by: Joel Shapiro
The OSB Consumer Law Section led an effort to increase access to legal representation with the passage of Senate Bill 181 in the recent session of the Oregon Legislature. SB 181 was signed into law by Governor Kate Brown on June 15th, and takes effect on January 1, 2022.
SB 181 is intended to expand the number of clients who have access to pro bono representation. For certain statutory claims – including many claims commonly pursued in consumer cases – the court may award reasonable attorney fees to successful parties’ lawyers. However, judges often view pro bono representation as not meriting the same level of hourly fee award as legal work performed for a paying client, even though pro bono work entails the same diligence and skill.
When an attorney offers to undertake pro bono representation for a client who cannot afford to pay an hourly fee, or in a case with a value too small to justify a contingent fee agreement, that does not mean the attorney is agreeing to forego the opportunity to seek a reasonable hourly fee as the prevailing party in the case.
Too frequently, however, judges incorrectly view pro bono representation as an offer to work for free. In fact, many legislators held that mistaken view as well. Fortunately, through the testimony of OSB Consumer Law Section Past Chair Chris Mertens, legislators were educated that pro bono representation means attorneys are undertaking cases at no charge to their clients – not that they are giving up the right to reasonable compensation for their services, should they prevail.
SB 181 clarifies that the fact that a case is undertaken pro bono should not be deemed by the court as a basis to reduce the reasonable attorney fee that is awarded. Encouraging judges to award the full reasonable attorney fees sought in pro bono cases is intended to increase the incentive for lawyers to take on pro bono cases and thereby expand the number of low-income Oregonians who have access to legal representation.
While Chris Mertens was the sole witness to testify before both the Senate and House Judiciary Committees, support for SB 181 was also provided by the Oregon Consumer League, the Oregon Judicial Department, the Oregon Progressive Party, and the Independent Party of Oregon through written testimony.
To view the text and legislative history for SB 181, please see:
https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/SB181