can't possibly bring all of the suits that they would like to bring. And in the case of legal service attorneys, they can only defend the totally indigent people that have less than $4,000 for a family of four, I think the present rule is.

Yet, there are many people who earn $8,000-$20,000, who cannot afford to pay $5,000 in attorneys' fees in order to get an injunction, or if it is a complicated case, $50 to $150-$200 thousand dollars. Í can't imagine that you are saying that their rights should go unprotected. Further, how can they protect their rights unless there is a chance in some way to have their attorneys' fees paid for if they are victorious?

Mr. GODOWN. Yes, sir. Are we not in fact talking about a situation where the net result would be that the corporate defendant would wind up with out-of-pocket costs and a shifted fee, assuming a successful suit, because a governmental entity had failed to do its job? Senator TUNNEY. Well, that was just one example. There are examples in which you would have a claim against a corporate defendant in which you do not have a governmental agency with the responsibility for enforcing the law. A typical example, I suppose, would be where a private homeowner is suddenly confronted with an action by a corporate defendant in which the corporation was planning to put in a nuisance next door to their home. There were no Federal or State laws applicable, and where the plaintiff would have to bring his own action on behalf of himself and his neighbors, perhaps, in order to protect his interests.

Assuming that it is public policy not to use taxpayers' dollars to advantage one side or another in such a dispute, and knowing at the present time that we do advantage the corporate defendant because he can write off 50 percent of his costs against his taxes, shouldn't we have a policy whereby in some way we try to reimburse the plaintiff for his or her fees if he or she is victorious?

Mr. GODOWN. May I attempt to answer a question with a question, which is a favorite ploy of people in our profession.

Should there not also be some consideration given to the proposition that if indeed it makes sense and it works equity to have a fee shifted to the defendant where the plaintiff is successful, doesn't it follow then logically that where the defendant is successful, and has gone to considerable expense to defend himself, that he should recover his costs?

Many groundless, baseless suits are brought against many, many corporations for a variety of reasons. Some people like to read their names in the newspapers, I suspect. I think there is a case on record where someone has brought suit against General Motors on behalf of all owners of Buick automobiles between the years 1956 and 1962. My facts are probably wrong on that, but at least there is that kind of a suit.

Senator TUNNEY. As you know, the National Institute of Consumer Justice in its report released September 28, 1973, recommended that successful plaintiffs get fees as a matter of course, unless the court feels that the plaintiff's lawyer has engaged in unfair or unethical activity. A defendant would be awarded fees only where plaintiff's case was frivolous.

So that in the case of a frivolous claim, according to this recommendation, the corporate defendant would be able to collect fees from the plaintiff.

I suppose the difference is the difference in the economic situation of party-plaintiff and party-defendant, and the fact that-and one can hardly gainsay this-we do, at the Federal level give a huge subsidy to corporations for their litigation costs. I don't know what the total price tag is for litigation fees for all corporations in the United States, but I daresay it is in the billions of dollars and 50 percent of that is paid for by the taxpayers.

Mr. GODOWN. Well, I would not concede for a moment that the IRS provision which permits attorneys' fees to be charged off by defendants. in a legal suit as ordinary business expense are in fact subsidies. I view them as indeed ordinary and necessary expenses, because if you don't undertake them, you might very quickly be out of business.

Senator TUNNEY. I am not suggesting, and I hope you don't take from my questioning that I am suggesting, that we pass legislation which is going to eliminate the right to charge off litigation fees against taxes. If that is a good idea, that is not at the moment the subject of consideration by this Subcommittee. I think that would require an entirely different set of hearings; and it is obvious to me that there are many instances where no one could justify a claim that the corporation should not be able to write off litigation fees.

I suppose that you could find examples where it does seem somewhat unfair to allow the charging of litigation fees to the taxpayers where the corporate officers have willfully violated the law and then in defending their violation of the law, they are able to charge the costs of litigation to the taxpayers.

But I don't want to address myself to that point today.

Mr. GODOWN. Very well. May I say for the record that I would be delighted to engage in colloquy with you on that subject.

