintiffs Mid-Hudson 1979). Cir. solely behalf and the farm workers’ acted congressional directive to pursuance of its own courts, Rybicki their The and Lawrence with workers. provide to farm services results, only contrary federal are the two dis- fees, (FOIA attorney-litigant Although Congress entitled to but at 778. cer nonattorneys tainly help also entitled fees D.C. intended section 1988 to those Department Circuit. United States Cox without the financial resources to hire (D.C.Cir.1979)).8 Justice, 601 F.2d lawyer, extent that the court below on the relied rationale that section plain language of section 1988 does help intended to those who cannot preclude an award of assistance, otherwise afford such re representing herself. The statute states misplaced. A plaintiff’s lawyer liance pertinent part: not denied fees merely under section 1988 proceeding action or to enforce a plaintiff pay because the is -able provision of ... 1983 ... [section] see, lawyer, e.g., Riddell v. National Dem discretion, court, in may its title ... Party, ocratic Cir. prevailing party allow the ... a reason- 1980);9 International Enterpris Oceanic part fee as able costs. es, Menton, 502, (5th Inc. 614 F.2d v. 503 Moreover, this court determined that has Cir.1980), plaintiff or because not is actual 1988 “should be accorded broad in required See, ly pay lawyer. to his or her is terpretation since the statute remedial e.g., University College, Johnson v. 706 Fairburn, City v. nature.” Williams of 1205, (11th Cir.), denied, F.2d 1210 cert. 973, (11th Cir.1983). Thus, F.2d 976 702 994, 489, 464 U.S. 104 S.Ct. 78 L.Ed.2d 684 any express prohibition the absence of (1983); Board, v. Housing Watkins Mobile strongly suggests allowance of a fee 565, (5th'Cir.1980); 632 F.2d 567 Ellis v. award, legislative history pro unless the Thus, Cassidy, 625 F.2d 230. the finan legislative history vides otherwise. of cial need of the is not the determi not section 1988 does address this issue. awarding native factor fees under sec express language Absent either tion 1988.10 legislative history, itself its the statute Moreover, contrary implication to the purposes we look to the of section 1988 to argument, defendants’ the fact that Kes- granting attorney’s determine whether fees (and did) is a and therefore can sler litigants attorney pro would further herself, provide legal representation to assert, purposes. those Defendants not mean that she does not need sec- found, does lower court is not that Kessler pursue tion in order to a 1988 enable attorney’s entitled to fees because “section present Merely like designed case one. because average 1988 is citizens assist who, plaintiff pay Kessler need an actual ‍‌​‌​​‌​​​​‌​‌​​‌‌​‌​‌​‌‌​‌‌​‌‌‌‌​‌‌​​‌​​‌‌​​‌‌‌​‍fee attorney’s it not not provision, attorney Kessler not mean that she ability would lack the to effec does pursue complaints.” spend pay the tively able to the time and over- meritorious 572 is Circuit, involving attorney’s the en 8. In several other cases 9. The Eleventh banc decision 1206, statutes, Prichard, City requests pursuant 661 to various courts Bonner v. F.2d 1209 Cir.1981), prevailing plaintiff adopted precedent have noted that the as decisions attorney’s prior seeking lawyer. E.g., not a of the former Fifth Circuit rendered was States, 66, 1, el v. United 711 F.2d 68 October Wolf Cir.1983); Robinson, 941, v. F.2d Owens-El 694 311, (3d 1982); Vaughn, Pitts v. F.2d pro- 942 Cir. 679 10. The District of Columbia district court (3d IRS, 1982); v. 678 F.2d interрretation. 313 Cir. Clarkson v. a narrower In Lawrence vides Staats, 1368, (11th Cir.1982); (D.D.C.1984), v. 1371 n. 3 Barrett Bu that Customs, 1087, F.2d Cir. reau need of the liti- court focuses on financial denied, 1981), fees, concluding gant prerequisite Unit cert. a (1982); 71 L.Ed.2d 665 Crooker United only provide need with "the law Justice, (1st Dept. compensated F.2d States claims will be for ac- meritorious Bank, 1980); Security expended National pay Cir. Hannon tual funds Thus, (9th Cir.1976). goal [meaning- F.2d these 328-29 in order to achieve that services courts, We, although not confronted with an attor Id. at courts].’’ ful access course, litigant, recognized ney pro binding precedent have law of this follow the differently lay litigant yer expend- situated from text to the effect that circuit cited purposes ing prerequisite of a fee award. fee award. is not a funds case, out, general points in this absent at least Kessler another more head involved Cazalas, See remuneration. hope encourage purpose of section 1988 is to fact, preclusion F.2d at 1057.11 private important citizens con to vindicate is one of employment other See congressional policies. stitutional and Georgia Johnson v. the Johnson factors. 2-3, S.Rep. Cong., 2d No. 94th Sess. Inc., 488 F.2d at 718. Highway Express, reprinted Cong. & Ad. U.S.Code no less relevant when the This factor 5908, 5909-10; Riddell, News 624 F.2d at plaintiff rather is the section exactly 543. This is Kessler and her what Ellis, person. 