Firm's right to collect attorneys fees in limbo

A Seattle law firm got one step closer Monday to receiving roughly $2 million for representing parents who fought all the way to the U.S. Supreme Court over whether Seattle Public Schools could use a student's race in deciding who would attend some popular high schools.

At the same time, U.S. District Court Judge Barbara Rothstein raised the school district's hopes that she might deny Davis Wright Tremaine's request for the money.

The law firm did not charge the parents for its work, saying the case was "pro bono." But it asserts that federal law gives attorneys the right to collect fees from the losing party.

In an order filed Monday, Rothstein said it wasn't hard to conclude that the parents group, Parents Involved in Community Schools, won the lawsuit it filed in 2000, which challenged the use of a student's race as one of several "tiebreakers" when assigning students to high-demand schools.

In June 2007, the U.S. Supreme Court agreed that the racial tiebreaker violated the Constitution's right of equal protection. The school district suspended the policy in 2002 as the case worked its way through the courts.

But even though prevailing parties usually can collect attorneys fees in civil-rights cases, Rothstein wrote that she wanted to consider whether that's appropriate in this case.

In her order, she asked both sides to address the issue of whether "special circumstances exist that would render an award of fees unjust ... "

Davis Wright Tremaine originally sought $1.8 million in September 2007, but Harry Korrell, the main attorney on the case, said Tuesday the total will be higher because the firm has done more work as the district fought the request for fees in court. The amount has yet to be determined, he said.

The school district reported last September that it had spent about $435,000 on the case. The plaintiffs didn't seek any damages in the case.

There is debate in the legal community over whether it is ethical to collect fees in pro bono cases, but Korrell said the federal law exists to ensure that civil-rights cases "don't become second-class citizens." If attorneys couldn't recoup fees, he said, then plaintiffs could have a hard time getting top lawyers to handle such cases.

Korrell says he is optimistic that the judge will rule in the firm's favor.

"This is exactly the kind of case where fees should be awarded," he said.

The school district, however, interprets Rothstein's order as an indication the judge believes attorneys fees might not be warranted in this case — and that she wants the law firm to convince her that they are warranted.

Rothstein "has flipped the presumption in this case," said Shannon McMinimee, senior assistant general counsel for the school district.

McMinimee also said the district was pleased with Rothstein's conclusion that the district created the racial tiebreaker in good faith, with no reason to believe it could be found unconstitutional.

For years, McMinimee said, the U.S. Department of Education required the district to show it was encouraging racial integration in schools in order to be eligible for certain federal grants.

"We would hope that Davis Wright Tremaine would recognize, particularly in these difficult financial times, that it is not in the best interest of the public to seek millions of dollars from the school district," she said.

Linda Shaw: 206-464-2359