Billing Records Reveal Details of Loudoun Filtering Case

(February 10, 1999) When the ACLU and People for the American Way filed their demands for $488,601.10 in attorneys fees in the Loudoun Library filtering software case, they filed their daily time records, as is expected. These records detail the claim and provide a rare inside glimpse into the activities and operations of the lawyers. And in contrast, the lawyers for the Loudoun library, and lawyers doing similar work in similar matters, put in far less work.

The plaintiffs were represented by the American Civil Liberties Union (ACLU) and People for the American Way (PFAW). PFAW, in turn, also associated with the law firm of Hogan and Hartson. The billing records reveal that the plaintiffs claim they entitled to be paid for over 2,618 hours of work performed by eight different lawyers. In contrast, the City of Livermore, which just won a case involving filtering software in its public libraries, put just one attorney on the case, who did most of his work on the case on weekends because he was too busy during the week with his regular job responsibilities.

The highest priced lawyer was the ACLU's Chris Hansen, who was billed at $240 per hour for 200.4 hours. He was also billed at $120 per hour for another 20.6 hours. Most of the PFAW attorneys billed at $240 or $230 per hour. However, PFAW applied a 25% discount to its attorney time billing, thus effectively reducing their rates to at or just below $180 per hour.

The ACLU's Ann Beeson, who was not admitted to the bar until 1994, was billed at $175 per hour. She billed 645.8 hours, for a total of $113,015.00. She prepared the ACLU's motion to intervene and complaint. After preparing the ACLU's pleadings for the February 23 oral argument, she billed about 80 hours more preparing for that oral argument. She also prepared the ACLU's pleading for the second oral argument in September. She billed about 15 hours preparing for that court appearance.

Robert Corn-Revere billed the most hours for PFAW -- 725.25. Ron Wiltsie also billed for a large amount of hours -- 432. A younger associate, Mary Callaghan billed 280 hours, and was billed at a lower rate of $150. All three are attorneys with the law firm of Hogan and Hartson. Two attorneys employed by PFAW also billed. While their combined total was almost 230 hours -- a huge amount of time -- for almost any type of legal practice -- it only made up about 14% of the time which PFAW now request to be paid.

Neither set of attorneys billed for travel time. Also, both left several persons off of their bills. Two attorneys who were involved at Hogan and Hartson in the beginning, Bartolamucci and Eric Loeb, were dropped from the bills. The ACLU did not bill for time spent by law students. Nor did either bill for attorney time at hearings and depositions for the attorneys who did not participate in those proceedings.

PFAW billed for time spent talking to Judith Krug, of American Library Association, a group which lobbies against filtering software. Neither Krug nor the ALA are plaintiffs in the suit. The ACLU also billed for talking to a member of the press.

The ACLU's and PFAW's combined motions and exhibits are over one inch thick. Yet Tech Law Journal could find nothing in these papers that indicates that there is any client who has actually paid the ACLU or PFAW any attorneys fees, or even is obligated to pay any attorneys fees. In contrast, the Loudoun library has already paid its attorney about $55,000.00.

PFAW's Larry Ottinger, however, stated that while its clients are not obligated to pay it for attorneys fees, they did agreed to pay costs, if PFAW did not recover them by a Court award. PFAW has asked the Court for $23,926.62 in costs, for such things as travel, deposition, and copying expenses.

The daily billing records of the attorneys for the ACLU and PFAW reveal much about the history of the case, particularly about its the origin.

PFAW began billing earliest. Its billing begins on October 20, 1997, the same day that the Loudoun library board adopted its Internet Sexual Harassment Policy, which provided for filtering. The ACLU did not begin its billing until December 5. PFAW also filed its complaint first, on December 22, 1997.

The lawsuit was filed two months after the alleged unconstitutional action. Attorneys for both the ACLU and PFAW deny that there was any rush to the courthouse. They also point out that they had warned the library board in advance not to adopt a filtering policy.

Also, PFAW filed suit just ten days after the ACLU's records reflect that it informed PFAW that it would become involved.

The "clients" had only nominal involvement in the suit. The name Jeri McGiverin appears in the billing records of PFAW from the beginning. She is a resident of Loudoun County, and the head of Mainstream Loudoun, a small unincorporated group which is the lead Plaintiff in the case. She has also appeared at various events in this matter. However, the time records show that PFAW and McGiverin then went about recruiting more plaintiffs, and then billing for those efforts. Similarly, the ACLU's records show that it made the decision to intervene in the suit, and then went about recruiting clients. Its records list this as "plaintiff recruitment", or similar terms. Moreover, the ACLU now seeks to be paid for the time spent it spent drumming up business.

The origin of this lawsuit can be characterized as follows: there was a short time period between the event giving rise to the suit and the filing of the suit, the lawyers recruited clients, and the lawyers disseminated press releases upon filing suit. These three items are also characteristics of class action lawsuits in which competing lawyers scramble to become certified as the class representative. Indeed, one line item in the papers filed in this action suggests that bringing suit as a class action was being considered.

The billing records also show that once the complaints had been filed the attorneys spent only a very very small proportion of their time working or communicating with their "clients." They had far less contact than is typical for most types of   litigation. The billing records lend the appearance that real parties were the ACLU and PFAW, themselves, who were pursuing their own policy objectives. They found nominal clients for the purpose of satisfying the doctrine of legal standing. Particularly for the ACLU, "clients" were merely a formality, bordering on legal fiction, recruited solely to get around the most minimal standing requirements applied in this case by Judge Brinkema.