625 F.2d than other coplaintiffs just did. A fee award is pro se (“The [attorney appellees at 231 necessary plaintiff to enable to do actually pecuni- suffered have defendants] nonlawyer. it this as would be loss, they required ary since have been that, Defendants also assert practices pre- their away take time from case, present necessary for Kes- suit.”);12 Rybicki, pare and defend sler to herself14 because the oth- (A lawyer “actually F.Supp. at 860 plaintiffs’ attorneys rep- have er two could pecuniary loss due to the time suffers lawyer’s practice.”).13 apprecia- As resented Kessler as well no lost from the with new, court, added). contra- аgain relying Cofield, not consider this We will 11. The lower at the dictory argument, the first time inapplicable raised for determined that Cazalas recently in United we stated banc level. As present en case because it concerned fees under Co., Fabricating inapplica- States v. Southern FOIA. found FOIA fee cases Cofield Cir.1985): (11th 781 ble to the section 1988 context because the "his- tory, language, purpose of the Freedom of appellate Generally, court will not consider an significantly Act from those Information differ theory legal the first time raised for a issue statutes____” rights the civil 648 F.2d at 988. States, appeal. v. United on Sanders likely example, For FOIA actions are to be 886, Cir.1984). wheth- The decision se, brought volved, damages generally pro are not in- argument is left to the to consider such an er may be to fulfill a and fees awarded Singleton appellate court’s discretion. punitive Id. at n. 4. Both the function. 2868, 2877, Wulff, attorney's provision of FOIA and section (1976); Roofing & Sheet 49 L.Ed.2d 1988, however, enacted incentives as Inns, Services, Quinta Motor Inc. v. La Metal Inc., Thus, pursue rights. private to their individuals Cir.1982) (quot- F.2d distinguish the these differences do not two discretion, exercising ing Singleton). this In compensate in terms of the need to statutes attorney raised in the an issue not "we will consider pro in order to enable them se pure question of if it involves a district court litigation. pursue to such law, it would result if to consider refusal 990; Although congressional purposes justice.” miscarriage behind Id. at see 12. in a Mathews, awarding attorney's fees to defendants differ F.2d Martinez awarding plain- Cir.1976). behind such fees to from those tiffs, attorney pro plaintiffs se case, beyond present it is clear doubt that In subject pecu- pro are to the same se defendants significant represented peri- herself for Kessler niary pro representation a result of loss as withdrawing ods of time after as co-counsel for suit. a section 1983 example, plaintiffs. she filed a the other For Kessler, Respon- separate brief as “Kathleen distinguishable opportunity This loss is from 13. dent, Supreme before the Court. No se" nonlawyer litigant because the costs lost to a congressional Moreover, objection by defendants. was raised behind section 1988 was to intent event, any affect the this issue could provide as discussed services infra. entitled, a of fees to which Kessler amount court, sig- rely question district and not the attempt a for the Defendants on different question court has de- of law that this in another of their nificant characterization facts They argue en banc review. We note arguments. that Kessler “withdrew termined warrants again appeared as counsel to the district court for as counsel and never that our remand to attor- the amount of the fee award in this case” and thus is not entitled determination of necessarily require will that the district ney’s for the Defendants raised this issue fees. fact, stage finding specific as to the in the make a the en banc court. first time before representing began рanel proceeding at which Kessler stated in their brief before defendants length lawyer of time in- and the “The Court did not allow Kessler to tes- herself as a that tify Trial supra though representation. note represent plaintiffs, she and also volved in such (emphasis represent was allowed herself." pointed Cofield, case part. on their The As out relied additional effort ble legal services is ex- below, of redundant problem the court section 1988 was n issue actly type with encourage enacted to “enable and designed are to deal. 488 factors Johnson wronged person lawyer.” to retain a other coun- at 717. The existence of F.2d 988;15 Ellis, F.2d at see also F.2d at goes the amount sel case actually (“Legal services have been entitled, an may be issue to which Kessler F.Supp. performed”); Rybicki, 584 at 859 court, not entitlement to her not before (“The denying lay pro courts liti- [in litigant. attorney pro to fees gants principal pur- reason that the fees] assеrtions that (to Defendants’ pose encourage lay persons of 1988 § fees, either because as a not entitled to lawyers rights retain civil meritorious free lawyer she has access cases) by compensating is not furthered lawyers were system or other because nonlawyer litigant proceed who decides her, unpersua- represent are available se.”). The court echoed below these rationales, had Under either these sive. primary sentiments: “The concern of Con- rep- Kessler retained additional counsel gress increase of compe- was to the level litigation, such resent her in this counsel complaints tence are pros- with which been entitled to under have ____” 778-79; F.Supp. ecuted see Yet, admit that section 1988. defendants Lawrence, at 1379. also attorney’s fees would have been allowed attorney pro In the case of an lawyer by Kessler to