Petition — Sindell v. Attorney General

tee Sureme Court, U.S.

hE D

80-218

JUN 25 198]

a ALEXAND 2 STEVAS,

CLERK

In the Supreme Court of the United States

October Term, 1981

SINDELL, LOWE & GUIDUBALDI,

A PARTNERSHIP, et al.,

Petitioners,

vs.

ATTORNEY GENERAL OF OHIO,

Intervenor-Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

James A. Lowe, Counsel of Record

SINDELL, LowE & GuIDUBALDI Co.,

L.P.A.

910 Leader Building

Cleveland, Ohio 44114

(216) 781-8880

Counsel for Petitioners

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

QUESTIONS PRESENTED

1. Does a trial court in a civil rights case have the

legal authority to extinguish an attorney’s reasonable con-

tingency agreement with his client without notice or

hearing to that attorney?

2. Does a trial court in a civil rights case have the

legal authority to extinguish an attorney’s reasonable con-

tingent fee agreement because it is the only way to effec-

tuate a settlement of the case, thereby avoiding a lengthy

trial and possible subsequent appeal?

3. Does a trial court in a civil rights case have the

legal authority to issue an order prohibiting an attorney

from properly enforcing a reasonable contingent fee agree-

ment in a state court, after having extinguished that agree-

ment in order to effectuate a settlement between the

parties without notice or hearing extended to the affected

attorney?

4, Does a trial court in a civil rights case have the

legal authority to nullify a reasonable contingent fee ob-

ligation of a client to his attorney where the attorney has

not been discharged by the client for good cause, on the

ground that the client in the exercise of a personal pref-

erence limited the attorney to a secondary role as counsel

after that attorney had previously spent thousands of hours

spanning several years pursuant to the contingent under-

taking, successfully litigating at the appellate level the

right to sue, thereafter extensively engaging in voluminous

trial discovery, then actively trying the case for sixteen

weeks, thereafter remaining at all times available and able

to serve his clients as requested up to and including thc

point of settlement?

0

5. May an enactment by a State Legislature which

offers a monetary settlement to plaintiffs in a civil rights

action expressly condition that offer upon the extinguish-

ment of a reasonable attorney fee agreement between the

plaintiffs and their attorney, without transcending the

-limits of Article I, Section 10 of the United States Con-

stitution prohibiting states from passing any law impairing

the obligation of contracts?

LIST OF PARTIES

The petitioners are Sindell, Lowe & Guidubaldi Co.,

L.P.A. (formerly a partnership) and its individual mem-

-bers, 910 Leader Building, Cleveland, Ohio, 44114. Their

attorney is James A. Lowe, 910 Leader Building, Cleveland,

Ohio 44114.

Plaintiffs-Beneficiaries in the courts below (the Plain-

tiffs in the “Kent State Cases”) were represented by

Stephen V. Bomse, 44 Montgomery Street, San Francisco,

California 94104. Respondent is the Attorney General of

Ohio, Columbus, Ohio 43215. Attorneys for the respondent

are Burt Fulton and Virginia L. Reichard, 630 Bulkey

Building, Cleveland, Ohio 44115.

TABLE OF CONTENTS

SID III \ sinicsn Sennen ctuthcdcsodstdesiioenstusiaatmiuadephitinicguodonsie I

RE Se IIS: saliondsibonainas santosh piedanocestibcanionsesGbpbipsuaindamiagadesbits 1m

inions Below ...... ay

risdiction ... SEM E Ea Bae is

nstitutions and Statutes Involved .2..02...........-..eeceseeeeee 2

NIN Ole SID SION dereccepsnretangesendeliisidestasnasdatslasibtesbiscontose 2

asons for Granting the Writ . =

nclusion iin 8

pendix:

Announcement of the United States District Court

in Case Nos. C70-544, C71-470, C70-859, C72-439,

70-816, C71-20, C71-471, C71-21, C71-22, C71-23,

71-25, C71-24, C71-26, and C73-643 accompany-

ing Settlement and Dismissal Order (Filed Jan-

I aD etidecics sncnctennectshckijpbtinnicdatenstduibliosevecrsecedoos Al

Settlement and Dismissal Order of the United States

District Court in Case Nos. C70-544, C71-470,

70-859, C72-439, C70-816, C71-20, C71-471, C71-

21, C71-22, C71-23, C71-25, C71-24, C71-26, and

C73-643 (Filed January 4, 1979) . A3

Oral Opinion of the United States District Court is

Case Nos. C70-544, C71-470, C70-859, C72-439,

70-816, C71-20, C71-471, C71-21, C71-22, C71-23,

C71-25, C71-24, C71-26, and C73-643 (Filed Feb-

ruary 6, 1979) A8

Oral Ruling of the United States District Court in

Case Nos, C70-544, C71-470, C70-859, C72-439,

C70-816, C71-20, C71-471, C71-21, C71-22, C71-23,

C71-25, C71-24, C71-26, and C73-643 (Filed

March 9, 1979) Al5

Iv

Orders of the United States District Court in Case

Nos. C70-544, C71-470, C70-859, C72-439, C70-816,

C71-20, C71-471, C71-21, C71-22, C71-23, C71-25,

C71-24, C71-26, and C73-643 (Filed March 12,

pf) nc RO ER STRESS CES RE ad A26

Order of the United States District Court in Case

Nos. C70-544, C71-470, 70-859, C72-439, C70-

816, C71-20, C71-471, C71-21, C71-22, C71-23,

C71-25, 71-24, C71-26, and C73-643 (Filed

FTE 2g SEPT) salilstiacsenscnccehetcrtinctnseylldositconessécckinasbictse A42

Order Distributing Settlement Fund of the United

States District Court in Case Nos. C70-544, C71-

470, C70-859, C72-439, C70-816, C71-20, C71-471,

C71-21, C71-22, C71-23, C71-25, C71-24, C71-26,

and C73-643 (Filed March 26, 1979) .................... A46

Opinion and Order of the Court of Appeals for the

Sixth Circuit (Filed March 27, 1981) .................... A51

Judgment Entry of the Court of Appeals for the

Sixth Circuit A64

TABLE OF AUTHORITIES

Cases

xton v. Patel, 595 F.2d 1182 (9th Cir. 1979) ................ 5

ppel v. Adams, 434 F.2d 1278 (5th Cir. 1970) ............ 5

untila v. Carter, 571 F.2d 487 (9th Cir. 1978) ............ 5

hnson v. Georgia Highway Express, Inc., 488 F.2d 714

(5th Cir. 1974) 5

rthcross v. Board of Education of Memphis City

Schools, 611 F.2d 624 (6th Cir. 1979, rehearing

denied 1980) 5

rgeant v. Sharp, 579 F.2d 645 (1st Cir. 1978) ............ 5

Vv

Constitutional Provisions and Statutes

ist., Art. I, § 10 2

ist., Art. II, § 28 ... 2

thts Attorney’s Fees Awards Act of 1976, 42

2, 4, 6

. $1988 (as amended) ....................c-ccccececceeeeseseeee

BUD. iislinndedealines

upreme Court of the United States

October Term, 1981

SINDELL, LOWE & GUIDUBALDI,

A PARTNERSHIP, et al.,

Petitioners.

vs.

ATTORNEY GENERAL OF OHIO,

Intervenor-Respondent,

ITION FOR WRIT OF CERTIORARI

‘o the United States Court of Appeals

For the Sixth Circuit

OPINIONS BELOW

\nnouncement and Settlement and Dismissal

1e trial court are reproduced in the Appendix to

nm at pages Al and A3 respectively.

ral Opinion of the trial court of February 6, 1979

the Appendix at page A8.

ral Ruling of the trial court of March 9, 1979

the Appendix at page A15.

1dgment Entries of the trial court of March 12,

h 15, 1979 and March 26, 1979 appear in the Ap-

pages A26, A42, and A46 respectively.

rder of the Court of Appeals for the Sixth Cir-

‘oduced in the Appendix at page A51l.

JURISDICTION

der of the Court of Appeals for the Sixth Circuit

1 on March 27, 1981. The jurisdiction of this

yoked under 28 U.S.C, §1254(1) and Rule 17 of

e Court Rules, effective June 30, 1980.

TUTIONS AND STATUTES INVOLVED

I, Section 10, Constitution of the United States

pertinent part:

tate shall... pass any ... Law impairing the

ion of Contracts, ...”

II, Section 28, Constitution of the United States

pertinent part:

general assembly shall have no power to pass

's impairing the obligation of contracts; .. .”

vil Rights Attorney’s Fees Awards Act of 1976,

, 42 U.S.C. §1988 provides, in relevant part:

court, in its discretion, may allow the prevail-

ly ... a reasonable attorney’s fee as part of the

STATEMENT OF THE CASE

ng the historic events of May 4, 1970 on the

<ent State University, those who had been in-

he families of those who had been killed re-

sel to represent them in pursuing their claims

umages. With the exception of the Scheuer

th retained the American Civil Liberties Union

3

n agreement, all of the plaintiffs retained

| as their counsel.

plaintiffs who retained him signed written

lising to pay Sindell one-third of the pro-

covery which might be obtained on their

vritten agreements also provided that in

overy was made, the plaintiffs would not

sindell for attorney’s fees in any amount

in keeping with his employment, Sindell

plaintiffs in a variety of actions in the

on Pleas of Cuyahoga County, Ohio, the

»peals for the Eighth Judicial District, the

Court, the United States District Court

District of Ohio, the United States Court

the Sixth Circuit and the United States

(in which a unanimous Court held that

tal officials could be held accountable in

rr the deprivation of the plaintiffs’ civil

n in the United States District Court for

trict of Ohio throughout a jury trial which

ximately sixteen weeks. Although that

ted in a defendants’ verdict, Sindell iden-

ed the issue for appellate review upon

d States Court of Appeals for the Sixth

ly reversed the case and remanded it for

ie first trial the American Civil Liberties

erating attorneys took the responsibilities

by agreement of all concerned. Nonethe-

tinued to remain involved as an attorney

ntiffs.

