WOODMAN v DEPARTMENT OF CORRECTIONS; JOSEPH v DEPARTMENT OF CORRECTIONS
Docket Nos. 163382 and 163383
Michigan Supreme Court
July 26, 2023
511 Mich 304
BOLDEN, J.
Chief Justice: Elizabeth T. Clement. Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden. Reporter of Decisions: Kathryn L. Loomis.
Syllabus
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
WOODMAN v DEPARTMENT OF CORRECTIONS
JOSEPH v DEPARTMENT OF CORRECTIONS
Docket Nos. 163382 and 163383. Argued on application for leave to appeal April 4, 2023. Decided July 26, 2023.
Spencer Woodman and George Joseph, two freelance journalists, brought separate actions in the Court of Claims against the Michigan Department of Corrections (the MDOC), arguing that the MDOC wrongfully denied their requests under Michigan‘s Freedom of Information Act (FOIA),
In an opinion by Justice BOLDEN, joined by Chief Justice CLEMENT and Justices BERNSTEIN, CAVANAGH, and WELCH, the Supreme Court, in lieu of granting leave to appeal, held:
Plaintiffs prevailed under
1. FOIA is a statute intended to provide members of the public access to public records unless a statutory exemption to disclosure under
2. The touchstone in determining the amount of attorney fees to be awarded to a prevailing party in a FOIA case is “reasonableness.” Smith v Khouri, 481 Mich 519 (2008) (opinion by TAYLOR, C.J.), and Pirgu v United Servs Auto Ass‘n, 499 Mich 269 (2016), provide the guiding principles lower courts should use in determining the reasonableness of attorney-fee awards. Under the Smith/Pirgu framework, the trial court is first required to determine the reasonable hourly or daily rate customarily charged in the locality for similar legal services, using reliable surveys or other credible evidence. Second, the court must multiply that rate by the reasonable number of hours expended in the case to arrive at a baseline figure. Finally, the court must consider a nonexhaustive list of factors to determine whether an upward or downward adjustment is appropriate. Those factors include the experience, reputation, and ability of the lawyer or lawyers performing the services; the difficulty of the case, i.e., the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly; the amount in question and the results obtained; the expenses incurred; the nature and length of the professional relationship with the client; the likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer; the time limitations imposed by the client or by the circumstances; and whether the fee is fixed or contingent. In these cases, the Court of Claims completed the first two steps in the Smith/Pirgu framework when it found that the attorneys’ hourly rate and number of hours expended in the cases were both reasonable. However, the court did not consider the Smith/Pirgu factors on the record or explain that the 90% reduction of Honigman‘s attorney fees was related to any Smith/Pirgu factor. Accordingly, the Court of Claims abused its discretion by failing to address the Smith/Pirgu factors or otherwise justify such a reduction. The Court of Appeals judgment was affirmed to the extent it vacated the Court of Claims’ attorney-fee award and remanded these cases to the Court of Claims to address the Smith/Pirgu factors and any additional factors the Court of Claims considers relevant.
3. Whether an otherwise reasonable fee award may be reduced because an attorney is representing a party on a pro bono basis was an issue of first impression in Michigan. The purpose of the Smith/Pirgu factors is to aid courts in determining a reasonable amount of fees based on the specifics of the case. Whether an attorney represents a client pro bono is not a valid consideration under the Smith/Pirgu framework because it is not relevant to the reasonableness of a fee. When an attorney agrees to represent a client pro bono, the pro bono nature of the representation should not have any effect on the quality of representation provided or the time spent on the case. Moreover, pro bono fee awards, like all other fee awards, promote the purpose behind FOIA‘s fee-shifting provision. The plain language of
Court of Appeals judgment reversed in part, affirmed in part, and vacated in part, and cases remanded to the Court of Claims; leave to appeal denied in all other respects.
Justice ZAHRA, joined by Justice VIVIANO, dissenting in part, disagreed with the majority‘s holdings that plaintiffs fully prevailed and that an attorney‘s pro bono representation is not an appropriate consideration when determining the reasonableness of an award of attorney fees under FOIA; he did not disagree with the majority‘s decision to deny leave to appeal on the issue of punitive damages. Plaintiffs in this case explicitly requested the disclosure of unredacted footage in their complaints and sought complete, unredacted records throughout the entire FOIA process. Plaintiffs also contested the issue of redaction and did not concede the issue until after the trial court had already allowed redaction of the records. Because plaintiffs initially sought unredacted records and ultimately were granted access only to redacted records, they did not obtain everything they initially sought and should not be entitled to mandatory attorney fees. With regard to whether pro bono representation is an appropriate factor for determining the reasonableness of an attorney-fee award, the Court of Appeals declined to address the issue, and therefore the trial court should address this issue in the first instance. In responding to the majority, however, Justice ZAHRA would have concluded that the fact that a representation is pro bono was a legitimate consideration when deciding the reasonableness of attorney fees. Under the Smith/Pirgu framework, the pro bono nature of a representation could be seen as part of the nature of the professional relationship with the client or potentially as an additional relevant factor. Nothing in the Smith/Pirgu framework facially precluded its consideration. In establishing a per se rule that courts cannot consider that a representation is pro bono when awarding reasonable attorney fees, the majority not only misread the law but distorted the meaning of pro bono representation. Because attorneys and law firms should have no expectation of financial gain from pro bono work, courts should be able to consider that a representation is pro bono when deciding what attorney fees are reasonable.