her. hired Kessler, this congressional purpose such as Thus, asserting the anoma- defendants lawyer is fulfilled. Kessler utilized have hired position lous that Kessler could claims; therefore, pursue she her utilized and that other besides Kessler competent skilled kind of advocate fees. A lawyer would have been entitled to claims, li- pursue legal as evidenced anomaly anyone is the else related fact law, the framers of practice his or cense have hired Kessler to be could and, plaintiff prevailed if that had The fact section 1988 envisioned. that the here, Kessler did Kessler would have lawyer she chose was herself inconse- fees. been entitled to Thus, although agree quential. we with that 1988 was not the court below anomaly This second illuminates dis- lawyers,16 passed solely for the it benefit litigant attorney pro between an se tinction passed plaintiffs, lay lawyer, that or was so lay litigant. lay pro A a se se legally representatives could have trained by litigant could not be hired someone else one, cases, present imрor- where in like represent him or her in a section 1983 to rights are at stake.17 suit; tant constitutional attorney pro litigant an could be. 15. The pose throughout specifically approved the standards established in Johnson v. Sess. 5908, windfalls...’ competent the congressional purpose tion." people ought to have access to "[i]t sulted legacy, attract 5913.” 648 pointed apparent Id. Cofield in pointing reprinted ones those at 988 counsel, encouraging legal who can out that Georgia court S.Rep. No. course with out (emphasis F.2d at 987 ^[1976] but which do not refers Congress thought that legal training. Highway although lawyers are behind section 1988 was '[t]hese worthy U.S.Cong. 94-1011, to section added). adequate opinion: (emphasis legal representa- Express representation cases have re- advocates, The & 1988’s “Congress that Ad.News produce Cong.2d added); and its Cofield attract pur- not ble Stack, vice has benefitted citing behind section 1988 resentation, stated neys general’ relationship these civil and members F.2d 1181 expenses 1977) We Defendants (emphasis in "provides an incentive where recently Gore do non-affluent are note, however, F.2d rights but awarded not to insure effective of the bar to also claim that in Dowdell v. Turner, Cir.1983): court stated: laws") (citing prerequisite reward original). public only that attorneys aid "Attorneys’ act as F.2d 159 City to obtain Cir.1985) for both citizens See another Dowdell). to make it lawyers. interest.” Id. at to a enforcement of attorney-client 'private also Apopka, fee whose ser- legal rep- Jonas purpose (section award, As we possi- attor- Cir. v. lay objective representa between a not enacted ensure distinction A further tion, is the attorney pro rather, vigorous promote and an but advo lay pro litigant cannot sell a fact that cacy. repre 709 F.2d at 1056. Counsel open in the market. Section legal services senting plaintiffs are often committed to a us that the amount case law tells ideology аnd thus are not certain social is not lawyer recovers what fees a In totally independent objective. addi actually in an- earned lawyer would have tion, lawyer-litigant, like other law a rather, case, what the market other but yer, only compensation if he or she receives Blum v. services was. See value for such case, course, prevails. groundless 1541, ‍‌​‌​​‌​​​​‌​‌​​‌‌​‌​‌​‌‌​‌‌​‌‌‌‌​‌‌​​‌​​‌‌​​‌‌‌​‍1547, Stenson, 104 S.Ct. 465 U.S. Moreover, prevail. lawyer not a (1984); Georgia Johnson v. 79 L.Ed.2d brings may a frivolous suit be liable Inc., 488 at 718. Express, F.2d Highway attorney’s under the defendants’ Thus, federally Legal funded Services a Supreme standard set out Court creden- Corporation with same Christiansberg Company v. Garment private lawyer with lucrative tials as a E.E.O.C., 412, 421, same fee under is awarded the practice (1978)(“a district court 54 L.Ed.2d 648 See, e.g., Johnson Univer- section 1988. attorney’s fees may in its discretion award 1210; Watkins, F.2d at College, 706 sity prevailing defendant a Title VII case litigant’s lay services 632 F.2d at 567. plaintiff’s upon finding that the action services no market value have frivolous, unreasonable, or without lay person cannot sell services since a foundation, though brought even addition, the marketplace. John- faith”).20 subjective bad also Fed.R. costs, 488 opportunity include son factors unrepre (lawyer, party if Civ.P. much costs would be F.2d at and such motion, sented, pleading, sign every must lay for the complicated to evaluate more that, paper certifying to the best 1057;18 or other Cazalas, 709 F.2d at litigant. See signer’s knowledge, it is well Ellis, F.2d at 231. and warranted law or a grounded fact arguments have been policy Several change existing good argument faith denying fees to support raised law, brought any improper is not find of which we litigants, none pro se signed contrary to the rule paper purpose; First, it has been claimed persuasive. both, sanc lawyer, party, or subjects herself representing himself or party’s other ex including paying tions necessary provide objectivity lacks fees); Fed.R.App.P. 38 penses, liti- groundless or frivolous against check аp (if determines that an appeals court found gation.19 As the Cazalas frivolous, may just dam- however, award