*2 BREYER, Before ALDRICH and TOR- RUELLA, Judges. Circuit ALDRICH, BAILEY Senior Circuit Judge. Rights this Civil after
obtaining a consent decree in which it was expressly provided Letter, Douglas Div., Dept, Civ. of Jus- awarded, were not to sought reopen tice, Washington, D.C., with whom John F. to recover fees. The district court denied Cordes, Div., Civ. Dept, Justice, Richard relief, plaintiff and appeals. We af- Willard, Acting Gen., K. Atty. Asst. Wash- firm. D.C., ington, Almond, Lincoln C. Atty., Providence, R.I., Ratner, Gershon Associ- Plaintiff housing tenant in a complex ate Litigation, Gen. Counsel for Howard owned defendant Village Bullocks Point Asst, Schmeltzer, Sp. to the Associate Gen. (Bullocks). Associates charges Bullocks Litigation, Counsel for Jonathan Strong qualifying low rents to low income renters ' Stearns, Attys., Richard C. Office of as a result of subsidies under section Counsel, § Gen. Dept, Housing 1437f, and Urban and section Development, D.C., Washington, 1715z-l, were on Housing Act, the U.S. brief, defendant, for appellee Secretary the defendant Department Housing Development. Urban (HUD). Development Urban Plaintiff executed,
was a section 8 tenant. In March A week after the had decree, approved, long- her it had Bullocks notified that would no reopen challenge plaintiff moved to recognize eligible the reduced er her waiver, fees’ and to obtain fees. While rent. East Providence Defendant appears counsel had Authority (Housing Authority), by a letter along, intention he had notified no *3 this all plaintiff, to to confirmed Bullocks’ decision one of it at the time the decree was en- status, deny of her section 8 and renewal He tered. concedes he believed the its to stated intention enforce the decision. not have to the had would consented decree detail, For reasons that we need it was not he insisted on fees. regulations do this a violation of HUD to good cause, Bull- showing without which position justify Counsel would on the brought failed Plaintiff ocks to do. ground argues of duress. He that defend- seeking declaratory judgment a ants, by offering to afford his client full against Housing Authori- Bullocks the he relief on condition that sacrifice his interest, her low ty that she entitled to continue was own left him no ethical choice but rental, Hence, inform under and for an order that HUD to settle their terms. duress. and, put questions. of their mistake To this we three 1. How the other defendants is it for effect, ethical counsel to have a regulations. its obtained republish When parties, commitment from the other believ- depositions the impropriety indicated ing it could not be obtained without a waiv- conduct, negotiations Bullocks’ settlement er, secretly intending subsequently while to commenced, siding plaintiff. HUD with seek court intervention to obtain more? 2. republish agreed also to section HUD its problems, perhaps there were ethical and Although regulations. ben- this would duress, why not pursue did counsel the plaintiff to efit the class that had moved seeking court’s motion the assistance? 3. represent, which motion she had not but plaintiff’s saying How realistic is counsel pursued, plaintiff’s it of no value to was Authority Housing that the have would claim under section persisted in fees? paying not discussions, During plaintiff’s settlement begin question. the last We The the attor- requested counsel inclusion of Housing Authority’s position very is diffi- ney’s absolutely. refused Al- HUD justify. a cult to Here was defendant that Housing though Authority indicated the only ultimately liability, not conceded full the flexibility, some conversations broke but, record, the to on do so. How requesting filed a motion down. Plaintiff trial, likely was that it have stood intervene, but ob- the court to defendants fees, agree only rather than in advance to Finally, was jected, and no action taken. trouble, time, expense the to incur becoming plaintiff’s counsel con- upon trial, larger statutory and doubtless a fee that vinced the other defendants would what, end? to if It is hard think if HUD would contribute fees proceeded plaintiff had to at the out- steadfastness, plaintiff into entered HUD’s set, Authority could have said decree, pursuing the consent without a in its defense. The de- of fees with court. that not be we coun- stipulated, both fees would While are critical cree basis, waiving giving up a claim under sel for on this we are even paid (presumably fee § 1988), Housing Authority. plaintiff and that would more critical of the apparent playing as for a it was use the settlement the basis seems