Senator TUNNEY. Do you think that there is a danger of an attorney selling out his client in order to get a fee, settling the case when he should not?

Mr. KLINE. No; I don't. I don't think that your democratic colleague in California, Mr. Alioto, was ever accused of selling out his client's legal interests to their adversaries. He has been accused of a lot of things, but never that. But he was getting fees, in part, under a provision of the Clayton Act; and that has been true in the private antitrust field for years, as it has in other commercial areas. With respect to these commercial areas of the law in which fees are recoverable it has never been suggested that plaintiffs' counsel were selling out their clients. Nor have I ever heard it claimed that in suits under title II or title VII of the Civil Rights Act, plaintiffs' counsel were selling out their clients. I have never heard it suggested that as a general proposition personal injury lawyers sell out their clients, and they are working on a contingent fee arrangement. I think it is wholly unjustified to assume without any evidence to support it that public interest lawyers are different than any other kind of lawyers with respect to their ethical responsibilities to their clients. Senator TUNNEY. Do cases like La Raza differ from any other contingent fee litigation in this regard.

Mr. KLINE. Yes; they do. The area of the law in which the contingent fee is the most relied upon is personal injury work, and in that situation a lawyer is at least assured that if he wins he is going to get a fee. But that is not the case in the area of the law in which I work. I cannot be assured that simply because I win I am going to get any fees; I have to rely upon the equitable discretion of the judge. Whereas, if I represent the plaintiff in a personal injury suit and recover $100,000 in San Francisco I will probably receive a fee of $33,000 and I can be assured of that, but a public interest lawyer has no such assurance even if he won; that is, I think, an important difference.

Senator TUNNEY. What kind of reception has Judge Peckham's rule met with in other Federal courts?

Mr. KLINE. Well, that decision has been relied upon by other courts in the Ninth Circuit. Judge Pregerson in Los Angeles has just relied upon Judge Peckham's ruling in awarding fees to plaintiffs in the Century Freeway case. Judge King in Hawaii has relied upon Judge Peckham in a suit involving political campaign practices. Judge Gerhard Gesell relied in part on La Raza in awarding attorney's fees in the Pyramid Lake case.' Judge Spears in the Western District of Texas has relied upon it in awarding fees to the Sierra Club in an environmental case in San Antonio. There have been at least three law review articles published in the last 2 or 3 months that have focused on Judge Peckham's opinion and have commented approvingly on it. The case is before the Court of Appeals for the Ninth Circuit, it has not even been argued on the merits yet, although that will occur next week, and the attorney fee appeal should be argued before the court in about 4 or 5 months.

1 Set forth at page 814. 2 Set forth at page 1363.

Senator TUNNEY. To your knowledge have any of the State courts followed this rule?

Mr. KLINE. Yes; they have. We were awarded fees in California by the then presiding judge of the Superior Court in Sacramento County in a suit in which it was found that the Department of Corrections in California had failed to comply with the State Administrative Procedure Act in issuing rules and regulations respecting prisoners. Judge Bostick in Alameda County has done the same thing in a first amendment case. It is beginning to happen. Though I would have to say that the State courts have not been as aggressive in this area as the Federal courts, certainly not in California.

Senator TUNNEY. On page 7 of your prepared statement you state that you feel that until such time as the private bar becomes more substantially involved in important social litigation, the effect of this litigation will remain essentially the same and insignificant.

Can you tell us in your opinion how you feel the private bar can become more involved, recognizing as we all do, the economic fact of life that many lawyers have overheads which they have to maintain. Unless they have what they consider to be an adequate cashflow they are not going to be able to maintain their offices. I am curious if you had an opportunity to work out in your own mind any particular mechanisms that could be used to involve the private bar?

Mr. KLINE. Well, I hope that this is the central problem. This is the problem that I think that the Congress has got to address.

Let me preface my response to the question by noting that I don't believe that the purpose of court awarded fees in public interest cases, ought to be seen as only facilitating the very, very few foundation supported public interest law firms that exist in this Nation. I think that sometimes people get a false perspective in Washington, D.C. It happens that at least 50 percent of the public interest law firms in the whole country are in this city. The fact is there are very few public interest law firms in this country. It is my basic thesis that the practice of law in the public interest, however that is reasonably defined, will become important in this country only when the private bar becomes substantially involved.

