This action began when Wilma Pony, the guardian of Paulette Pony, a minor, filed suit against the County of Los Angeles and various employees of the Los Angeles Juvenile Alternative Work Program ("JAWS"), alleging traditional torts and constitutional violations arising out of medical procedures that Paulette was subjected to on April 24, 2001.
Pony entered into a retainer agreement with attorneys Michael Mitchell and David Margulies. That agreement transferred all of Pony's rights to (a) waive "prevailing party" status, (b) to waive, apply for, obtain judgment upon, collect and/or receive any statutory attorney's fees award, and (c) to make and/or accept a "lump sum, including all attorney's fees" settlement offer.
During the litigation, the County offered Pony a "lump sum, including all attorney's fees" settlement of $29,999.99. Mitchell advised the County that such a settlement would abrogate his rights under the retainer agreement and he would be legally and ethically powerless to pursue it. Mitchell said that if the settlement was pursued he would have to withdraw as counsel, but would still press for statutory attorney's fees and other claims, such as intentional interference with contractual relations.
Margulies was substituted as counsel and Pony settled the claim for the proffered amount. She not only waived attorney's fees but also indemnified the County against any costs or fees sought by Mitchell. The California federal district court denied Mitchell's Motion for Relief from Order and a Motion for Attorney's Fees. He then appealed.
The Ninth Circuit held Mitchell had no standing to seek attorney's fees. The right to seek those fees under 42 U.S.C. § 1988 is vested "in the prevailing party, not her attorney, and that attorneys therefore lack standing to pursue them." Pony's "putative assignment to Mitchell is invalid because the right to seek attorney's fees under 42 U.S.C. § 1988 is a substantive cause of action which cannot be transferred contractually." This is substantiated in California tort law, which does not allow reassignment of the right to sue.
Mitchell's only right was to collect fees once his client exercised the right to receive fees. He could then pursue those fees on his own. The appellate court held that a plaintiff also has the right to waive attorney's fees. As such, the assignments in the retainer contract were invalid as a matter of law.
The district court's order was affirmed. See: Pony v. County of Los Angeles, 433 F.3d 1138 (9th Cir. 2006), cert. denied, 126 S.Ct. 2864 (2006).
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Pony v. County of Los Angeles
|Cite||433 F.3d 1138 (9th Cir. 2006)|
|Level||Court of Appeals|