Attorneys representing California public agencies in civil rights and “public interest” cases increasingly face a stumbling block in their efforts to negotiate settlements. Counsel for plaintiffs refuse to negotiate their demand for attorneys fees until after the parties resolve plaintiffs’ demands for substantive remedies, claiming that they are ethically bound to split negotiations in this way. It appears, however, that demands for such “serial negotiations” raise ethical concerns at least as grave as those presented by simultaneous negotiations, and counsel’s insistence may be more tactical than ethical.
When plaintiffs sue California public agencies alleging civil rights violations and/or similar claims, they invariably claim a right to recover attorneys fees in addition to whatever substantive remedies they seek. Usually, this claim is based on California’s “Private Attorney General Statute,” which allows courts to award fees to litigants who vindicate rights important to the public interest. Federal statutes also create a right to recover fees in many civil rights cases.
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