OPINION
FILED July 26, 2023
STATE OF MICHIGAN
SUPREME COURT
SPENCER WOODMAN, Plaintiff-Appellant, v DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
No. 163382
GEORGE JOSEPH, Plaintiff-Appellant, v DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
No. 163383
BEFORE THE ENTIRE BENCH
These cases concern the availability of attorney fees under Michigan‘s Freedom of Information Act (FOIA),
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs, Spencer Woodman and George Joseph, two freelance journalists, submitted separate FOIA requests to defendant, the Michigan Department of Corrections (the MDOC), seeking video and audio recordings of a prisoner altercation that resulted in one inmate‘s death.1 The MDOC denied their FOIA requests, asserting that the records were exempt from disclosure under
In the Court of Claims, plaintiffs argued that the MDOC wrongfully denied their requests. Plaintiffs moved for summary disposition under
The trial court ordered the MDOC to disclose the audio recording to plaintiffs and to produce the videos for an in camera review, holding in abeyance the parties’ motions pending the review. The trial court permitted the MDOC to submit the videos in a format that obscured the faces of the employees and prisoners in the videos to protect those individuals. However,
(a) Information of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual‘s privacy.
* * *
(c) A public record that if disclosed would prejudice a public body‘s ability to maintain the physical security of custodial or penal institutions occupied by persons arrested or convicted of a crime or admitted because of a mental disability, unless the public interest in disclosure under this act outweighs the public interest in nondisclosure.
* * *
(u) Records of a public body‘s security measures, including security plans, security codes and combinations, passwords, passes, keys, and security procedures, to the extent that the records relate to the ongoing security of the public body.
On April 29, 2019, the MDOC moved for reconsideration of the court‘s order, arguing that it need not disclose the videos or, alternatively, that it should be allowed to redact the videos by blurring the faces of the individuals in the videos. The court denied the MDOC‘s motion because it was “not convinced that an error of fact or law was made as to the Court‘s conclusion that the videos should be released” and did “not believe that there is any law precluding the display of the faces of public employee correctional officers . . . .” Nevertheless, it permitted the MDOC to blur the faces but also permitted plaintiffs’ counsel to view both the redacted and unredacted videos and “make further prayer for relief after the review.”
Thereafter, plaintiffs moved for attorney fees and costs under
The Court of Claims determined that the MDOC was not a prevailing party and that plaintiffs prevailed “in full“; therefore, the Court of Claims held that plaintiffs were entitled to reasonable attorney fees and costs under
The reason that the Court is awarding the fees is, in part, certainly it‘s normal to compensate parties for dollars they‘ve spent. But in this case, dollars have not been necessarily spent except for those dollars that are attributable to counsel for the ACLU. Instead[,] those were pro bono dollars [as to Honigman].
The Court of Claims also denied plaintiffs’ request for punitive damages under
Plaintiffs and the MDOC appealed in the Court of Appeals, raising only the attorney-fee and punitive-damages issues. Plaintiffs challenged both the trial court‘s decision to reduce Honigman‘s attorney-fee award and the denial of punitive damages. The MDOC cross-appealed, challenging only the trial court‘s determination that plaintiffs prevailed in full and thus were entitled to attorney fees and costs under FOIA.4
Plaintiffs sought leave to appeal in this Court. We ordered oral argument on the application and asked the parties to address whether “(1) [plaintiffs] prevailed in full, and are thus statutorily entitled to attorney fees under
II. STANDARD OF REVIEW
Under FOIA, “legal determinations are reviewed under a de novo standard.” Herald Co, Inc v Eastern Mich Univ Bd of Regents, 475 Mich 463, 471-472; 719 NW2d 19 (2006). A trial court‘s factual determinations are reviewed for clear error. See id. An attorney-fee award in a FOIA action is reviewed for an abuse of discretion. See Mich Tax Mgt Servs Co v Warren, 437 Mich 506, 506, 507; 473 NW2d 263 (1991); Prins v Mich State Police, 299 Mich App 634, 641; 831 NW2d 867 (2013). An abuse of discretion occurs when the trial court‘s decision is outside the range of reasonable and principled outcomes. See Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). A trial court necessarily abuses its discretion when it makes an error of law. See Pirgu v United Servs Auto Ass‘n, 499 Mich 269, 274; 884 NW2d 257 (2016).
Because determining the status of a prevailing party under FOIA is a legal determination, it is reviewed de novo. See Outdoor Sys, Inc v Clawson, 273 Mich App 204, 209; 729 NW2d 893 (2006) (recognizing that “determining prevailing-party status” for attorney fees in a
III. PREVAILING PARTY UNDER MCL 15.240(6)
To begin, we examine the Court of Appeals’ conclusion that plaintiffs prevailed only in part and thus that attorney fees were discretionary and not mandatory. The panel reasoned that because plaintiffs’ complaints demanded the production of ” ‘a complete, unredacted copy of the Video’ ” and the MDOC was permitted to redact the faces of the individuals in the videos, plaintiffs prevailed only in part under
A. LEGAL BACKGROUND
1. FOIA DISCLOSURE AND EXEMPTIONS
FOIA is a statute intended to provide members of the public access to public records unless the Legislature enacted a statutory exemption to disclosure. “FOIA is a manifestation of this state‘s public policy favoring public access to government information, recognizing the need that citizens be informed as they participate in democratic governance, and the need that public officials be held accountable for the manner in which they perform their duties.” Rataj v Romulus, 306 Mich App 735, 748; 858 NW2d 116 (2014) (quotation marks and citation omitted). “The Legislature codified the FOIA to facilitate disclosure to the public of public records held by public bodies.” Herald Co, Inc, 475 Mich at 472; see also ACLU of Mich, 509 Mich at 9-10. “In construing the provisions of the act, we keep in mind that the FOIA is intended primarily as a prodisclosure statute and the exemptions to disclosure are to be narrowly construed.” Swickard v Wayne Co Med Examiner, 438 Mich 536, 544; 475 NW2d 304 (1991).
