A Michigan Supreme Court justice on Tuesday floated a rule that would send fee awards in pro bono cases to the state bar association instead of the lawyers involved, as Honigman LLP asked the court to find that its fee award should not have been decimated because it represented a pair of journalists for free.

The journalists appealed a Michigan Court of Claims judge's ruling that Honigman could only receive 10% of its $190,000 fee request after winning the release of video of a fatal fight in a Michigan prison that the state government had withheld. The journalists said the high court should take the case and find the lower courts were wrong to consider the pro bono nature of the representation as a factor in assessing how much Honigman could recover in attorney fees.

During oral arguments on the application for leave to appeal, Justice Brian Zahra said it struck him as "odd" that a firm could represent someone pro bono and also win attorney fees for that representation, making the work no longer truly a donated service in his view.  

"What if we said those legal fees should go to the state bar association?" Justice Zahra asked.

Honigman's Robert M. Riley pushed back on the idea, saying it would intrude on the attorney-client relationship and attorneys' relationships with legal aid organizations. His firm and many others donate the attorney fees they win in pro bono work or share those fees with legal aid agencies they partner with, he said. 

In this case, Honigman attorneys worked with the American Civil Liberties Union of Michigan to represent the journalists, freelancers Spencer Woodman and George Joseph, and planned to donate attorney fees to the ACLU, Riley told the court.

Lawmakers included the fee-shifting mechanism in Michigan's Freedom of Information Act to discourage state agencies from wrongfully denying FOIA requests, knowing they will be hit with the plaintiffs' legal fees if they lose, Riley said.

"The deterrent would still work if we made the fees go to the state bar association," Justice Zahra said.

Pushing back on Riley's key argument that the pro bono nature of representation is not a relevant factor for a judge to consider when awarding attorney fees, Justice David Viviano said he didn't like the idea of restricting what judges can and cannot consider.

"I don't quarrel with the notion that there should be a fee, but I'm struggling with the notion that we should tie the judges' hands," Justice Viviano said.

The justices turned to the other key issue in the case during the Michigan Department of Corrections' turn at the podium: whether the journalists prevailed in full or in part in the underlying Michigan Court of Claims case.  

The Michigan Court of Appeals found the journalists had only prevailed in part because they won a redacted version of the videos from the state when they had sought unredacted video. As a result, under Michigan's FOIA law, the attorney fee award was not automatic but should have been a discretionary issue for the judge, who can award "a portion" of the attorney fees in cases where the party partially prevails. 

The journalists argued they fully prevailed because they won on the "crux" of the issue, the release of the videos, and they had not opposed the redactions, which involved blurring the faces of employees and prisoners shown in the video.  

Justice Elizabeth Welch and Chief Justice Elizabeth Clement both wrestled with whether it was fair to notch the redaction as a loss for the journalists. Justice Welch commented that it's routine for FOIA requests to produce redacted records.   

"So every time someone goes to court over a FOIA and has a redaction, they don't prevail?" Justice Welch asked.

Adam de Bear of the Michigan Attorney General's Office said it should be considered on a case-by-case basis. In this case, "the plaintiffs are the master of their own complaint. The complaint demanded complete and unredacted videos, and I think plaintiffs should be held to their word," he said.

Justice Clement spent considerable time trying to sort out with the state's lawyer whether there was ever a direct order from the judge stating the state had won on the redaction issue and asked whether the state's argument that it partially prevailed hinged on the use of the word "unredacted" in the original complaint.

De Bear said the state was not relying solely on the complaint, but also the bigger picture of the journalists' prolonged fight against prison officials' security concerns with releasing the video. The journalists' attorneys didn't agree to accept the redacted version until they had viewed both versions toward the end of litigation, de Bear said.

The FOIA request, which sought security-camera footage of a fight between two prisoners that was broken up by prison guards using Tasers, was denied under a departmental policy against releasing video of the interior of prisons. The corrections department cited security concerns with revealing details about its facilities, such as the location of cameras and the interior layout of the prisons.

Ultimately, the series of videos capturing the fight were released to the journalists with the faces of prison employees blurred, redactions that cost the state $6,000 and 80 hours of work, according to the state's brief. 

The state argued in its brief that the pro bono question was not ripe for review by the high court because the Michigan Court of Appeals had not actually reached the issue when it heard the case. The appellate panel had remanded the attorney fee issue to the Court of Claims judge, directing the judge to reconsider whether pro bono work should be a factor in the fee award.

The Association of Pro Bono Counsel filed an amicus brief in the case, urging the Michigan Supreme Court to reverse the Michigan Court of Appeals and hold that courts do not have discretion to reduce attorney fees due to the pro bono nature of representation.

The association warned that letting the appellate decision stand would be detrimental to pro bono efforts statewide because attorney fee awards act as an incentive for firms to engage in pro bono work, ensure pro bono representation is as effective as private representation and provide a funding stream for legal aid organizations.

"Along with encouraging enforcement of legal rights by 'private attorney generals,' the prospect of a fee award helps resolve disputes more efficiently by incentivizing litigants to act rationally, assess their positions, and strategize in ways they might not if they did not face the possibility of having to eventually pay fees," the association wrote.

Daniel S. Korobkin, legal director of the ACLU of Michigan, said in a blog post that a ruling for the state would hamper his organization's efforts to litigate public-interest cases like Woodman and Joseph's, making it "much more difficult to hold government officials accountable and stifle attempts to provide the public with information it has a right to." 

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

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

The consolidated 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.