Senator TUNNEY. I think that is something separate, but, you know, we have laws at the Federal level in which our Federal Government has decided that fee-shifting is appropriate. In employment discrimination suits, Congress has provided for fee-shifting. These employment suits are usually against large corporations and fees might be shifted whenever an entity violates the Federal law. What do you think about that provision?

Mr. GODOWN. It doesn't change my thought on the general matter of fee-shifting at all. I don't think it makes a good deal of difference whether it is a Federal or State law which is involved.

I would make this further point, however. We are here presumably discussing what may result in Federal legislation being introduced, and I would wonder what the impact of that Federal legislation would be on State courts, on plaintiffs who have a cause of action to bring in State courts and can't find attorneys to do it. My thought is, probably the majority of the problems which do exist, exist because of an abrogation of State law, rather than Federal law.

Senator TUNNEY. Well, it depends, I suppose, upon State legislatures and State courts whether or not they are going to follow the rule laid down by La Raza, or whether they are going to extend it or restrict it in some way. I don't think the Federal Government ought to be involved in determining what the situation is going to be in State courts. I would pose that.

But what we are grappling with here is trying to find an answer to a rather thorny problem, because it used to be that law suits involved mainly property rights, but now we are talking about law suits that involve public interest claims to a far greater extent than ever existed before the right to a recent environment, the right to be protected from toxic substances in the water or in the air. We are talking about civil rights, protection of civil liberties; all kinds of consumer actions, class actions for antitrust relief. We are talking about a different body of law than existed before and we are talking about the right of individuals to have redress of grievances through the courts utilizing qualified attorneys. And we are talking about plaintiffs who may very well not be able to afford the law suit and the attorneys despite the fact that they have a right which deserves to be litigated.

500 largest corporations in America are responsible for, you realize that the major corporations in this country have grown bigger and bigger and bigger to the point that I daresay the 500 largest corporations are now responsible for 75 to 80 percent of the GNP. You are talking about an extraordinary mismatch, when you put an individual plaintiff who has a legitimate claim up against a large corporation who is able to charge its attorneys' fees off against its taxes, unless you have some way of fee-shifting.

I think that was the basis of the La Raza case. I suppose you object to the court's decision in the La Raza case?

Mr. GODOWN. Yes. Although we rather feel that is a common fund case rather than public interest case, because the people who ultimately wind up paying are all of the citizens of the State of California, for all of the money in the award is coming out of tax money.

Let me go back, if I may, and just record a few comments which your most recent remarks bring to mind. If indeed there area a good number of public interest cases which need to be brought, if we are talking about environmental issues, for instance, I cannot conceive that all of the plaintiffs involved-we are talking about the citizenry, the people who live in the surrounding area-I can't believe there aren't some attorneys there who might be willing, if they are breathing the same foul air, to take it upon themselves in exercising their own rights as citizens to bring the suit themselves. Or indeed I can't believe I am not being facetious about this-I can't believe some citizens with resources couldn't band together and retain an attorney for a worthwhile case.

I would make this further comment again, if I may. I think rather than seeing legislation which institutionalizes fee-shifting, I would rather see the courts continue to handle this on a case-by-case basis as they have been doing, and in those instances-I wouldn't sit here for a moment and attempt to argue that there aren't individual justifiable instances where indeed somebody should be awarded fees under all of the circumstances if equity as well as justice is to be donelet the judge having heard all of the evidence make his decision. I think Judge Peckham in the Federal district court in California was marvelously inventive in fashioning his remedy. It isn't that I agree with his remedy, I applaud his legal gymnastics.

Senator TUNNEY. Of course, when you say that we ought to rely on the inventiveness of judges, we are saying what we are relying on is the willingness of courts to create entirely new law. There is some who would suggest that the courts should not be in the business of legislating but should be in the business of interpreting the law, as it is drafted by the Congress, legislatures, and as it is written in the Constitution.

And I think that when you talk about the shifting of the responsibility for paying attorneys' fees from the plaintiff to a defendant, whether it be a governmental entity or whether it be a private corporation, you are talking about a very major change in the law as we have known it. And as I say, the United States is the only country that I am aware of that has the rule that plaintiffs and defendants pick up their own costs, despite the fact the plaintiff is victorious.