“Consistent with the legislatively stated public policy supporting the act, the Michigan FOIA requires disclosure of the ‘public record[s]’ of a ‘public body’ to persons who request to inspect, copy, or receive copies of those requested public records.” Mich Federation of Teachers & Sch Related Personnel, AFT, AFL-CIO v Univ of Mich, 481 Mich 657, 664-665; 753 NW2d 28 (2008) (Mich Federation), citing
When a public body denies a FOIA request and the requesting party seeks to compel disclosure of a public record in a circuit court action under
FOIA includes a fee-shifting provision that awards attorney fees to requesting parties that “prevail” in actions seeking to compel disclosure under
If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails in an action commenced under this section, the court shall award reasonable attorneys’ fees, costs, and disbursements. If the person or public body prevails in part, the court may, in its discretion, award all or an appropriate portion of reasonable attorneys’ fees, costs, and disbursements. [Emphasis added.]
Therefore, under
We have explained that to “prevail” under
B. ANALYSIS
There is no dispute that the records at issue here—eight videos—were public records. It is also undisputed that the records would not have been disclosed absent the litigation and that the litigation itself was the cause of the disclosure because the MDOC admitted that it issued blanket denials for the FOIA requests in the instant cases. Therefore, “the action was reasonably necessary to compel . . . disclosure” of the public records sought. Amberg, 497 Mich at 34 (quotation marks and citation omitted).
The significant question at issue here is whether plaintiffs obtained everything they initially sought. Plaintiffs’ FOIA requests to the MDOC sought video footage of the incident from all available cameras and accompanying audio records. Neither plaintiff asked that the footage be “unredacted” in their initial FOIA requests. Nor did plaintiffs request the identities of the individuals in the videos. However, as noted by the MDOC, in their complaints filed to compel disclosure of the records in the Court of Claims, plaintiffs did request “a complete, unredacted copy” of the relevant video footage.
Notably, a FOIA request “need not specifically describe the records containing the sought information; rather, a request for information contained in the records will suffice.” Detroit Free Press, Inc v Southfield, 269 Mich App 275, 281; 713 NW2d 28 (2005). When submitting a FOIA request to a public body, the requester is necessarily at an informational disadvantage. Requiring a requesting party to describe individual records with specificity and precision before they have access to the records would make little sense.5 Therefore, FOIA, an inherently prodisclosure statute, permits requesters to ask broadly and receive records in return unless the records are expressly exempt.
The content of a complaint filed to compel disclosure of records in accordance with FOIA does not alter the information that plaintiffs initially sought in their FOIA requests. Here, plaintiffs successfully received the records they originally sought in their FOIA requests as a result of this litigation. Plaintiffs requested video and audio recordings of an altercation. Plaintiffs did not initially request unredacted videos. Not only were plaintiffs’ FOIA requests silent on redaction, blurring, and identity, but the litigation that ensued never expressly prevented plaintiffs from receiving an unredacted copy of the video footage. The trial court permitted the MDOC to redact the videos only after the court had already ordered the MDOC to disclose the records. Plaintiffs simply chose not to contest the blurring of faces. As plaintiffs received both video and audio recordings following litigation, they “obtained everything [they] initially sought.” Int‘l Union, 422 Mich at 455 (opinion by LEVIN, J.).
Our decision in Int‘l Union, 422 Mich at 455 (opinion by LEVIN, J.), is instructive, providing support for our conclusion that plaintiffs prevailed in this action and are entitled to attorney fees under
On appeal, we affirmed the lower courts’ decision to order disclosure of the records to the plaintiff. Int‘l Union, 422 Mich at 438 (opinion by LEVIN, J.). We also concluded that the plaintiff was “entitled to recover reasonable, actual attorney fees” under the statutory language.6 Id. at 454. However, we noted that the plaintiff “[a]rguably” did not prevail completely because “its use of the disclosed information [had] been restricted.” Id. at 455.7 Nevertheless, we concluded that the
While Int‘l Union is distinguishable from the instant cases because the restriction at issue in Int‘l Union was a use restriction, not a redaction, it is still instructive regarding restrictions that a court imposes on disclosure after a FOIA request is made and that the parties do not challenge. In Int‘l Union, the plaintiff requested a record and received it. The initial request did not mention whether the plaintiff planned to share the record with other entities following disclosure; the issue of further disclosure was simply not contested. Therefore, the fact that the Court of Appeals imposed a use restriction did not alter the plaintiff‘s substantial victory in the action or their ability to recover fees as the prevailing party. Similarly to the public records at issue in the instant cases, the public records in Int‘l Union were ordered to be disclosed to the plaintiff after the defendant failed to establish that an exemption to disclosure applied.
