The plaintiffs' lawyers handling the $3.4 billion settlement in a Native American class action yesterday received subpoenas from the chairman of the House Natural Resources Committee, who is investigating the lawyers' demand for more than $223 million in legal fees.
Congressman Doc Hastings (R-Wa.) demanded in the subpoena (PDF) that the class counsel, including Washington solo practitioner Dennis Gingold and Kilpatrick Townsend & Stockton’s Keith Harper, turn over documents about the plaintiffs’ contingency fee agreements.
Lawyers in the Cobell case, a long-running dispute over accounting of money the government has held in trust for thousands of Native Americans, said $223 million in fees is reasonable in part due to the 14.75 percent contingency arrangement. The terms of the settlement said the plaintiffs’ cannot assert more than $99.9 million in fees. The presiding judge has the final say on any award for class counsel.
A spokesman for the House Natural Resources Committee, Spencer Pederson, said the plaintiffs’ lawyers have refused to provide lawmakers with any information about the contingency fee arrangement.
“This exorbitant, secret fee agreement is nothing more than an underhanded maneuver to fleece individual Indians out of money that belongs to them,” Pederson said. “Further, the Department of Justice has strongly rejected the plaintiffs’ excessive petition for over $200 million in fees.”
Hastings and Congressman Don Young (R-Alaksa) in March introduced legislation to cap legal fees in the Cobell case at $50 million. Hastings and Young have described the Cobell lawyers' demand for more than $223 million in fees as deceptive.
With Congress on recess last week, the natural resources committee did not vote on the issuance of the subpoena, which Hastings signed April 25 in Washington state. The subpoena demanded information by May 13. The committee chairman has the power to issue a subpoena on his own if the committee has been adjourned for more than three days.
Congressman Edward Markey of Massachusetts, ranking Democratic member of the natural resources committee, criticized the issuance of subpoenas in a May 3 letter (PDF) to Hastings.
"This action, taken without prior notice or approval of the Committee, and without any consultation with the Minority, raises serious questions of decorum, undermines the legitimacy of any future investigation into these matters, and could threaten to destroy pending settlement of a century-old patter of abuse of Native Americans by the United States government."
Markey said no emergency necessitated the issuance of subpoenas without the full consultation of the committee. He said a majority of committee members would not have supported the subpoenas. Hastings' request, Markey said, is less a legitimate inquiry than a "partisan, personal attack on these attorneys, undertaken outside the bounds of appropriate Committee business."
Gingold said today the plaintiffs’ lawyers have not responded to the demand for information. He said the subpoena touches on attorney-client information that “is obviously confidential.”
Cobell’s lawyers and the Justice Department recently declined to participate in a hearing on attorneys’ fees in the case, citing the pending litigation in the U.S. District Court for the District of Columbia. DOJ is opposed to any fee above $99.9 million.
“Our first responsibility is to our clients and to the court,” Gingold said today. “We agree with the Justice Department that the matter is before a United States district court and the committee does not have jurisdiction over these issues.”
Gingold said the legislation Congress passed last year—and that President Obama signed in December, authorizing the Cobell settlement—leaves the decision over fees in the hands of the presiding U.S. district court judge. “This matter is before a court,” Gingold said. “It is not part of a political process.”
Gingold also said the contingency fee agreement is not binding on the judge.