Pro bono representation should not be a factor in determining a reasonable attorney fee award, the Michigan Supreme Court said Wednesday, finding a judge wrongly slashed Honigman LLP's fee award when it represented a pair of journalists for free in a public records case.

In a majority opinion written by Justice Kyra H. Bolden, the state's high court, considering the issue for the first time, held that whether a client is represented pro bono "is never an appropriate factor for a court to consider in determining the reasonableness of an attorney fee," and ordered the trial judge to reconsider Honigman's fee request.

Dan Korobkin, legal director of the American Civil Liberties Union of Michigan, called the ruling a "major victory" for Michigan's pro bono community in a statement Wednesday. 

"For the ACLU of Michigan and other nonprofit organizations like it, as well as private sector law firms that provide pro bono legal counsel to support important public interest work, it is vital that attorneys' fees be recoverable in cases involving civil rights, civil liberties, and government transparency," Korobkin said. 

Honigman attorneys and Korobkin partnered to represent freelance journalists Spencer Woodman and George Joseph in litigation seeking the release of video footage of a fatal fight in a Michigan state prison after their Freedom of Information Act requests were denied.

After Woodman and Joseph secured the release of redacted versions of the video, Honigman and the ACLU each requested attorney fees under the Michigan FOIA law's fee-shifting provision.

The ACLU was awarded 100% of its request, but the judge awarded Honigman $19,000 of its $190,000 fee request because the firm represented the journalists for free. 

While judges can consider a range of factors to adjust fee awards up or down, whether a client is paying for his or her representation is not one of them, the state Supreme Court said.

Factors such as the difficulty of the case, time limitations, and experience of the attorneys can help a judge analyze the reasonableness of attorney fees, but pro bono representation is "not relevant" to such an analysis, the majority said, in line with the principle that a reasonable fee award is not based on the actual dollars a client has paid to his or her lawyer.

"When an attorney agrees to represent a client pro bono, the pro bono nature of the representation should not have any effect on the quality of representation provided or the time spent on the case," Justice Bolden wrote.

In an email to Law360, Robert M. Riley of Honigman LLP, who represented Woodman and Joseph, said the ruling "puts Michigan in accord with every other state and federal court that has considered the issue."

"Attorneys willing to donate their time and energy rightly deserve to be treated the same as their paid counterparts. We're grateful to the ACLU of Michigan for the opportunity to work together, and to the organizations who filed briefs in support of our position. It's a historic moment for the Michigan pro bono community and we're honored to have played a role in this significant milestone," Riley said. 

The majority said its conclusion aligns with the purpose of the fee-shifting provision in Michigan's FOIA law, which is to encourage government agencies to comply with the law and allow plaintiffs to pursue FOIA litigation they otherwise would not be able to afford.

"This case is a prime illustration of the 'private attorneys general' model working to vindicate the private rights of the litigants and the right of the public to access its government's information. As recognized by other jurisdictions, a contrary ruling could have a chilling effect on the willingness of private attorneys to represent indigent litigants," the majority said.

Justice Brian Zahra, in a dissent joined by Justice David F. Viviano, disagreed that the majority should have taken up the issue of pro bono representation, calling it "premature" to review it because the Court of Appeals had declined to address the issue and had remanded the issue for reconsideration by the trial judge.

The majority was wrong to tie courts' hands and bar them from weighing pro bono status as a factor when it could be relevant to a fee award, Justice Zahra said.

Additionally, the majority's ruling "creates a strong, and seemingly perverse, incentive for lawyers and law firms to focus their pro bono activities in areas where they can expect to recover attorney fees rather than in the many diverse areas of the law where pro bono services are desperately needed," the dissenting justices said.

Although Justice Zahra did not reprise the suggestion he made during oral arguments that law firms could be required to donate their pro bono attorney fee awards to the state bar, he was concerned that the majority's opinion distorts the purpose of pro bono representation and pushed back on the majority's point that attorney fee awards help incentivize pro bono work. 

"Let's not be afraid to acknowledge the elephant in the room. If a lawyer or firm will not take a 'pro bono' case unless there is an opportunity to make money at the end, is it truly pro bono?" Justice Zahra wrote. 

The majority also found Woodman and Joseph prevailed in full on their FOIA claims, which entitled them to a mandatory award of attorney fees instead of a discretionary award, which is available to plaintiffs who partially prevail.

Even though the freelance journalists received only redacted video with the faces of the prison staff blurred to protect their identities, the majority said the video was still "everything the plaintiffs initially sought" because the FOIA requests did not specify that the records must be unredacted and the journalists chose not to fight the redactions.

The dissenting justices also disagreed with that conclusion, saying it "defies common sense." 

The journalists' FOIA requests can be assumed to have been requests for unredacted video because that is the default under FOIA and their complaint in the litigation specified they were seeking "complete, unredacted" footage.

"Perhaps redaction was not ultimately a major sticking point for plaintiffs, but it was an issue that they contested and lost," Justice Zahra wrote.

The dissenting justices said the majority's conclusion will allow FOIA litigants to manipulate the fee-shifting statute and win attorney fee awards by accepting less than the records they initially sought and using that concession to argue they fully prevailed and are entitled to attorney fees.

McDermott Will & Emery LLP partner Elizabeth Lewis, president of the Association for Pro Bono Counsel, told Law360 in a statement that APBCo was pleased the state supreme court "recognized the importance of ensuring that counsel who work on matters pro bono are still entitled to statutorily mandated fees."

"Pro bono counsel's eligibility for and receipt of fee awards are crucial in promoting equal access to justice — they ensure that pro bono and private representation are equally effective and support the work of legal services organizations — and the near-universal practice is to donate such fees to those legal services organizations and other charities to further facilitate these goals," Lewis said. APBCo filed an amicus brief in Woodman and Joseph's case. 

Counsel for the state did not immediately respond to a request for comment Wednesday. 

Spencer Woodman and George Joseph are represented by Robert M. Riley, Rian C. Dawson and Scott B. Kitei of Honigman LLP and Daniel S. Korobkin of the American Civil Liberties Union of Michigan.

The Michigan Department of Corrections is represented by Ann Sherman and Adam de Bear of the Michigan Attorney General's Office.

The cases are Spencer Woodman v. Department of Corrections and George Joseph v. Department of Corrections, case numbers 163382 and 163383, in the Michigan Supreme Court.

--Editing by Linda Voorhis.

Note: This article was updated to add new comments from an attorney for Woodman and Joseph and from the Association of Pro Bono Counsel.