BUCKHANNON RESOLUTION

WHEREAS, access to justice for the underprivileged, indigent and victims of discrimination and other civil rights violations is a cornerstone of our Constitutional system contingent on the ability of qualified attorneys, acting as private attorneys general, to recover counsel fees for their zealous representation; and

WHEREAS, Congress intended to allow prevailing plaintiffs the right to recover counsel fees and costs in a civil rights action; and evidenced its intention through the passage of 42 U.S.C. ยง 1988 and numerous other statutes providing for the payment of fees and costs to plaintiffs who prevail in civil rights actions; and

WHEREAS, limitations on the ability to recover counsel fees in civil rights actions has a chilling effect on the continued zealous representation of the underprivileged, indigent and victims of discrimination; and

WHEREAS, the Supreme Court held in a 5-4 decision in Buckhannon Board and Care Home v. West Virginia Dep't of Health and Human Services, 532 U.S. 598 (2001), that plaintiffs may only recover counsel fees from defendants if they have been awarded relief by a court, and not if they prevailed through a voluntary change in the defendants' behavior or a private settlement; and

WHEREAS, prior to the Buckhannon decision, all but one Court of Appeals allowed an award of counsel fees without the added need for a judgment or consent decree where the lawsuit prompted the defendant to act or cease its unlawful behavior based on the strength of the plaintiff's case; and

WHEREAS, defendants have been utilizing this decision to prevent plaintiff's from receiving counsel fees and costs in cases in which they have acquired relief sought short of a court order; and

WHEREAS, the Buckhannon decision allows a defendant to escape a statutory obligation to pay a plaintiff's counsel fees, even though the suit's merit led the defendant to abandon the litigation, sooner rather than later, and to accord the plaintiff some or all of the redress sought in the lawsuit; and

WHEREAS, House bill, H.R. 5179 and Senate bill, S. 106, are pending in Congress and would overturn Buckhannon and reinstate the catalyst theory; and

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association supports the award of counsel fees for the underprivileged, indigent and victims of discrimination and other civil rights violations where they prevail through a voluntary change in the defendants' behavior or a private settlement.

BE IT FURTHER RESOLVED that the Philadelphia Bar Association supports legislative and/or administrative changes necessary to ensure that such individuals have continued access to justice without the chilling effects associated with the Buckhannon decision; and

BE IT FURTHER RESOLVED that the Philadelphia Bar Association authorizes the Chancellor to take all necessary steps to communicate this enacted resolution to members of the Pennsylvania Bar Association, American Bar Association, bar associations around the nation, Congress and others to act consistently with this Resolution.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: October 24, 2002