FOIA, peal is section 1988 was regard to support objectivity used to has been attorney-client Lack relation- 19. The existence of an litigants. lay pro wholly independently denying attorney's se ship, fees to a status that exists 311, (3d required compensation, See, Vaughn, e.g., [to is all that is F.2d 312 of qualify Pitts v. 679 however, attorney’s Cir.1982). lay 1988]. fees under section lawyer, unlike a liti A Congress that vindication of did not intend distinguish gant, meritori has been trained rights depend statutorily guaranteed would on Barrett v. ones. claims from frivolous ous Cf. private party’s resources or on economic the 1087, Customs, 1089-90 651 F.2d Bureau of availability of free assistance. the denied, 950, 1981), Unit A cert. Cir. court, however, was not The Gore Id. at 164. 1454, (1982). But see Fal S.Ct. 71 L.Ed.2d rather, considering pro representation, but se 647; cone, Realty Arlen White v. F.2d at prerequisite to an need was a whether financial Corp., Development 614 F.2d 388. attorney- the comments on Thе court’s award. relationship mere dicta. client applied to been standard has The same 20. fees Again, concerned the fact that Cazalas prevailing defend- attorney’s fees awards of authority undermine its Rowe, FOIA does not under Hughes section 1988. ants under and between FOIA the distinctions here because 173, 178, L.Ed.2d 163 U.S. (see supra), in note discussion section 1988 (1980). calculating feasibility the do not affect litigants. lay pro attorney se and ap- rights, the then single or double costs to seek to vindicate those ages and application contrary not to the pellee). purposes is v. City See Dowdell the statute. against argument A second 1181, 1189, Apopka, 698 F.2d n. attorney pro se litigants awarding Cir.1983) (section designed in- 1988 is “to cottage industry from the fear a stems encourage litigation theory duce and the attorneys among inactive who develop will acting litigants ‘private attorneys as bring support 1983 cases to will section general’ may help important to enforce con- is think this fear unfound themselves. We gressional Finally, policies”). in the attorney Again, only prevailing ed. a will present case, litiga- Kessler tried to avoid remuneration, attorneys receive and by requesting tion defendants to call a bring numerous sanc frivolous suits face special Although not election. forced into compensated attorney is tions. Because an litigation in the same sense was the to the Johnson according factors which Ellis, required defendant Kessler was legal experience reputation, an include and bring if suit she wanted vindicate her compensated at inactive would be Thus, Moreover, important right of we applying if franchise. a low rate. represent conclude that Kessler is entitled to fees for lawyers who themselves 1988 to period represented the encourages lawyers to search for violations which she herself attorney rights statutory litigant.21 as an of constitutional and and addition, against argument awarding made the rationales bеhind the advocate- further attorney pro apply is that rule do not witness lawyers encourages act as advocate litigant. Supreme As stated Judicial pro- of the ethical and witness in contravention Court of Massachusetts: lawyers performing against such dual hibition apply testifying To DR 5-102 when the advo (ma- Rybicki, See at 860-61 roles. litigant miscompre cate is a in the action J., opinion); (Grady, jority id. at 865-66 dissent- regu the thrust of rule. DR hends 5-102 concurring prohi- ing part part). This and lawyers who serve as and lates would counsel is Model bition reflected ABA Code of party litigant. for a It does not ad witness (1980) Responsibility Professional which states lawyer that situation in which the is the dress as an "ethical consideration”: litigant. Any perception public party Occasionally lawyer upon a called EC 5-9 by jury lawyer that a liti determination a particular case whether he will to decide in a gant surely due twisted truth would be has lawyer be a or an advocate. If a witness not, a his role as we witness, both cоunsel and easily he becomes more hope, occupation lawyer. to his may impeachable for and thus interest Flanger, Corp. Elecs. International Conversely, be a effective witness. less (2d Cir.1975). party litigant, As a may handicapped opposing counsel moreover, lawyer himself if could credibility challenging the when he so chose. appears also as an advocate in the Borman, Mass. N.E.2d Borman v. case. An advocate becomes witness (footnote omitted). (1979) unseemly position and ineffective in arguing Thus, we conclude that the advocate-witness credibility. own The roles of an his applicable attorney pro rule is not inconsistent; advocate and of a witness are Moreover, litigant. case in Kessler’s there of an advocate is to advance or function why inapplicable. rule is reasons additional First, another, argue the case of while fact, thus, judge was the trier of there objectively. facts witness is to state danger of fact that the trier could was no 5-10, corresponding "discipli- See also EC advocacy. testimony distinguish between 5-102, nary rules” DR 5-101 and Model Second, "unseemly put in the Kessler was not Rules of Conduct Rule 3.7. Professional arguing position of her own and ineffective have violated Even if Kessler