against exactly under for fees HUD counsel’s difficult dilemma separate claim (EAJA), plaintiff not a Equal to Justice Act manner asserts. This was Access compromise.1 fide bona others, may found "defense counsel” while there been no con- 1. The district court conduct, object sciously going "an As to time unethical manner.” unethical at no acted counsel, fee, obviously object paying any As to does this was so. to HUD’s waive, HUD’s situation was different. tiff’s counsel elect to but for a solely Its fees rested require forgo defendant to him fee EAJA, upon requiring showing (the being example, instant case a classic “substantially justi- its conduct was not since the provided so-called settlement no fied.” Authority Bullocks and the funds, and, by hypothesis, available defendants, real joined were the and HUD indigent) client attempt negoti- was plaintiff as developed soon as she fee, by ate an playing upon unreasonable facts gratuitous republi- them. Its client, contrary counsel’s concern for his cation of its regulations section 236 showed And, very intendment of the Act. impropriety any- towards correspondingly, present plaintiff’s coun- agree one. We with the district court that acceptance situation, per- sel’s while this would not have been case for attor- haps particular, viewable ethical fees, ney’s had the ques- court reached that ethically required was not under the Act’s *4 tion. Nadeau v. Helgemoe, 581 F.2d Cf. purpose. broad 275, 278, (1st Cir.1978); Ashburn v. Counsel, apart plan from his secret to States, 843, (11th United Cir. rescind, in accepting the restriction was not 1984); Natural Resources Coun- Defense only (as absolving the state defendants U.S.E.P.A., (3rd cil v. 706-12 F.2d suming such) Bullocks was also of the lia Cir.1983). The opinion balance of this will bility intended,2 participating but was accordingly relate to the state defendants’ diminishing Act’s appeal, future to him liability for fees under 42 U.S.C. self and others. counsel can foresee We do not plaintiff’s consider counsel’s subject themselves to being euchred out of problem ethical to stark be the one con fee, successful, their though even the Con may duty tended. Whatever be the of gressional will, tanto, purpose pro be frus ordinary litigation counsel in to subordinate necessarily trated. not While so ex personal client, his interests to those of his pressed, this must be the rationale behind section does segregate these inter approve statements that to a settlement Rather, by entitling ests. prevailing a without normally an abuse fees, plaintiff to it in makes effect the fee F.2d, Nadeau, ante, of discretion. See recovery part This, of the of cause action. 279; Evans, at D. v. F.2d provisions Act, like the substantive Jeff (9th Cir.1984); Beal, 650-51 Shadis v. although for the benefit of the individual (3rd Cir.1982), F.2d 828-31 de plaintiff, Congressional is for the broader cert. 970, 103 nied 459 S.Ct. L.Ed.2d purpose compelling constitutional and 282; Cong. 1976 U.S.Code & Ad.News at good statutory encouraging pri conduct 5912-13. For counsel to a insist on reason “private through vate enforcement attor fee, while, able conceivably, particu neys general” willing able to under lar Greenblatt, case detrimental to the take client’s success King action. See (1st Cir.1977), settlement, ful denied, cert. nevertheless accord Act, ance purpose with the overall 1161; S.Rep. not an Cong., justi No. 94th 2d ethical no-no. At least it must Sess., fy reprinted Cong. going to U.S.Code & even if that incurs plain- Ad.News 5912-13. Of course some risk to the While the settlement.3 herein, Hampshire reasons set 3. Our for the forth commend remark in White v. New De- happy are we at all with the partment itself. Nor Employment Security, 629 F.2d filing Authority's a motion have HUD's (1st Cir.1980) brief gr'ds, 705 445, rev'd on other 455 U.S. brief, joint exploding as its and then considered (1982) 102 S.Ct. pages plaintiff pointed when out with "parties may altogeth- ... decide to waive fees plain- conceded the HUD's brief correctness er” purely intended more no substantive claim. tiff's conduct. through relief a 2. Substantial consent decree 122, 129, Gagne, calls for fee. Maher v. 2570, 2574, 100 S.Ct. 65 L.Ed.2d 653 negotiated a settle- ing whether to enter supplies charge
