After an aggravating two decades of trench warfare against a stubbornly litigious New York college, here is what civil-rights lawyer Ron McGuire has to show for it: A historic First Amendment precedent benefiting untold generations of students — and $2,000 a year in compensation.
The U.S. Supreme Court announced Tuesday that it will not entertain McGuire’s long-shot petition to overturn an unjust order reducing his legal fees for a landmark student-rights victory, Husain v. Springer, by nearly 95 percent.
That announcement brings a disheartening conclusion to a case that originated in 1997, when editors of the College Voice newspaper at the College of Staten Island sued to challenge administrative reprisals over a special endorsement edition that, in the college president’s view, unfairly influenced a campus election.
With McGuire as their counsel, the students won a decisive ruling on the merits in 2007, when the Second Circuit U.S. Court of Appeals agreed that the First Amendment protects college journalists against indirect as well as direct acts of retaliation.
The succeeding nine years have been spent squabbling over how much McGuire, a former campus civil-rights activist who has devoted his one-man law practice to the cause of student rights for the past 26 years, would be paid for the 3,500 hours he invested in the journalists’ case.
A U.S. district court arrived at a defensible compromise sum of $221,500 in attorney fees and costs — even at that, an exponential reduction from the going rate for New York counsel of McGuire’s experience. But a three-judge appellate panel struck down even that reduced award as excessive, ignoring the well-documented fact that the case took so long because of dawdling by the state’s defense counsel that, at one point, resulted in judicially imposed sanctions.
When the case returned to the district court in 2015, the judge was compelled to slash McGuire’s compensation to $56,000, including $18,000 in out-of-pocket costs and just $38,000 in attorney fees, about what a lawyer might expect to make in three months of settling fender-bender cases. McGuire, 68, who was counting on a substantial award to cover mounting medical bills as he tries to wind down his law practice, told the Queens Free Press that he is “facing poverty and ruin” as a result of the judiciary’s cruel indifference.
Leaving aside the particulars of McGuire’s case, the more generic issue that it presented to the Supreme Court is one of potential importance to civil-rights plaintiffs and their counsel everywhere: Must a judge provide justification before departing downward from the presumptively correct compensation for the prevailing plaintiff’s attorney, which is arrived at by multiplying a reasonable market rate for the attorney’s services by the hours necessary to secure the victory?
Regrettably, the issue couldn’t capture the interest of a Court depleted by the death of Justice Antonin Scalia that has accepted few civil-rights cases of significance for its just-underway term.
The Student Press Law Center was among the supporters filing an amicus brief asking the justices to accept the case, out of concern that McGuire’s fate will dissuade attorneys from committing to represent needy student plaintiffs on a contingency-fee basis:
The decisions of the Second Circuit on appeal in this case trivialize the value of pro-bono legal work necessary to define and defend the rights of student journalists and students generally and will have a chilling effect on the availability of private counsel to defend vital First Amendment rights of students like the Petitioners in this case.
As is their custom, the justices did not disclose the vote on McGuire’s petition for a writ of certiorari, merely announcing that the petition (which required four votes from among seven eligible justices, with Justice Sonia Sotomayor disqualified) failed to receive the necessary margin.
The outcome is the product of a mean-spirited crusade by Circuit Judge Dennis Jacobs, who had been determined for years to punish McGuire and his clients for bothering the court with a dispute that he contemptuously called “a case about nothing.”
Jacobs broke with judicial decorum to write a vicious dissent acknowledging he had not even paid his fellow judges the courtesy of reading the opinion he was disagreeing with. He then took the almost unheard-of step of barring McGuire’s supporters from filing friend-of-the-court briefs that might have enlightened the educable members of the court about the larger significance of the Husain case.
The message sent by the Husain outcome to wrongdoers everywhere is unmistakable: If you are a powerful government agency with unlimited access to legal representation, you can delay your opponent into the poorhouse.