can said to credibility” not act as an advo she did because canon, why apparent it not denial this ethical trial, rather, during such course of the cate the Scope, appropriate of fees is an sanction. lawyers. performed other duties were (Proposed Cf. of Professional Conduct Model Rules Associates, (2d F.2d Bottaro v. Hatton Moreover, 30, 1981). May the rule Final Draft Corp., 1982); F.2d at Elecs. Cir. International litigant. inapplicable pro se to an prohibit do The ethical canons not 5-10 and Finally, Ethical Consideration herself, see, under e.g., representing himself or from Disciplinary and 5-102 the Mod- Rules 5-101 (D.C.App. Bergan, O’Neal v. 452 A.2d if, alia, Code, testify inter the can 1982), el logic us and tells that sоlely mat- testimony to an uncontested relates on or her own behalf. often testifies his guity deny PERIOD KESSLER REP- Kessler the hours III. FEES FOR to fees for that represented plaintiffs. THE OTHER PLAIN- she the RESENTED other that, finding The appli- TIFFS court’s in her first cation, for apply Kessler did not for fees merits, of the the lower In its discussion the represented time that she the other “plaintiffs shall recover court ordered that plaintiffs, clearly was fee erroneous. attorney’s fees from the ... all reasonable application theory need not assert a spent this litigating time for defendants rather, ground supporting recovery; it F.Supp. 1988.” 515 at action. U.S.C. § only spent— need document the hours pay 343.22 When defendants refused to application which Kessler’s did.23 This is work, applied her to the her for so, prevailing plaintiffs not because fees, petition her for fees. court presumptively entitled to fees under distinguish Kessler did between time not 1988,24 plaintiffs but also because spent representing spent herself and time present granted thе already case had been plaintiffs. representing the other As de- Kes- F.Supp. fees. 515 at 343. out, point fendants Kessler did not mention reasonably question sler assumed that the represented fact as a that she others represented of fees for the time that she rather, recovery; only as- theory for she Thus, plaintiffs other not issue. Kessler, that “[pjlaintiff serted period to fees Kessler is entitled for the herself, may representing recover attor- plaintiffs represented which she Duncan ney’s fees.” and Stout. Kessler’s The lower denied reasons, foregoing judgment For the application position based on for fees of the court is and this district REVERSED commenting litigant without as a case is REMANDED a determination spent representing time that she the amount of Kessler’s fee award. plaintiffs. other Kessler’s motion for re solely with the time consideration dealt GODBOLD, Judge, dissenting: Chief spent representing plaintiffs that she The court took this case en banc to de- and The court Duncan belоw denied Stout. legal question. cide a It out that the turns motion, stating this “has not been proper for decision. case is not a vehicle informed the reason Kessler failed sufficiently have not been devel- facts previously issue as to her entitle raise this oped case with for the court decide the fees____” to a recovery ment Duncan of correctness. assurance C81-199A, Poythress, slip op. No. at (N.D.Ga. 22, 1983), panel for and I this to the that Kessler would remand case Dec. issue, which proper handling “raise attempting was now a different § Although parties stipulating ground recovery____” Id. entail court for made her facts a remand to district applica- Kessler could have fee clearer, adequate record cover- development that the tion find lower we court and by using ing happened district its ambi- what abused discretion this attempt solely testimony parties were also directed to ter or ity 22. The matter of formal- themselves, attorney's and reason that sub- thеre is no believe matter of resolve the opposition be offered in petition stantial evidence will the court instructed case, present testimony. In the Kessler's they to reach the matter if failed resolution of solely testimony brief related whether she agreement. gone had December see defendant Bowles on 14, 1980, resignation, about his ask him application applied the Johnson also 23. Kessler’s the fact that he refused answer Kessler’s represented the the time she factors to questions. anticipate counsel did Plaintiffs not time that she plaintiffs as well as to the other contradicted, testimony would be represented herself. indeed, Bowles did contest defendant testimony was matter. This introduced 4, supra. 