The private bar in this Nation has been concerned for some time. with the problem of how best to discharge its public responsibilities. Equal justice under law is the guiding principle, but that principle is only meaningful if all citizens have equal access to lawyers. The private bar's solution to this problem has never changed. The solution was to create within the profession a so-called public section. This originally took the form of legal aid societies which were first formed in the nineteenth century: then, with the expansion of 6th amendment rights, the public defender's office became a serious factor in the country. Later, to help fight the war on poverty, government developed the OEO legal services program. Now we have foundation supported public interest law firms. They are really all the same thing: discharge the public responsibilities of the legal profession. However, this so-called public sector at most represents maybe 2 or 3 percent of the entire legal profession in this country. My point is that unless we can find a way to engage the other 97 percent of the legal profession, citizens in this country are not going to adequately

represented with regard to matters of broad public interest. I believe that the main reason that the private bar is not substantially involved in representation of the public interest is not because private lawyers are ideologically or otherwise unsympathetic to plaintiffs. The reason is rather simple economics. A private lawyer cannot afford to take out the time, the enormous amount of time required to litigate many if not most public interest cases. For example, my law firm has been actively litigating Serrano v. Priest, the well-known California school tax case, for over 3 years. One case has cost our firm over $35,000 in expenses. To ask a private lawyer who does not have a foundation behind him, who is not seeking damages, who has no assurances he will be awarded fees if he wins, much less if he loses, to take that kind of case is asking a lot.

Senator TUNNEY. I have had discussions with the top officials of the American Bar Association and they are deeply concerned about this problem and they are trying to study it, think it through and offer suggestions to State and local bar associations with the purpose of alleviating a serious problem.

What do you think that the bar association can do in order to facilitate a greater interest on the part of the private bar in these social interest cases?

Mr. KLINE. The problem is not that private lawyers are disinterested. I don't think that is the problem. I think they are interested. I think in fact this area of the law is widely regarded as one of the most interesting in which a lawyer can practice. I think the problem is simply to eliminate the economic obstacles to private involvement in public interest cases.

I think the legal profession, the institutionalized bar, may be ambiguous about this. Bar associations are naturally concerned about the profession's public image. If the institutionalized bar publicly endorses a fee mechanism, no matter how genuinely idealistic their reasons, they may be perceived as simply trying to line their own pockets. But I think there are some things the profession can do and is doing to remove the obstacles to securing legal assistance in public interest cases. The San Francisco Bar Association has acted as amicus curial in public interest cases where the fee question is presented, as has the National Legal Aid and Defender Association. There is a lot beginning to appear in the state bar journals on the subject and bar associations are beginning to talk about the subject at their meetings. But I don't know what more the institutionalized bar can do other than to support progressive legislation and to help advance progressive judicial decisions.

There is in my view not much else the bar itself can do to eliminate the economic factors that currently make it very difficult for citizens to find private attorneys willing to represent them in important public interest cases.

It may be worth noting that the only substantive area of the law where, in my opinion, the private bar already accommodates the interests of poor people is personal injury work. The majority of plaintiffs in personal injury cases are poor people, because the poor are more subject to personal injury that the rich. However, a personal injury lawyer does not care whether his client is rich or poor,

because he is not looking to the client for his fee. Thus, there is no problem finding lawyers to represent plaintiffs in personal injury cases. An analogous fee-shifting mechanism can, in my view, help remove the obstacles that now seriously restrict access to counsel in public interest cases.

Senator TUNNEY. I want to thank you very much for making your views known to us and having spent such a long period of time preparing your written statement. Thank you again.

Mr. KLINE. Thank you, I am grateful for the opportunity.

[The testimony resumes at page 806. Mr. Kline's prepared statement follows:]

STATEMENT OF J. ANTHONY KLINE, ATTORNEY AT LAW, PUBLIC ADVOCATES, INC., SAN FRANCISCO, CALIF.

Mr. Chairman and members of the committee, I very much appreciate this opportunity to present my views on the relationship between court-awarded attorneys' fees and the delivery of legal services. This is a subject that has more profound implications than may initially appear. as it touches directly upon the ability of our democratic institutions to serve all the People.

The democratic promise of "Equal Justice Under Law" necessarily requires equal access to legal institutions. In this Nation, perhaps more than in any other, access to legal institutions presupposes access to lawyers. Notwithstanding the fundamental aspect of this proposition, however, the uncomfortable, indeed unconscionable, fact remains that the legal profession is not nearly as accessible to the People as the minimum requirements of equal justice demand; and the fault is not entirely that of the Bar.

In these remarks I shall address myself to the difficulties encountered by individuals and groups in obtaining adequate legal representation in those civil matters that are in the public interest. As I shall be using the term extensively, I must here at the outset define what I mean by "public interest litigation." I recognize, of course. that all non-frivolous litigation is in the public interest, since society always benefits when the rule of law is invoked for the resolution of disputes. Nevertheless, by "public interest litigation" I have in mind only a small fraction of the civil controversies submitted to the courts. As has been noted,' three characteristics are normally common to lawsuits which most would classify in the public interest:

"The first of these characteristics is that the issues involved are currently regarded as being of extreme importance. Their significance may be inferred from the fact that the issues, such as environmental or consumer protection, have been the recent subject of considerable legislative and public concern. In other cases, the issues, such as the right to welfare benefits or to have an abortion performed, may go to the very essence of life itself. Finally the issue may involve a right specifically protected by the Constitution, such as the right to vote, or the freedom of speech or religion.