4

iding his acknowledgment that these facts

ed to him in December, 1978, the trial judge

ttlement with the American Civil Liberties

resentatives of the State of Ohio which

anuary 4, 1979 in an Order which effectively

Sindell’s (and other private counsel’s) con-

ract rights and established a fund of $50,-

for all of the private counsel in the Kent

his occurred several days after the com-

e retrial.

was taken without the benefit of any hear-

yidence whatsoever, nor was any advance

ion given.

mt hearings relating to the distribution of

ial court initially relied for support of its

ivil Rights Attorney’s Fees Awards Act of

. §1988, as amended). However, as the

ourt of Appeals for the Sixth Circuit later

nas found no exact controlling precedent

mns which he felt required to take, nor do

prosecuted their appeal from the Orders of

rt of January 4, 1979 and March 12, 1979.

peals, finding that “. . . this case is unique

f litigation in the United States Courts”,

iffirming the District Court on March 27,

tion for Writ of Certiorari was thereupon

Court.

OR GRANTING THE WRIT

ets the criterion for review on Cer-

Rule 17(c) of the Supreme Court

‘ourt to decide an important question

has not been, but should be, settled by

les of law which apply to the award of

’s fee in civil rights cases and to the

Yourt to extinguish private contingent

ircuits have analyzed the extent of a

ers in awarding a “reasonable” fee

s Attorney’s Fees Awards Act of 1976

al of the circuits have addressed the

murt, acting in its discretion, to modify

ents.

it decision in this case runs counter

sly decided cases and this Court has

ssues presented here.

see Johnson v. Georgia Highway Ex-

14 (5th Cir. 1974); Fountila v. Carter,

*. 1978); Northcross v. Board of Edu-

city Schools, 611 F.2d 624 (6th Cir.

2d 1980); Cappel v. Adams, 434 F.2d

Buxton v. Patel, 595 F.2d 1182 (9th

py. Sharp, 579 F.2d 645 (1st Cir. 1978).

tice in this case, to settle the confusion

ircuits and to provide a meaningful

nich to assess retroactively contingent

vil rights matters, this Court should

sented here for review.

1 this case is patently outrageous.

| court felt so compelled to settle

ymplex piece of litigation that he ar-

ettlement, and virtually eliminated

nt fee agreement without notice to

and without giving that attorney an

d.

3 done behind closed chamber doors

e affected attorney, but was also

ith a legislative enactment expressly

ingent fee contracts.

for the harsh limitation of attor-

> attorney played no role in bringing

result. This justification unfortu-

*t that the attorney in question had

ours spanning several years in se-

sue on the appellate level without

ave ever been prosecuted; moreover,

ignored the fact that a record was

ks of trial which contained the basis

1 adverse jury verdict and also the

lich lasted only a few days before

ade.

al court then sought to prohibit en-

ingent fee agreements in state court.

Attorney’s Fees Awards Act of 1976

mended) was never intended to per-

o more than assess part or all of a

; against a defendant, or to do more

dering of such a payment of attor-

> agreement of the parties.

ionable contingent fee agreement, a

ited with the authority to set such

7

arbitrary ground that such an

le the case. An attorney who

ractual obligation should not be

nent himself via the enforced

uirly earned fee. A trial court

the reality, however stressful,

ettled no matter how much the

greed upon attorney’s fee been

Kahler, the most seriously in-

eceived in the area of a quarter

of $350,000.

on a contingent fee agreement

payment of fees if there was

an attorney for payment none-

obvious response that such was

y. Why then should it be any

btained through the long labor

*ks the application of the other

fees were to be treated on the

if there is no recovery, but if

there might or might not be a

ly threatens the ability of any

ontingent fee agreement. The

clearly benefits clients without

insel, clients whose rights would

rdized. If attorneys could not

recognition of a reasonable con-

en many people would likely

on.

The Kent State litigation, while unique in many ways,

is not so unique as to permit the arbitrary judicial indif-

ference for the right of a faithful, hard-working attorney to

a fair shake.

There is no known authority even remotely authorizing

this kind of unbridled ex parte judicial action. In our view,

the consequences of allowing this kind of judicial action

to stand unreviewed are potentially dire for countless

private attorneys and clients otherwise unable to afford

them throughout the country.

CONCLUSION

For the reasons set forth above, petitioners urge that

their Petition for a Writ of Certiorari be granted.

Respectfully submitted,

James A. Lowe

910 Leader Building

Cleveland, Ohio 44114

Counsel of Record for Petitioners

Al

APPENDIX

ANNOUNCEMENT OF THE UNITED STATES DIS.-

TRICT COURT ACCOMPANYING SETTLEMENT

AND DISMISSAL ORDER

(Filed January 4, 1979)

The 13 Kent State civil damage cases are settled and

will be terminated.

Settlement negotiations began on the weekend of No-

vember 12, These negotiations came to a dead stop on

December 1.

Following a court session on Sunday, December 3,

negotiations resumed.

Later on Sunday, this court recommended to all parties

a total settlement amount of $675,000 to be paid the plain-

tiffs. I conclude that this amount is fair and reasonable

to all concerned under all the circumstances,

The principal terms of the settlement that has been

reached are incorporated in a journal entry which I will

later read.

Wednesday morning, December 6, the plaintiffs agreed

to accept the recommended settlement. Likewise, the de-

fendants agreed that such a sum was satisfactory if paid

on their behalf by the State of Ohio.

As a condition of the settlement, the plaintiffs had

requested a statement of a certain content to be signed

by the defendants. Various proposed drafts of the state-

ment were unacceptable to one side or the other. By

Wednesday, wording was achieved that satisfied the plain-

tiffs and the defendants.

At the same time, the defendants requested particular

language to be incorporated in the mutual releases which

A2

the plaintiffs and the defendants will individually sign.

Plaintiffs agreed to this language.

Subsequently I will read the statement and the perti-

nent language of the releases.

Of course the cases could not be settled until and

unless the State of Ohio agreed to pay the settlement sum

of $675,000.

Just a few minutes <~o the State Controlling Board

committed the State to pay the settlement sum.

I commend Ohio’s legislative leaders, the State Con-

trolling Board and the Attorney General for agreeing to

take the action that will provide the settlement fund.

In ending these cases now the cost of defense of a

protracted trial can be diverted to the settlement fund.

There are other gains.

A settlement of these cases spares the parties—plain-

tiffs and defendants—the trauma, the anguish, and the

uncertainties of a trial that is reliving the events of those

days in early May of 1970.

Continuing the trial of these cases would vicariously

cause likely injury to the reputation and well being of

® great university. That probable harm will be avoided.

There is also incalculable benefit to our beloved State

of Ohio in finally closing this chapter in our state’s history.

I now read the Journal Entry that I have signed and

filed this morning.

I next read pertinent language from the mutual release

which each party is executing.

Finally, I read the statement which each defendant

is signing.

A3

SETTLEMENT AND DISMISSAL ORDER OF THE

UNITED STATES DISTRICT COURT

(Filed January 4, 1979)

UNITED STATES DISTRICT COURT

NortTuern District or Oxn10

EASTERN DIVISION

Artruur Krause, Administrator of the Estate

of ALLison Krause, Deceased,

C70-544

C71-470

vs.

James A, Ruopes, et al.

Sarai: Scuever, Administratrix of the Estate

of Sanpra Lee Scuever, Deceased,

C70-859

C72-439

James A. Ruopes, et al.

Evamve Mitten Horstremn, Administratrix of C70-816

the Estate of Jerrrey Gienn MILLER,

Deceased,

James A. Ruopes, et al,

Louis A. Scuroeper, Administrator of the

Estate of Wrtt1am K. Scurogeper, Deceased,

C71-20

a a ee a ee a ee

James A. Ruoves, et al,

A4

MEAN KAHLER, ELAINE KAHLER, JOSEPH JOHN C71-471

Lewis and ELizaAsetu LEwIs,

vs.

AmMeEs A. RuHopes, et al.

oun R. CLEARY and Roeenr CLEARY, C71-21

vs.

AmMEs A, RHODES, et al.

IONALD Scott MACKENZIE, C71-22

JOUGLAS WRENTMORE, C71-23

vs.

ames A, Ruopes, et al.

AMES D, RUSSELL, C71-25

vs.

ames A, Ruopes, et al.

‘womas M. Grace and THomas V. GRACE, C71-24

Vs.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Ames A, RHOopEs, et al. )

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

ames A, Ropes, et al,

_M. Canrora,

nT F, Stamps and F'Loyp STAmps, C73-643

)

)

)

)

s A, Ruopes, et al. )

)

)

vs. )

)

)

s A. Ruopes, et al.

SETTLEMENT AND DISMISSAL ORDER

"he Court having recommended to all parties that the

med cases should be settled and terminated upon

aayment to the plaintiffs of $675,000 and upon the

; later stated, and all parties having agreed to said

ment payment and terms,

ind the State Controlling Board having today, Jan-

4, 1979, committed and approved a settlement fund

15,000,

T IS ORDERED:

. $600,000 shall be paid to the plaintiffs (as itemized

in the attached list), $50,000 as payment in full

for attorney fees, and $25,000 as out-of-pocket ex-

penses. The settlement fund of $675,000 shall be

paid to Sanford Jay Rosen, trustee, for distribution,

. Mutual releases for and from all claims and causes

of action shall be executed by all parties.

. The agreed-to statement shall be signed by the de-

fendants.

A6

Upon completion of terms, 1, 2 and 3, this court

will enter a separate order reading “Settled and

Dismissed with Prejudice, costs to be taxed” in each

captioned case.

