Top law firms vow to fight Texas abortion law, even if it costs them - Reuters
The U.S flag and the Texas State flag fly over the Texas State Capitol in Austin, Texas, U.S., March 14, 2017. REUTERS/Brian Snyder/File Photo
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(Reuters) - Legal fees be damned. That is the message from elite law firms ready to offer pro bono assistance to people sued under the new Texas abortion law – even if it means the lawyers could be on the hook for their opponents’ legal fees.
“We are committed to the effort, notwithstanding the financial risk,” said Shannon Selden, a partner at Debevoise & Plimpton, one of several firms including Paul, Weiss, Rifkind, Wharton & Garrison and Susman Godfrey that say they're prepared to fight.
Working pro bono, Selden and her colleagues, as outside counsel to the Center for Reproductive Rights, have been “deeply involved in planning for and preparing to defend lawsuits brought under the statute,” she told me. A recent conference call with lawyers in Texas and elsewhere who are willing to join the pro bono effort attracted more than 100 participants, Selden said, adding, “This law is not going to go untested.”
These lawyers are determined that abortion providers will have top-quality legal representation, even if those who represent them can be held jointly and severally liable for the other side’s fees.
Known as SB8, the law bans abortions in Texas after fetal cardiac activity is detected, usually around six weeks of pregnancy, and its fee-shifting provision is extraordinarily rare if not unprecedented.
The law relies on private citizens for enforcement, rewarding them with at least $10,000 plus legal fees for bringing a successful civil lawsuit against anyone who provides an abortion in violation of the act or who “aids and abets” such an abortion. These bounty-hunting plaintiffs face no penalties for an unsuccessful suit.
But for abortion-provider defendants, it’s a very different scheme.
If they win, they get no compensation. If they lose, even if it’s on just a single, minor claim, they or their lawyers are on the hook for their opponents’ attorneys' fees and costs.
“The law is designed to dissuade counsel from coming in,” said Morrison & Foerster partner J. Alexander Lawrence, who represents the plaintiffs including Whole Woman’s Health pro bono in challenging the statute in federal court. On Sept. 1, the U.S. Supreme Court declined to block the law from going into effect.
Indeed, the fee-shifting provision “may dissuade a lot of people from doing so,” Lawrence added.
Texas state senator Bryan Hughes, the author of the bill, told me earlier this month that the law was "a very elegant use of the judicial system." He did not respond to request for comment for this column.
John Seago, legislative director of SB8 proponent Texas Right to Life, said that while the fee-shifting provision is unusual, that "doesn’t necessarily make it unconstitutional."
He also noted that judges still have the discretion to award legal fees to defendants if a lawsuit is deemed frivolous or harassing. “This comes down to the court," he said.
“There is plenty in the law that people don’t like,” he continued, but it will ultimately be up to the courts to “take a look and see if (the provision) is valid.”
In the meantime, the risk remains for defense counsel. But to me, one of the best things about Big Law and pro bono is that firms have the resources – and the deep pockets – to fight for what they think is right.
It’s not that the firms are nonchalant about the potential cost of defending abortion providers. “Every firm takes seriously the exposure that SB8 threatens to place,” Selden said. “The risk is unknown.” Moreover, she said, “We expect the other side to use the fee-shifting provision to drive up the fees” as a tactic.
Brigitte Amiri, the deputy director of the American Civil Liberties Union's Reproductive Freedom Project, told my Reuters colleague David Thomas that a fee award from an abortion rights case can easily reach into the hundreds of thousands of dollars, if not millions, as the case might be litigated for years and go through multiple appellate reviews.
But for Debevoise, that’s seemingly not a deterrent. “We are fortunate to be a big, successful law firm,” Selden said. According to The American Lawyer, Debevoise had gross revenue last year of $1.22 billion and profits per equity partner of $4.55 million. “I’m proud that the firm supports and believes strongly that it is important to vindicate the rule of law and basic reproductive rights.”
Likewise, Paul Weiss is willing to risk getting hit with opposing counsel’s fees to fight pro bono against what Chairman Brad Karp in an email described as “the repugnant Texas statute.”
Partner Alexia Korberg is running point on the issue for the firm. In an interview, Korberg said, “It’s just what we would consider to be the cost of representation.”
Even if Paul Weiss were to lose and be ordered to pay opposing counsel’s fees, Korberg added, “We would absolutely dispute that. The fee scheme is probably unconstitutional separately and apart” from the rest of the law.
Texas plaintiffs-side powerhouse Susman Godfrey has been mobilizing in opposition to the law from the very beginning.
Managing partner Neal Manne told me the firm “agreed to work pro bono on challenges to SB8, including defending people sued under it by ‘bounty hunters,’ even before the proposal was signed into law.”
In an email, Manne wrote that “many of our lawyers have offered to participate. The law plainly is unconstitutional under both the U.S. and Texas constitutions.”
He added, “The specifics of what we are doing are, for now, still confidential.”
It doesn’t take a great deal of imagination to anticipate that a challenge may be forthcoming.
The U.S. Justice Department on Tuesday asked U.S. District Judge Robert Pitman in Austin to issue an emergency order enjoining the law. The judge scheduled a hearing on the motion for Oct. 1.
If DOJ succeeds in winning a temporary restraining order, the pro bono call to arms would likely be unnecessary, at least for now.
But if not? The law “deprives patients of access to complete reproductive healthcare. This is an untenable position to put healthcare providers in,” Selden said. “I don’t know how long it can go on.”
Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.
(UPDATE: This column has been updated with comment from the legislative director of Texas Right to Life.)
Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.
Jenna Greene writes about legal business and culture, taking a broad look at trends in the profession, faces behind the cases, and quirky courtroom dramas. A longtime chronicler of the legal industry and high-profile litigation, she lives in Northern California. Reach Greene at [email protected]
source: https://www.reuters.com/legal/litigation/top-law-firms-vow-fight-texas-abortion-law-even-if-it-costs-them-2021-09-16/
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