In the instant cases, the MDOC denied plaintiffs’ FOIA requests on the basis that the records were exempt from disclosure under
The MDOC argues that because the trial court permitted it to “redact” the records, it was permitted to protect one of its security concerns and thus it prevailed in part. We disagree. The record clearly establishes that the trial court gave plaintiffs an opportunity to review the redacted and unredacted versions of the videos and “make further prayer for relief after the review.” Plaintiffs never challenged the permitted redactions; blurring the
faces or obscuring the identities of individuals in the videos was never a contested issue.11 While plaintiffs chose not to make a further prayer for relief, that does not change the fact that plaintiffs, in fact, did prevail in obtaining the requested videos.
We conclude that plaintiffs’ action was “reasonably necessary to compel the disclosure” of the videos because the MDOC issued a blanket denial of the FOIA requests. Amberg, 497 Mich at 34 (quotation marks and citation omitted). And, as already explained, that action “had a substantial causative effect on the delivery of the information” to plaintiffs. Id. (quotation marks and citation omitted). Finally, like the plaintiff in Int‘l Union, plaintiffs “obtained everything [they] initially sought.” Int‘l Union, 422 Mich at 455 (opinion by LEVIN, J.). Therefore, plaintiffs prevailed, as contemplated by
IV. PRO BONO REPRESENTATION AND REDUCED ATTORNEY-FEE AWARD
Next, we turn to the Court of Claims’ decision to reduce Honigman‘s fee by 90% because Honigman represented plaintiffs pro bono. The court had determined that the attorney fees were reasonable based on the hours and hourly rates provided by plaintiffs in support of their motion for fees but decided to reduce Honigman‘s fee by 90% solely on the basis of Honigman‘s pro bono representation. We must decide whether pro bono representation can be the sole basis for reducing an otherwise reasonable attorney fee. We also take this opportunity to address, more broadly, whether pro bono representation
We hold that the Court of Claims abused its discretion by reducing Honigman‘s fees based on pro bono representation of plaintiffs because pro bono representation is never an appropriate factor for a court to consider in determining the reasonableness of an attorney fee.
A. LEGAL BACKGROUND
Fee-shifting provisions in general are an aberration from the “American Rule,” which dictates that each side pay for its own attorneys. See Black‘s Law Dictionary (11th ed) (defining “American Rule” as “[t]he general policy that all litigants, even the prevailing one, must bear their own attorney‘s fees“). However, certain statutes change that dynamic to encourage parties to act as “private attorneys general” and vindicate the rights of the public created by the Legislature. See, e.g., Newman v Piggie Park Enterprises, Inc, 390 US 400, 401-402; 88 S Ct 964; 19 L Ed 2d 1263 (1968). Michigan‘s FOIA is such a statute.
The touchstone in determining the amount of attorney fees to be awarded to a prevailing party in a FOIA case is “reasonableness.” See Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573, 588; 321 NW2d 653 (1982) (“[T]he controlling criterion is that the attorney fees be ‘reasonable.’ “). This Court articulated the guiding principles lower courts should use in making this determination in Smith v Khouri, 481 Mich 519, 530; 751 NW2d 472 (2008) (opinion by TAYLOR, C.J.), and Smith was further refined by Pirgu, 499 Mich at 281-282. This framework is also known as the “Smith/Pirgu factors,” and it applies in determining reasonable attorney fees under FOIA and other fee-shifting statutes or rules. See Pirgu, 499 Mich at 278 (recognizing that Smith refined the framework that courts apply for fee-shifting statutes or rules); Smith, 481 Mich at 535 (opinion by TAYLOR, C.J.) (stating that the framework “provide[s] a workable, objective methodology for assessing reasonable attorney fees that Michigan courts can apply consistently to our various fee-shifting rules and statutes“); see also Coblentz v Novi, 485 Mich 961 (2009) (recognizing that the Smith factors apply in determining reasonable attorney fees under FOIA).
First, the trial court is required to determine “the reasonable hourly or daily rate customarily charged in the locality for similar legal services, using reliable surveys or other credible evidence.” Smith, 481 Mich at 522 (opinion by TAYLOR, C.J.); see Pirgu, 499 Mich at 281. Second, the court must “multiply that rate by the reasonable number of hours expended in the case to arrive at a baseline figure.” Pirgu, 499 Mich at 281. Finally, after that baseline number is determined, “the trial court must consider” a nonexhaustive list of factors to “determine whether an up or down adjustment is appropriate.” Pirgu, 499 Mich at 281, discussing Wood, 413 Mich 573, and
- the experience, reputation, and ability of the lawyer or lawyers performing the services,
- the difficulty of the case, i.e., the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,
- the amount in question and the results obtained,
- the expenses incurred,
- the
nature and length of the professional relationship with the client, - the likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer,
- the time limitations imposed by the client or by the circumstances, and
- whether the fee is fixed or contingent. [Id. at 282.]
This list is not exclusive, and “the trial court may consider any additional relevant factors.” Id. Importantly, “[i]n order to facilitate appellate review, the trial court should briefly discuss its view of each of the factors above on the record and justify the relevance and use of any additional factors.” Id.
B. ANALYSIS
The parties dispute whether pro bono representation is a factor that a trial court may consider when determining the reasonableness of an attorney-fee award under the FOIA fee-shifting statute and whether it is permissible to reduce such an award on that basis.12
In the instant cases, the Court of Claims completed the first two steps in the Smith/Pirgu framework when it found that the attorneys’ hourly rate and number of hours expended in the cases were both reasonable. Then, it awarded Honigman only 10% of its requested attorney fees based on the fact that Honigman represented plaintiffs on a pro bono basis.