Act to the counsel without good ment, may have reason to a defendant this does mean counsel obligation ethical fee. his total forego an a know demand damages Although fees. such both however, difficult, disagree It is may difficult ethical issues raise situations district court that went about counsel attorney, we are reluctant for a Indeed, wrong exactly way. this in is ever resolution available to hold more counsel was certain that defendants’ ethical counsel.” wrongful duress, more it conduct was appropriate present the would have been package of a A settlement civil rather to the court for resolution issue consist of one more than, effect, upon misrepresenta build a (2) (1) monetary following damages, items: think of La tion. We do not the account costs, (4) relief, (3) equitable requiring a second Jacob work ban’s client, a settling a case (Genesis, 29) years for Rachel was seven does his client a dis- defendant’s counsel thereof, proper voicing however approval if he settles a case to one or service Here, gave as excuse. the custom Laban items, open these but leaves more wrong, Authority was recovery or action on possibility further opportunity had the plaintiff’s counsel but remaining ones. any of the Within it, another than commit to correct rather play, attorney and fair bounds ethics is, therefore, “special cir wrong. This reduce positive duty client to owes *5 prevailing plaintiff in which a cumstance” exposure recovery, and his Burke v. fees. See recover should not attorney’s ability. of This the limits (1st Cir. Guiney, 700 F.2d 772-73 judicial all items as to which applies to 1983). ques- sought. can be cannot be relief amicii, counsel, and Plaintiff’s case, that, appropriate in an tioned but for cases where lay us down rules all action, including in a those class plaintiffs, negoti- do, do parties or some wish any mone- accept a settlement without can See, v. Prandini e.g., attorney’s ate damages being recovered notwith- tary Co., (3rd 1015, 1021 National Tea initially included standing that the suit Evans, v. Cir.1977); F.2d at D. Jeff claim, same can- that the result such proper is a do not believe this 651-52. We respect equitable achieved with not be already. say more we have occasion to fact, relief, if constitutional or costs. HUD; by other consciously waived a de- rights Affirmed. Costs can case,1 it costs. in a criminal would be fendant par- paternalism to conclude excess (concur- TORRUELLA, Judge Circuit dispute cannot likewise. to a civil do ties ring). Hampshire v. New White court in This result Although I concur with Sec., Employment Dept. of compelled I by the feel reached Cir.1980), (1st other reversed concluding. grounds for separate so state grounds, 455 U.S. S.Ct. case, inas (1981), in a civil A defendant stated: L.Ed.2d at the know, actions, entitled to other suggest that an We of do “... course settlement, of implications the full time of ne- of attorney the course settlement including out the total that settlement need, every properly inor case gotiation pocket cost. out, best may, hold client’s interest, includ- specific for award to be Court White Supreme by As stated Sec., agreement Dept. Empl. in the correct decree. ed Hampshire New v. easily accomplished, the fees is not as to n. S.Ct. provide submission (1982), “In consider- 15, 71 n. Zerbst, See, L.Ed. e.g., v. 1. Johnson court; the entire of fees to the
further, course, they may, decide to INC., ENTERPRISES, al., BI-RITE et waive altogether ...”2 Plaintiffs, Appellees, fees respect With the opinion due case, present court in the the fact that COMPANY, INC., BRUCE MINER et attorney’s are appropri- fees authorized in al., Defendants, Appellants. Congressional by ate cases virtue of enact- prevent ment of Section 1988 does not con- No. 84-1361. any scious waiver said fees more than Appeals, United States Court of does the conscious monetary waiver of First Circuit. damages equitable relief, which also ex- (e.g. 1983), ist virtue statute Argued Oct. which, all, after are raison d’etre Decided March Act, Rights Civil provisions, product which are the of a latter-day vision.
Last, point we should overriding
public interest favor of the voluntary disputes, particularly
settlement of where are days
class actions involved.3 In these calendars, complex
of crowded court dis results,
putes, tardy there can be no
doubt but that the resolution of
litigation settlement, through constitutes quality justice, highest
the best
service, perform that counsel can
interest of his client administration *6 judicial system. The removal of the arena of negotiation
and ethical in civil cases present unnecessary discourage non-litigious disposition
ment to of these
controversies. perceive principled
Because we reason compelled
for such a result we feel to clari-
fy our as herein stated. views TWA, Inc., Emphasis supplied. (7th Cir.1980), 550 v. Hinton, (5th Cir.1977); Cotton v. Ass’n, Airline Stewards Stewardesses Local