So I do think it is a proper subject for legislation. Whether we ought to have the legislation or not, I suppose is a matter of opinion, and I am groping for some answers here. I think that one thing is clear. We cannot rely on local lawyers to sacrifice themselves by bringing an action which would take a very material part of their time to defend a right that is shared by a substantial group in a community. I am not saying that local lawyers, if they have a desire to do so should not do so, but I think that to say that a right is dependent upon the goodwill of a local lawyer to make a substantial financial sacrifice is not cogent, at least to may way of thinking.

Mr. GODOWN. I would simply respond, Senator, it isn't necessarily a case where a local lawyer would be donating his time if he goes for a damage award. He would share in the damages, or indeed they might all come to him.

Senator TUNNEY. We are talking, of course, not only about suits in which you have rewards but injunctive relief and sometimes these cases are incredibly detailed. We know that in environmental suits, such as the Alaska pipeline, the costs of expert witnesses and attorneys' fees for the defendants ran into the millions of dollars, and even for the plaintiffs ran in the hundreds of thousands of dollars. So you are talking about an awful lot of money.

I just can't help but believe that individuals are entitled to a greater opportunity to get into court and to have attorneys than now is provided by law. And take your own example. I am sure that you make a very good salary, but I daresay you could not afford $25$30,000 in legal fees this year unless you had independent wealth that is above and beyond your salary.

Mr. GODOWN. The Senator is correct, I couldn't afford it.

Senator TUNNEY. And yet you may have a right at some point which you feel should be litigated in court and this may be a right that is particularly important if the health of your children is concerned, or the health of your wife or yourself. I just do not think that we ought to allow rights to be forfeited because people can't afford a lawyer or can't afford to get into court.

We are not talking here about a Federal grant to plaintiffs, although there are people that would argue for that. They say we ought to have a fund. When you have litigation which the public

interest is being defended, you ought to be able to draw on that fund to pay the attorneys' fees and the experts. In this discussion we are not talking about that; we are talking about fee-shifting.

I appreciate, Mr. Godown, that you came here today and gave us the benefit of your thinking. I know that you have thought about this seriously and I appreciated your commentary.

Mr. GODOWN. Thank you very much, Senator. It has been our pleasure to be here.

Senator TUNNEY. Our next witness is Sylvia Roberts, attorney, Baton Rouge, La.; chairperson, Legal Defense Fund, National Organization for Women.

STATEMENT OF SYLVIA ROBERTS, ATTORNEY, BATON ROUGE, LA., CHAIRPERSON, LEGAL DEFENSE FUND, NATIONAL ORGANIZATION FOR WOMEN

Ms. ROBERTS. Thank you very much, Senator Tunney. It certainly is a privilege to be speaking to your Subcommittee from the vantage point of attorneys' fees for persons litigating sex discrimination cases under Title VII. That will be my focus in these remarks.

I might say, also, that although I am the Chairperson for the Committee on Rights for Women of the section on Individual Rights and Responsibilities of the American Bar Association, and have that expertise upon which to draw, I am not, of course, speaking for the American Bar Association, but simply as another dimension of the view that I have had of this particular issue.

I should like to request permission to furnish a written statement on the subject of attorney fees, as well as the question of legal assistance available for women, because I think that this Subcommittee cannot appreciate the problem of attorneys' fees in sex discrimination cases without having the total context of the difficulties of getting legal assistance in the first place for sex discrimination cases.

So I should appreciate very much, permission to offer a written statement on two subjects, attorneys' fees and legal assistance available to women.

Senator TUNNEY. Your statement will follow your testimony in the record.

Ms. ROBERTS. Thank you.

Particular emphasis in my testimony will be directed at the case which I handled, which was the first case to reach the appellate level under Title VII dealing with sex discrimination and that was Weeks v. Southern Bell Telephone and Telegraph Co. [408 F.2d 228 (5th Cir. 1969)].

It is necessary to put that case in a little bit of a timeframe, coming up at a time when the lower courts had decided that Title VII exception of bona fide occupational qualification was to be given a very wide interpretation, so the exception made it very difficult for women to take advantage of Title VII. So when we came up on appeal in the Weeks case, after the case was lost-I did not handle the case until the appellate stage-the Fifth Circuit very rightly characterized the case as presenting important unsettled issues concerning the proper interpretation of Title VII.