Attorneys'

Bees in Government

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IMITATIONS on fees that can be charged by attorneys in litigation with the United States Government generally depend upon the statute under which the action is brought. In some instances the fee limitation is imposed by the statute itself; in others the question is left to an administrative agency; and in still others, there is no limitation at all.

The Tucker Act [28 U.S.C. §§1345(a) and 1491] contains no regulation or limitation upon attorneys' fees. (This Act covers taxrefund cases and claims against the United States founded upon the Constitution, federal statutes or regulations, or contracts with the Government, or for liquidated or

unliquidated damages in cases not sounding in tort.) The attorney for a Tucker Act claimant, whether in the Court of Claims or a district court, is free to reach any agreement on fees with his client, subject to the inherent powers of the court over the fees of its attorneys.

Regulation of attorneys' fees is also absent from the statutes specially authorizing other suits against the United States in the Court of Claims, such as the statutory suit for patent and copyright infringement provided by 28 U.S.C. $1498 and 22 U.S.C. §2356(a).

Indian claims were formerly heard under special jurisdictional statutes, which customarily contained limitations on attorneys' fees [Alcea Band

of Tillamocks v. United States, 121 Ct. Cl. 173 (1951) (consideration in detail of factors affecting fee)]. Since 1916, they have been heard under a general statute (28 U.S.C. $1505) containing no regulation of fces.

The Tort Claims Act, however, imposes a 25-per-cent maximum on attorneys' fees [28 U.S.C. $2678 (Supp. IV, 1969)] and other statutes limit fecs in claims for veterans benefits and social security claims. These statutes impose criminal sanctions, and violation entails the risk of criminal proceedings or charges of professional misconduct.

Fees in particular types of Government litigation-involving immigration, workmen's compensation, and a diverse variety of other matters are subject to regulation. Tables of such statutes and regu lations appear in Appendixes I and II to this article.

CONSTITUTIONALITY OF STATUTORY

LIMITATIONS ON FEES

Legislation limiting maximum fees of attorneys for claimants against the Government is constitutional. See STRICKLAND, LIMITATIONS ON ATTORNEYS' FEES UNDER FEDERAL LAW, passim (American Bar Foundation, Chicago, Ill., 1961). In 1895, the Supreme Court sustained, in a criminal proceeding, a statutory limitation of $10 on fees for prosecution of a veteran's claim for a pension. Frisbie v. United States, 157 US. 160 (1895). The

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Court held that a Government pension is a matter of grace and bounty, and Congress may therefore attach fee limitations as "circumstances and conditions" and conditions" upon the grant.

Thereafter, the Supreme Court upheld a limitation of attorneys' fees to 20 per cent, contained in a statute for payment of Civil War claims enacted after the making of the agreement for a contingent fee of 50 per cent. The attorney failed both in seeking recovery out of the sums payable to his client under the statute [Capital Trust Co. v. Calhoun, 250 U.S. 208 (1919)] and in a suit for recovery out of the client's other assets [Calhoun v. Massie, 253 U.S. 170 (1920)].

The decision of the Court was based upon the legislative conditions on the grant, the need to protect claimants from improvident bargains and extortion, and the need to protect the Treasury from the stirring up of fraudulent and unjust claims.

ATTORNEYS' FEES IN TORT CLAIMS

The Federal Tort Claims Act limits the fees of claimants' attor neys in both litigated cases and administrative claims. 28 U.S.C. $2678 (Supp. IV, 1969).

Formerly the maximum fee, applicable to recoveries of $500 or more, was 20 per cent of the amount recovered in suit and 10 per cent of the amount recovered in administrative settlement. 28 U.S.C. §2678 (1964).