The court did not consider the Smith/Pirgu factors on the record or explain that the 90% reduction was related to any Smith/Pirgu factor. Nor did the court explain why pro bono representation was a relevant factor in determining the reasonableness of the attorney fees. Therefore, we conclude that the Court of Claims abused its discretion by failing to address the Smith/Pirgu factors or otherwise justify such a reduction. See Pirgu, 499 Mich at 282.
The question remains whether pro bono representation is ever a factor a court may consider when applying the Smith/Pirgu factors. While FOIA does not expressly prohibit an attorney from recovering fees because they represent a plaintiff pro bono, whether an otherwise reasonable fee award may be reduced because an attorney is representing a party on a pro bono basis is an issue of first impression in Michigan. The purpose of the Smith/Pirgu factors is to aid courts in determining a reasonable amount of fees based on the specifics of the case. For example, courts can consider the “difficulty of the case,” the “time limitations,” or “the experience” of the attorneys. Pirgu, 499 Mich at 282. These factors, along with the others outlined in Smith/Pirgu, correspond to specific aspects of litigation that would justify increasing or decreasing a calculated fee.
We conclude that whether an attorney represents a client pro bono is not a valid consideration under the Smith/Pirgu framework because it is not relevant to the reasonableness of a fee. When an attorney agrees to represent a client pro bono, the pro bono nature of the representation should not have any effect
Moreover, pro bono fee awards, like all other fee awards, promote the purpose behind FOIA‘s fee-shifting provision. As already discussed, the FOIA fee-shifting provision provides for the award of “reasonable attorneys’ fees, costs, and disbursements” to prevailing parties.
Across our legal system, pro bono representation has played a critical role in providing indigent parties access to the justice system. See
Other jurisdictions have rejected the notion that pro bono representation bars reasonable attorney fees under fee-shifting provisions. For example, in the federal FOIA context, federal courts agree that attorney-fee awards should not be denied because of pro bono representation. See, e.g., Jarno v Dep‘t of Homeland Security, 365 F Supp 2d 733, 741 (ED Va, 2005) (awarding attorney fees to pro bono counsel in a federal FOIA lawsuit); Williams v Fed Bureau of Investigation, 17 F Supp 2d 6, 9 (DDC, 1997) (holding that the denial of pro bono counsel‘s motion for attorney fees “would discourage other attorneys from making a similar commitment” and is “[in]consistent with the legislative history” of the federal FOIA‘s attorney-fee provision); Mattachine Society of Washington, DC v US Dep‘t of Justice, 406 F Supp 3d 64, 70 (DDC, 2019) (recognizing that pro bono representation “is not a bar to recovering attorneys’ fees” under the federal FOIA). Although the federal FOIA and Michigan‘s FOIA are distinct statutes, the same policy and underlying purposes are present in both.
Outside of the FOIA context, federal courts have agreed that pro bono representation should not preclude the prevailing party from receiving its reasonable fees. See, e.g., Turner v Comm‘r of Social Security, 680 F3d 721, 724 (CA 6, 2012) (“Indeed, it is ‘well-settled’ that the existence of an unsatisfied contingency or pro bono representation agreement does not preclude a fee award, even where the statute limits fees to those ‘incurred’ by the plaintiff in that action.“); Arbor Hill Concerned Citizens Neighborhood Ass‘n v Albany Co, 522 F3d 182, 184 n 2 (CA 2, 2008) (explaining that attorneys engaged in pro bono work are not “excluded from the usual approach to determining attorneys’ fees” and that “[t]he reasonableness of a fee award does not depend on whether the attorney works at a private law firm or a public interest organization“).
Other state courts have similarly rejected the argument that attorney fees should be denied when a prevailing party has pro bono representation. See, e.g., Kirk v Arnold, 2020 IL App (1st) 190782, ¶ 24; 157 NE3d 1111 (2020) (reversing denial of fees based on pro bono representation and recognizing that “the purpose of fee shifting is to provide those whose civil rights have been violated with access to attorneys whose services they might otherwise be unable to afford and to provide incentives for attorneys to undertake representation in socially beneficial cases where the potential monetary recoveries are minimal“); Ostermeier, 589 SW3d at 8-9 (recognizing that denying fees when a party is represented by legal aid or pro bono counsel “thwarts the remedial purposes of the . . . fees shifting provisions” and “could have a chilling
The purpose behind fee-shifting statutes like
On top of discouraging attorneys from engaging in necessary pro bono work—and, perhaps, more importantly—a contrary ruling could have the practical effect of openly encouraging public bodies not to comply with FOIA when the requester was represented—wholly or in part—by a private firm because it could later petition to have those fees almost entirely wiped out. But the purpose of FOIA is to “encourage voluntary compliance” with FOIA requests. Walloon Lake, 163 Mich App at 733. Allowing courts to reduce an otherwise reasonable attorney fee on the basis of pro bono representation would be contrary to the policy and purposes underlying FOIA. We refuse to undermine the purpose of the law so blatantly.