/s/ WiturAM K. THomas

United States District Judge

DISTRIBUTION LIST

KAHLER $ 350,000

IR KRAUSE, Administrator of the Es-

f ALLISON KRAUSE, Deceased 15,000

[ SCHEUER, Administratrix of the Es-

£ SANDRA LEE SCHEUER, Deceased 15,000

—& MILLER HOLSTEIN, Administratrix

> Estate of JEFFREY GLENN MILLER,

ised 15,000

A. SCHROEDER, Administrator of the

p of WILLIAM K. SCHROEDER, De-

d 15,000

CANFORE 15,000

CLEARY 22,500

RACE 37,500

H LEWIS 42,500

.D SCOTT MACKENZIE 27,500

| D. RUSSELL 15,000

T F. STAMPS 15,000

sAS WRENTMORE 15,000

t of Mutual Release)

‘ile denying all liability as to the claims of the plain-

1 desiring to compromise and terminate these dis-

laims of the plaintiffs, JAMES A. RHODES; SYL-

R DEL CORSO; ROBERT CANTERBURY; ROD-

Al

BIDDLE; DWIGHT A. CLINE; CHARLES

INGER; HOWARD R. FALLON; OKEY R.

; WILLIAM F. E. HERSCHLER; ROBERT D.

TARRY D. JONES; RICHARD LOVE; BARRY

IS; JAMES D. McGEE; MATTHEW O. Mc-

UARRY RALPH MOWRER; JOHN E. MARTIN;

’. PRYOR; WILLIAM E. PERKINS; JAMES E.

RUSSELL EUGENE REPP, JR.; LAWRENCE

ER; LEON H. SMITH; RAYMOND J. SRP;

.. SNYDER; ALEXANDER D. STEVENSON;

LLOYD THOMAS, JR.; and RALPH WILLIAM

hereby consent to and agree with the payment

te to the plaintiffs named above.

rospect, the tragedy of May 4, 1970 should not

‘red. The students may have believed that they

in continuing their mass protest in response to

dian invasion, even though this protest followed

g and reading by the University of an order to

; and an order to disperse. These orders have

determined by the Sixth Circuit Court of Ap-

ve been lawful.

of the Guardsmen on Blanket Hill, fearful and

‘om prior events, may have believed in their

3 that their lives were in danger. Hindsight sug-

another method would have resolved the con-

_ Better ways must be found to deal with such

ions.

evoutly wish that a means had been found to

May 4 events culminating in the Guard shoot-

he irreversible deaths and injuries. We deeply

se events and are profoundly saddened by the

‘our students and wounding of nine others which

We hope that the agreement to end this litigation

to assuage the tragic memories regarding that

A8

OPINION OF THE UNITED STATES

DISTRICT COURT

(Filed February 6, 1979)

A. Sindell, his law firm and its individual mem-

n A. Sindell hereafter), have filed a notice of

| this court’s January 4, 1979 settlement and

der entered in the 13 Kent State civil damage

articularly, these attorneys appear to be ap-

portion of the January 4 order that states:

YRDERED:

) shall be paid to the plaintiffs (as itemized in

ched list), $50,000 as payment in full for attor-

, and $25,000 as out-of-pocket expenses.

nts make application for a stay of the Settle-

ismissal Order of this Court on January 4, 1979

veal and for an Order granting an injunction

vendency of the within appeal restraining San-

n, trustee, from distribution of the settlement

000.

ppellate Rule No. 8 requires that any request

r injunction pending appeal should be heard in

tance by the district court, this application has

hearing this morning.

ibtful that the order of January 4 constitutes a

The order on its face in paragraph 4 states:

ompletion of terms 1, 2 and 3, this court will

separate order reading “settled and dismissed

ejudice, costs to be taxed” in each captioned

A9

ttled and dismissed entry goes on in each

events since January 4 will require several

this court’s jurisdiction. One of those

court’s jurisdiction,

er and adjudicate through Sanford J, Rosen,

e distribution of the $675,000 settlement

ord with terms and conditions of this court’s

and termination order of January 4, 1979 and

ty with the express intent of the State Con-

ard in appropriating and payment of the

‘und of $675,000.

hat until this court enters a separate entry

nd dismissal with prejudice in each of the

will be no final order from which appellant

‘ll may prosecute any appeal of this court’s

Ss.

le absence of a final order leads this court

sider entry of the requested stay.

ecause the appellant may nonetheless pur-

from this court’s order of January 4, 1979,

ntitled to know that even if the January 4,

e determined by the Sixth Circuit Court

e a final order, this court would deny ap-

tion for a stay.

ing that leads to this conclusion should be

ated January 16, 1979, Robert F. Howarth,

f the State Controlling Board presented to

in the amount of $675,000.00.

‘he stated:

rized to act only pursuant to Controlling

est No. E47, as approved January 4, 1979.

Al0

with, please find a copy of this authoriz-

, with this court’s Settlement and Dis-

incorporated therein and attached there-

\.

inued:

| carefully note that the subject draft is

y under the terms of this court’s Settle-

nissal Order upon which the Controlling

val is conditioned. In other words, any

these funds other than as provided in

t and Dismissal Order would violate the

ler which the enclosed draft is presented.

our understanding that Mr, Sanford J.

tee for distribution will be accordingly

terms and conditions.

-ontrolling Board E47 Request for trans-

10 Kent State Settlement Fund specified:

to as “Exhibit A,” and incorporated here-

e, is a document entitled Settlement and

ler. As contemplated by the Order,

t is conditioned upon the terms and re-

forth therein.

mts are attached to Order One of this

which I delivered to Sanford J. Rosen

raft in the amount of $675,000.00. Order

‘ovides that Sanford J. Rosen is directed

usteeship pursuant to this court’s Order

and the letter of President Howarth.

read, the order of January 4, 1979 spe-

shall be paid in full for attorney fees

t-of-pocket expenses. $600,000 shall be

fs as itemized in the attached list.

All

se breakdown and allocation of the

| of $675,000 that was presented to

intiffs and their counsel when this

iffs and their counsel on the morning

ber 6, before court opened,

se were informed of and approved

akdown. |

settlement fund and the breakdown

od for each of the plaintiffs, $50,000

or attorney fees, $25,000 as out-of-

fully disclosed by me to President

+ Ohio Senate and Speaker Vernon

se of Representatives. This occurred

e leaders met with me in this court

1 of December 6, 1978.

ned of the contingent fee contracts

nd other former counsel, I had fixed

for any contingent fee claim.

that the State of Ohio would not

settlement fund of $675,000 if the

charged against the fund or around

plaintiffs, I fixed $50,000 as payment

fees.

tation of attorney fees, there would

ent of the Kent State cases by the

s made clear by the express wording

ling Board request No. E47 which

vas approved on January 4, 1979.

umstances, this court, acting in its

U.S.C. §1988, as amended, allowed

iable attorney's fee” of $50,000.

Al2

at under some circumstances in

ecuted under section 1983, contin-

ed while additional attorney fees

ld not be allowed by the court,

F.2d 1039.

it circumstances, in order to effect

this litigation which seemed as if

was indispensable that this court

' section 1988 and that the fees

nd supercece any contractual con-

insel of these plaintiffs.

ttlement it was necessary to limit

it is also fair under the circum-

ess hours of legal services have

lf of the plaintiffs by Steven A.

attorneys from the inception of

he unsuccessful first trial in late

that Steven A. Sindell did not

t obtained a new trial, without

been no second trial and no settle-

ded by Sanford Jay Rosen repre-

their successful appeal. These

er counsel, have represented the

ond trial and settlement.

rcumstances make it clear that

iyed no part in creating the settle-

sonally attest to this fact. Yet,

rmined by this court to reserve

it fund out of which to ratably

counsel who may have had con-

1 any of the plaintiffs.

Al3

y 25, 1979, I received a letter

aw firm over the signature of

ed in part as follows:

n against any individuals other

Trustee as stated herein, and

yroved by Judge Thomas. Any

tteven A. Sindell in connection

unauthorized.

y 15, 1979, Joseph Kelner, lead

as written in pertinent part:

damental proposition that fees

ivate retainer agreements with

»ject to supervision and control

lingly, if it is your “intent” as

that the distribution of funds

lement shall supercede private

ve shall willingly abide by such

ry 2, 1979, Fred H. Mandell, one

|, has written me in part as fol-

I wrote to Mr. Rosen and for-

aim for fees out of the $50,000

at purpose in the court’s order.

yurt will reflect the fact that I

n behalf of the following named

, Donald Scott McKenzie, James

e, Lewis A. Schroeder, Admin-

mtmore and Allen Canfora. At

retained by the above-named

an agreement with them which

was to be 1/3 of any settlement

r to avoid duplication of efforts,

Al4

I entered into an understanding with the firm of Sin-

dell, Sindell and Sindell to share on a 50/50 basis any

fees that I might be entitled to.

I want the court to know that insofar as I am con-

cerned, I am not asserting my right under the written

agreements with my clients and that I am perfectly

satisfied with the order of the court concerning the

distribution to be made out of the funds set aside for

attorney fees.

He then adds:

I am sure that the court is thoroughly familiar with

the fact that the students and their families have

suffered indescribable hurt and trauma since the

tragedy of almost 9 years ago and it would indeed be

a sad commentary on the legal profession if lawyers

representing the various parties would now do any-

thing which could be looked upon ag ghoulish insofar

as a distribution of fees is concerned, I sincerely hope

that this will not happen.

At this time the court is scheduled a hearing on March

9, 1979 for a presentation and consideration of claims for

attorney fees to be distributed out of the $50,000 attorney

fee fund; and at the same time, claims for payment out of

the $25,000 out-of-pocket expense fund may be presented

and considered.

The letters which have already been forwarded to

Mr. Rosen pursuant to his request that all claims be sub-

mitted by January 30, 1979, need not be duplicated.

However, should any attorney desire to supplement

his existing claim letter, he should first do so in writing,

Al5

sending a copy to Mr. Rosen, Trustee, for distribution of

the fund, with a copy to this court. Counsel may also ap-

pear on March 9, 1979 at the aforesaid hearing to present

a short argument in support of his claim.

A more precise order is being entered to cover this

hearing of March 9, 1979.