Ann Beeson believes the $187,890.73 requested by the ACLU is reasonable. She points out that it is in line with attorneys fees awards that the ACLU has received in similar cases. For example, the ACLU recently settled for over $400,000 in a case it brought against New York Governor Pataki. The ACLU settled for $275,000 in its challenge to the Communications Decency Act. Finally, the ACLU won a determination (which is currently under appeal) in Urofsky v. Virginia that it is entitled to attorneys fees of $291,000.

She elaborated that the Pataki award was higher than the Urofsky award, because prevailing hourly rates for lawyers are higher in New York than they are in Virginia. She said that in the Loudoun case the ACLU is asking for compensation at the same rates that it received in the Urofsky case. She also explained that in the CDA case they handled both a trial court and a Supreme Court proceeding, but settled for "only $275,000" because there are two different federal statutes governing the award of attorneys fees in constitutional challenges to the actions of government officials. The one for actions against state and local officials provides for much larger recoveries than the one pertaining to suits against federal officials.

Ken Bass, the attorney for the Library, believes that the demand is excessive and unreasonable. He believes that the court should take guidance from his own billing records. The Library put only two lawyers on the case: Ken Bass and Damon Wright. The total billing came to $133,000. However, this figure is only for accounting purposes. The library has only paid $55,000. Ken Bass told Tech Law Journal on December 1, 1998 that he would handle the case all the way to the Supreme Court, if the Library board wants, without being paid any more than the $55,000 that has already been paid. He states that his firm does this in cases that are "in the public interest."

Dan Sodergren is an attorney who works for the City of Livermore, California. He just successfully defended Livermore's public library in another filtering case. In that case the library had adopted a policy of no filtering. A resident, Kathleen R., challenged the policy on both state law and constitutional grounds. That is, the plaintiffs wanted the Court to compel the library to install filtering software on computers used by children. The constitutional issues in the Loudoun and Livermore cases were similar.

Yet, Livermore devoted much less time and resources to its case. Dan Sodergren handled the case alone. Although, he allowed, "I ran it by my boss." He did not keep a record of his time, so he does not know how many hours he spent. However, he says that "I almost did it on my weekend hours -- almost as an aside." He explained, "I don't have a lot of time to do briefs during my normal week day."

Both cases dealt with constitutional issues, Section 230 of the Telecommunications Act of 1996, and library filtering policies. Both went through two rounds of briefing. (All four of Sodergren's briefs are in published by Tech Law Journal, so that readers can see their quality.) However, the Livermore case did not involve depositions of witnesses.

Sodergren pointed out that this was a significant difference. "In the Loudoun County case there also were a number of factual issues at stake. When there are factual issues at stake ... that takes a lot of time." He said that one of these issues was, "was this the least restrictive means?" In contrast, "in our case it came down to a pretty cut and dried legal issue," said Sodergren. "So, it is kind of hard to compare the two cases."

The Plaintiff is appealing the Livermore library decision. The efficient Mr. Sodergren will continue to handle the appeal -- in his spare time.

Michael Millen is the public interest lawyer who brought the suit against the City of Livermore. He too, devoted much fewer resources to the case that the ACLU and PFAW did. He believes that attorneys fees should be recovered in the Loudoun case. "To me, even though I disagree with the decision, I do believe that the prevailing side should be able to recover attorneys fees." However, $488,00 is too much.

"Look at what the defendant spent as a very good starting point," said Millen. Pointing out that Ken Bass's billing records add up to about $133,000, and he has been paid about $55,000, Millen suggested, "that is the kind of range that the Plaintiffs should get." However, "the Court should be very generous in reimbursing them for their costs," added Millen, citing such examples as hiring expert witnesses, and traveling to depositions, and the costs of the depositions.

Millen is a conservative counterpart to the liberal Ann Beeson. Millen brought suit to compel a library to use filtering software on computers used by children. He lost in the trial court, and is appealing. "If I had sent in a bill for attorneys fees, it would have been at most $50,000."  He reasoned that he spent under 250 hours, and "200 per hour is a fair billing rate."

Millen believes that Courts should not give public interest lawyers compensation for all their hours.   He says that there are many lawyers who are willing to work for little or nothing on public interest matters. Moreover, they "over brief, over write, and over research," and then spend a lot of time talking to each other. But this does not mean that they should not be compensated for all of their time. "It is going to be very chilling if we encourage people with strong ideological points of view" to spend lots of time on public interest litigation "and when in the end that ideological point of view prevails" we give them attorney fees for 100% of their time.

Regardless of these circumstances, it is likely that Judge Brinkema will grant the motions and award at least a significant part of what the ACLU and PFAW have requested. She is likely to follow the precedent which she followed in the remarkable similar case of Urofsky v. Virginia. She awarded $291,000 in that case.

In that suit, the ACLU brought a very similar First Amendment challenge to Virginia's statute forbidding state employees from using their office computers to surf for pornography. Specifically, Section 2.1-804-806 of the Virginia Code prevented state employees from using their computers to download, post, or transmit sexually explicit materials. Judge Brinkema was also the Judge in that case, and Chris Hansen and Ann Beeson were ACLU attorneys. Judge Brinkema ruled there too that the First Amendment had been violated. And Judge Brinkema granted the ACLU's motion for attorneys fees.

In that proceeding, Brinkema ordered the State of Virginia to pay for Chris Hansen at the rate of $240 per hour, and to pay for Ann Beeson at the rate of $175. These are the same rates that they are asking for now. Brinkema awarded $291,000. Although, the ACLU has not received the money, because the State of Virginia has filed an appeal.

Continue to part 3, Appeal Still Possible in Loudoun Case.