Oregon Supreme Court Clarifies Who Is Entitled to Attorney Fees
August 2010 — Colby v. Gunson was a case in which an attorney, on his own behalf, made a request for an autopsy report under Oregon’s public records law.
Mr. Colby was ultimately successful in obtaining the report in the Oregon Court of Appeals, but he was denied attorney fees because, the court reasoned, “attorney fees” under the statute only includes a charge by an attorney that a separate entity is obligated to pay.
The ACLU was concerned about the ambiguity that this creates in situations where attorneys provide pro bono representation to clients and filed an amicus on behalf of Mr. Colby that several other groups joined.
The ability to recover attorney fees for violation of constitutionally protected rights is often one of the greatest incentives for governmental agencies to discontinue prohibited activity. This is particularly true when the economic damages for such violations are insubstantial or the relief sought is only declaratory. Since the bulk of ACLU litigation is conducted on a pro bono basis, the outcome of this case could have significantly altered the bargaining power of our efforts to stop violations of the law.
On Aug. 26, 2010, the Oregon Supreme Court reversed the Court of Appeals and ruled that Mr. Colby was entitled to recover the reasonable value of his own legal services under the statute. This decision also ensures that public interest groups that rely on volunteer attorneys will be able to continue receiving attorney fees.
The cooperating attorney was Tom Christ of Cosgrave Vergeer Kester LLP.