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Court Resolves Fee Dispute in Native American Land Trust

By William Vogeler, Esq. on October 26, 2018 | Last updated on March 21, 2019

Tribal lawsuits make headlines sometimes because they are like cases from a different country.

Technically, they are because Native American tribes exist as sovereign nations within the United States. In Cobell v. Zinke, the underlying case involved an historic dispute over a tribal land trust.

But the issue before the DC Circuit Court of Appeals this time addressed only the attorney's fees in the case. It didn't matter much to the tribes, but it was a big deal for one attorney.

Attorney's Fees

Mark Kester Brown worked on the case for years before things broke down among the litigation team members. They assigned less and less work to him, and he eventually moved out of the jurisdiction.

When they filed a motion for fees, they didn't include Brown's information so he filed his own. A trial judge awarded him $2.88 million at his usual rate of $350 an hour, plus pre-judgment interest.

The other plaintiffs' attorneys appealed, arguing that Brown violated his ethical duties by withdrawing from the case without informing his clients or the court. They also said the trial court abused its discretion by awarding pre-judgment interest.

"We conclude that there was no abuse of discretion by the district court," the appeals court said. "Trial courts have broad discretion in determining attorney's fees."

"Broad Discretion"

The DC Circuit dealt with the case in summary fashion. The decision barely filled six pages.

It was a somewhat anti-climactic end to a case that included a $3.4 billion payout to hundreds of thousands of Native Americans. Plus $2.88 million for one California lawyer.

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