ORAL RULING OF THE UNITED STATES

DISTRICT COURT

(Filed March 9, 1979)

KRAUSE, et al,

Vv.

RHODES, et al.

ORAL RULING

In this court’s oral opinion of February 6, 1979, today’s

hearing was scheduled,

for a presentation and consideration of claims for

attorney fees to be distributed out of the $50,000 attor-

ney fee fund; and at the same time, claims for payment

out of the $25,000 out-of-pocket expense fund may be

presented and considered,

The record is now complete; and the court first pro-

ceeds to apportion the $50,000 attorney-fee fund provided

for in the settlement of these cases.

I,

A.

In this court’s memorandum of February 6, it was

stated:

Al6

Previously informed of the contingent fee contracts of

appellant Sindell and other former counsel, I had fixed

the $50,000 to provide for any contingent fee claim.

Because I knew that the State of Ohio would not

make payment of a settlement fund of $675,000 if the

contingent fees were charged against the fund or

against any of the individual plaintiffs, I fixed $50,000

as payment in full for all attorney fees.

This court then set forth grounds upon which it is

confining all the fee claims of contingent fee counsel (in-

cluding Steven A, Sindell) to the $50,000 attorney-fee fund,

thereby modifying and superceding “any contractual con-

tingent fees of former counsel of these plaintiffs.” Those

grounds are now reaffirmed,

Consistent with this court’s action, Grimes v. Chrysler

Corp., 565 F.2d 841 (2nd Cir, 1977), recognizes a district

court’s authority in supervising the distribution of a settle-

ment fund to exercise ancillary jurisdiction to resolve

disputes over attorney fees between litigants and their

counsel, See also American Federation of Tobacco Growers

v. Allen, 185 F.2d 590 (4th Cir, 1951).

The present settlement fund involves “property or

assets actually or constructively drawn into the court’s

possession or control by the principal suit.” Fulton Bank

v. Hozier, 267 U.S. 276, 280 (1925). Thus, this court

acquires authority to resolve the ancillary controversy

arising out of Steven A, Sindell’s claim to seek attorney

fees directly from his clients’ apportionment of the plain-

tiffs’ settlement fund of $600,000, and in excess of his

share of the $50,000 attorney fee fund.

Finally, there is a strong equitable justification for this

court’s exercise of a limiting restraint upon the fees of

Al7

an officer of this court who would self-centeredly seek

to deprive his clients of the full sums which the State

of Ohio has specifically reserved for those plaintiffs.

B,

In fixing $50,000 “to provide for any contingent fee

claim,” conversely this court intended thereby to make no

provision for attorney fees for counsel who have repre-

sented the plaintiffs in connection with the second trial—

or for that matter, for any other attorney fees. When

this court met on December 3, 1978 with present counsel

to discuss the court’s recommended settlement amount

of $675,000, the court was informed, as the record now

shows, that second trial counsel were employed by the

ACLU; and plaintiffs are not obligated to pay any attorney

fees to present counsel. Hence, this court determined

that all the $50,000 set aside for attorney fees would be

equitably apportioned among the former contingent fee

counsel,

Lead counsel for the plaintiffs said as much to the

plaintiffs when he wrote as follows to them on January 9,

1979:

Some of you as clients had entered into contingent

fee arrangements with the attorneys who first repre-

sented you in these cases. These agreements should

not concern you at this point. The effect of those

fee agreements has been radically changed by virtue

of the course that this case has followed, the loss of

the first trial, and the changes in the roles of the

various attorneys. To my knowledge no attorney has

advanced any costs which have not already been re-

paid, The legitimate entitlement to fees of those attor-

neys who have such an entitlement is »mply provided

for by the $50,000.00, specifically designated for that

Als

purpose by the judge, and in the event the settlement

order supersedes any previously negotiated fee agree-

ments,

Bearing these things in mind, the court is forced to

lieve that the concerted filings since February 6 of affi-

vits of claims for attorney fees by 14 lawyers and 6 legal

rkers employed and paid by the ACLU—total claims

- attorney fees in the amount of $731,927—are not seri-

sly made but are a Newtonian reaction to the claim

d demand of Steven A. Sindell.

In a letter of February 14, 1979, Bruce J. Ennis, legal

ector of the American Civil Liberties Union states:

It is our position that only lawyers who participated

in the successful appeal to the Sixth Circuit or in the

retrial and settlement should be entitled to a fee. We

believe that lawyers who participated on a contingency

fee basis only during the unsuccessful first trial should

not be entitled to any fee.

Presumably this argument rests upon an instrument

ted August 27, 1975 signed by the plaintiffs and their

ntract counsel (Steven A. Sindell, Joseph Kelner, Fred

Mandel), because Mr. Ennis in elaboration of his posi-

n states in part:

Since August 27, 1975, the ACLU has had the final

responsibility for all costs of out-of-pocket expenses

not reimbursed to ACLU by the United Methodist

Church.

The instrument of August 27, 1975 reads in principal

rt:

The undersigned plaintiffs in the Kent State civil

cases ... do hereby agree that for purposes of all ap-

pellate proceedings in this litigation, the role and re-

Alg

jponsibilities of lead counsel shall be exercised by the

egal staff and attorneys of the American Civil Liber-

‘ies Union. ...

Neither expressly nor impliedly does this agreement

inate the written agreements between Steven A.

ell, Joseph Kelner, and Fred Mandell and their re-

ive clients. Moreover, essential as it was to authorize

egal staff and attorneys of the American Civil Liber-

Jnion to exercise “the role and responsibilities of lead

sel” in “all appellate proceedings in this litigation,”

astrument did not obligate the plaintiffs to compensate

U counsel for their legal services.

[The same thing can be said about the “retainer” ex-

1d on December 4, 1977—this time solely by the plain-

This later instrument—executed after the Sixth Circuit

t of Appeals ordered a new trial—provides:

The undersigned plaintiffs in the Kent State civil cases

. » do hereby agree that for all purposes of retrial

wr settlement of this litigation the role and responsi-

yilities of lead counsel shall be exercised by Sanford

|. Rosen. He shall have final authority, subject only

0 plaintiffs’ veto, to make all decisions in connection

vith retrial or settlement of this action, including

election of all attorneys and support personnel who

work on this case, all decisions about trial strategy

und tactics, and assignment of all specific tas

mmediately it is seen that there is no mention of

to be charged the plaintiffs by either Mr. Rosen or

counsel of his selection. Thus, the relationship be-

n both Mr. Rosen and the attorneys of his selection

the plaintiffs in the second trial corresponds to the

A20

ship between Michael Geltner and the Scheuer fam-

described in Mr. Geltner’s affidavit:

eface this affidavit by saying that it was my under-

iding from the start of the case that neither the

LU Foundation nor its cooperating attorneys ex-

ted to receive compensation for representing the

euer family.

se no compensation was to be charged the Scheuer

in the first trial by either the ACLU Foundation

operating attorneys and since in the second trial

itiffs were represented by the ACLU Foundation

cooperating attorneys (Mr. Rosen and his legal

without expecting to receive compensation from

ntiffs, the fee claims of neither the ACLU Founda-

any of its cooperating attorneys or legal workers

w be recognized. Hence, all affidavits of claims

the $50,000 attorney fee fund made by Bruce J.

lirector of the ACLU Foundation, by Sanford J.

ead counsel, and by all other ACLU counsel and

rkers are respectfully denied.

Cc.

ipportioning the $50,000 attorney fee fund, the sev-

ps taken will be described. As a starting point,

ird of $15,000 to the Scheuer family is deducted

e $600,000 that is to be paid to all the plaintiffs.

-e at all times throughout the litigation the Scheuer

1as been represented by the American Civil Lib-

nion, the monies to be paid to the Scheuer family

not be part of the base used in determining the

ige of the total fund represented by the amount

each of the plaintiffs who have contingent fee

s with either Steven A. Sindell, Fred Mandel, or

Kelner.

A21

percentages of the separate awards to all plaintiffs

in the Scheuer family (based on $585,000), have

culated and appear in the margin.’ Applying

rcentages to the $50,000 fund, the several shares

0,000, attributable to each plaintiff, are as follows:

hler $29,915

<rause, Administrator of the Estate of

. Krause, Deceased 1,280

filler Holstein, Administratrix of the

of Jeffrey Glenn Miller, Deceased 1,280

Schroeder, Administrator of the Estate

ery Glenn Miller, Deceased 1,280

ifora 1,280

ary 1,925

ce 3,210

ewis 3,635

scott Mackenzie 2,355

. Russell 1,280

. Stamps 1,280

Wrentmore 1,280

Cahler 59.83%

‘Krause, Administrator of the Estate

llison Krause, Deceased 2.56%

Miller Holstein, Administratrix of the

te of Jeffrey Glenn Miller, Deceased 2.56%

4. Schroeder, Administrator of the Estate

Jilliam K. Schroeder, Deceased 2.56%

sanfora 2.56%

Cleary 3.85%

race 6.42%

Lewis 7.27%

i Scott Mackenzie 4.71%

D. Russell 2.56%

_ F. Stamps 2.56%

is Wrentmore 2.564

A22

pplied the percentage shares of the plaintiffs

00 settlement fund to the $50,000 attorney

next step is to assign to Steven A. Sindell,

and Joseph Kelner the collective shares of

ve clients (as determined by the several con-

ontracts).