"The second characteristic of public interest litigation is that the final judgment will affect not only the plaintiffs who initiated the action, but a substantial number of other individuals as well. For example, in an envirinmental suit to enjoin the polluting of a river, the outcome will determine whether all persons who presently live near or use the river, and future generations of such persons, will have an unspoiled body of water to utilize and enjoy ***

"The final characteristics of public interest litigation is that it is brought by a private plaintiff rather than by a government agency. It does not matter whether the plaintiff is an individual, a group of persons or an organization; the crucial element is that the plaintiff does not have an obligation under the law to initiate the type of lawsuit that has been brought."

In short, unlike the vast majority of lawsuits, public interest litigation is not concerned with a private controversy between plaintiff and defendant, but rather involves disputes of extreme social importance which when resolved will affect substantial numbers of people.

1 Nussbaum, Attorney's Fees in Public Interest Litigation, 48 N.Y.U.L. REV. 301, 304305 (1973).

A number of federal courts, including the Supreme Court, have recently expressed the belief that public interest litigation must be affirmatively encouraged. This is so, the courts have noted, because only in this manner can many important public policies be effectively enforced. What the courts have come to realize is that a vast array of important legislative policies are embodied in federal and state statutes that are not and can not be enforced by the Justice Department or by State Attorneys General; these statutes can only be enforced by affected citizens in private litigation; or, in more accurately, in litigation that is "private" in form only. Consider, for example, the National Environmental Policy Act of 1969, generally regarded as the most important environmental law ever enacted by the Congress. The requirements of this new law are imposed upon federal administrative agencies. The Justice Department therefore defends rather than prosecutes alleged violators of the law. The same is true of a multitude of legislative enactments in other substantive areas of the law that create similarly broad public rights. These statutes will be enforced, if at all, through public interest litigation commenced by individual citizens or their associations.

Judicial statements of the need to facilitate public interest litigation have been prompted by a recognition of the built-in disincentives that effectively operate to prevent or at least discourage citizens from commencing such suits. The most important of these disincentives, in my view, is the enormous expense that is almost inevitably involved in maintaining a complex and timeconsuming case against a governmental agency or large corporation that has a veritable army of lawyers and numerous other legal resources at its ready disposal. Since such litigation rarely seeks damages from which counsel can be recompensed, most lawyers are very reluctant to undertake these burdens. Perhaps I can best illustrate the difficulties public interest lawyers confront by describing a more or less typical case my firm litigated successfully in California. The case, entitled La Raza Unida v. Volpe, 337 F. Supp. 221 (N.D. Cal. 1971), involved a $100 million federally financed freeway proposed to be built in Southern Alameda County between the cities of Oakland and San Jose. The freeway would not only have destroyed the last three remaining municipal parks in the area. but would as well have destroyed desperately needed low-income housing inhabited by over 5,000 Mexican-American families and individuals. Due to the housing crisis in the San Francisco Bay Area, and because of racial discrimination in the private housing market there, these families and individuals could not have found adequate relocation housing within their financial means and would have been forced into already overcrowded ghetto areas of San Jose and East Oakland.

The Federal District Court ruled in favor of the plaintiffs and enjoined construction of the highway after finding, first, that highway officials had failed to comply with laws protecting public parks and the environment generally and, second, that such officials had failed as well to comply with the Uniform Relocation Assistance Act of 1970. That federal law provides that highway authorities may not displace residents and demolish their homes without first assuring that decent, safe and sanitary relocation housing exists at rents or prices within the financial means of displacees.

This lawsuit, which required enormous preparation, was litigated in the district court for a period of nearly six months. The defendants were represented by a dozen lawyers in the employ of the Justice Department in Washington, the Office of the United States Attorney in Northern California, hte Office of Legal Counsel to the California Department of Public Works, and various city attorneys in Alameda County; not to speak of the many private lawyers engaged by land developers who intervened in the case. These lawyers had the help of scores of experts in the full-time employ of the Federal Highway Administration and the California Division of Highways.

Plaintiffs, on the other hand, had to spend weeks finding expert witnesses willing to prepare documentary evidence and to testify without fee. A majority of the experts contcated by plaintiffs were unwilling to assist for the sole reason that it might jeopardize their future ability to receive consulting contracts from the defendant federal and state agencies.

After ruling in favor of the plaintiffs, the court in a separate opinion (reported at 57 F.R.D. 94 (N.D. Cal. 1972)) awarded attorneys' fees to plaintiffs for the following reasons, among others:

* [E]xhortations towards citizen participation can sound somewhat hollow against the background of the economic realities of vigorous litigation. In