Because we conclude that the pro bono nature of representation is not a relevant factor for courts to consider when assessing the reasonableness of a fee award, the Court of Claims abused its discretion by reducing Honigman‘s otherwise reasonable attorney fees solely on the basis of Honigman‘s pro bono representation. Accordingly, we vacate the part of the Court of Appeals judgment that directed the Court of Claims to consider on remand whether the pro bono nature of the representation
V. CONCLUSION
The Court of Appeals erred when it concluded that plaintiffs only prevailed in part. Rather, we conclude that plaintiffs prevailed and are therefore entitled to reasonable attorney fees under
We also conclude that the Court of Claims abused its discretion by reducing the attorney-fee award to Honigman based on Honigman‘s pro bono representation of plaintiffs. We hold that pro bono representation is not an appropriate factor to consider in determining the “reasonableness” of attorney fees. We vacate the Court of Appeals judgment to the extent it directed the Court of Claims to address this issue on remand. We affirm the Court of Appeals judgment to the extent it vacated the Court of Claims’ attorney-fee award and remanded the cases to the Court of Claims to address the Smith/Pirgu factors and any additional factors it considers relevant except that the analysis should not consider Honigman‘s pro bono representation of plaintiffs.
In all other respects, leave to appeal is denied because we are not persuaded that the questions presented should be reviewed by this Court. We do not retain jurisdiction.
Kyra H. Bolden
Elizabeth T. Clement
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
STATE OF MICHIGAN
SUPREME COURT
SPENCER WOODMAN,
Plaintiff-Appellant,
v
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
No. 163382
GEORGE JOSEPH,
Plaintiff-Appellant,
v
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
No. 163383
ZAHRA, J. (dissenting in part).
I disagree with the majority‘s holding that plaintiffs prevailed in full and thus are entitled to a mandatory award of attorney fees under the Freedom of Information Act (FOIA).1 I also disagree with the majority‘s conclusion that an attorney‘s pro bono representation is not an appropriate consideration when determining the reasonableness of an award of statutory attorney fees under FOIA. For these reasons, I dissent.2
Plaintiffs, Spencer Woodman and George Joseph, are journalists who made separate FOIA requests for video and audio footage of a fight between inmates at the Ionia Bellamy Creek Correctional Facility. The altercation unfortunately led to the death of inmate Dustin Szot. The Department of Corrections (the Department) denied plaintiffs’ requests, concluding that the records were exempt from FOIA disclosure.3 Represented by the American
The Court of Appeals held that the Court of Claims erred by ruling that plaintiffs had prevailed in full.6 Because plaintiffs requested unredacted recordings but received redacted videos, the Court of Appeals held that plaintiffs had prevailed only in part. Thus, plaintiffs could still receive an award of attorney fees, but any award would be in the trial court‘s discretion and not a matter of statutory entitlement. The Court of Appeals also concluded that the Court of Claims had not properly considered the factors for determining the reasonableness of attorney fees.7 The Court of Appeals thus remanded the case to the Court of Claims for consideration of those factors and any other relevant factors.
This Court now reverses the Court of Appeals’ well-founded conclusion that plaintiffs prevailed only in part and establishes a per se rule that the pro bono nature of a representation is not relevant to the reasonableness of an award of attorney fees.
I. PLAINTIFFS PREVAILED ONLY IN PART
Plaintiffs prevailed at least partly in their actions to obtain the prison video and audio recordings. The question is whether they prevailed in full or only in part. The extent to which plaintiffs prevailed matters because it affects their entitlement to attorney fees. The relevant provision,
If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails in an action commenced under this section, the court shall award reasonable attorneys’ fees, costs, and disbursements. If the person or public body prevails in part, the court may, in its discretion, award all or an appropriate portion of reasonable attorneys’ fees, costs, and disbursements.
Thus, if plaintiffs prevailed “in part,” the trial court “may, in its discretion,” award reasonable attorney fees. If plaintiffs
A majority of this Court concludes that plaintiffs prevailed in full—and are therefore entitled to mandatory attorney fees—even though plaintiffs did not receive the unredacted records that they sought. This conclusion ignores the plain text of the statute, twists the contents of the record, and defies common sense.
To begin, the majority asserts that plaintiffs received everything that they sought in their initial FOIA requests because they did not “initially request unredacted videos.” From this, the majority argues that plaintiffs’ failure to obtain unredacted videos does not mean that plaintiffs prevailed only in part. But that analysis does not withstand scrutiny. Not only did plaintiffs explicitly request the disclosure of unredacted footage in their complaints, but they have sought complete, unredacted records throughout the entire FOIA process.