\. Sindell has a total of $34,830 (Kahler,

Lewis). The $1,250 sum attributed to Arthur

nitted because on March 10, 1976 (prior to

1), Mr. Krause discharged Steven A. Sindell

1 with which he was then affiliated . . . from

presentation of him in the Kent State litiga-

Krause sum of $1,250 will be apportioned

ndel has a total $12,610 (Schroeder, Canfora,

xe, Mackenzie, Russell, and Wrentmore).

r has a total of $1,280 (Elaine Miller Holstein).

ndel assigned 1/2 of his fees to Steven A.

iating him as co-counsel in the representation

‘lients.*

ve of the first trial, Joseph Sindell, partner

m of which his son Steven was also a partner,

oseph Kelner 20 percent of the Sindell firm’s

he “Kent State litigation.” This was about

. Kelner assumed the role of lead counsel

ogy of David Engdahl subscribed 23 February

) °

ter of Fred H. Mandel, April 20, 1972 to his clients

ging letter accepting co-counsel status on a shared-

en to Fred H. Mandel, Esq. by Steven A. Sindell,

A23

ffs, Ramsey Clark having departed as lead

iiner previously had agreed to divide his

| fee with the Sindell firm.

justments called for by the foregoing assign-

the adjusted total of fees are as follows:

Sindell, $33,420.°

del, $6,305 (1/2 of $12,610); and Joseph

$8,995 ($640 plus $8,355).

en to the allocation of the balance of $1,250

ttorney-fee fund (the Arthur Krause share),

s that David Engdahl (see his affidavit of

979) states under oath:

2 period of the first trial of the Kent State

, extending from May, 1975, through most

_ 1975, I worked as sole counsel for Arthur

d co-counsel for all of the other Kent State

sxcept the Scheuers, cooperating fully with

sel representing any of the Kent State plain-

ing this period, I devoted my total energy,

s per week, including evenings, to profes-

rts on behalf of the Kent State plaintiffs.

‘ the Sindell 20 percent assignment of fees to

ompensate Kelner for his assumption of the role

is not established in the record. Because there

in the record of any agreement allowing addi-

oseph Kelner to compensate him for services as

the first trial, this court’s apportionment of fees,

the agreements of record, es no allowance to

r to his son for any extra lead services that they

rmed in the first trial or extra responsibilities

y undertook.

justed total of $33,420 represents $34,830 plus

ent of Mandel fees), plus $640 (50 percent of

7 anon less 20 percent to Kelner of total

A24

e estimate of the time so spent during

line hundred (900) hours.

d that a fair apportionment of $1,250

Krause is $320 to Steven A. Sindell

the contingent fee contract and also

_ to discharge Mr, Sindell) and $960

recognizing his services as sole counsel

during the second trial).

0,000 attorney fee fund is apportioned

ell (and his present and former firms)

1—$6,305

—$9,507

—$960

the oral order made during today’s

br ordered that the entire $25,000 out-

fund is awarded to, and shall be paid

ford Jay Rosen to the Board of Church

United Methodist Church. During the

ard spent more than this sum in helping

of plaintiffs’ prosecution of the Kent

cases at least up to and through Jan-

dered that the foregoing orders of this

to the distribution of the $50,000 attor-

constitute a full and final disposition

of all claims and matters relating to

» various parties who have participated

s by filing claims for fees and by any

did not file any such claim for fees

A25

000 settlement fund reserved for the

aid to the plaintiffs, without any re-

n, as previously itemized in this court's

January 4, 1979.

r any suit or claim be filed in any

ng, of course, any appeal from these

vourt), the court reserves jurisdiction

ate and effective writ or order either

51 or 28 U.S.C, §2283 to “protect and

rs of this court.

RED.

/s/ Wrt1am K. Tuomas

United States District Judge

A26

[THE UNITED STATES

RICT COURT

March 12, 1979)

19 and C72-439

TES DISTRICT COURT

District or Onto

‘ERN DIVISION

\dministratrix of the Estate of

, SCHEVER, Deceased,

Plaintiff,

v.

\. RHODES, et al.,

lefendants.

ORDER

tled and dismissed with prejudice

tions set forth in the January 4,

been taxed and paid.

r, is reserved to enter appropriate

1is court’s memorandum and order

Kent State discovery materials);

id order of March 9, 1979 (attor-

ect, and effectuate the final orders

» (1).

),

A27

ants:

's/ Wu.tam K. Tuomas

United States District Judge

A28

C71-21

UNITED STATES DISTRICT COURT

NortHern District or OnI0

EASTERN DIVISION

JOHN R. CLEARY and ROBERT CLEARY,

Plaintiffs,

v.

JAMES A. RHODES, et al.,

Defendants.

ORDER

The complaint is settled and dismissed with prejudice

on the terms and conditions set forth in the January 4,

1979 order, costs having been taxed and paid.

Jurisdiction, however, is reserved to enter appropriate

final orders:

(1) that relate to this court’s memorandum and order

of February 28, 1979 (Kent State discovery materials);

and the memorandum and order of March 9, 1979 (attor-

ney fees and expenses);

(2) toenforce, protect, and effectuate the final orders

entered under paragraph (1).

IT IS SO ORDERED.

Counsel for the Plaintiffs:

Sanford Jay Rosen

Reese Davis

Davis Engdahl

A29

Counsel for the Defendants:

Burt J. Fulton

Charles E. Brown

Charles Shanklin

/s/ Writtam K. THomas

United States District Judge

C71-22

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DONALD SCOTT MACKENZIE,

Plaintiff,

Vv.

JAMES A. RHODES, et al.,

Defendants.

ORDER

The complaint is settled and dismissed with prejudice

on the terms and conditions set forth in the January 4,

1979 order, costs having been taxed and paid.

Jurisdiction, however, is reserved to enter appropriate

final orders:

(1) that relate to this court’s memorandum and order

of February 28, 1979 (Kent State discovery materials) ;

and the memorandum and order of March 9, 1979 (attor-

ney fees and expenses);

(2) to enforce, protect, and effectuate the final orders

entered under paragraph (1).

IT IS SO ORDERED.

A30

Counsel for the Plaintiffs:

Sanford Jay Rosen

Reese Davis

Davis Engdahl

Counsel for the Defendants:

Burt J. Fulton

Charles E. Brown

Charles Shanklin

/s/ Witt1am K. THomas

United States District Judge

C71-23

UNITED STATES DISTRICT COURT

NORTHERN District or OHIO

EASTERN : DIVISION

DOUGLAS WRENTMORE,

Plaintiff,

V.

JAMES A. RHODES, et al.,

Defendants.

ORDER

The complaint is settled and dismissed with prejudice

on the terms and conditions set forth in the January 4,

1979 order, costs having been taxed and paid.

Jurisdiction, however, is reserved to enter appropriate

final orders:

(1) that relate to this court’s memorandum and order

of February 28, 1979 (Kent State discovery materials);

and the memorandum and order of March 9, 1979 (attor-

ney fees and expenses) ;

A3l

(2). to enforce, protect, and effectuate the final orders

entered under paragraph (1).

IT IS SO ORDERED,

Counsel for the Plaintiffs:

Sanford Jay Rosen

Reese Davis

Davis Engdahl

Counsel for the Defendants:

Burt J. Fulton

Charles E. Brown

Charles Shanklin

/s/ Wuu1am K. THomas

United States District Judge

C71-25

UNITED STATES DISTRICT COURT

NortHern District or Onto

EASTERN DIVISION

JAMES D. RUSSELL,

Plaintiff,

Vv.

JAMES A. RHODES, et al.,

Defendants.

ORDER

The complaint is settled and dismissed with prejudice

on the terms and conditions set forth in the January 4,

1979 order, costs having been taxed and paid.

A32

Jurisdiction, however, is reserved to enter appropriate

l orders:

(1) that relate to this court’s memorandum and order

February 28, 1979 (Kent State discovery materials);

the memorandum and order of March 9, 1979 (attor-

fees and expenses) ;

(2) to enforce, protect, and effectuate the final orders

sred under paragraph (1).

IT IS SO ORDERED.

insel for the Plaintiffs:

Sanford Jay Rosen

Reese Davis

Davis Engdahl

insel for the Defendants:

Burt J. Fulton

Charles E. Brown

Charles Shanklin

/s/ Wit1am K. Tuomas

United States District Judge

A33

C71-24

UNITED STATES DISTRICT COURT

NorTHERN District or Onto

EASTERN DIVISION

THOMAS M. GRACE and THOMAS V. GRACE,

Plaintiffs,

Vv.

JAMES A. RHODES, et al.,

Defendants.

ORDER

The complaint is settled and dismissed with prejudice

the terms and conditions set forth in the January 4,

) order, costs having been taxed and paid.

Jurisdiction, however, is reserved to enter appropriate

1 orders:

(1) that relate to this court’s memorandum and order

‘february 28, 1979 (Kent State discovery materials);

the memorandum and order of March 9, 1979 (attor-

fees and expenses) ;

(2) to enforce, protect, and effectuate the final orders

red under paragraph (1).

IT IS SO ORDERED.

nsel for the Plaintiffs:

Sanford Jay Rosen

Reese Davis

Davis Engdahl

A34

for the Defendants:

t J. Fulton

rles E. Brown

rles Shanklin

/s/ Wrt1aMm K, THomas

United States District Judge

C71-26

UNITED STATES DISTRICT COURT

NorTHery District or Ono

EASTERN DIVISION

ALAN M. CANFORA,

Plaintiff,

Vv.

JAMES A. RHODES, et al.,

Defendants.

ORDER

complaint is settled and dismissed with prejudice

terms and conditions set forth in the January 4,

ler, costs having been taxed and paid,

isdiction, however, is reserved to enter appropriate

lers:

that relate to this court’s memorandum and order

uary 28, 1979 (Kent State discovery materials);

memorandum and order of March 9, 1979 (attor-

$ and expenses);

to enforce, protect, and effectuate the final orders

under paragraph (1).

iS SO ORDERED.

A35

lor the Plaintiffs:

rd Jay Rosen

> Davis

; Engdahl

lor the Defendants:

J. Fulton

les E. Brown

les Shanklin

/s/ Wut1am K, Tuomas

United States District Judge

C73-643

UNITED STATES DISTRICT COURT

Nortuern District or Onto

EASTERN DIVISION

3ERT F. STAMPS and FLOYD STAMPS,

Plaintiffs,

v.

JAMES A. RHODES, et al.,

Defendants.