24. See note plaintiffs merely the element of knowl- to show edge on of defendants. behalf upon Without other reasons based Supreme presently in the Court. such know whether the issue record do not unknown events in the district court or we the prop- case en took the banc is Supreme Court). on which we erly us. before Second, in a situation where we do not Kessler’s status Establishing Kathleen actually what occurred in the know district herself, in the district court attorney court, intervening en the banc court is Court, both, is a Supreme or in the involving policy. matter district court Ini- the attorney fee prerequisite for decision tially judge thought the that district Kes- certainty not know with issue. We do sler should not be both wit- served whether Kessler ness; it has not contended that the been court after herself in the district she with- requiring her district court’s order with- plain- added as drew and was as co-counsel If drawal as was erroneous. co-counsel dispute are in this. parties tiff. The about opportunity district court has not had an directly en does not address The court banc permit rule whether would filed matter of fact Kessler whether as a (as herself) reappear despite counsel its herself in district appearance for prior ruling that uncontеsted she could court, performed acts as an she whether witness, not it is be counsel enti- the district court was attorney, whether tled to the first chance to rule. represent her- purported aware that she court, self, if un- the district or whether RONEY, Judge, dissenting, Circuit aware, permitted repre- have would HENDERSON, Judge, joins: which Circuit made aware. sentation if word,” I Humpty “When use a having Kessler’s filed The refers to court Dumpty said, tone, in rather a scornful pro se before the Su- a brief for herself means I choose it just “it what know do not whether preme We Court. more nor less.” mean—neither under the same lack that Court labored ” Alice, is, question “The said “wheth- in the concerning facts events district many mean so you er can make words Whether the Su- that we labor under. things.” different facts, Court, with all preme armed ”is, question Humpty “The said appear, Kessler permitted have Dumpty, “whichis to master—that’s might say now that her and whether it all.” appearance proper, matters not know the answer. we do рuzzled say Alice was too much anything; stage the issue court finesses ... representing began her- at which Kessler say any- Although puzzled not too to the district court on punting self say thing, puzzled enough very I am 14. The instruction remand. footnote little. court, in footnote that it to the district imposition for the The sole source stage finding must as to make a pre- against for the liability the defendant began repre- proceeding at which fees in vailing plaintiff’s attorney’s this open the senting possibility herself leaves There Con- case is U.S.C.A. § may find at no that the district suit such as gress provided that in a ever herself time did Kessler provision of 42 U.S.C.A. enforce a § not specifically While the district court. discretion, court, may allow the “the its opinion, I court’s assume stated in the attor- a reasonable prevailing party ... may find Kes- court also district part costs.” ney’s fee as represent herself in the Su- sler did meaning of the This case turns on Court, attempted do so if she preme Although majority “attorney.” (for word proper rea- attempt was not that the language” below, “plain point, or believes “Second” sons stated Glass, Looking Ch. VI. Through Carroll Lewis Alice County, award of fees Nassau preclude an “does not Cir.1985).3 herself,” we have representing lawyer

to a any definition to find unable simply been support anywhere upon There is little pro decision that se permits a which contrary to rest a decision in an attorney. Set forth an lawyer has by the used common definition of words opinion are the definitions to this Appendix majority re- Congress in this statute. The history justify giving dozen dictionaries. legislative in over two found cites they litigants attorney’s define the word fees in the name exception pro se Without furthering purposes the of the Act. If acts in of someone who “attorney” terms attorney by its dictio- one cabins word another, employed as someone who for definition, however, there is not a nary another, represent someone agent an Congress shred of evidence appointment another. acts at who litigants happen to be pro treat se agency law is principle A basic differently litigants attorneys pro from se acting unless one is agency is no “[t]here vocations, profes- or of other businesses another, since a man in for and behalf qualification in between sions. Differences of himself.” 2A C.J.S. agent cannot be attorneys non-attorney pro se For an at 592. there be Agency § analytical use of little because would seem litigation there must be two attorney in pro party has instances the se appeared pro here se. people. Plaintiff litigation, just necessarily prevailed ” as an is defined individ- “pro The term se attorney’s fees claim under to make an behalf, person.” acting “in ual his own plaintiff pro What a se does section 1988. definition, appearing per- “in person By pur- living be irrelevant for for a should attorney, agent appearing no no son” has analysis. The costs poses of seсtion 1988 court. The fact that him before may representing herself to an practice law plaintiff is admitted many greater instances be no than others, an and available to be litigants of other vocations pro costs to plaintiff has an not mean that does regular taking from their work time principal any other attorney, any more than argue To that an themselves. an agent, an has qualified to be who is herself, attorney for but attorney can be an himself. In other agent he deals for when non-attorney she is not an cannot because words, person in one applied to one when best, attorney, syllogistic and at worst ” and “attor- “pro terms proceeding, the regard to the path a result without mutually exclusive. ney” meaning of words. sometimes, course, Humpty