Both plaintiffs’ initial FOIA requests sought “footage from any and all available cameras that captured” the incident leading to Szot‘s death, as well as “any” audio recordings accompanying the footage. True enough, these requests did not specify that plaintiffs were seeking “unredacted” records. But that is not dispositive, as the provision of unredacted records is the default requirement under FOIA. We have previously stated that “FOIA is a prodisclosure statute . . . .”12
Plaintiffs’ complaints in the Court of Claims bolster this conclusion. There, rather than request video and audio recordings with guards’ and inmates’ identities redacted, plaintiffs each asked for “a complete, unredacted copy of the Video and any accompanying audio recordings[.]”16 This request, provided without explanation or qualification, suggests that plaintiffs were seeking “complete, unredacted” recordings all along. Because plaintiffs initially sought unredacted records and ultimately were granted access only to redacted records, they did not obtain everything they initially sought. Therefore, they should not be entitled to mandatory attorney fees.17
Even if plaintiffs did not seek complete, unredacted recordings in their initial FOIA requests, they undoubtedly sought such recordings when they sued in the Court of Claims. The majority stresses that plaintiffs did not “initially” request unredacted videos. Assuming that this is true, how would it be relevant when plaintiffs inarguably requested unredacted videos when they sued to vindicate their FOIA rights? Can a plaintiff make a limited initial FOIA request, sue to compel a more expansive FOIA disclosure, and then—when it comes time to seek attorney
The Court also concludes that there was no real dispute that a redacted version of the recordings would fully satisfy plaintiffs’ demand. According to the majority opinion, plaintiffs agreed to allow the Department to redact the recordings only after plaintiffs had already prevailed in full. But the record evidence belies this claim. Plaintiffs contested the redaction issue in the trial court and did not give up on the issue until after the trial court decided to allow the Department to redact the recordings. In its motion for summary disposition, the Department argued that releasing the recordings would threaten the safety of the individuals shown in the video. In their response to the Department‘s motion for summary disposition, plaintiffs argued, first, that there was no reason to hide the identities of the corrections officers in the video: “Similar to police officers, corrections officers are not entitled to anonymity. It is wholly speculative that prison security would be prejudiced by disclosing their identities.”18 But plaintiffs then suggested that “faces could be redacted if that were truly necessary to ensure prison security,” citing a public body‘s duty under FOIA to separate exempt material from nonexempt material. That is, plaintiffs posed two different arguments, first asserting that the videos posed no threat and should be released in their entirety without the blurring of identities, but then stating that faces could be redacted if the Department could show that it was necessary to ensure security. In light of plaintiffs’ primary argument, which opposed redaction, their second argument cannot be considered a true concession but only an alternative argument.19
Moreover, in their motion for attorney fees, costs, and punitive damages, plaintiffs stated that “[i]n an effort to avoid further litigation, [p]laintiffs did not contest [the Department] blurring the identities . . . in the videos.”20 The necessary implication is that plaintiffs disagreed with the trial court‘s decision to allow redaction of the videos but chose not to pursue that issue further. Had plaintiffs initially agreed to the redaction, they would have had no reason to affirmatively choose not to contest the matter. Nor would they have done so “to avoid further litigation.” Similarly, after the trial court allowed the Department to redact the videos, it offered plaintiffs’ counsel an opportunity to review both the redacted and unredacted videos and “make further prayer for relief after the review.” Plaintiffs’ counsel declined to do so. This was
The record evidence does not support this Court‘s conclusion that plaintiffs agreed to accept the redacted videos only after they had won access to the unredacted versions of the recordings. In ruling on the parties’ motions for summary disposition, the trial court ordered the Department to produce the videos for in camera review within 10 days “with attempts made to redact, if possible, faces and identities of the individuals depicted therein.” The Department submitted unredacted versions of the videos, stating that it could not make the redactions in such a short time frame but maintaining that it should be allowed to blur identities before disclosing the recordings to plaintiffs if the trial court ruled in plaintiffs’ favor. The trial court did not find the unredacted videos to reveal the placement of cameras, but it appointed a special master to review the videos “as to whether there are any security concerns, other than the identity of those persons who are seen on camera.”21 The special master‘s review of the videos did “not reveal any security concerns except for the display of the staff members and inmates that were caught on camera during this incident.”22
In contradiction to its initial finding and the special master‘s report, however, the trial court then stated in its disclosure order that the special master had “concluded that there are no security concerns.” In a motion for reconsideration, the Department reiterated its earlier position that it should be allowed to redact the identities. The trial court agreed that the Department could redact the videos but that plaintiffs’ counsel could review both the redacted and unredacted videos and “make further prayer for relief after the review.” As explained earlier, plaintiffs then decided not to contest the matter further. Accordingly, even if there were a brief window in which the trial court ordered disclosure of the unredacted recordings, the trial court quickly changed course and allowed redaction. This occurred before plaintiffs abandoned their challenge to redaction.
Indeed, at no point prior to obtaining the videos did plaintiffs expressly agree to allow the Department to redact the videos; it was only after the trial court ordered the release of the redacted videos on reconsideration that plaintiffs decided not to continue the dispute. If a party could concede to accept less than what it initially sought in order to obtain a full and complete victory, that again would open up the attorney-fee statute in FOIA for abuse. That is why the inquiry into whether a party prevailed in full should be measured by what materials that party initially sought and what materials the court ultimately deemed that party was entitled to receive under FOIA23—not what the party might
Ultimately, because plaintiffs lost on the redaction issue and received a more limited disclosure than they initially sought, I conclude that they prevailed only in part and are not entitled to mandatory attorney fees under
II. PRO BONO REPRESENTATION IS A PROPER CONSIDERATION FOR DETERMINING THE REASONABLENESS OF ATTORNEY-FEE AWARDS
Because I conclude that plaintiffs prevailed only in part, I would remand these cases for the trial court to decide “in its discretion” whether to “award all or an appropriate portion of reasonable attorneys’ fees, costs, and disbursements.”24 Moreover, even if the majority is correct that plaintiffs prevailed in full, it is premature to decide whether pro bono representation is an appropriate factor for determining the reasonableness of an attorney-fee award. The Court of Appeals declined to address this issue. Instead, it directed the trial court to consider on remand “whether the pro bono nature of the representation is a legitimate consideration in the determination of the reasonableness of fees,” along with other factors relevant to that determination set forth in our caselaw.25 Like the Court of Appeals, I would allow the trial court to address this issue in the first instance.26
But because the majority has decided to rule on this issue and has concluded that pro bono representation is not an appropriate consideration in determining the reasonableness of an attorney-fee award, a response is necessary. In my view, the fact that a representation is pro bono is a legitimate consideration when deciding the reasonableness of attorney fees. In Pirgu v United Servs Auto Ass‘n, we listed eight factors to assist trial courts’ determination of whether attorney-fee awards are reasonable:
- the experience, reputation, and ability of the lawyer or lawyers performing the services,
- the difficulty of the case, i.e., the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,
- the amount in question and the results obtained,
- the expenses incurred,
- the nature and length of the professional relationship with the client,
- the likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer,
-
the time limitations imposed by the client or by the circumstances, and - whether the fee is fixed or contingent.[27]
We also clarified that these factors are “not exclusive” and that trial courts “may consider any additional relevant factors.”28 At the outset, I note that the pro bono nature of a representation can be seen as part of the “nature . . . of the professional relationship with the client” or potentially as an “additional relevant factor[].” 29 Thus, there is nothing in the Pirgu framework that facially precludes its consideration.