ORDER

somplaint is settled and dismissed with prejudice

rms and conditions set forth in the January 4,

r, costs having been taxed and paid.

diction, however, is reserved to enter appropriate

rs:

that relate to this court’s memorandum and order

ary 28, 1979 (Kent State discovery materials);

A36

yrandum and order of March 9, 1979 (attor-

expenses) ;

nforce, protect, and effectuate the final orders

' paragraph (1).

ORDERED.

he Plaintiffs:

lay Rosen

vis

ydahl

he Defendants:

ulton

. Brown

jhanklin

/s/ Wirtut1am K. THomMas

United States District Judge

A37

C70-544 and C71-470

TED STATES DISTRICT COURT

NorTHERN District or OHIO

EASTERN DIVISION

C<RAUSE, Administrator of the Estate of

ALLISON KRAUSE, Deceased,

Plaintiff,

Vv.

JAMES A. RHODES, et al.,

Defendants.

ORDER

laint is settled and dismissed with prejudice

and conditions set forth in the January 4,

sts having been taxed and paid.

on, however, is reserved to enter appropriate

relate to this court’s memorandum and order

28, 1979 (Kent State discovery materials);

orandum and order of March 9, 1979 (attor-

expenses ) ;

nforce, protect, and effectuate the final orders

f paragraph (1).

| ORDERED,

he Plaintiffs:

jay Rosen

vis

gdahl

/s/ Wrt1aMm K. THomMas

United States District Judge

C70-816

STATES DISTRICT COURT

THERN DIsTRICT OF OHIO

EASTERN DIVISION

R HOLSTEIN, Administratrix of the

"REY GLENN MILLER, Deceased,

Plaintiff,

Vv.

MES A. RHODES, et al.,

Defendants.

ORDER

is settled and dismissed with prejudice

conditions set forth in the January 4,

aving been taxed and paid.

»wever, is reserved to enter appropriate

e to this court’s memorandum and order

979 (Kent State discovery materials);

lum and order of March 9, 1979 (attor-

nses );

e, protect, and effectuate the final orders

agraph (1).

IERED.

A39

/s/ Wiut1am K, THomas

United States District Judge

C71-20

STATES DISTRICT COURT

HeRN DisTRIcT Or OHIO

Eastern Division

JEDER, Administrator of the Estate

i K. SCHROEDER, Deceased,

Plaintiff,

v.

IES A. RHODES, et al.,

Defendants.

ORDER

s settled and dismissed with prejudice

onditions set forth in the January 4,

fing been taxed and paid.

vever, is reserved to enter appropriate

to this court’s memorandum and order

19 (Kent State discovery materials);

A40

d order of March 9, 1979 (attor-

ect, and effectuate the final orders

(1).

),

nts:

/ Wititram K. THOMAS

United States District Judge

C71-471

ES DISTRICT COURT

District or OunI0

ERN DIVISION

INE KAHLER, JOSEPH JOHN

ELIZABETH LEWIS,

laintiffs,

Vv.

\. RHODES, et al.,

efendants.,

ORDER

Jed and dismissed with prejudice

ions set forth in the January 4,

been taxed and paid.

A4l

is reserved to enter appropriate

; court’s memorandum and order

ent State discovery materials);

| order of March 9, 1979 (attor-

*t, and effectuate the final orders

(1).

its:

' Witutram K. Tuomas

United States District Judge

A42

ORDER OF THE UNITED STATES

DISTRICT COURT

(Filed March 15, 1979)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Artuur Krause, Administrator of the Estate

of ALLIson Krause, Deceased,

vs.

JAMES A. RHODES, et al,

SarAH ScHEvER, Administratrix of the Estate

of Sanpra Lee ScHever, Deceased,

)

)

)

)

)

)

)

)

)

vs. )

)

James A. RHOopES, et al, )

Etarmne Mitten Howstern, Administratrix of )

the Estate of JErrrey GLENN MILLER, )

Deceased, )

)

)

)

)

)

)

)

)

)

)

James A. Ruopes, et al,

Louis A. Scuroeper, Administrator of the

Estate of Witt1AM K. Scuroeper, Deceased,

vs.

James A. Ruopes, et al.

C70-544

C71-470

C70-859

C72-439

C70-816

C71-20

A43

Dean Kanier, ELAtmve KAHLER, JOSEPH JOHN

Lewis and Eviasetu Lewis,

C71-471

vs.

James A. Ruopes, et al.

Joun R. Cieary and Rosert CLeary, C71-21

vs.

James A. Ruopes, et al,

DonaLp Scotr MACKENZIE, C71-22

vs.

JaMes A. Ruopes, et al,

DoucLas WRENTMORE, C71-23

vs.

James A. Ruopes, et al,

JaMeEs D, RUSSELL, C71-25

vs,

James A. Ruopes, et al,

Tuomas M. Grace and THomas V. GRACE, C71-24

vs,

James A. Ruopes, et al.

ee ee ee ee ee ee ee ee ee ee ee ee ee ee Ne Ne ee ee

A44

Atan M. CAnrora,

vs.

Rosert F’, Stamps and FLoyp STaMps,

)

)

)

)

JaMEsS A. Ropes, et al, )

)

)

vs, )

)

)

James A. Ruopss, et al,

ORDER

Tuomas, J.

This matter having come on before the court for

hearings on February 6, 1979 and on March 9, 1979, and

evidence having been entered in the record by stipulation

of the parties, and the court having considered said evi-

dence and arguments of counsel, and the court having

thereafter filed its memorandum and order that appor-

tioned the $50,000 attorney-fee fund and distributed the

$25,000 out-of-pocket expense fund,

THEREFORE, pursuant to Rule 58 of the Federal Rules

of Civil Procedure;

IT IS ORDERED THAT, limiting the fee claims of

all counsel to said $50,000 attorney-fee fund, the trustee

of said funds, Sanford Jay Rosen, shall apportion and pay

said fund as follows:

Steven A. Sindell (and his present and $33,740

former firm)

Fred H. Mandel 6,305

Joseph and Robert Kelner 8,995

David Engdahl 960

A45

IT IS FURTHER ORDERED that the trustee, Sanford

Jay Rosen, shall pay the entire $25,000 out-of-pocket ex-

pense fund to the Board of Church and Society of the

United Methodist Church.

The memorandum and orders of February 6, 1979 and

March 9, 1979 are hereby adopted as findings of fact

and conclusions of law in accordance with Rule 52 of the

Federal Rules of Civil Procedure.

IT IS SO ORDERED.

/s/ Wiu1am K, Tuomas

United States District Judge

A46

ORDER OF THE UNITED STATES DISTRICT

COURT DISTRIBUTING SETTLEMENT FUND

(Filed March 26, 1979)

No. C 70-544

IN THE UNITED STATES DISTRICT COURT

For tHe Nortruern District or Onro

Eastern DIvision

ARTHUR KRAUSE,

Plaintiff,

Vs.

JAMES A, RHODES, et al.,

Defendants.

KENT STATE CASES

Jupce Wr.t1am K. Tuomas

ORDER DISTRIBUTING SETTLEMENT FUND

The Kent State cases having been settled on Jan-

y 4, 1979 and the matter of allocation of attorneys

s and costs having been determined by this Court’s

nions of February 6, 1979 and March 9, 1979,

THEREFORE IT IS ORDERED THAT:

1, On or as soon as practicable after April 1, 1979, the

stee, Sanford Jay Rosen, shall distribute the settlement

din the following amounts:

A47

tiffs-Beneficiaries

N KAHLER $350,000

HUR KRAUSE, Administrator of the Es-

pe of ALLISON KRAUSE, Deceased 15,000

4H SCHEUER, Administratrix of the Estate

SANDRA LEE SCHEUER, Deceased 15,000

INE MILLER HOLSTEIN, Administratrix

the Estate of JEFFREY GLENN MILLER,

reased 15,000

iS A. SCHROEDER, Administrator of the

ate of WILLIAM K. SCHROEDER, De-

sed 15,000

N CANFORA 15,000

N CLEARY 22,500

GRACE 37,500

IPH LEWIS 42,500

ALD SCOTT MACKENZIE 27,500

ES D. RUSSELL 15,000

ERT F. STAMPS 15,000

GLAS WRENTMORE 15,000

neys

TEN A. SINDELL (and his present and

mer firms) 33,740

) H. MANDEL 6,305

[PH and ROBERT KELNER 8,995

ID ENGDAHL 960

RD OF CHURCH AND SOCIETY, UNITED

|THODIST CHURCH 25,000

A48

The interest which shall have accrued to the fund

» date of distribution of the Principal may be dis-

from time to time to pay the provable expenses

1istering and maintaining the trust ‘and concluding

ending the settlement of these cases as per this

order of February 6, 1979 (Exhibit A hereto). The

will submit to the Court periodic documentation

expenses, for Court approval.

The Court finds that such use of the interest is

| to the implementation of the settlement and

t fund as no other resources exist for this purpose.

Upon the final termination of this matter, any

remaining after the disbursements permitted un-

raph 2 above will be paid to the payees of the

proportion to their shares as listed in paragraph 1

This Court retains jurisdiction in this matter to

y appropriate and effective writ or order either

3 U.S.C, §1651 or 28 U.S.C. §2283 to “protect and

te” the orders of this Court.

$5 SO ORDERED.

/s/ Wiii1aM K, THomas

United States District Judge

A49

EXHIBIT A

ROSEN, REMCHO & HENDERSON

Attorney at Law

155 Montgomery Street - 15th Floor

San Francisco, California 94104

Telephone (413) 433-6830

February 2, 1979

rable William K. Thomas

}. District Court

District of Ohio b

house, Room 338

ior Avenue

, Ohio 44114

e Thomas: Re: Kent State Cases: (70-544

ler best to protect and serve the interests of the

ies, I would respectfully request confirmation

Court of my authority in respect to the follow-

atters.

it is my belief that a better return on the set-

ind can be obtained by investment in certificates

, which are adequately insured by the federal

nt. Pursuant to our earlier conversation in

u authorized such investments, I have placed

) in such 30-day CD’s at a simple interest rate

n and 10 and 10.5%. The remaining $150,000 is

day of deposit day of withdrawal savings ac-

n addition, I would request authority to place

tion of the trust fund into United States Treas-

They are freely negotiable and represent a

igation of the United States thus making their

m greater than bank deposits or certificates of

hich are merely insured by a federal agency. The

te on such treasury bills is approximately 9.5%.

