Consumers Union of United States, Inc. v. American Bar Ass'n

505 F. Supp. 822, 1981 U.S. Dist. LEXIS 10267

• Court: District Court, E.D. Virginia
• Decided: January 8, 1981
• Docket: Civ. A. 75-0105-R
• Status: Published

Opinions

ALBERT V. BRYAN, Senior Circuit Judge:

This action has been pending since 1975 before us, sitting as a three-judge tribunal, with appeals at intervals to the Supreme Court of the United States. It has now been refined to the sole question of whether the plaintiff, Consumers Union of the United States, Inc. (Consumers), having prevailed under 42 U.S.C. § 1983 on its assertion that Virginia Bar Code Disciplinary Rule 2-102(A)(6) (the Rule) unconstitutionally hindered its publication of a directory of attorneys practicing in Arlington County, Virginia,¹ is entitled to recover attorney’s fees under 42 U.S.C. § 1988 from the Virginia State Bar (Bar) and/or the Supreme Court of Virginia (Virginia Court).²

Detailed reiteration of the earlier course of this litigation is rendered unnecessary by the comprehensive opinion of the United States Supreme Court in Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). Therein the Court relates the constituent facts, with the rulings of this Court thereon, that induced us to allow Consumers’ claim for attorney’s fees against the Virginia Court, while disallowing a like claim against the Bar. See id. 446 U.S. at 721-734, 100 S.Ct. at 1969-74.

The Supreme Court vacated the award of attorney’s fees because it rested in part on consideration of the Virginia Court’s adoption, and retention even after Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), of the disputed disciplinary provision — actions the Supreme Court held to enjoy absolute legislative immunity. 446 U.S. at 736-37, 100 S.Ct. at 1977. On remand we again consider the propriety of a fee award against each defendant.

We adhere to the view, previously expressed in Consumers Union of United States, Inc. v. American Bar Association, 470 F.Supp. 1055 (E.D.Va.1979), that special circumstances exist in this case rendering a fee award against the Bar unjust. As before, this conclusion is grounded on the Bar’s endeavors to have the Bar Code amended to conform to constitutional standards. See id. at 1062-63.

The Supreme Court, even as it vacated this Court’s fee award, indicated that the Virginia Court’s capacity as a State enforcement authority rendered it properly subject to suit in this case. 446 U.S. at 720-725, 729-737, 100 S.Ct. at 1968-71, 1973-77. Moreover, it emphasized that a fee award based solely on the Virginia Court’s enforcement role would not be improper. Id. 446 U.S. at 736-37, 100 S.Ct. at 1977.

The Virginia Court is a fundamental source and conduit of disciplinary enforcement authority. Although the Bar may be more active in this sphere on a day-to-day basis, it acts merely as an “administrative agency of the Court.”³ It seems clear that “in the circumstances of this case, a sufficiently concrete dispute is .. . made out against the Virginia Court as an enforcer,” 446 U.S. at 737 n.15, 100 S.Ct. at 1977 n.15, not only for amenability to suit, but also for the purpose of a fee award to Consumers, the prevailing party.

Nothing in the Supreme Court’s opinion casts doubt on the propriety of this Court’s earlier application of Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), to this case.⁴ Under that standard, a court ordinarily should award reasonable attorney’s fees to a prevailing civil rights plaintiff “unless special circumstances would render such an award unjust.” Id. at 402, 88 S.Ct. at 966.

Upon review of the record throughout this litigation, we conclude that no special circumstances have been shown that would render unjust an award of attorney’s fees against the Supreme Court of Virginia. Accordingly, we will order the Supreme Court of Virginia and its Chief Justice, in their official capacities, to pay to Consumers reasonable attorney’s fees for the services of its counsel in this action, insofar as such services were performed to prevent the enforcement of the Rule. The amount of the fees, if not agreed upon between the Supreme Court of Virginia and Consumers within 30 days from the date of our order, shall be determined by this Court directly, or after reference to and report thereon by a master.

1 . Consumers Union of United States, Inc. v. American Bar Association, 470 F.Supp. 1055 (E.D.Va.1979). The award of attorney’s fees in this case, id. at 1058-63, was vacated, Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), and is before us again on remand.

2 . Unless otherwise indicated, references herein to the Supreme Court of Virginia include its Chief Justice in his official capacity,

3 . Va.Code § 54-49.

4 . See 470 F.Supp. at 1061. The Supreme Court noted the application of Piggie Park, and commented briefly thereon. 446 U.S. at 737 & n.17, 100 S.Ct. at 1977 & n.17.