WASHINGTON – In the ongoing battle over millions of dollars in legal fees related to the pending $3.4 billion Cobell settlement, the Native American Rights Fund (NARF) has rebutted claims by the Cobell lawyers that the non-profit Native legal organization does not deserve to be compensated for its role in the case.
The settlement calls for almost $100 million to be paid for all the lawyers, and the court has indicated it will award the Cobell lawyers $85.3 million and hold the remaining $13.6 million in reserve for possible payment to NARF and other claimants. All those payments are currently on hold pending an Indian appeal to the U.S. Supreme Court by Sisseton-Wahpeton Oyate citizen Kimberly Craven, who has argued that the settlement is flawed under class-action law, and unfair to the Indian class members of the case.
In a petition filed with the U.S. District Court for the District of Columbia on September 7, NARF says it is due $8.1 million for the 31,300 hours its lawyers and legal staff worked on the case. “These were important hours, especially the thousands of hours NARF contributed during Phase I of the litigation, when the ultimate outcome was most uncertain,” the petition says. “NARF fairly valued its hours by using the U.S. Attorney’s Office’s Laffey Matrix to compute its fees request. NARF provided the Court with time and cost records substantiating its claim.” (NARF points out in the brief that under the Laffey Matrix formula, the Cobell lawyers would be due at most $68.1 million; Cobell lawyers have previously sought $223 million in fees, which NARF says works out to an average hourly rate of $1,585.)
On July 30 and again on September 17, the Cobell lawyers, including lead lawyer and private practitioner Dennis Gingold, as well as Keith Harper and lawyers with his firm, Kilpatrick Townsend & Stockton, filed notices with the court that said NARF deserved nothing. The Cobell lawyers argue that NARF lawyers shouldn’t get any fees because they left the suit in 2006, without the consent of the class representatives. They also argue that NARF had a conflict of interest because they were receiving money for representing tribes in a separate tribal trust case.
The notices of the Cobell lawyers did not mention that the lawyers with the Kilpatrick Townsend & Stockton, like NARF, also received payments for its representation of tribal trust clients. “If, as [Gingold and Kilpatrick Townsend & Stockton argue], the Court should consider fees and donations NARF received outside of the Cobell case, it also should analyze other fees and funds received by [Gingold and Kilpatrick Townsend & Stockton],” the NARF notice says, referring in part to three tribal trust settlements Kilpatrick Townsend & Stockton worked on at the same time NARF was doing those tribal trust cases. “If the Court engages in such a review, it likely would not conclude that [Gingold and Kilpatrick Townsend & Stockton need] the $85.3 million that this Court already has awarded it, let alone a share of the $13.6 million from the Common Fund that the Court has held in reserve. Indeed, published reports indicate the Kilpatrick firm grossed around $360 million last year, with average profits per partner of $630,000.”
Gingold has previously said there was nothing wrong with Kilpatrick Townsend & Stockton’s tribal trust representation because the firm got permission from him and lead plaintiff Elouise Cobell to do such work.
NARF says the Cobell lawyers are asking the court to take “unprecedented action” by asking it “to analyze fees and voluntary donations received by NARF outside this case as a way of determining whether NARF deserves to be reimbursed for its work on this case.… NARF is not aware of any court ruling or other law that requires a party that has applied for attorneys’ fees to provide information about receipts arising from other unrelated matters or activities in order for the court to decide whether the applicant deserves a fees award.”
NARF goes on to note the difference between its funding structure and those of the firms of the Cobell lawyers: “In asserting that NARF abandoned the Class so it could obtain a ‘lucrative’ payout in other cases, [Gingold and Kilpatrick Townsend & Stockton try] to portray NARF as a group of money-hungry lawyers… Such a charge is baseless, and it reveals more about [Gingold and Kilpatrick Townsend & Stockton’s] motivations in this case than it does about NARF’s. NARF’s attorneys make a fraction of what they could earn in private law firms. They have sacrificed their own personal earning potential to help protect and advance the rights of Native Americans. Moreover, as a non-profit Indian interest firm, NARF does not award profits or bonuses to its staff. Instead, NARF reinvests whatever amounts it receives (whether in the form of fee payments or contributions) to fulfill its mission of providing services to Native Americans. This is in marked contrast to [Gingold and Kilpatrick Townsend & Stockton], which is a collection of private lawyers set to receive a ‘lucrative’ payout from the [Cobell settlement] who will personally benefit from their profits.”
NARF notes in its brief that Harper worked for NARF while working on Cobell, but Kilpatrick Townsend & Stockton “hired Harper away from NARF for more money. Harper had been NARF’s main attorney and heaviest biller (by far) on this case. Harper’s role and work did not change when he moved to Kilpatrick, only his affiliation did. Harper continued to do the same things for the Class as a Kilpatrick lawyer that he had been doing as a NARF lawyer….”
NARF rebuts the Cobell lawyers’ claim that NARF abandoned the Cobell class members by taking on tribal trust settlements, saying that its lawyers “did anything they were asked (although, after Harper left, NARF found itself increasingly frozen out by [Gingold and Kilpatrick Townsend & Stockton], apparently because Gingold no longer felt the legal team needed NARF to provide an ‘Indian face’).”
NARF further says that Elouise Cobell “never discharged NARF” and that “NARF never withdrew from this case.”
Gingold continues to argue in support of the Cobell lawyers’ July notice, saying that the NARF response is legally inappropriate and “untimely.” He says the NARF notice is inappropriate because it offers new information in the form of a legal argument although no new decision has been made by the court, which he says is not allowed. He adds that legal rules require that opposition briefs be filed within 17 days of the opening brief, so he calls NARF’s filing “about a month late.”
Richard de Bodo, a lawyer with DLA Piper, which is representing NARF in this matter, says in an e-mail that “NARF’s response was not untimely. Mr. Gingold’s ‘notice’ was not a motion. Therefore, the Court’s rules regarding the time by which a party must file an opposition do not apply. When we received the ‘notice,’ we checked with the court’s clerk and confirmed that the court’s rules did not establish a deadline for NARF to file a response. Consequently, Mr. Gingold’s assertion that NARF’s Response was ‘untimely’ is false.”
The final decision on lawyers’ fees will be made by Judge Thomas Hogan, of the U.S. District Court for the District of Columbia.