A50

I would respectfully request authority from

o use a portion of the interest on the settle-

to defray out-of-pocket costs in administering

ning the trust until final distribution and con-

settlement. These disbursements cover only

h as postage, telephone, photocopying, travel,

costs of my support personnel, to the extent

salary costs are directly attributable to ad-

the trust fund and concluding the settlement.

commendation that I be permitted to advance

subject to reimbursement out of interest only

itation to the Court of monthly statements

1e charges incurred as well as a statement

st earned to date on the various deposits. Each

‘iff-beneficiaries of the trust fund has been in-

such authority would be sought and has agreed

sed request to so use a portion of the interest.

irt’s attention to these requests for instructions

preciated.

Respectfully,

ROSEN, REMCHO & HENDERSON

/s/ SaNnrorp JAY Rosen

Sanford Jay Rosen

ulton, Esq.

3 E. Brown, Esq.

1 Szolosi, Esq.

3; Shanklin, Esq.

avis, Esq.

Karl, Esq.

ven Keller

Engdahl, Esq.

19

ed. It is so ordered

Wru1aM K. Tuoomas

A51

AND ORDER OF THE COURT OF

ALS FOR THE SIXTH CIRCUIT

(Filed March 27, 1981)

Nos. 79-3115, 79-3202

t(D STATES COURT OF APPEALS

For THe Srxtu Crrcuir

ARTHUR KRAUSE, et al.,

Plaintiffs,

v.

JAMES A, RHODES, et al.,

Defendants,

NE & GUIDUBALDI, A Partnership, et al.,

Appellants,

EY GENERAL OF OFIO, Intervenor,

Appellee.

from the United States District Court

r the Northern District of Ohio,

Eastern Division.

pwarps, Chief Judge, Livety, Circuit Judge

enior Circuit Judge.

Chief Judge. Steven Sindell, the original

f the plaintiffs in the 1970 Kent State shoot-

A52

; from orders entered by Judge William

ving a settlement of this lengthy and

gation.

ids that his 33 1/3% contingency fee con-

ntation of these plaintiffs invalidate the

ocation of attorneys’ fees occasioned by

’s approval of $675,000 “settlement” be-

f Ohio’ and the litigants. As appellant

tates the matter:

he substantive or procedural issues of the

are presented here for review. Rather,

hallenges the authority of the District

extinguished, as an integral part of the

rivate contractual agreements between

and their attorneys and to have substi-

e a “reasonable” attorney’s fee, all with-

fit of any hearing, evidence or briefs

this case is a long and tortuous one. The

ally filed in 1970, were dismissed by the

solidated cases damages were sought by nine

the personal representatives of four persons

Kent State University on May 4, 1970. The

ernor of Ohio, the president of the university

and enlisted members of the Ohio National

i to have “intentionally, recklessly, willfully

ed an unnecessary deployment of the Ohio

he Kent State campus and, in the same man-

ard members to perform allegedly illegal ac-

id in this historic tragedy. The complaints

tion under the Civil Rights Act of 1871, 17

C. § 1983 (1976).

Ohio was not a party to this action.

indell was afforded two opportunities to voice

» limitation on attorneys’ fees, although both

‘ed after entry of the settlement orders chal-

A53

theory that essentially the action was

Ohio and barred by the Eleventh

peal, this court affirmed these dis-

anel. See Krause v. Rhodes, 471 F.2d

The United States Supreme Court,

y reversed the judgments below and

cheuer v. Rhodes, 416 U.S. 232 (1974).

he jury returned a verdict for defen-

action.

is adverse jury verdict, all plaintiffs

ncluding Steven Sindell) signed an

he American Civil Liberties Union

sel “for purposes of all appellate pro-

ition.” Sanford Jay Rosen headed a

ers in prosecuting the successful ap-

ich reversed for new trial. Krause v.

(6th Cir. 1977), cert. denied, 435 U.S.

id his team also represented plaintiffs

; of the second trial of this case and

ch led to settlement.

sttled by an agreement entered into

wyers except Sindell. The State of

this litigation) voluntarily offered to

settlement, provided that $600,000 of

ectly to plaintiffs undiluted by legal

dige Thomas entered a settlement and

ling for payment of $600,000 to plain-

mnt in full to the attorneys, and $25,000

t expenses. The ACLU and most of

including lead counsel Rosen, agreed

and subsequently agreed to Judge

of the $50,000 attorneys’ fees fund.

d distribution of the $50,000 to con-

lders and apparently based the fund’s

A54

formed prior to the first adverse

ig for this purpose any of the ser-

1 in the successful effort to reverse

sequent retrial which produced the

Thus, law firms associated with

d $33,740 of the $50,000 fund, while

yers associated therewith received

3°

argument before this court is a

a contingent fee agreement is be-

eral judge to invalidate or modify

oever. Judge Thomas, however,

mit attorneys’ fees in these cases

ourt’s traditional power to resolve

igants and their counsel. In this

; v. Chrysler Corp., 565 F.2d 841

rican Federation of Tobacco Grow-

(4th Cir. 1951).

d be helpful to an understanding

rate Judge Thomas’ discussion of

e of the settlement, contained in

}, 1979:

January 16, 1979, Robert F. Ho-

it of the State Controlling Board

jio’s draft in the amount of $675,-

‘tated:

rized to act only pursuant to Con-

ard request No. E47, as approved

led a separate “conditional appeal”

y on the basis of this opinion) seeking

appropriate fee in the event Sindell’s

voiding the settlement. See Krause

Cir. March 27, 1981).

A55

979. Enclosed herewith, please

this authorizing document, with

ttlement and Dismissal Order in-

srein and attached thereto as Ex-

id:

1 carefully note that the subject

ited only under the terms of this

ment and Dismissal Order upon

itrolling Board’s approval is con-

other words, any distribution of

her than as provided in the Set-

Dismissal Order would violate

under which the enclosed draft

It is certainly our understanding

ord J. Rosen as Trustee for dis-

be accordingly bound to these

ditions.

trolling Board E47 Request for

).00 Kent State Settlement Fund

ato as “Exhibit A,” and incor-

| by reference, is a document en-

ent and Dismissal Order. As

by the Order, OBM’s request is

on the terms and requirements

in.

are attached to Order One of

which I delivered to Sanford J.

io draft in the amount of $675,-

ecifically provides that Sanford

» carry out his trusteeship pur-

Order of January 4, 1979 and

Jowarth.

A56

As previously read, the order of January 4, 1979

specifies that $50,000 shall be paid in full for attorney

fees and $25,000 as out-of-pocket expenses. $600,000

shall be paid to the plaintiffs as itemized in the at-

tached list.

It was this precise breakdown and allocation of

the total settlement fund of $675,000 that was presented

to and approved by plaintiffs and their counsel when

this court met with plaintiffs and their counsel on the

morning of Wednesday, December 6, before court

opened. Defendants likewise were informed of and

approved the settlement and breakdown.

The same total settlement fund and the breakdown

of $600,000 as itemized for each of the plaintiffs, $50,-

000 as payment in full for attorney fees, $25,000 as

out-of-pocket expenses, was fully disclosed by me to

President Oliver Ocasek of the Ohio Senate and

Speaker Vernon Riffe of the Ohio House of Represen-

tatives. This occurred when these legislative leaders

met with me in this court house on the afternoon of

December 6, 1978.

Previously informed of the contingent fee con-

tracts of appellant Sindell and other former counsel, I

had fixed the $50,000 to provide for any contingent

fee claim.

Because I knew that the State of Ohio would not

make payment of a settlement fund of $675,000 if the

contingent fees were charged against the fund or

against any of the individual plaintiffs, I fixed $50,000

as payment in full for all attorney fees.

Without this limitation of attorney fees, there

would have been no settlement of the Kent State cases

by the State of Ohio. That is made clear by the express

A57

wording of the State Controlling Board request No. E47

which I have just read, as it was approved on January

4, 1979.

Under these circumstances, this court, acting in its

discretion under 42 U.S.C. § 1988, as amended, allowed

the plaintiffs “a reasonable attorney’s fee” of $50,000.

It is appreciated that under some circumstances

in a civil rights action prosecuted under section 1983,

contingent fees may be charged while additional at-

torney fees under section 1988 would not be allowed

by the court. See Zarcone v. Perry, 581 F.2d 1039.

But under the present circumstances, in order to

effect a settlement and to end this litigation which

seemed as if it would never end, it was indispensable

that this court fix attorney fees under section 1988

and that the fees so fixed should modify and supercede

any contractual contingent fees of former counsel of

these plaintiffs,

If to achieve the settlement it was necessary to limit

attorney fees to $50,000, it is also fair under the cir-

cumstances to do this.

Undoubtedly countless hours of legal services have

been performed on behalf of the plaintiffs by Steven

A. Sindell and many other attorneys from the inception

of this litigation through the unsuccessful] first trial

in late August, 1975.

But, it is also true that Steven A. Sindell did not

conduct the appeal that obtained a new trial, without

which there would have been no second trial and no

settlement. A legal team headed by Sanford Jay Rosen

represented the plaintiffs in their successful appeal.

These attorneys, and not former counsel, have repre-

A58

sented the plaintiffs through the second trial and set-

tlement.

These foregoing circumstances make ‘it clear that

Steven A. Sindell has played no part in creating the

settlement fund. I can personally attest to this fact.

Yet, it was nonetheless determined by this court to

reserve $50,000 of the settlement fund out of which

to ratably compensate any former counsel who may

have had contingent fee contracts with any of the

plaintiffs.

