Poythress v. Kessler
Headline: Court declines to review whether lawyers who represent themselves can recover attorney’s fees under the civil-rights fee law, leaving a split among appeals courts and an Eleventh Circuit award intact.
Holding: The Court refused to review whether a lawyer who represented herself could obtain attorney’s fees under 42 U.S.C. §1988, leaving the Eleventh Circuit’s fee award and conflicting lower-court rulings in place.
- Leaves a split among appeals courts over fees for self-representing lawyers.
- Keeps the Eleventh Circuit’s fee award in effect for this case.
- Continues legal uncertainty for attorneys seeking fees when they represent themselves.
Summary
Background
This opinion concerns whether a prevailing plaintiff who is also a lawyer and who represents herself can recover attorney’s fees under 42 U.S.C. § 1988, the civil-rights fee statute. The specific case involved Kathleen Kessler, an attorney who proceeded without a lawyer and whom the Eleventh Circuit directed to receive a fee award. Several Courts of Appeals had previously held that pro se litigants generally may not recover such fees.
Reasoning
The core question was straightforward in everyday terms: can a lawyer who acts for herself get paid attorney’s fees under the civil-rights fee law? Chief Justice Burger, joined by Justice White, wrote a dissent arguing that the conflicting decisions in the lower courts warranted the Court’s review. He noted a general rule in many circuits denying fees to self-representing plaintiffs and pointed to inconsistent outcomes in the Freedom of Information Act context and in some district courts as additional reason to resolve the disagreement.
Real world impact
Because the Court declined to take the case, the Eleventh Circuit’s order awarding fees remains in place for this dispute, and the existing split among courts persists. That means lawyers who represent themselves may get different results depending on which court hears their case, and the uncertainty about fee recovery under § 1988 will continue until the Court directly addresses it.
Dissents or concurrances
Chief Justice Burger’s dissent, joined by Justice White, urged the Court to grant review to settle the conflicting lower-court rulings and to clarify the law on fee awards to attorney–litigants.
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