COMMENT: SETTLEMENT OFFERS CONDITIONED UPON WAIVER OF ATTORNEYS' FEES: POLICY, LEGAL, AND ETHICAL CONSIDERATIONS Skip over navigation
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Copyright (c) 1983 The Trustees of The University of Pennsylvania 
University of Pennsylvania Law Review

COMMENT: SETTLEMENT OFFERS CONDITIONED UPON WAIVER OF ATTORNEYS' FEES: POLICY, LEGAL, AND ETHICAL CONSIDERATIONS

JANUARY, 1983

131 U. Pa. L. Rev. 793

Excerpt

INTRODUCTION

The primary congressional goal underlying statutes authorizing awards of attorneys' fees is to encourage the private enforcement of federal laws. 1 Seeking to encourage the private enforcement of Reconstruction Era and other civil rights statutes, 2 Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976 (Fees Act) 3 thereby ensuring that the cost of legal counsel would not deter plaintiffs with legitimate grievances from filing suit. The Fees Act provides that courts "may allow the prevailing party... a reasonable attorney's fee as part of the costs" 4 to be paid by the losing party. 5 In practice, lower courts view fee awards as almost mandatory when plaintiffs prevail. 6 Furthermore, to satisfy the "prevailing party" requirement, plaintiffs need to achieve only some of their objectives 7 "either through success on the merits, through settlement, or merely through causing the defendants voluntarily to undertake part of the relief sought." 8

Computed at market rates unrelated to the amounts awarded to plaintiffs, 9 awards of statutory fees often prove very costly to defendants. 10 To reduce their total liability in civil rights suits, defendants frequently condition otherwise attractive settlement offers on the waiver of attorneys' fees by plaintiffs. 11 Although a conditional settlement offer places a plaintiff's counsel in a conflict between his interest in fees and his client's interest in a satisfactory settlement, the current ethical code 12 does not bar a defendant's counsel from making such an offer. 13
 
 
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