As the majority observes,
Generally, working pro bono means providing a service in the public interest without compensation.31 The Michigan Rules of Professional Conduct strongly encourage attorneys to engage in pro bono work for no fee or a reduced fee.32 With this in mind, lawyers and law firms should have no expectation of pecuniary gain from pro bono work. That does not necessarily preclude attorneys from benefiting monetarily from pro bono work—such as by receiving attorney fees and costs under a fee-shifting provision. But I see no reason why it cannot be a relevant consideration when a court is determining what attorney fees are reasonable. Indeed, some firms indicate that the circumstances of a particular pro bono case might affect their decision whether to attempt to collect fees.33 If the circumstances of an individual pro bono case can have an effect on the firm‘s decision whether to pursue fees, it is hard to see how those circumstances, including the pro bono nature of the representation, would not be a relevant factor for the court to consider.
The Court‘s holding today blurs the line between “pro bono” work and work performed for a contingency fee. This also
That is not to say that courts should categorically deny or reduce attorney-fee awards because a representation is pro bono. It is simply to say that pro bono representation should be a relevant factor to consider when awarding such fees. This is where the majority goes astray. After citing a raft of cases for the proposition that courts should not deny awards of attorney fees because a representation is pro bono,36 the majority pivots to a conclusion that differs in both nature and scope: that a court may never consider pro bono representation as a relevant factor in determining whether it is reasonable to reduce the amount of attorney fees awarded. None of the cited cases supports the per se rule that the majority lands on, and I have not found any other legal support for the conclusion that trial courts cannot consider the fact of pro bono representation when awarding reasonable attorney fees. On the contrary, at least one federal circuit has expressly stated that the pro bono nature of representation is relevant to a court‘s determination on the issue of reasonable attorney fees, albeit not in the context of a FOIA statute.37
Perhaps it is true, as the majority fears, that lawyers will be less likely to take up certain case types on a pro bono basis if there is a chance that courts will reduce attorney fees because of the pro bono representation. But let‘s not be afraid to acknowledge the elephant in the room. If a lawyer or firm will not take a “pro bono” case unless there is an opportunity to make money at the end, is it truly pro bono? What‘s more, the attorney-fee provisions remain in place regardless of whether an attorney or firm and their client label the representation “pro bono.” If the potential to make money from an award of attorney fees and not service for the public good is the primary consideration for whether to enter a representation, nothing
III. CONCLUSION
I disagree with the majority‘s holdings that plaintiffs prevailed on their claims in full and that a court cannot consider that a representation is pro bono when deciding what attorney fee is reasonable to award. I therefore dissent.
Brian K. Zahra
David F. Viviano
Notes
See(1) A public body may exempt from disclosure as a public record under this act any of the following:
A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means, or to public service or charitable groups or organizations. A lawyer may also discharge this responsibility by service in activities for improving the law, the legal system, or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.
Of course, requesting parties could narrow their requests by expressly asking for something other than complete, unredacted records. But plaintiffs did not do so here. Naturally, requesting parties can make broad requests under FOIA, and provided that exemptions do not apply, those parties should, in turn, receive broad disclosures. Nonetheless, when a party makes a broad request and receives something less than what was requested, that party has not “obtained everything it initially sought” and is not entitled to mandatory attorney fees. See Int‘l Union, 422 Mich at 455 (opinion by LEVIN, J.). See alsoIn handling cases in the public interest, law firms are acting as “private attorneys general,” enforcing legal rights, promoting access to justice for those who would otherwise be unable to press their suits, and uncovering and deterring unlawful behavior. Seeking attorneys’ fees, as well as damages or equitable relief, on behalf of pro bono clients increases the disincentives and deterrence benefits of these cases by making defendants who have acted unlawfully pay the full costs associated with their behavior. Accordingly, firms are encouraged to seek attorneys’ fees and to request compensation at the usual and customary billing rates. [The PBI, What Counts? A Compilation of Questions and Answers Interpreting the Law Firm Pro Bono Challenge Statement of Principles (May 2023), pp 13-14, available at <http://www.probonoinst.org/wp-content/uploads/2023-What-Counts-FINAL.pdf> (accessed July 3, 2023) [https://perma.cc/WTX5-YBTA].]