like Of attempts act the pro se play do the master. See Dumpty, courts party, has ethical attorney, rather than a Trucking As- American States v. United non-professional. not faced problems sociation, U.S. permit Congress passes if a statute Only Congress has (1940). But when only, attorneys L.Ed. 1345 parties, or all “plain themselves, however, mean- discernible words with chosen fees for to obtain necessary proper nor the ethi- required to address ing,” it is neither should we arising attorneys language of a issues from so. “Where courts to do cal receiving special treat- attorneys lead ambiguous testifying, and does not statute is receiving non-attorneys attor- results, courts is to ment and job to absurd ney’s fees. Bd. Arline School apply it as written.” York, rule, "attorney,” has defined Dictionary ed. 3. New Law 2. See Black’s rules, including any practice used in its civil 1979): not, prosecuting party, whether behalf; himself; in his own SE. For PRO defending person. New York C.P. action in oneself, case of Appearing as in the person. 105, McKinneys York Consolidated New §L.R. appears lawyer and not retain a who does one 105(c). Law Dictio- See also Black's § Laws 7B in court. for himself 1979). nary ed. courts, Here, by profession agen- an attor- such before administrative plaintiff is cies, boards, however, case, appeared etc. she In this ney. attorney representing had no She se. Dictionary (Unabridged) Bouvier’s Law litigation. had no Since she in this (Vol. 1914): I 282-86 should not have to attorney, the defendant turn, put in the place, ATTORNEY. One attorney’s fees. pay any another, of manage or stead his af- however, fairs; manages the award one affairs of objection, no who

I see plaintiff by of his principal____ while the another direction of fees earned another, pri- attorney, representing was an by who for another of One acts virtue latter____ becoming party a herself. or to her appointment by the an Attorney person to whom fact. another, authority of who is called APPENDIX constituent, by lawfully delegat- him is (Sec- Dictionary Heritage American ed____ 1982): College Ed. ond capable persons acting All who are of legally appointed attorney person ... A themselves, and even those who are anothеr, attorney an ‍‌​‌​​‌​​​​‌​‌​​‌‌​‌​‌​‌‌​‌‌​‌‌‌‌​‌‌​​‌​​‌‌​​‌‌‌​‍at esp. to act disqualified acting from in their own law. if capacity, they have sufficient under- qualified One is attorney at law ... . standing, age, of a proper as infants in a court of law and represent clients coverts, may and femes act as attor- matters; legal a law- them on to advise others; neys of ... yer. An Attorney-at-law. officer in a court Heritage Dictionary American employed party in justice by of who is a (1969): English Language manage cause to the same for him. a legally appointed attorney person ... A Ed., Language World Funk & Britannica another; espe- empowered to act for or New Dictio- Wagnalls Practical Standard law____ cially attorney an at (1957): nary qualified is attorney at law. One who person attorney empowered ... A in court of and to party a a law stead; especially, in his to act another case; lawyer. his manage and a prepare legally prosecute and qualified one law; an actiоns a defend (5th ed. Dictionary Law 117-18 Black’s law; lawyer____ a An attorney at 1979): agent. general In the most sense ATTORNEY. attorney attorney An who is at law. substitute, agent or term denotes an prosecute and defend actions qualified to appointed and authorized one who or law; in a court ... place or stead of anoth- to act er____ usage, how- In its most common Dictionary Cyclopedia 374 Century & ever, contrary meaning a is clear- (Vol. 1913) (Vol. unless A-B I A-C I and intended, “attorney means at ly this term 1911):

law”, “lawyer” at “counselor attorney appointed ... 1. One law”.... stead; place in his act another party “attorney” proxy____ includes The word defending an action

prosecuting or law, ap- one who is Specifically —2. person____ place of anoth- or admitted in pointed him____ transact business er to Person admitted Attorney at law. law, sometimes called attorney An at respective state practice law in his person qualified attorney, public perform civil authorized of law clients, appear in- for another before legal criminal functions an action be- documents, giv- prosecute or defend cluding drafting other____ advise, half of representing ing of attorney empower by person ... A an- stead; especially other to act in an his appointment another ... law____ attorney at stead; naming the act in one’s act An attorney law who is attorney____ prosecute qualified to and defend actions Century Dictionary Twentieth Chambers law; lawyer. in a court of (1956): to act legally one authorised attorney ... Harper Dictionary Contemporary Us- legally qualified one to for another: (1975): age 54 law____ in of a court manage cases attorney/attorney at law The former is Dictionary Comprehensive Etymological lawyers. a term that includes all kinds of (1966): Language English specifically The latter refers ato of qualified represent to his clients attorney another____ one authorized act who is ... of

