A recent Law 360 story by Lauraann Wood, “Jenner & Block Gets Fees For Prevailing in Pro Bono Suit” reports that Jenner & Block LLP should receive attorney fees under the Illinois Civil Rights Act after the firm prevailed in a pro bono lawsuit launched on behalf of individuals who'd been denied birth certificates with changed sex designations, an Illinois state appeals court said.

A three-judge panel said a lower court incorrectly hinged its fee rejection on the fact that Jenner & Block's attorneys agreed to represent the individuals pro bono and direct any fee award to the American Civil Liberties Union's Roger Baldwin Foundation.  When statutes like ICRA say prevailing parties "shall" be awarded fees, "courts interpret it to mean that an award of fees is mandatory" unless some further qualification is statutorily required, it held.

"Nothing in the language or context of the statute indicates that the legislature intended anything other than that a circuit court is required to award reasonable attorney fees to a plaintiff who qualifies as a prevailing party under the Illinois Civil Rights Act," the panel said.  "Any other interpretation would disregard the plain and unambiguous meaning of the statutory language."

Illinois residents Victoria Kirk, Karissa Rothkopf and Riley Johnson sued Damon Arnold, the former state registrar for vital records, in 2009 after he'd cited certain interpretations of the state's Vital Records Act to deny their applications for new birth certificates.  Arnold issued the certificates after the residents sued and told them the department had stopped the practices that resulted in their application denials, which resulted in their suit getting dismissed as moot, according to the order.

The plaintiffs argued in their fee request that their case's resolution made them the prevailing party under ICRA's fee shifting statute, since their lawsuit was the catalyst for the registrar's changed position.  Arnold didn't dispute that position, according to the order.  The lower court awarded Jenner & Block $6,168 in costs but said Jenner & Block's pro bono counsel status meant it couldn't collect fees it hadn't actually incurred, according to the order.  However, that reasoning incorrectly reads extra qualifications into the ICRA's fee-shifting statute, the panel said.

Section 5(c) of the ICRA requires courts to award "reasonable" attorney fees to prevailing parties, but the statute "contains no additional qualifying language indicating that the fees must be 'incurred' by a prevailing party to be recoverable," the panel said.

The lower court also incorrectly found that courts tend not to allow statutory attorney fees where no fees were actually incurred, the panel said.  Fee availability is controlled by the language of the statute at issue in a case, and state courts follow the basic rule that "whether the attorney charges a fee or has an agreement that the organization that employs him will receive any awarded attorneys' fees are not bases on which to deny or limit attorneys' fees or expenses," the panel said, quoting case law on the issue.  The panel remanded the case for further proceedings because the lower court didn't outline any specific number of hours or fee amount that it would have provisionally allowed if it would have granted fees at all.