Certainly, this case is unique in the annals of litigation

in the United States Courts. Judge Thomas found no

exact controlling precedent for the actions which he felt

required to take, nor do we. Nonetheless, we feel that

his approval of the “settlement” offered by the State of

Ohio, conditioned specifically upon $600,000 going to the

individual plaintiffs without reduction by attorneys’ fees,

was within his judicial discretion.

A federal district judge has broad equity power to

supervise the collection of attorneys’ fees under contingent

fee contracts. As has often been stated,

where an attorney recovers a fund in a suit under

a contract with a client providing that he shall be

compensated only out of the fund he creates, the court

having jurisdiction of the subject matter of the suit

has power to fix the attorney’s compensation and direct

its payment out of the fund.

Garrett v. McRee, 201 F.2d 250, 253 (10th Cir. 1953), quoted

in Cappel v, Adams, 434 F.2d 1278, 1279 (5th Cir. 1970).

Further, “(t]he sum determined to be a reasonable attor-

ney’s fee is within the discretion of the district court;

before a reviewing court should disturb the holding there

should be a clear showing that the trial judge abused

A59

his discretion.” Cappel v. Adams, supra, at 1280. Thus,

an attorney’s right to contract for a contingent fee is not

completely beyond judicial control.’

Indeed, the Code of Professional Responsibility (CPR)

of the American Bar Association imposes considerable lim-

itations upon the ability of lawyers to contract for contin-

gent fees. See DR 2-106 and EC2-20.° As indicated

————

5. The Civil Rights Attorney’s Fees Awards Act of 1976, 42

U.S.C. § 1988 (1976), also provided Judge Thomas discretion to

‘allow the prevailing party ... a reasonable attorney's fee as

part of the costs.” (Emphasis added.) While the language of

1988 does not expressly empower a district court to limit fees

ved under a private agreement between the prevailing at-

torney and his client, it is indicative of the extensive powers

available to district judges in supervising attorneys’ fees awards

in civil rights cases.

5. DR2-106 Fees for Legal Services

(A) A lawyer shall not enter into an agreement for, charge,

or collect an illegal or clearly excessive fee.

(B) A fee is clearly excessive when, after a review of the

facts, a lawyer of ordinary prudence would be left with

a definite and firm conviction that the fee is in excess

of a reasonable fee. Factors to be considered as guides

in determining the reasonableness of a fee include

the following:

(1) The time and labor required, the novelty and diffi-

culty of the questions involved, and the skill

requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the

neceptance of the particular employment will pre-

clude other employment by the lawyer.

(3) The fee customarily charged in the locality for

similar legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by

the circumstances.

(6) The nature and length of the professional relation-

ship with the client.

(7) The experience, reputation, and ability of the lawyer

or lawyers performing the services.

(Continued on following page)

A60

y the drafters’ footnotes, the cited CPR provisions are

ased largely upon Canon 13 of the old ABA Canons

f Professional Ethics, adopted in 1908. Canon 13 provided:

ootnote continued—

(8) Whether the fee is fixed or contingent.

(C) A lawyer shall not enter into an arrangement for,

charge, or collect a contingent fee for representing a

defendant in a criminal case.

89. Cf. ABA CaNon 13; see generally MacKinnon, Con-

TINGENT Fees ror LEGAL Services (1964) (A Report of the

American Bar Foundation).

EC 2-20 Contingent fee arrangements® in civil cases have

long been commonly accepted in the United States in pro-

to enforce claims. The historical bases of their ac-

ceptance are that (1) they often, and in a variety of circum-

stances, provide the only practical means by which one havin,

a claim against another can economically afford, finance, an

obtain the services of a competent lawyer to prosecute his

claim, and (2) a successful prosecution of the claim produces

a res out of which the fee can be paid. Although a lawyer

generally should decline to accept employment on a con-

tingent fee basis by one who is able to pay a reasonable

fixed fee, it is not necessarily improper for a lawyer, where

ustified by the particular circumstances of a case, to enter

to a contingent fee contract in a civil case with any client

who, after being fully informed of all relevant factors, desires

that arrangement. Because of the human relationships in-

volved and the unique character of the proceedings, contingent

fee arrangements in domestic relation cases are rarely jus-

tified. In administrative agency proceedings contingent fee

contracts should be governed by the same consideration as

in other civil cases. Public policy properly condemns con-

tingent fee arrangements in criminal cases, largely on the

ground that legal services in criminal cases do not produ: a

res with which to pay the fee.

30. See ABA Canon 13; see also MACKINNON, CONTIN-

GENT Fees ror LEGAL Services (1964) (A report of the Ameri-

can Bar Foundation).

“A contract for a reasonable contingent fee where sanc-

tioned by law is permitted by Canon 13, but the client must

remain responsible to the lawyer for expenses advanced by the

latter. “There is to be no barter of the privilege of prosecut-

ing a cause for gain in exchange for the promise of the

attorney to prosecute at his own ex (Cardozo, C. J.

in Matter of Gilman, 251 N.Y. 265, 270-271)” ABA Opinion

246 (1942).

A61

Contingent Fees.

A contract for a contingent fee, where sanctioned

y law, should be reasonable under all the circum-

ances of the case, including the risk and uncertainty

the compensation, but should always be subject

the supervision of a court, as to its reasonableness,

hasis added.)

nder the facts of this case, to allow Sindell to enforce

ntingent fees to the letter would be, as the District

obviously agreed, totally unreasonable.’ At the out-

ad the court accepted Sindell’s position, it would

been unable to approve the settlement and there

have been no funds to disburse in any manner.

itate of Ohio had conditioned its settlement offer

the plaintiffs’ “netting” $600,000. The State cannot

been motivated by the same reasoning which ordi-

prompts litigants to settle cases; Ohio had a stake

st in disposing of litigation but in calming the bitter

*t over this case which had raged within its borders—

ll as throughout the nation. Thus, the limitations

2d on fee recoveries were absolutely essential to

settlement of this unique case.

fe acknowledge that, due to the great effort expended

aining and preparing for the first (and wholly unsuc-

1) trial of this case, Sindell’s billing on a time and

ial basis might equal or exceed the 33 1/3% contin-

lee for which he contracted, This, however, is not

ly aspect to be considered in assessing the reasonable-

f an attorney’s fee. A contingent fee arrangement

be such that what was in the first instance a fair

Particularly since Sindell’s firm took the “lion’s share”

$50,000 fund, despite his failure to produce any monetary

for plaintiffs.

A62

t becomes unfair in its enforcement.” In re Fried-

36 App. Div. 750, 121 N.Y.S. 426, 428, aff’d 199

7, 92 N.E. 1085 (1910). See also Rodgers v. Sound

ic Co., 67 Misc.2d 412, 324 N.Y.S, 2d 423, 425 (Sup.

1). Clearly, however reasonable and appropriate

tant fee contracts were when signed, the situation

isting differs drastically from that which the con-

z parties originally contemplated.

} wish to add that the District Court’s actions here

xt wholly unprecedented. In In re Friedman, supra,

mple, the trial court (sua sponte) reduced a Jawyer’s

ent fee from an agreed upon 50% of the $8,000

ent to $2,150. A New York appellate court affirmed

uction, declaring:

The contract between the parties was not per

fraudulent, nor evidence of improper or undue ad-

itage. One-half of a recovery as contingent pay-

nt for legal services may be more beneficial to

. client than to the lawyer. ... Nevertheless

» recovery may be such that the lawyer’s retention

it would be unjustified, and would expose him

the reproach of oppression and overreaching. He

in officer of the court, and is judged as such, and

hnical contractual rights must yield to his duty

such officer.

N.Y.S. at 427-28 (emphasis added).

Wade v. Clemmons, 84 Misc. 2d 822, 377 N.Y.S.

(Sup. Ct. 1975), an attorney demanded strict en-

ent of his contingent fee contract, even though such

ment (when coupled with other claims against the

ent fund) would have denied his client any recov-

he trial court reduced the fee, however, stating:

A63

this situation, a fair contract becomes unfair

nforcement. The lawyer’s retention of his full

se is unjustified and exposes him to an accusa-

oppression and overreaching.

e court will not sit by and give its pro forma

al. It has the “power to compel attorneys to

itably and fairly towards their clients”. (Rob-

», Rogers, 237 N.Y. 467, 472, 143 N.E. 647, 649

)}.)

Y.S. 2d at 420. By comparison, had Sindell

n upsetting the instant settlement, these plain-

well have gone totally uncompensated at a

ing, we note that Steven Sindell failed to pro-

nonetary benefit for these plaintiffs. We also

it the ACLU lawyers who cbtained this settle-

ceiving nothing for their services. Under these

award of $33,740 to Sindell and his present

iw firms is at least fair compensation.

»propriate that we now ring down the curtain

gic drama which so bitterly divided our nation

le of the ’70’s.

igment © the District Court is affirmed.

A64

iT ENTRY OF THE COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Filed March 27, 1981)

Nos. 79-3115, 79-3202

TED STATES COURT OF APPEALS

For tHe Srxtu Craculir

ARTHUR KRAUSE, et al.,

Plaintiffs,

vs.

JAMES A. RHODES, et al.,

Defendants,

SINDELL, LOWE & GUIDUBALDI,

A Partnership, et al.,

Appellants,

ATTORNEY GENERAL OF OHIO,

Intervenor, Appellee.

rom the United States District Court for the

thern District of Ohio, Eastern Division.

ywarns, Chief Judge, Livety, Circuit Judge and

aILLIPS, Senior Circuit Judge.

JUDGMENT

‘AUSE came on to be heard on the record from

States District Court for the Northern District

tern Division and was argued by counsel.

A65

ERATION WHEREOPF, It is now here or-

ged by this Court that the judgment of

Court in this cause be and the same is

) bear own costs on appeal.

ENTERED BY ORDER OF THE COURT

/s/ Joun P, HEHMAN

Clerk

e: June 19, 1981