in a court law. Dictionary Etymological Mod- Concise of (Vol. Dictionary One Lexicon Webster (1952): English em 1976): A-Oyster constitute____ attorney appoint, ... agent repre- attorney legal ... A who Orig. duly appointed to act for anoth- one (cid:127) affairs; legal lawyer; client in sents a er. legally appointed is or one who admitted (1976): Dictionary Concise any place of another to in the transact Oxford attorney appointed One act for ... for him. business legal ... in business or matters another (1980): Dictionary 39 American Oxford lawyer, representing client qualified esp. one especially lawyer, attorney ... a proceedings---- in persons act for or qualified (1958): English Obsolete Dictionary of proceedings. legal in except now Attorney. Seldom used Etymology English one, Dictionary law; being attorney at accord- Oxford definition, ing put (1966): ‘who is Blackstone’s stead, place, in or turn another agent. legal attorney ... law;’ in matters of and even manage his (Vol. I Dictionary 553-54 English Oxford honour, going out of and this sense it 1933): A-B formerly But giving way to ‘solicitоr.’ room, any in in cause acted who appointed or- Attorney ... 1. One or behalf, or turn of another would another; agent, dep- an to act for dained (New ‘attorney:’ Phillips thus called his commissioner. In later times uty, Words) attorney, ‘one defines World of reference perhaps and with conscious fig. appointed by anything man to do another sense____ (Attorney fact, pri- 2. in stead, upon in or to take him his duly or attorney.) appointed One vate absence;’ in his charge of his business in ... act for another busi- constituted matters, legal generally, either ness and (1945): Dictionary Origins Word payment, receipt, and investment inas trouble, you If in or were ... sued, etc., being money, suing and away, select some- going you would act, principal, specific in some represent you; this to ... one to turn absence, per- by reason of unable Its mean- your attorney. first man was the contrast be- person. Hence form another; was, assigned ing one to act ‘by attorney,’ fre- person’ ‘in and tween exprеssion, power attor- senses____ as still (Attor- fig. quent also detour, of you ney. take When attorney.) profes- public ney-at-Law, main course, away form the you turn legal agent properly-qualified sional path. Law of Common in the courts practising litigation in these conducted one who College ... Encyclopedic Wagnalls Funk & for the barris- courts, the case preparing (1968): Dictionary ...; of Common one who conducts Law counsel, duty ters, privi- whose courts, litigation preparing in these argue open lege plead barristers, plead in open case for the court____ court____ (1962): Attorney Dictionary appoint- The action ... 2... Illustrated Oxford legal ing representative, proc- ... appointed to One act for attorney ... uration____ matters. another in business Attorney perform To attor- ... Dictionary 120-21 Universal Oxford ney— (1933): Collegiate Webster’s Seventh New Dictio- appointed,’ 1. ... ‘one ... Attorney ... (1969): nary ‘one acts in the turn of anoth- er’____ appointed to act for an- 1. One legally аppointed ... one who is other, deputy, agent, commission- him; by another to transact business er____ {Attorney fact, private at- qualified to agent ... a act for duly appointed torney.) One or consti- legal proceed- suitors and defendants in ____ in tuted to act for another ... business ings matters, legal either in generally, Third New International Dic- Webster’s act____ (Attomey-at- specific some (1960): tionary 141 law, A public attorney.) properly-quali- legally appointed one ... agent practising in legal fied the courts another to transact business for of Law ... one who conducts Common him; qualified legal agent ... a to act courts, litigation preparing these legal pro- for suitors and defendants barristers, plead open case for the court____ ____ ceedings attorney-at-law practitioner in a ... appoint- The action Attorney ... 2... qualified legally law who is ing representative, proc- prosecute and defend actions uration____ clients____ the retainer Attorney perform attorney. ... Dictionary the English Random House (1967): (Unabridged) Language lawyer; attorney-at- ... 1. a attorney-in-fact, agent____

law. 2. an (who is) to, i.e., appointed____ one turned AIR In the Matter of FULTON attorney-at-law ... an officer SERVICE, INC., Debtor. appear court authorized to before it as a Trustee, ABNEY, Benjamin C. representative party a legal of a con- Inc., Service, Fulton Air troversy. Plaintiff-Appellee, 120- English Dictionary Shorter Oxford (1933): al., ENTERPRISES, et appointed’, COX Attorney 1. ... ‘one ... ... Defendants, turn ‘one who acts in the of anoth- er’____ appointed to ‍‌​‌​​‌​​​​‌​‌​​‌‌​‌​‌​‌‌​‌‌​‌‌‌‌​‌‌​​‌​​‌‌​​‌‌‌​‍1. One act Defendant-Appellant. Georgia, State another; deputy, agent, commissioner No. 84-8214. private 2. {Attorney fact, ... attor- appointed or ney.) duly constituted One Appeals, Court United States another in business and ... act for Circuit. Eleventh matters, generally, either Dec. act____ 3. specific {attorney-at- some law, public attorney.) properly-quali- Gen., Atlanta, Tobin, Atty. Asst. R. Scott practising in legal agent fied the courts Ga., defendant-appellant.

Case Details

Case Name: Elizabeth D. Duncan v. David B. Poythress

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Dec 12, 1985

Citation: 777 F.2d 1508

Docket Number: 84-8076

Court Abbreviation: 11th Cir.